Emple Knitting Mills

National Labor Relations Board - Board Decisions

Mar 18, 1965

151 N.L.R.B. 789 (N.L.R.B. 1965)

EMPLE KNITTING MILLS 789
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered , defaced , or covered , by any other material. .
Employees may communicate directly with the Board 's Regional Office, 881 U.S.
Courthouse and Federal Office Building , 219 South Dearborn Street , Chicago, Illinois,
Telephone No. 828-7572, if they have any questions concerning this notice or
compliance with its provisions.
Emple Knitting Mills and International Ladies' Garment Work-
ers Union , AFL-CIO. Case No. 1-CA-4730. March 18, 1965
DECISION AND ORDER
On December 30, 1964, Trial Examiner Thomas A. Ricci issued
his Decision in the above-entitled proceeding finding that Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist therefrom, and
take certain affirmative action as set forth in the attached Decision.
Thereafter, Respondent filed exceptions to the Trial Examiner's
Decision, with a supporting brief, and the General Counsel filed a
brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the National Labor Relations Board has delegated
its powers in connection with this case to a three-member panel
[Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts the Order recommended by the
Trial Examiner and orders Respondent Emple Knitting Mills,
Brewer, Maine, its officers, agents, successors, and assigns, to take
the action set forth in the Trial Examiner's Recommended Order.
'We correct the following inadvertent errors, in the Trial Examiner's Decision. The
Respondent's executive vice president is named Nass , not Ness. The date upon which
the Union attained majority status in the appropriate unit is August 3, 1964, not
August 3, 1963 , as the Trial Examiner states at one point.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A hearing in the above-entitled proceeding was held before Trial Examiner
Thomas A. Ricci, on December 8, 1964, at Boston , Massachusetts , on complaint of
151 NLRB No. 92.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the General Counsel against Emple Knitting Mills, herein called the Respondent or
the Company. The sole issue litigated is whether the Respondent violated Section
8(a)(5) of the Act.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Emple Knitting Mills, a corporation existing under the laws of the State of Maine,
is engaged in the manufacture, sale, and distribution of knitted goods and related
products, and maintains its principal office and place of business in the city of
Brewer, County of Penobscot, Maine. In the course of its business the Respondent
causes large quantities of wool and related products to be purchased, and sold and
transported in interstate commerce. It annually ships goods valued in excess of
$50,000 to points located outside the State of Maine and annually receives goods
valued in excess of $50,000 from out-of-State sources. I find that the Respondent
is engaged in commerce within the meaning of the Act and that it will effectuate the
policies £ the Act to exercise jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers Union, AFL-CIO, herein called the
Union, is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICE
The complaint in this case, alleging an illegal refusal to bargain, was issued after,
and essentially rests upon, a fully litigated representation proceeding (Case No.
1-RC-7495) which terminated in certification of the Union as the statutory exclusive
representative of the Respondent's employees in a certain appropriate bargaining
unit. After the certification the Union demanded that the Respondent recognize it
and bargain; the Respondent refused to do so. The only justification advanced by the
Company for its refusal is a contention that the certificate is "invalid" as a matter
of law. More precisely the Respondent contends that a formal Board hearing to
resolve a critical challenged ballot did not constitute adequate investigation.
The representation petition by the Union was filed on July 11, 1963, and a 2-day
hearing on the petition was held before a Hearing Officer on August 1. Pursuant to
a regular decision and direction of election, a secret ballot election under Board
auspices took place on September 17, 1964. There were a number of challenges
which were resolved by supplemental decision of the Regional Director; exceptions
were filed by the Union to only one of the findings of the Regional Director, that
involving the challenged ballot of employee Frank Leeman. The Regional Director
was of the opinion that Leeman was not an eligible voter. In consequence of an
appeal the Board in Washington directed that a hearing be held before a Hearing
Officer to resolve the question of Leeman's eligibility. On the basis of the tally of
ballots, as revised after appropriate action had been taken on the challenges finally
resolved by the Regional Director, the vote stood at 67 votes in favor of the Union
and 67 against union representation.
On January 16 and February 5, 1964, a hearing was held before a duly designated
Hearing Officer on the challenge to Leeman's ballot. The Union was represented
by counsel, and the Respondent by Gerald E Rudman, Esq. Rudman had repre-
sented the Company from the inception of that proceeding, and participated in the
original hearing on petition. There was also in attendance, both in January and
February, Ness, the Respondent's executive vice president. On the record made at
that hearing the Hearing Officer recommended that Leeman's ballot be deemed valid.
The Respondent filed exceptions to the Hearing Officer's report and the matter
was considered by the Board. On July 17, 1964 it issued its decision in which it
sustained the Hearing Officer's finding, concluded that Leeman's vote was valid, and
directed it be opened and counted. After this vote was counted, the final results
of the election were 68 votes in favor of the Union and 67 against. Accordingly,
on August 3, 1964, the Regional Director issued a certification of representatives in
favor of the Union.
Thereafter, in November, the Respondent moved that the Board reconsider its
decision and order a new hearing on Leeman's eligibility. The motion was denied
on November 19.
On August 17 the Union called upon the Respondent to meet with its agents for
the purpose of negotiating a collective-bargaining agreement; it repeated this request
EMPLE KNITTING MILLS 791
by a second letter dated August 31. On September 3, 1964, Respondent's Lawyer
Rudman answered both letters and unequivocally refused to recognize the Union or
to bargain. He stated the following as his reason:
The employees of this Company rejected the Union in the election held in
September 1963. During the past year substantially all of the employees have
indicated that the Company should ignore the Union as they feel that the par-
ticipation in the election by new employees hired in 1963 and released without
expectancy of recall or any sincere intentions of returning to work was unwar-
ranted and was prejudicial to the continuing interests of the regular, steady
employees. The employees have continued to exercise their individual bargain-
ing powers to their complete satisfaction in their relationship with the Company.
Further interference by the Union with their affairs might very well be con-
sidered as predatory rather than helpful by a vast majority of the employees.
At the hearing on the complaint, a new attorney, Joseph Lepie, appeared for the
Respondent. He asserted, and offered to prove, that at the formal hearing on the
challenge to employee Leeman's ballot, information from Ness, the company execu-
tive vice president, had not been placed in evidence; he argued that because of this
fact the Board's certification of the Union was invalid, the Respondent was not obli-
gated to bargain, and the complaint must be dismissed.
The basic applicable principle of Board law is clear. In a complaint proceeding
a Respondent may not raise issues that inhere in matters which have been considered,
litigated, and decided in the representation proceeding. In the interests of finality
of adjudication the Board has consistently refused to reconsider, in subsequent unfair
labor practice cases alleging a refusal to bargain, questions which have been disposed
of in a prior representation proceeding.'
An exception to this rule is the situation where newly discovered evidence is pro-
duced. This is concededly not such a case. The evidence of which the Respondent's
new counsel speaks is knowledge possessed by Ness. He was present at all times at
the hearing on challenge; the fact that he had previously told a Board investigator
what he knew, and had even reduced his information to writing, in no way alters
the fact it was his knowledge at the time. It is also admitted his then lawyer,
Rudman, knew of whatever it is the Respondent now feels ought belatedly be con-
sidered. Indeed, it is clear the lawyer then had in his possession a copy of the very
statement which Ness had signed for Attorney Lepie, at the present hearing, attempted
to place it in evidence? Moreover, both in its exceptions to the Hearing Officer's
recommendation respecting Leeman's ballot, and in its motion for reconsideration to
the Board later, the Respondent expressly relied upon the facts possessed by Ness
as grounds for a contrary findings respecting the employee's eligibility. The question
which Respondent is now attempting to raise has therefore already twice been con-
sidered by the Board in the representation proceeding.
The Board having certified the Union in August of 1964 as the exclusive repre-
sentative of the employees, the validity of the certification shortly thereafter as a
matter of law, is conclusively presumed .3 At bottom every complaint alleging a
violation of Section 8(a)(5) of the Act raises a question of good or bad faith.
There is strong indication on this record that the argument now advanced by the
Respondent in justification of its clear refusal to bargain is only an afterthought.
When Attorney Rudman refused to bargain, he said nothing about adequacy or fair-
ness of the hearing on challenge; he did not mention employee Leeman. Instead, he
called the Union "predatory," and said it was "interfering" with the employees. His
assertion that in the period after the election the employees had "indicated that the
Company should ignore the Union" reveals rejection of the entire statutory scheme,
which places upon the Board the primary duty and responsibility to resolve questions
concerning representation by secret elections.
The complaint alleges, the answer admits, and I find that all production and
maintenance employees of the Respondent's Brewer, Maine, plant, including ship-
ping and receiving employees and seasonal employees, but excluding office clerical
employees, technicians, guards and all supervisors, as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
I also find that at all times material herein, and more particularly since August 3,
1963, the Union has been the representative for the purposes of collective bargaining
' The Mountain States Telephone and Telegraph Company, 136 NLRB 1612; 0. K. Van
and Storage, Inc., 127 NLRB 1537.
2 Ness' affidavit was rejected as a proposed exhibit.
3 Ray Brooks v. N.L.R.B., 348 U.S. 96.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a majority of the employees in said unit and, by virtue of Section 9(a) of the Act,
has been and is now the exclusive representative of all the employees in the said
unit for the purposes of collective bargaining in respect to rates of pay, wages, hours
of employment , and other conditions of employment.
On the entire record I conclude that by refusing to bargain with the Union on
August 17, 1964, and continuously thereafter, the Respondent has violated Section
8(a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with its operations as 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 obstructing the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices I
shall recommend that it be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. Accordingly, the
Respondent will be ordered to bargain collectively with the Union in the unit found
appropriate , and if an understanding is reached , embody such understanding in a
signed agreement.
Upon the basis of the foregoing findings of fact, and upon the record in its
entirety , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees at the Respondent's Brewer, Maine,
plant, including shipping and receiving employees and seasonal employees, but
excluding office clerical employees , technicians , guards, and all supervisors , as defined
in the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. The above-named labor organization was certified on August 3, 1964, and all
times thereafter has been duly certified collective-bargaining representative of
Respondent's employees in the appropriate unit, within the meaning of Section 9(a)
of the Act.
5. By refusing on and after August 17, 1964 to meet with the above-named labor
organization for purposes of collective bargaining the Respondent has engaged and
is engaging in unfair labor practices within the meaning of Sections 8(a) (5) and (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and ( 7) of the Act.
RECOMMENDED ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is
hereby ordered that the Respondent Emple Knitting Mills, Brewer, Maine, its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International Ladies' Garment Workers
Union, AFL-CIO, as the exclusive representative of all employees in the following
bargaining unit:
All production and maintenance employees at the Respondent's Brewer, Maine,
plant, including shipping and receiving employees and seasonal employees, but
excluding office clerical employees, technicians, guards, and all supervisors, as defined
in the Act.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form, join, or assist
any labor organization, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any and all such
activities, except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment as authorized
in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
EMPLE KNITTING MILLS 793
2. Take the following affirmative action which I find will affectuate the policies
of the Act.
(a) Upon request, bargain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit described above, with respect to
rates of pay, wages, hours of employment, and other terms and conditions of employ-
ment, and if an understanding is reached, embody such understanding in a signed
agreement.
(b) Post at its place of business in Brewer, Maine, copies of the attached notice
marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director
for Region 1, shall, after being signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including all places where notices to
its employees are customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by any other material.
(c) Notify said Regional Director, in writing, within 20 days from the date of
receipt of this Decision, what steps it has taken to comply herewith.5
4 In the event that this Recommended Order Is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words, "the Recommended Order of a
Trial Examiner" in the notice If the Board's Order is enforced by a decree of a
United States Court of Appeals, the notice will be further amended by the substitution
of the words "a Decree of the United States Court of Appeals, Enforcing an Order"
for the words "a Decision and Order "
'In the event this Recommended Order Is adopted by the Board, this provision shall
be modified to read* "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps it has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with International Ladies' Garment
Workers Union, AFL-CIO, as the exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT in any like or related manner interfere with , restrain , or coerce
our employees in the exercise of their right to self-organization, to form, join,
or assist any labor organization, to bargain collectively through representatives
of their own choosing and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain from any
and all such activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL bargain collectively, upon request, with the Union as the exclusive
representative of all our employees in the bargaining unit described below with
respect to rates of pay, wages, hours of employment, and other terms and con-
ditions of employment, and if an understanding is reached, embody such under-
standing in a signed agreement.
The bargaining unit is:
All production and maintenance employees at the Respondent's Brewer,
Maine, plant , including shipping and receiving employees and seasonal
employees, but excluding office clerical employees, technicians, guards, and
all supervisors, as defined in the Act.
EMPLE KNITTING MILLS,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Boston Five
Cents Savings Bank Building , 24 School Street, Boston, Massachusetts, Telephone No.
523-8100, if they have any question concerning this notice or compliance with its
provisions.