Bear Brand Hosiery Co.

National Labor Relations Board - Board Decisions

Jan 2, 1943

46 N.L.R.B. 609 (N.L.R.B. 1943)

In the Matter of BEAR BRAND HOSIERY Co. and INTERNATIONAL BROTHER-
HOOD OF FIREMEN & OILERS, LOCAL 296 , AFFILIATED WITH THE A. F. L.
Case No. C,04118.-Decided January 2, 1943
Jurisdiction : hosiery manufacturing industry.
Unfair Labor Practices
Collective Bargaining: employer not justified in its refusal to bargain with certified
representative on ground that certification was based upon erroneous findings
in a proceeding which was pending court review.
Remedial Orders : order to bargain collectively upon request. -
Unit Appropriate for Collective Bargaining : powerhouse employees, excluding
chief engineer.
DECISION
AND
ORDER
On November 16, 1942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action as set out in the copy of the Intermediate Report attached hereto.
Thereafter the respondent filed exceptions to the Intermediate Report.
The Board has considered the Intermediate Report, the exceptions, and
the entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the additions noted
below.
The respondent defended its refusal to bargain with the Union on
the ground that the prior certification of the Union by the Board on
May 19,,1942,1 was erroneous. In addition to the contentions of the
respondent relative thereto set out in the Intermediate Report, the
respondent contended that the certification was erroneous because based
upon an erroneous Second Supplemental Decision and Direction 2
I Matter of Bear Brand Hosiery Company and United Textile Workers of America, Local
256i, affiliated with the A F of L, 41 N L R. B 120
2 40 N. L R B. 507, wherein, by virtue of the findings in the Decision and Order
referred to in footnote 3, the Board directed that the ballots of 15 powerhouse employees
who had been discharged or mere on strike at the time of the election, and whose votes were
challenged by the respondent, should be opened and counted, and that the ballots of 15
employees who-replaced the discharged and striking employees should not be counteu
4GN L R B, No. 72
503 086-43-vo1 46--39 609
610 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issued by the Board on April 23, 1942, which in turn was based upon
erroneous findings in a Decision and Order 3 issued by the Board on
April 9,1942, in an unfair labor practice proceeding, which was pending
decision, upon petition by the Board for enforcement of the Order,
in the, Circuit Court of Appeals •f or the Seventh Circuit, at the time of
the proceedings herein 4
An order of the Board is final and binding upon the parties thereto
unless reversed upon appropriate judicial review. Consequently, the
respondent was not justified in refusing to bargain with the representa
tive certified by the Board and its refusal to do so constituted a violation
of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Bear Brand Hosiery Co.,
Kankakee, Illinois, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brother-
hood of Firemen & Oilers, Local 296, affiliated with, the American
Federation of Labor, as the exclusive representative of all its power-
house employees at its Kankakee, Illinois, plant, exclusive of the chief
engineer;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights to self-organization, to form,
join, or assist labor organizations, to 'bargain collectively through
representatives of their own choosing, and to engage in concerted
activity for the purposes of collective bargaining and other, mutual, aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Brother-
hood of Firemen & Oilers, Local 296; affiliated with the American Fed-
eration of Labor, as the exclusive bargaining representative of the
employees in the unit found appropriate;
(b) Post 'immediately in conspicuous places at its plant in Kan-
kakee, Illinois, and maintain for a period of at least sixty (60) con-
secutive days from the date of posting, notices to its employees stat-
ing : (1) that the respondent will not engage in the conduct from
3 LMTatter of Bear Brand ITosierij Co and International Brothci hood of Firemen and ,
Oilers, Local Old, affiliated with the A F L, 40 N L R B 323, wheiein the Board, found
that the iespondent had discriminatorily discharged certain poaeibouse employees, that
the other powerhouse employees went on strike because of the respondent's unfair labor
practices ; and that the Lespondent , in violation of the Act, refused to reinstate the striking
employees upon their application . The Boaid ordeied the reinstatement of the discharged
and striking employees
d On November 27, 1942, subsequent to this proceeding , the Court directed enforcement
of the Boaid ' s order ; N. L. R B. v. Bear Brand hosiery Co , 11 L. R R. 453.
BEAR BRAND HOSIERY CO. 611
which it is ordered to cease and desist in paragraphs 1 (a) and (b)'
of this Order; and (2) that the respondent will take the affirmative-
action set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
INTERMEDIATE REPORT
Dir. Lester Asher, for the Board.
Fyffe & Clark, of Chicago, Ill., for the respondent.
Mr. Howard A. Plank, of Chicago, Ill., for the Union.
STATEMENT OF THE CASE
Upon a second amended charge duly filed on October 13, 1942, by International
Brotherhood of Firemen & Oilers, Local 296, affiliated with the American Federa-
tion of Labor, herein called the Union, the National Labor Relations Board, herein
called the Board, by the Acting Regional Director for the Thirteenth Region
(Chicago, Illinois), issued its complaint, dated October 13, 1642, against Bear
Brand Hosiery Co r Kankakee, Illinois, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1) and (5) and Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint accompanied by notice of hearing were duly served
upon the respondent and the Union.
Concerning the unfair labor practices, the complaint alleged in substance
(1) that on September 18, 1941, the Board in its Decision and Direction of
Elections in Case No R-2895 3 found that all the powerhouse employees of the
respondent, excluding the chief engineer, employed at its Kankakee plant, con-
stituted a unit appropriate for collective bargaining; (2) that on May 19, 1942,
the Board, in its Third Supplemental Decision and Certification of Representa-
tives in the same case,3 certified the Union as the exclusive representative of all
employees in said unit for the purpose of collective bargaining, and that the
Union is still such representative; (3) that on or about June 26, 1942', and since,
the Union requested the respondent to bargain collectively and the respondent
refused; and (4) that by such refusal the respondent interfered with, re-
strained, and'coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
On October 23 and 28, 1942, the Acting Regional Director issued Orders con-
tinuing the hearing, copies of which were duly served upon the respondent
and the Union.
On November 6, 1942, the respondent filed an answer admitting certain allega-
tions of the complaint as to its business, as to certain proceedings of the Board
leading to the certification of the Union, and as to the request and the refusal to
bargain; the respondent, however, denied the commission of the alleged unfair ,
labor practices, and averred that the certification and the findings and dlrec-
I In the earlier proceedings hereinafter referred to, and in the respondent's answer in
this, the woi d "Co " is spelled out.
2 Matter of Bear Brand Hosiery Company and United Textile Worlcr3 of Amei ica, Local
8564, afl'tl: ated with the A F of L, 35 N L R B 500
1 41 N. L R B 120
612 \ DECISIONS OF NATIONAL ,LABOR RELATIONS BOARD
tions leading to such certification were erroneous because based upon erroneous
findings by the Board as to the appropriatness of the said unit.
Under date of November 6, 1942, the respondent, the Union, ' and counsel for
the Board executed a "Stipulation and Agreed Statement of Facts," hereinafter
called the Stipulation, paragraph II of which is as follows :
This stipulation and Agreed Statement of Facts, together with the second
amended charge, complaint and notice of hearing, Orders of Continuance,
and answer of the respondent, shall be filed with the Acting Chief Trial
Examiner of the Board in Washington, D C., and'shall constitute the entire
record in this proceeding' Upon said record a Trial Examiner, designated
by the Acting Chief Trial Examiner shall prepare and issue his Intermediate
Report. , However, nothing contained herein shall foreclose the taking of
additional evidence if so ordered by the Acting Chief Trial Examiner, the
Board, or by the Court.
The documents hereniabove referred to, having been filed with the Acting
Chief Trial Examiner of the Board in Washington, D C, the Acting Chief Trial
Examiner, pursuant to the terms thereof, on November 13, 1942, designated
Samuel H Jaffe, the undersigned Trial Examiner, to prepare and issue an
Intermediate Report on said record
Upon the entire record in the case, the undersigned makes the following:
FINDINGS OF FACT 5
-I THE BUSINESS 01' THE RESPONDENT
Bear Brand Hosiery Co., "an Illinois corporation with its principal office in
Kankakee, Illinois, operates three plants located, respectively, at Kankakee,
Illinois; Gary, Indiana; and Henderson, Kentucky. At the Kankakee plant,
the only one here involved, the respondent is engaged in the spinning of cotton
yarn and the knitting of circular and full-fashioned hosiery. During the year
1941, raw materials consisting of raw cotton, cotton yarn, nylon, and chemicals,
amounted in value to approximately $1,500,000, of which more than 90 percent
were shipped from points outside the State of Illinois During the same period
the total receipts from sales of products manufactured at the Kankakee plant
exceeded $4,000,000, of which approximately, 85 percent were received from sales
of products delivered outside the State of Illinois."
'Certain material was included by reference Paragraph V of the Stipulation iecited,
inter alga, that on August 18, 1941, a hearing in Case No. R-2895 (see footnote 2, sepia),
was held "before a Tiial Exanrinei, at which all parties to said case appealed and were
heard," and that "The evidence received in said case is incorpoiated in the record herein
to the same extent and with the same effect as though said evidence had been duly ieceiied
at a formal hearing herein "i After reciting further pioceedings leading to the ceitification
of the Union, Paiagraph V of the Stipulation cont,nued as follows • "Said Decision and
Direction of Elections [35 N. L. R B. 500], Election Reports, Objections to the Election
Report, Report on Objections to Election Repoit, Supplemental Decision and Certification
of Repicsenta^tives [36 N. L R. B. 784], Second Supplemental Decision and Direction
[40 N. L. R. B. 807], Supplemental Election Report, and Third Supplemental Decision and
Certification of Repiesentatives [41 N L It. B. 120], are by this reference made a part
hereof to the same extent and with the same effect as though fully set out herein" And
paragraph VI of the Stipulation stated that, "As set forth in the Second Supplemental
Decision and Direction (i0 N L R B. 807) the Board issued a Decision and Ordei".in
a case involving the respondent and the Union, being Case No. C-2062. 40 N L R B
323, now pending before the Circuit Court of Appeals (7th) on the Board's petition for
enforcement
5 The undersigned accepts the recitals of the Stipulation as fact herein Unless the
context indicates otherwise , the quotations which follow are from the Stipu atiou
BEAR BRAND HOSIERY CO.
II. THD LABOR ORGANIZATION INVOLVED
613
International Brotherhood of Firemen & Oilers, Local 296, affiliated with the
American Federation of Labor, "is a labor organization," admitting to member-
ship employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
The refusal to bargatit
1. The appropriate unit and representation by the Union of a majority therein
"On September 18, 1941, the Board issued a Decision and Direction of Elec-
tions in [Case No. R-2895, 35 N. L. R B 500] finding, among other things, that
all powerhouse employees of the respondent, excluding the chief engineer, con-
stitute a unit appropriate for the purposes of collective bargaining" "On Octo'
her, 2, 1941, elections were held pursuant to said Direction of Elections. On
October 9, 1941, the Regional Director issued and served upon the parties Elec-
tion Reports with respect to the balloting. On October 14, 1941, the respondent
filed its Objections to the Election Report in connection with the balloting among
the powerhouse employees. On October 21, 1941, the Regional Director issued
and served upon the parties his Report on Objections to Election Report On
November 7, 1941, the Board issued a Supplemental Decision and Certification
of Representatives (36 N. L. R B 7S4) 9 On April 23, 1942, the Board issued
a Second Supplemental Decision and Direction (40 N. L. R. B. 807). On May
2, 1942, the challenged ballots were opened and counted, pursuant to said Second
Supplemental Decision and 'Direction On May 6, 1942, the Acting Regional
Director issued and served upon the parties his Supplemental Election Report.
No objections to the Supplemental Election Report were filed by any of the parties.
On May 19, 1942, the Board issued a Third Supplemental Decision and Certifica-
tion of Representatives (41 N. L. It B 120)" certifying the Union as the repre-
sentative for the purpose of collective bargaining of the employees in the unit
hereinabove referred to. It is unnecessary here to repeat the proceedings set out
in the decisions cited.
The respondent contests the appropriateness of the unit referred to above, and
hence the subsequent certification of the Union therefor As stated in the Deci-
sion and Direction of Elections (35 N. L. R. B. 500, footnote 2), it "opposed an
election among the powerhouse employees since the [Union] had not requested
recognition prior to the hearing." The Board there found this contention to be
without merit. No further evidence to support the respondent's contentions was
'introduced in the present proceeding. Similarly, no evidence was introduced in
the present proceeding to rebut the presumption arising from the certification
that the Union is still the representative of. the majority of the employees of the
respondent in the appropriate unit. A re-exanmination of the record supports the
determinations made, and the undersigned finds in accordance therewith.
The undersigned finds, in accordance with the Board's previous determination,
that as powerhous° employees of the respondent at its Kankakee, Illinois plant,
excluding the chief engineer, constitute and at all times material herein consti-
tuted, •i unit appropriate for the purposes of collective bargaining , The under-
,igned further finds that on and at all times after May 19, 1942, the Union was
the duly designated bargaining representative of a, majority of the employees in
e As appears therein, another union was certified for a unit of the employees other than
those in the powerhouse.
463 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the aforesaid appropriate unit, and that, pursuant to the provisions of Section 9
(a) of the Act, the Union was on May 19, 1942, and at all times thereafter has
.been and is now the-exclusive representative of all employees in the aforesaid
.unit for the purposes of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment.
2 The refusal to bargain
"On June 26, 1942, the Union requested the respondent to bargain collectively
with respect to rates of pay, wages, hours of employment and other conditions of
omploynient with the Union as the exclusive representative of all the employees
in the unit."' The respondent refused. "On June 26, 1942, the Union sent a letter
to the respondent" renewing the request. "The respondent did not reply to this
letter." On July 9, the Union again renewed the request and was again Ief used
The same day it sent a letter to the respondent confii ming the last request and
refusal "The respondent did not reply to this letter. The respondent has i efused
to bargain collectively with the Union as the exclusive representative of all the
employees in the unit, declaring that the Union does not represent any of the
employees in the unit because none of the 15 persons whose ballots were opened
.and counted on May 2, 1942, were then or are now employees of the respondent." °
"At all times, since June 26, 1942, up to and including the making of (the) Stipula-
tion, the respondent has maintained the position" hereinabove set forth.
The undersigned finds 'that the respondent on June 26,. 1942, and at all times
thereafter, has refused to bargain collectively with the Union as the exclusive
representative of its employees in the appropriate unit and has thereby inter-
Tiered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
-connection with the operations of the respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and, the free flow of commerce.
V THE REMEDY
Since it has been found that the respondent has engaged in unfair labor prac-
tices, it will be recommended that it cease a'nd,desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. Since it has been
found that the respondent has refused to bargain collectively With the Union as
the exclusive representative of its employees in an appropriate unit, it will be
recommended that the respondent, upon request, bargain collectively with the
Union
Upon the basis of the above findings of fact and upon the entire record in the
ease, the undersigned makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Firemen & Oilers, Local 296, affiliated with
the American Federation of Labor, is a labor organization, within the meaning
of section 2 (5) of the Act.
This contention was rejected by the Board in 40 N. L R B. 807.
s See Matter of Marshall Field & Company, etc., 43 N. L. R. B. 874.
BEAR BRAND HOSIERY CO. 615
2. All powerhouse employees of the respondent, at its Kankakee, Illinois, plant,
excluding the chief engineer, at all times 'mnaterial herein constituted, and now
constitute, a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (h) of the Act.
3 International Brotherhood of Firemen R Oilers, Local 296, affiliated with
the American Federation of Labor, was on May 19, 1942, and at all times there-
after has been, the exclusive representative of all the employees in the aforesaid
unit for the purposes of collective bargaining, within the meaning of Section 9
(a) of the Act.
4 By refusing on June 26, 1942, and at all times thereafter to bargain col-
lectively tvith International Brotherhood of, Firemen & Oilers, Local 296, affiliated
with the American Fedei ation of Labor, as the exclusive representative of all its
employees in the aforesaid appropriate unit, the respondent has engaged in and
is engaging,in,unfair labor practices, within the meaning of Section 8 (5) of the
Act.
5. By interfering "with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
6 The aforesaid unfair labor practices are unfair,labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case , the undersigned recommends that the respondent,
Bear Brand Hosiery Co ., Kankakee , Illinois, and its officers , agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brotherhood of Firemen
& Oilers, Local 296, affiliated with the American Federation of Labor, as the
exclusive representative of all its powerhouse employees at its Kankakee , Illinois,
plant, excluding the chief engineer ;
(b) Engaging in any like or related acts or conduct interfering with, restrain-
ing, or coercing its employees in the exercise of the right to self-organization,
to form , join , or assist labor organizations , to bargain collectively through repre-
sentatives of their own choosing , and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protection , as guaranteed
in Section 7 of the Act. I
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Upon request , bargain collectively with International Brotherhood of
Firemen & Oilers , Local 296, affiliated with the American Federation of Labor,
as the exclusive representative of all its powerhouse employees at its Kankakee,
Illinois, plant , excluding the chief engineer;
(b) Post immediately in conspicuous places at its Kankakee , Illinois , plant,
and maintain for a period of at least sixty ( 60) consecutive days from the date
of posting, notices to its employees stating: (1) that the respondent will not
engage in the conduct from which it is recommended that it cease and desist
in paragraphs 1 (a) and ( b) of these recommendations , and (2 ) that the respond-
ent will take the affirmative action set forth in paragraph 2 (a) of these
recommendations;
(c) Notify the Regional Director for the Thirteenth Region in writing , within
ten (10 ) days from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply herewith.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the
action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as-amended, effective October 14,
1942-any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board, Shorehain Building, Wash-
ington, D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding as he relies upon, together with the original and four copies of a
brief in support thereof. As further provided in Section 33, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing to the Board within ten (10) days after the date of the order
transferring the case to the Board. I -
SAMUEL H. GAFFED
Trial Examiner.
Dated November 16, 1942.