Talladega Cotton Factory, Inc.

National Labor Relations Board - Board Decisions

Sep 25, 1950

91 N.L.R.B. 470 (N.L.R.B. 1950)

In the Matter of TALLADEGA COTTON FACTORY, INC., EMPLOYER and
TEXTILE WORKERS UNION OF AMERICA, CIO, PETITIONER
Case Alo. 10-RC-668.-Decided September 25, 1950
DECISION AND CERTIFICATION OF REPRESENTATIVES
On August 25, 1949, pursuant to a "Stipulation for Certification
upon Consent Election," an election by secret ballot was conducted
under the direction and supervision of the Regional Director for the
Tenth Region, among the employees in the stipulated unit. Upon
the completion of the election a tally of ballots was furnished the
parties. The tally reveals that of the approximately 159 eligible
voters, 153 cast ballots, of which 77 were for the Petitioner, 71 were
against the Petitioner, 3 were void, and 2 were challenged.
On September 1, 1949, the Employer filed objections to conduct af-
fecting the results of the election. After an investigation, the Re-
gional Director, on October 26, 1949, issued his, report on objec-
tions, in which he recommended that the objections be overruled. On
November 7, 1949, the Employer filed exceptions to the Regional
Director's report on objections.
On January 20, 1950, upon consideration of the Regional Director's
report and the exceptions thereto, the Board issued and served on the
parties an order in which it (1) remanded the matter to the Regional
Director for a hearing, (2) directed the hearing officer to prepare and
serve upon the parties a report containing findings of fact and rec-
ommendations to the Board as to the disposition of the exceptions,
and (3) granted the parties 10 days after service of the hearing
officer's report to file exceptions thereto.
Pursuant to notice, the hearing was held on March 28, 1950, before
James W. Mackie, hearing officer. All parties appeared and partici-
pated. The Employer thereafter filed a brief with the hearing officer.
On May 25, 1950, the hearing officer issued his report, in which he
found that the election was conducted in a free atmosphere and that
the Employer's exceptions were without merit, and recommended that
they be overruled. Thereafter, the Employer filed exceptions to the
hearing officer 's report and a supporting brief.
The Board has reviewed the rulings made by the hearing officer
and finds that no prejudicial error was committed. The rulings are
91 NLRB No. 81.
470
TALLADEGA COTTON FACTORY, INC. 471.
hereby affirmed. The Board has considered the hearing officer's
report, the exceptions thereto, the supporting brief, and the entire
record in this case. For the reasons outlined below we agree with the
hearing officer's ultimate finding that the Employer's objections do
not raise material and substantial issues affecting the election.
1. At the outset of the hearing, the Employer moved to strike that
part of the order of January 20, 1950, which directed the hearing
officer to make findings of facts and recommendations to the Board.
The hearing officer referred this motion to the Board. In support of
the motion, the Employer contends that the Act forbids the making
of findings of fact or recommendations by a hearing officer in a rep-
resentation proceeding.
The. Act, in Section 9 (c) (1), provides in part as follows :
Whenever a petition shall have been filed, in accordance with
such regulations as may be prescribed by the Board .. .
the Board shall investigate such petition and if it has reasonable
cause to believe that a question of representation affecting com-
merce exists shall provide for an appropriate hearing upon due
notice. Such hearing may be conducted by an officer or employee
of the regional office, who shall not make any recommendations
with respect thereto. If the Board finds upon the record of such
hearing that such a question of representation exists, it shall
direct an election by secret ballot. . . .
We do not believe the above limitation on reports by hearing officers
to be applicable to the hearing conducted in this case. The prohibition
appears quite clearly to be applicable only to the hearing normally
conducted before an election is ordered. That hearing was waived
by the parties to this case. The hearing on objections conducted here
is a special proceeding where questions of credibility are often ex-
tremely important. We do not believe, and the legislative history
of the provision quoted above does not indicate, that Congress in-
tended to deprive the Board of the assistance of the hearing officer in
such a situation. Nor do our rules and regulations require any other
result. The parties received ample notice of the procedure adopted
by the Board in this case and none of them appear to have been preju-
diced thereby.
For the foregoing reasons, we deny the motion.
2. With respect to the hearing officer's finding that the election
was conducted in a free atmosphere, the Employer's exceptions al-
leged principally that two of its supervisors, Pilkington and Shiflett,
coerced employees into voting for the Petitioner, and that it did not
know of this coercion before the election. However, the evidence
shows, as the hearing officer found, that the Employer did know
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before the election that Pilkington and Shiflett were sympathetic
toward the Petitioner and active on its behalf. The Employer, ad-
mittedly having heard of Pilkington and Shiflett's prounion activi-
ties, contends that it investigated by questioning the two supervisors,
and believed their denials. The record does not show that such an
investigation was made. It shows, as the hearing officer found, that
the Employer was informed of the conduct of Pilkington and Shiflett
and took no action to disavow it. Moreover, the record shows that
the Employer's position with respect to the Union was amply demon-
strated to the employees by the letters it sent them expressing its
desire that they vote against the Union.
If the Employer had been genuinely concerned with the employees'
opportunity to express a free choice at the pending election, it could
have taken appropriate steps to dissipate the alleged coercive effects
of the conduct of its supervisors. Instead of trying to do so, however,
the Employer chose to permit the election to be held and then, after
discovering that the employees desired representation by the Peti-
tioner, sought to set it aside. We do not consider it necessary to
decide whether the statements and actions of Pilkington and Shiflett
were so coercive as,' under other circumstances, to justify our setting
the election aside. We are satisfied that the Employer, by reason
of its knowledge and acquiescence, as set forth above, may not now
invalidate the election because of the alleged misconduct of its own
representatives.'
As the tally shows that the Petitioner secured a majority of the
valid votes cast in the election, we shall certify }t as the bargaining
representative of the employees in the stipulated appropriate unit.
CERTIFICATION OF REPRESENTATIVES
IT IS HEREBY CERTIFIED that Textile Workers Union of America, CIO,
has been designated and selected by a majority of the production and
maintenance employees of Talladega Cotton Factory, Inc., Talladega,
Alabama, excluding office clerical employees, guards, professional
employees, and supervisors as defined in the Act, as their representa-
tive for the purposes of collective bargaining, and that pursuant to
Section 9 (a) of the Act, the said Union is the exclusive representa-
tive of all such employees for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment, and other
conditions of employment.
. I See E. I. DuPont de Nemours and Company, 81 NLRB 238 ; The Goodyear Tire & Rubber
Company, 85 NLRB 135; Greater New York Broadcasting Company, 85 NLRB 414. Cf.
Robbins Tire & Rubber Co ., Inc., 72 NLRB 157, and Parkchester Machine Corporation, 72
NLRB 1419 . It is the Employer 's knowledge before the election which distinguishes the
present case from the Robbins and Parkchester cases.