Morganton Full Fashioned Hosiery Co.

National Labor Relations Board - Board Decisions

May 4, 1956

115 N.L.R.B. 1267 (N.L.R.B. 1956)

MORGANTON FULL FASHIONED EfOSIERY COMPANY 1267
challenges to their ballots, In addition, we shall sustain the challenge
to the ballot of Nokie Mae Francis on the ground that she has been
permanently laid off and is ineligible to vote in the election. The Re-
gional Director's investigation reveals that Francis was laid off on May
31, 1955, because of a reduction in force. The Employer contends that
Francis will not be rehired because the work in the department in
which she was employed is not suitable for women. The Petitioner con-
tends that she has retained her seniority and other benefits and has
been only temporarily laid off. As the retention of seniority status is
not determinative of eligibility to vote and as the Petitioner adduced
no persuasive evidence to refute the Employer's contention that
Francis has been permanently laid off, we shall sustain the challenge
to her ballot. Accordingly, in these circumstances we shall not re-
solve the other challenges as they are insufficient in number to affect the
results of the election.
As we have overruled the objections to the election and as the tally
of ballots shows that the Petitioner received a majority of the valid
ballots cast and the• number of unresolved challenges are insufficient to
affect the results of the election, we shall certify the Petitioner as the
collective-bargaining representative of the employees in the appro-:
priate unit.
[The Board certified Mechanics Educational Society of America,
AFL-CIO, as the designated collective-bargaining representative of
production and maintenance employees at the Employer's Ferndale,
Michigan, plants, excluding office and plant clerical employees, sales
representatives, technical employees, professional employees, guards,
leaders, and supervisors as defined in the Act.]
Morganton Full Fashioned Hosiery Company and. Huffman
Full Fashioned Hosiery Mills, Inc. and American Federation,
of Hosiery Workers, AFL-CIO. Case No. 11-CA-930. May 4,
1956
DECISION AND ORDER
On February 9, 1956, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices in violation of Section 8 (a) (1) and (5) of the Act,
and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondents, the General
Counsel, and the Union filed exceptions to the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made at the
hearing and finds that no prejudicial error was committed. The rul-
115 NLRB No. 199.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ings are hereby affirmed.' The Board has considered the Intermediate
Report, the exceptions, the Respondents' brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the additions noted below.'
ORDER
- Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Morganton Full
Fashioned Hosiery Company and Huffman Full Fashioned Hosiery
Mills, Inc., Morganton, North Carolina, their officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with the American Federation
of Hosiery Workers, AFL-CIO, as the exclusive representative of their
employees in the appropriate unit with respect to rates of pay, wages,
hours of employment, or other conditions of employment.
(b) Refusing to bargain collectively with the Union as the exclusive
representative of all employees in the appropriate unit by refusing to
furnish the Union the wage and related data relevant to wages
requested by said labor organization.
(c) Engaging in any like or related acts or conduct interfering with
the efforts of the American Federation of Hosiery Workers, AFL-
CIO, to negotiate for or represent the employees in the said appropri-
ate unit as the exclusive bargaining agent.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
'The Respondents' exceptions based on the alleged inappropriateness of a knitters' unit
are without merit. The exceptions are hereby overruled for the reasons noted in the
Board's recent decision of Glen Raven Knitting Mille, Inc, 115 NLRB 422. The
Respondents' exceptions to the Trial Examiner 's ruling excluding further testimony on
the appropriateness of the unit are likewise found without merit for the reasons given
in the Intermediate Report.
2 The General Counsel and the Union, the Charging Party, except to the failure of the
Trial Examiner to find formally that the refusal of the Respondents to furnish the Union
with certain wage and related information as requested in the Union's letter of October
20, 1955, constituted a separate violation of Section 8 (a) (5) ; and to the Trial Ex-
aminer's failure to implement his findings by recommending that the Respondents upon
request furnish, the Union with the requested information. They ask the Board to order
the Respondents to take such affirmative action and to include proper language to this
effect in the "Notice To All Employees." The record shows that proper allegations deal-
ing with the subject matter were set forth in the General Counsel's complaint. In their
answer, the Respondents admitted their failure to furnish the requested information.
Although, in view of their challenges to the Board's unit finding, the Respondents denied
that such failure constituted an unlawful refusal to bargain, they did not challenge the
relevancy of the information sought by the Union. We find merit in these exceptions and,
accordingly, find that the Respondents' refusal to furnish the Union with wage and re-
lated information relevant to wages as requested constituted a refusal to bargain in vio-
lation of Section 8 (a) (5) and (1) of the Act. See Ekstrom, Carlson & Co., 114 NLRB
1208. We shall also include in our , order a provision directing the Respondent upon
request to furnish the Union with wage and• related data relevant to wages. See Glen
Raven Knitting Mills, Inc, supra.
MORGANTON PULL FASHIONED HOSIERY COMPANY 1269
(a) Upon request, bargain collectively with American Federation
of Hosiery Workers, AFL-CIO, as the exclusive bargaining agent in
the appropriate unit with respect to rates of pay, wages, hours of
employment, or other conditions of employment, and, if an understand-'
ing is reached, embody such understanding in a signed agreement.
(b) Upon request, furnish the Union the wage and related data
relevant to wages requested by said labor organization, within a rea-
sonably prompt time.
(c) Post at their plants in'-Mbrganton, North Carolina, copies
of the notice attached hereto marked "Appendix A."' Copies of
said notice, to be furnished by the Regional Director for the Eleventh
Region, shall, after having been duly signed by an authorized repre-
sentative of the Respondents,,be posted by them immediately upon
receipt thereof-and maintained by them for sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondents to insure that said notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Eleventh Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondents have taken to comply herewith.,
3 In the event that this Order is enforced by a decree of a United States Court of Appeals,-'
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with American
Federation of Hosiery Workers, AFL-CIO, as the exclusive
representative of the employees in the bargaining unit described
below. - - '
WE WILL NOT refuse to bargain collectively with American
Federation of Hosiery Workers , AFL-CIO, as the exclusive rep-
resentative of the employees in the bargaining unit described be-
low by refusing to furnish to such labor organization the wage
and related data relevant to wages requested by it.
WE WILL NOT engage in any like or related acts or conduct in-
terfering with the efforts of American Federation of Hosiery
Workers, AFL-CIO, to negotiate for or represent the employees
in the bargaining unit described below. '
1270 DECISIONS •OF NATIONAL -LABOR RELATIONS 'BOARD
WE WILL, upon request, bargain collectively with American
Federation of Hosiery Workers, AFL-CIO, as the exclusive
bargaining agent of all the employees in the appropriate unit
with respect to rates of pay, wages, hours of employment, or
other conditions of employment, and, if an understaatiding,is
reached, embody such understanding in a signed agreement.
WE WILL, upon request, furnish American Federation ,of Ho-
siery Workers, AFL-CIO, the wage and related data relevant
to wages requested by such labor organization, within a reason-
ably prompt time.
The bargaining unit is :
All full-fashioned knitters, knitter helpers, and trainees,
employed at the Employer's Morganton, North Carolina,
plants, excluding office clericals, professional employees,
guards, all other employees, and supervisors as defined in
Section 2•(11) of the National Labor Relations Act.
MORGANTON FULL FASHIONED HOSIERY COMPANY,
Employer.
HUFFMAN FULL FASHIONED HOSIERY MILLS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the Labor Management Relations
Act of 1947 , 61 Stat . 136 (herein called the Act), was heard in Morganton, North
Carolina , on January 5, 1956 , pursuant to due notice to all the parties. The complaint,
issued'on December 7 , 1955 , by the General Counsel of the National Labor Relations
Board , and based on charges duly filed and served , alleged that the Respondents had
engaged in unfair labor practices proscribed by Section 8 (a) (1) and (5) of the
Act. In a joint answer , duly filed , the Respondents conceded certain facts with re-
spect to their business - operations but denied the commission of any unfair labor prac-
tices.
All parties were represented at the hearing by counsel and were afforded full
opportunity to be heard, to examine and cross -examine witnesses, to introduce evi-
dence bearing on the issues , to argue orally , and to file briefs and proposed findings
and conclusions . At the close of the hearing oral argument on the merits was waived
by the parties . On January 24, 1956 , counsel for the Union submitted a brief which
has been fully considered by the Trial Examiner.
• Upon the entire record in the case , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Morganton Full Fashioned Hosiery Company (herein called Morganton), a
Delaware corporation , and Huffman Full Fashioned Hosiery Mills , Inc. (herein
called Huffman , and, collectively , with Morganton , as the Employer ), a North 'Caro-
lina corporation , each,with its principal office and plant located at Morganton, North
MORGANTON FULL FASHIONED HOSIERY COMPANY 1271
Carolina, are engaged -in the manufacture and sale of ladies' hosiery . Huffman is
wholly owned by Morganton and-the plants of these two companies are approximately
a quarter mile apart. Counsel for the Respondents stipulated that the 2 plants operate
as a unit and -likewise conceded that -in the course and conduct of their operations in
the 12 months preceding the hearing they sold and shipped finished products valued
in excess .of $2,000 ,000 directly . to customers located outside the State of North
Carolina . On the foregoing .facts, it is my conclusion , and I find , that Morganton and
Huffman are one employer , and further , that they are engaged in commerce , all-within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The American `Federation of Hosiery Workers, AFL-CIO i (herein called the
Union), is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
Upon a petition for certification, filed by the Union in Case No. 11-RC-778, and
after a-hearing held on August 15, 1955 , the-Board , on September 7, issued a Decision
and Direction of Election (not -reported in printed volumes of Board Decisions and
Orders ) in which it directed an election in a unit consisting of all -full-fashioned
knitters, knitter helpers , and trainees, employed at the Employer's two plants, ex-
cluding -office clericals , -professional employees , guards, .all other employees, and
supervisors as defined in the Act, the unit found by the Board to be appropriate, and
which I likewise find to be appropriate , for the purposes of collective bargaining. On
September 27,-in- an' election -by secret -ballot conducted under the supervision of the
Regional Director for the -Eleventh ' Region , a majority of athe employees selected the
Union -as their representative . No objections having -been -filed to the -election or to
its conduct, on October 5 the Board certified the Union as the bargaining representa-
tive of the employees in the unit heretofore mentioned . I now find that at all times
since the latter date , the Union has been , by virtue of Section 9 (a) of the Act, 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.
On October 10, the Union, by letter, requested the Employer to'bargain collectively
with it as the •exclusive representative of-the employees in the unit found appropriate
above , and asked that a meeting for this purpose be held on October 20. On the
latter date the Union further requested that the Respondents supply it with data on
the wage rates of each employee in the unit , as well as information on vacation pay
allowances , bonuses, insurance coverage , holidays, seniority , and related matters.
The Employer concedes that it refused to 'furnish the -Union with the material re-
quested and that it refused to bargain on October 20 and thereafter.
In defense of this refusal the Employer contests the Board 's unit finding, urging
that only an overall unit made up of the production and maintenance employees is
appropriate and that the sole factor which shaped the Union's petition was extent
of organization so that the Board erred when 'it adopted this -position and found
that a unit made up of knitters, knitter helpers, and trainees was appropriate.2 As
appears from the Decision and Direction of Election and 'from the record in the
representation proceeding , these precise contentions were raised by the 'Employer
in that case, were there litigated, and decided adversely to the Respondents.
At the hearing in the 'instant proceeding , the 'Employer, in support of its views
concerning the Board's unit fitiding stated above, sought to adduce testimony relat-
ing to matter in existence at the time of the representation hearing. Counsel for
the Respondents conceded that this evidence was not newly discovered and that it
did not arise out of any change of circumstance in connection with the unit, but that
it was being offered, to use his own language, "to amplify" and "to shore .. .
up" the record in the representation proceeding. The issues having already been
2 A motion by the General Counsel to amend the formal papers in order to correctly
identify the Charging Union as being a member of the AFL-CIO, unopposed by the other
parties , was granted by the Trial Examiner
2 The Employer did not contend that the wage data sought by the Union was irrelevant
to the 'bargaining . Numerous Board and court decisions have held the denial of such
information to the majority representative to be an unfair labor practice. See Boston,-
Herald Traveler Corp v. N. L R B, 223 F.'2d 58 (C A 1) ; N. L R. B. v 'Thhe Item Com-
pany, 220 F 2d 956 (C A. 5), cert. denied 350 U. S 836; Ekstrom, Carlson d Co, 114
NLRB 1208.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
litigated, I declined to allow the Employer to present this testimony.3 Pittsburgh
Plate Glass Co. v. N. L. R. B., 313 U. S. 146, 157-158, 161-162; Harris Langenberg
Hat Co. v. N. L. R. B., 216 F. 2d 146 (C. A. 8), enfg. 107 NLRB 961, 963; Phillips
Petroleum Company, 100 NLRB 684, 686-687, enfd. 206 F. 2d 26, 30 (C. A. 5);
S. H. Kress & Company, 88 NLRB 292, 297, enfd. 194 F. 2d 444, 446 (C. A. 6);
N. L. R. B. v. Worcester Woolen Mills Corp., 170 F. 2d 13, 16 (C. A. 1), cert.
denied 336 U. S. 903; Wilson Athletic Goods Mfg. Co. v. N. L. R. B., 164 F. 2d
637, 639 (C. A. 7); Allis-Chalmers Mfg. Co. Y. N. L. R. B., 162 F. 2d 435, 440-441
(C.A.7) 4
The Board 's ruling on the unit question represents the law of this case and is, of
course, binding upon the Trial Examiner . ' In accordance with that determination
I find that all full-fashioned knitters , knitter helpers , and trainees, employed at the
Respondents ' plants, excluding office clericals , professional employees , guards, all
other employees , and supervisors , constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act. The Em-
ployer having declined the Union 's request to bargain in the certified unit on Octo-
ber 20 , 1955, I find that on that date and at all times thereafter the Employer has
refused to bargain collectively with the Union as the exclusive representative of its
employees in an appropriate unit and has thereby interfered 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 Respondents set forth • in`section III, above , occurring in con-
nection with their operations described in sectionl, 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 commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices by
refusing to bargain collectively with the Union as the exclusive representative of their,
employees in an appropriate unit , I will recommend that the Respondents, upon
request, bargain collectively with the Union.
Upon the basis of the above finding of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of the Act.
2. All full-fashioned knitters, knitter helpers, and trainees employed at the Em-
ployer's Morganton, North Carolina, plants, excluding office clericals, professional
employees, guards, all other employees, and supervisors as defined in Section 2 (11)'
of the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
3. At all times since October 5, 1955, the Union has been the exclusive rep-
resentative of all employees in the appropriate unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with the Union as the exclusive representative
of the employees in the appropriate unit on October 20, 1955, and thereafter, the Re-
spondents engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (a) (5) of the Act.
3 The Respondents thereupon made an offer of proof which Is contained in the record.
The transcript does not reflect a ruling on this proffer. It is now rejected.
4 See also Esquire, Inc., 109 NLRB 530, enfd 222 F. 2d 253 (C. A. 7), where the Board
affirmed a similar ruling by the Trial Examiner in that case, in support of which the
latter had stated (p. 539) :
Respondent would now like to offer more evidence. There Is scarcely any lawyer
to whom there does not occur an apt reponse d'escalier after a trial is over. But
litigation cannot go on forever.... The question was presented to the Board [in
the representation proceeding]. The Board determined it. .. . The Board, of
course, may alter its decision in the earlier case. But for me to accede to Respond-
ent's request and hear more evidence on a matter the Board has already decided
would be equivalent to making a Board finding subject to review by a Trial Examiner.
This would lead to the incongruous result of permitting a Trial Examiner, whose
findings, under the express provisions of Section 4 (a) of the Act, are reviewable by
the Board , to himself recanvass Board determinations.
SOUTHERN WASTE MATERIAL CO., INC. 1273
5. By said acts the Respondents have interfered with , restrained , and coerced
their employees in the exercise of the rights guaranteed in Section 7 of the Act,
thereby engaging in unfair labor practices within the meaning of Section 8 (a) (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.
[Recommendations omitted from publication.]
Southern Waste Material Co., Inc . and United Packinghouse
Workers of America, AFL-CIO, Petitioner. Case No. 16-RC-
1842. May 4,1956
DECISION AND ORDER .
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a -hearing was held before William H. Renkel,
Jr., hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. The Board has decided to dismiss the instant petition because
of the failure of the Petitioner to effect timely compliance with Sec-
tion 9 (g) of the Act, which, inter alia, requires labor organizations
to file with the Secretary of Labor and publish to their members
certain financial reports relating to their operations during the prior
fiscal year.
In Monsanto Chemical Company (John F. Queeny Plant),' the
Board recently set forth its procedure in cases involving failure of,
a union to comply with Section 9 (g) by the end of its fiscal year.
The Board there stated that, upon the filing by such a union of a
certificate of intent or other appropriate indication of its intent to
meet the requirements of Section 9 (g) within 90 days after the ex-
piration of its fiscal year, the Board, in its discretion, would grant
the union a grace period of 90 days from the end of its fiscal year
within which to meet such requirements. The Board stated further :
Upon a labor organization's filing of a certificate of intent, the
Board, for a period of 90 days after the end of its fiscal year, will
continue to receive and process cases brought by the union, .or
accord the union a place on the ballot in elections held during
that period. However, in the event that a union has not com-
pleted its compliance with Section 9 (g), by the end of this 90-
3115 NLRB 702.
115 NLRB No. 201.