Master Slack

National Labor Relations Board - Board DecisionsNov 28, 1975

221 N.L.R.B. 894 (N.L.R.B. 1975)

894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Master Slack ; and/or Master Trousers, Corp., and Hardeman , Garment Corp ., and Morehouse Gar- ment Corp ., and Lauderdale Garment Corp., and Lobelville Garment , Corp . and Amalgamated Clothing, Workers of America,, NFL-CIO.-,Cases 267CA-4924, 26-CA-4977, 26-cA-5013, 26- CA-5057, and 26-CA-5313 November 28, 1975 ORDER BY CHAIRMAN MURPHY AND" MEMBERS FANNING AND - JENKINS On March 19, 1975, Administrative Law Judge Ralph Winkler issued the attached Opinion and Order on Motions To Strike and for Summary Judgment. Thereafter, Respondent filed exceptions and a supporting brief. The General Counsel filed a response to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Opinion and Order in light of the excep- tions, brief, and response and has decided to affirm the rulings, findings, and conclusions of the Adminis- trative Law Judge. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby affirms the rulings, findings, and conclusions of the Administrative Law Judge in his Opinion and Order on Motions To Strike and for Summary Judgment, dated March 19, 1975, and hereby grants the General Counsel's motion to strike Respondent's Mansion House and Savair defenses, but hereby denies the General Counsel's Motion for Summary Judgment. OPINION AND ORDER ON MOTIONS TO STRIKE AND FOR SUMMARY JUDGMENT RALPH WINKLER, Administrative Law Judge: At a formal preliminary hearing in this matter on March 10 and 11, 1975, I granted motions of the General Counsel (a) to strike certain affirmative defenses in the answer filed by Hardeman Garment Corp., hereinafter called the Respon- dent, and (b) for Summary Judgment respecting certain allegations in the amended consolidated complaint herein. The parties were advised at the time that I would issue an opinion on the aforesaid rulings, and that the period for appealing such rulings would not begin to run until issuance of this Opinion. 221 NLRB No. 149 The defenses in question relate to alleged violations of Section 8(a)(5) of the Act and are predicated on N.L.R. B. v. Mansion House Center Management Corp., 473 F.2d 471 (C.A. 8, 1973); Bekins Moving & Storage Co. of Florida, Inc., 211 NLRB 138 (1974); and W.LR.B. v. Savair Manufacturing Co., 470 F.2d 305 (C.A. 6, 1972), affirmed 414 U.S. 270 (1973). The holding of the court of appeals in'the Mansion House case was that "a union which discriminates in its admission policies on the basis of race is not entitled to the benefits of an N.L.R.B. remedial order." Williams -Enterprises,. Inc., 212 NLRB 880 (1974). The Board in the aforementioned Bekins case accepted this Mansion House holding; and in the Williams Enterprises case, above, the Board' also held that where "racially discriminatory employment practices" are raised as an affirmative defense to a complaint alleging a Section 8(a)(5) violation, "the burden of proof is on the Respondent to establish that the Union engaged in the prohibited practices" (212 NLRB at 891). Without defining the outermost limits or even indicating that there are such limits, the Board also held in Williams Enterprises that for "statutory and constitutional reasons" a Mansion House issue "is timely when raised on the first day of an unfair labor practice hearing" (212 NLRB at 891). Respondent bases its second defense on the Supreme Court's affirmance of the court of appeals decision in the Savair case. A hearing before a Hearing Officer was held in the Savair case on the employer's (Savair's) objections to an election; the objection in question involved the union's waiver of initiation fees for all employees who executed authorization cards prior to the election, such waiver being contingent upon the union's victory in the election. The Hearing Officer recommended that the "waiver" objection be overruled under then Board policy enunciated in DIT- MCO, 163 NLRB 1019 (1967), enfd. 428 F.2d 775 (C.A. 8, 1970), and Savair filed exceptions to the Hearing Officer's recommendation. The Board adopted the Hearing Officer's recommendation and certified the union. In a subsequent unfair labor practices proceeding involving Savair's refusal to honor the union's certification, the Board granted a motion for summary judgment, finding a violation of Section 8(a)(5) of the Act (194 NLRB 298). On December 11, 1972, the court of appeals denied enforcement upon holding that the DIT-MCO policy of the Board was wrong as a matter of law and that the waiver of initiation fees involved in Savair was objectionable conduct in the context of the union election (470 F.2d at 307). The Supreme Court affirmed the court of appeals on December 17, 1973 (414 U.S. 270). Procedural Chronology Respecting the "Savair" and "Mansion House" Issues July 20, 1973: A consent election in Case 26-RC-4535 was conducted by the Regional Office in a production and maintenance unit at Respondent's plant in Bolivar, Tennessee. In a unit of approximately 400 eligible voters, 209 votes were cast for the Union (Amalgamated Clothing Workers of America, AFL-CIO), 156 votes were cast against the Union, and 9 ballots were either challenged or void. MASTER SLACK AND/OR MASTER TROUSERS CORP. July 30, 1973: Respondent filed timely objections to conduct affecting the results of the election. The objections did not refer to the December 11, 1972, decision of the court of appeals in, the Savair case, and none of the facts alleged in the objections raised such "waiver" issue. The objections did raise a racial matter to the effect that the Union, "acting in concert with ... NAACP leaders," allegedly made inflamatory racial appeals to Respondent's black employees in support of the Union and purportedly engaged in other preelection conduct to exacerbate racial feelings of employees for the same purpose. September 18, 1973: The Regional Director issued a report on objections, in which he recommended that all objections be overruled and that the Union be certified. October 5, 1973: Respondent filed exceptions to the report on objections. Among the exceptions was Respon- dent's continued claim, that the Union,'"acting in conjunc- tion with officials of the NAACP, made ["inflammatory"] racial appeals to the employer's black employees." The exceptions did not, as the objections did not,, raise a Savair ("waiver") issue. January 4, 1974: The Board issued a Decision and Certification of Representative in which it adopted the Regional Director's Report on Objections and certified the Union as statutory representative. February 1, 1974: Respondent filed a motion with the Board for reconsideration and to reopen the record and for hearing in Case 26-RC-4535 and for stay of certification. These motion papers conceded that Respondent , had neither investigated nor filed objections as to the type of "waiver" situation involved in the Savair case purportedly because it had relied on the Board's DIT-MCO doctrine; the motion papers thereupon requested in view of the Supreme Court reversal -of the DIT-MCO doctrine in Savair (414 U.S. 270, decided December 17, 1973), that it now be permitted, in effect, to file and litigate an objection to the July 20, 1973, election on a Savair "waiver" issue. February 4, 1974: Respondent, citing, Mansion House (473 F.2d 471 (CA. 8, 1973)), filed with the Regional Director a motion for revocation of certification upon the assertion that the Union's LM-2 report filed in May 1973 with the Department of Labor does not include the racial identity of listed Amalgamated officers, and that "None are known to the Employer to be black." Respondent thereupon requested that a hearing be afforded "to determine racial identity, the number of black officers in the International Union and the number of black members of the International staff as opposed to white staff members." February 13, 1974: The Regional Director denied the motion for revocation of certification, "on the grounds that the Employer has failed to show any reasonable basis for such action." February 27, 1974: Respondent requested-the Board to review the February 13, 1974, order of the Regional Director denying its Mansion House motion to revoke certification. In support of its request for review, the Respondent stated, in part, as follows: The employer would respectfully request that if a hearing is granted pursuant to,his Motion... that the Employer be allowed, to subpoena a comprehensive 895 breakdown of the officers and officials and those in the higher salary levels of the Amalgamated Clothing Workers of America, -AFL-CIO, at which time it will be able to present an offer of proof to the effect that in the Employer 's opinion , this ,union has discriminated against minority races in the past by excluding them from higher salaried positions on the Staff of :he International Union , and excludingmembers of minor- ity _ races from holding office in the International Union. The breakdown of those officials of the Amalgamated Clothing Workers Union holding the position of General President down through the various Vice-Presidents , indicating the race of each will disclose the proportion percentage-wise of black union officials in these categories as compared to the black composition of the rank , and file • membership. The Employer suggests that it would be entirely dispropor- tionate. April 3, 1974: The Board issued an Order denying Respondent's Savair motion,of February 1, 1974. May 28, 1974: The Board issued an Order denying the February, 27, 1974, request for review of_ the Regional Director's denial of Respondent's Mansion House motion to revoke the Union's certification. August 6, 1974: The General Counsel issued an amended consolidated complaint alleging that Respondent has violated Section 8(a)(5) by refusing to recognize and bargain with the Union and by,taking unilateral . action affecting terms and conditions of employees within the bargaining unit.,The complaint also alleges violations of Section 8(a)(1) and (3), but which are not a subject of this Opinion. August 15, 1974: Respondent filed an answer to the complaint of August 6, 1974, in which it admits, as to the 8(a)(5) allegations, that it refused to recognize and bargain with the Union and that it took unilateral action without notice to. or bargaining with the Union. The answer claims by way of affirmative defense, however, that the Union "is not entitled to certification due to its [the Union's] failure to correct past discriminatory _practices as required under the Mansion House decision." The answer refers to Respondent's February 4, 1974, motion to revoke the Union's certification in this connection, and as another ground for its defense to Section 8(a)(5) allegations it relies upon the February 4, 1974, motion for reconsideration and to reopen the record on the basis of the court of appeals decision in the Savair case. August 23, 1974: The' General Counsel filed a Motion for Summary Judgment in, which he asserts (a) that the Board determined and rejected Respondent's Mansion House and Savair contentions by its orders of May 28, 1974, and April 3, 1974, respectively; (b) that Respondent's answer in this connection makes no claim not previously considered and ruled upon by the Board; and (c) that the answer therefore presents no litigable issue in these respects. The General Counsel thereupon requested that the Section 8(a)(5) portions of the case be transferred to the Board and that the Board issue a decision and order on such parts of the case. September 5, 1974: Respondent filed a response to the motion for summary judgment. This response states that 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent refused to bargain with- the Union "upon its information and belief that the Union engaged in discrimi- nation on the basis of race and sex" (this is the first time in this entire proceeding that Respondent has mentioned "Sex") and-it reasserts its position as "previously . . . set forth in the prior representation proceedings...." The response states further that Respondent "has continuously sought a hearing on this matter" and that it still seeks one. January 13, 1975: The Board denied the General Counsel's Motion for Summary Judgment, as follows: "General Counsel's Motion for Summary Judgment is hereby denied for lack of a Board majority to grant it." February 19, 1975: The General Counsel submitted a Motion to Strike for determination by an Administrative Law Judge. This motion sets forth substantially the same matters previously asserted in the motion for summary judgment denied by the Board on January 13, 1975, and the General Counsel's motion papers also advise that he will renew his motion for summary judgment should the motion to strike be granted. The General Counsel contends that in ruling on the motion to strike, the Administrative Law Judge "will 'be bound by the Board's previous rulings on these matters in Case No. 26-RC-4535," namely, the Board Orders of April 3, 1974 (Saviar), and May 28, 1974 (Mansion House). February 24, 1975: Respondent filed a response to the February 19, 1975, motion to strike, stating that the motion to' strike "is in the nature of a Motion for Summary Judgment previously denied by the Board... and should, therefore, be dismissed." March 11, 1975: Respondent restated at'the preliminary hearing that its Mansion House position is based on a claimed disproportionate number of nonblack males holding office and higher salaried staff positions in the International Union, from "the position of General President down through the various Vice-Presidents" as set forth in its February 4, 1974, motion for revocation of certification and repeated in its February 27, 1974, request to the Board to review the Regional Director's refusal to grant 'the'motion' for revocation. As set forth above, I thereupon granted the General Counsel's motions to strike and for summaryjudgment. The "Order" of the Board Denying Summary Judgment The threshhold question presented by the General Counsel's motion to strike is whether I have any discretion in the matter in view of the Board's "Order" of January 13, 1975, denying the General Counsel's motion for summary judgment. This is so because Administrative Law Judges are bound by Board decisions and orders and because the General Counsel agreed with Respondent's contention that the motion to strike and the motion denied by the Board for summary judgment' involve essentially similar underly- ing issues . The latter motion does involve additional considerations, however, as discussed hereinafter. I have been administratively advised that the Board vote on the January 13, 1975, Order denying Summary Judgment was 2 - 2, the matter being decided after Chairman Miller's departure and before Chairman Mur- phy took office. The matter could have been disposed of by a Board panel of three members, but it wasn't. The possibility of a 2 - 2 split is not confined to those periods when the Board is berefit of a member, for there may be occasions' when a member disqualifies himself, or is otherwise unavailable to participate in a particular case. The General Counsel' urged that the January 13, 1975, Order in question was really a non-Order, for it did not have majority support. The General Counsel thereupon contended that, the matter being in equipoise, I am-bound by the Board Orders of May 28, 1975, and April 3, 1974, as representing the Board's disposition of the Mansion House and Savair issues under consideration. Respondent, on the other hand, argued that the situation was akin to that of an evenly divided Supreme Court in which event the petition- er or moving party loses. Pursuing the Respondent's analogy to Supreme Court procedure, where the effect of an evenly divided court is to affirm the judgment below, it might be argued that the effect of the 2 - 2 split was to leave standing any previous binding orders of the- Board, which is what the General Counsel claims the situation to be. And essentially that is how I view the situation. However one may engage in semantical exercises on the meaning and juridical effect of the word "'order," the critical fact is that a Board majority on January 13, 1975, did not reverse the Orders of Apri1'3, 1974,'and May 28, 1974. I accordingly find, in,agreement with the General Counsel, that I am bound by the Board actions on_Apri13, 1974, and May 28, 1,974. Apart from the binding effect of the Board Orders of April 3, 1974, and May 28, 1974, and assuming-but without deciding-that I have jurisdictional discretion to consider the substantive issues on their merits, I would grant the motion to strike on such latter basis, as well. On the Savair issue, and unlike the situation in the Savair case where the employer filed timely objections and preserved those objections and ultimately prevailed in the court of appeals and in the Supreme Court, the Respondent in the instant case concedes that it did not present that matter until a year after, the court of appeals decided the Savair case and more than 5 months after the July 1973 election herein, far beyond the time permitted by Board rules and regulations for filing objections (Sec. 102.69). Unlike a Mansion House issue of "statutory and constitutional" proportions (Williams Enterprises, supra), and which is a wholly different kind of problem, I fmd no reasonable basis for carving out a 5-month late-filing exception to the Board's rules dealing with election procedures, merely because the Supreme Court reversed the Board on the waiver of initiation fees as objectionable conduct. Cf. Sunal v. Large, 332 U.S. 174, 181-182; N .L.RB. v. Pinkerton's National Detective Agency, Inc., 2Q2 F.2d 230, 232-233 (C.A. 9). Every cogent consideration, in my judgment, would deny such exception. Cf. NLRB. v. A. J. Tower Company, 329 U.S. 324, 330-331; N.L.R.B. v. Conlon Bros. Mfg. Co., 187 F.2d 329, 332 (C.A. 7); N.LRB. v. Deutsch Company, 265 F.2d 473, 478 (C.A. 9, 1959); N.LRB. v. Arthur H. Kenny, d/b/a S & K Chevrolet, 488 F.2d 774 (C.A. 9, 1974); N.LRB. v. Ideal Laundry and Dry Cleaning Company, 330 F.2d 712, 718 (C.A. 10; 1964). The Mansion House issue was timely raised (see Williams Enterprise, Inc., supra). While not particularly germane, if MASTER SLACK AND/OR MASTER TROUSERS CORP. 897 at all, - it is of passing interest to note that Respondent's present position on racial factors is somewhat different from the objections and exceptions it filed to the July 20, 1973, election. Originally, Respondent seemed concerned about the Union's joint efforts with the NAACP in winning the election. Now, however, Respondent's pur- ported concern is that the Union is discriminating against Respondent's black employees. But, as mentioned above, this seemingly changed position may have nothing to do with the merits of Respondent's Mansion House `conten- tion . (However, see the court's comment respecting "pretextual" claims in the Mansion House opinion, 473 F.2d at 474). Even assuming, arguendo, only, that the International hierarchy of the Amalgamated consists entirely of non- black males, I find no reasonable basis for inferring ,from such assumption that the Union discriminates or even tends to discriminate against Respondent's employees- black or nonblack, male or female-in regard to member- ship admission policies on the basis of race or sex (Compare: U.S. v. Ironworkers Local 486, 443 F.2d 544, 550-552, cited by Respondent; Grants Furniture Plaza, Inc. of West Palm Beach, Fla., 213 NLRB 410 (1974)) or that it otherwise acts arbitrarily or invidiously in a representative capacity for reasons of race or sex (see Emporium Capwell Co. v. W.A.C.O., 430 U.S. 50 (1975), 88 LRRM 2660, 2666; Kling v. N.L.R.B., 508 F.2d 1044 (C.A. 9, 1975), 88 LRRM 2385, 2386). I do not believe Respondent's Mansion House contention even gets off the ground, and I therefore agree with the February 4, 1974, action of the Regional Director and the May 28, 1974, action of the Board in denying Respondent's motions for a hearing to revoke the Union's certification on Mansion House grounds. I have found thus -far (a) that the Board's Order of January 13, 1975, does not affect my discretion to act in this matter, (b) that the Board Orders of April 3, 1974, and May 28, 1974, are binding herein, and (c) that Respon- dent's Savair and Mansion House defenses are in any event lacking in merit. I accordingly grant the General Counsel's Motion to Strike those defenses. While I find, on the basis of the foregoing, that I also have discretion to entertain the General Counsel's further motion for summary judgment and did in fact grant such motion at the preliminary hearing, I now believe upon reconsideration, sua sponte, that this further motion should be denied. The motion for summary judgment not only subsumes a motion to strike the mentioned defenses but also requests a Decision and Order on the Section 8(a)(5) portions of the case while proceeding with a hearing on the merits of the remaining allegations. Apart from the fact that some of the 8(a)(5) allegations of unilateral conduct raise certain questions unresolved by my ruling on the motion to strike, I do not deem it appropriate to issue a piece-meal Order without considering the entire context of the case. Indeed, it is possible, were one to speculate, that two members of the Board who voted against summary judgment may have agreed with their colleagues that the defenses were groundless but nevertheless believed that the pit-falls-both procedural and substantive-of piece-meal determinations should be avoided. In the present case, for example, the Respondent may or may not have temporari- ly ceased operations, and there may be other factors and circumstances that should be considered in framing an order but which cannot be known until the entire case is heard. I thus now believe that a bifurcated handling of this case is both inadvisable and inappropriate and that a Decision and Order should await the orderly litigation of the entire case. I accordingly reverse my earlier ruling and deny the motion for summary judgment. CONCLUSIONS 1. The motion to strike the Mansion House and Savair defenses is granted. 2. The motion for summary judgment is denied.