Sam Belz Upholstered Products Co., Inc.

National Labor Relations Board - Board Decisions

Sep 5, 1962

138 N.L.R.B. 433 (N.L.R.B. 1962)

SAM BELZ UPHOLSTERED PRODUCTS COMPANY, INC. 433
APPENDIX
NOTICE TO ALL OUR MEMBERS , OFFICERS AND AGENTS, To ALL EMPLOYEES OF
R. W. HUGHES CONSTRUCTION COMPANY , TO ALL WORKERS IN INDUSTRIES IN
WHICH LOCAL 92 ORGANIZES
As recommended ' by a Trial Examiner of the National Labor Relations Board,
and in order to conduct the business of Local 92 as required by the National Labor
Relations Act, we notify you that:
WE WILL NOT try to cause R. W. Hughes Construction Co., Inc., or any other
employer, to discharge any employee because he is not a member in good
standing of Local 92 or because he was not referred to his job by Local 92.
WE WILL NOT try to cause any employer to discriminate against an employee
in any way that violates the National Labor Relations Act.
WE WILL pay David Mosko and Billy Johnson for the time they were out of
work as a result of our having caused R . W. Hughes Construction Co., Inc., to
discharge them , and we will notify that company and them that we do not
object to their working for any employer.
All our members in Alabama and all other workers in the industries in which we
organize in this State are free to join or remain members of our Union , and they
also are free to refrain from membership and other union activities.
C. H. GREEN , BUSINESS AGENT , LOCAL No. 92, INTERNATIONAL Asso-
LOCAL No. 92 CIATION OF BRIDGE, STRUCTURAL AND
ORNAMENTAL IRON WORKERS, AFL-
CIO,
Labor Organization
By---------------------- By-------------------------------------------
C. II GREEN ( Representative ) ( Title)
Dated-------------------
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced, or covered by any other material.
If employees have any questions about this notice or whether Local 92 and its
business agent, C. H. Green , are complying with its provisions , the employees may
communicate with the Labor Board 's office at 1203 Comer Building, 2026 Second
Avenue, North , Birmingham , Alabama, Telephone Number , Fa 3-8011, Extension
677.
Sam Belz Upholstered Products Company, Inc. and United Fur-
niture Workers of America , AFL-CIO. Case No. 26-CA-1266.
September 5, 1962
DECISION AND ORDER
Upon charges duly filed on April 17, 1962, by United Furniture
Workers of America, AFL-CIO, herein called the Union, against
Sam Belz Upholstered Products Company, Inc., herein called Re-
spondent, the General Counsel for the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Twenty-sixth Region, issued a complaint alleging that Respondent has
engaged in and is engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a) (5) and (1) and Section
2(6) and (7) of the Act. Copies of the charge, the complaint, and
138 NLRB No. 60.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice of hearing were duly served upon the Respondent and the
Charging Party.
With respect to the unfair labor practices, the complaint alleged,
in substance, that on or about February 21, 1962, the Board issued a
Supplemental Decision and Certification of Representatives certify-
ing the Union as the exclusive collective-bargaining representative of
the employees in a unit composed of all production and maintenance
employees, including truckdrivers, employed by Respondent at its
Memphis, Tennessee, plant, excluding office clerical employees, pro-
fessional and technical employees, watchmen and guards, and supervi-
sors as defined in the Act, and that since on or about March 15, 1962,
the Respondent did refuse, and continues to refuse, to bargain collec-
tively with the Union as the exclusive collective-bargaining repre-
sentative in the appropriate unit. The complaint further alleged
that the Respondent has refused to furnish the Union with data relat-
ing to the names, job classifications, rates of pay, and other terms and
conditions of employment of Respondent's employees in the above-
described unit.
On May 7, 1962, Respondent filed its answer to the complaint, deny-
ing that it violated 8(a) (5) and (1) of the Act, and alleging as an
affirmative defense that the Union is not the duly designated exclusive
collective-bargaining representative of the employees because the
Union won the election upon which the Board's certification was based
by means of unfair and untruthful practices and statements. There-
after, all parties joined in a stipulation to transfer the proceeding di-
rectly to the Board. In their stipulation, the parties agreed to waive
a hearing before a Trial Examiner, the making of findings of facts
and conclusions of law by a Trial Examiner, and the issuance of an
Intermediate Report and Recommended Order. In lieu thereof the
parties stipulated that the entire record of this proceeding shall con-
sist of the charge, complaint, notice of hearing, answer, the stipula-
tion, and nine exhibits attached thereto.
By an order issued June 1, 1962, the Board approved the aforesaid
stipulation, made it a part of the record herein,' and transferred the
matter to, and continued it before, the Board, for the purpose of mak-
ing findings of fact and conclusions of law, and the issuance of a
Decision and Order. The Board also granted permission to the par-
ties to file briefs. Thereafter Respondent and the General Counsel
filed briefs with the Board.
Upon the basis of the stipulation of the parties, the briefs, and the
entire record in this case, the Board 1 makes the following :
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Members Rodgers , Fanning,
and Rrown]
SAM BELZ UPHOLSTERED PRODUCTS COMPANY, INC.
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
435
Sam Belz Upholstered Products Company, Inc., is now, and has
been at all times material herein, a Tennessee corporation having its
plant in Memphis, Tennessee, where it is engaged in the manufacture
of furniture. During the 2-month period preceding the execution of
the aforesaid stipulation on May 23, 1962, which period is representa-
tive of all times material herein, Respondent, at its Memphis, Ten-
nessee, plant, purchased and received materials valued in excess of
$50,000 directly from points outside the State of Tennessee, and dur-
ing- the salve period sold and shipped finished products valued in
excess of $50,000 directly to points outside the State of Tennessee.
The parties stipulated, and we find, that Respondent is, and has
been at all times material hereto, engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act. We find further that it
will effectuate the policies of the Act to assert jurisdiction in this
proceeding.
II. THE LABOR ORGANIZATION INVOLVED
United Furniture Workers of America, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The facts, as stipulated, show that the Union was certified on Feb-
ruary 21, 1962, as the-bargaining representative of a unit of the pro-
duction and maintenance employees of the Respondent and that the
Respondent, by letter dated March 21, 1962, refused and continues to
refuse to bargain with the Union.
The Union filed -its petition for certification of representatives z
on May 4, 1961. A Board-conducted election was held June 29, 1961,
pursuant to a stipulation for certification upon consent election.
Upon the conclusion of the election, the parties were furnished a tally
of ballots which showed that of approximately 83 eligible voters, 82
ballots were cast, of which 39 were for, and 41 were against, the Union,
1 ballot was challenged, and 1 ballot was void. Thereafter, the Union
filed timely objections to conduct affecting the results of the election,
alleging that Respondent (1) engaged in surveillance, (2) made
threats of economic reprisals and promises of benefit, and (3) changed
its vacation schedule for the purpose of interfering with the election.
On August 3, 1961, the Regional Director issued and duly served upon
all parties his report on challenges and objections, in which he recom-
s Case No 26-RC-1613 ( not published in NLRB volumes).
66235 3-6 3-y of 138-29
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mended that objection No. 1, pertaining to Respondent's alleged sur-
veillance, be sustained and the election be set aside, and a new elec-
tion directed. As to the remaining objections, he recommended that
they be overruled.
The Respondent filed timely exceptions to the Regional Director's
recommendation regarding objection No. 1. On October 16, 1961, the
Board issued its Decision, Order, and Direction of Second Election,'
in which it adopted the Regional Director's recommendation with re-
spect to objection No. 1, and set aside the election and directed a second
election. Pursuant to such Decision and Direction of Second Elec-
tion, an election by secret ballot was conducted on November 10, 1961,
under the direction and supervision of the Regional Director. Follow-
ing the election, the parties were furnished a tally of ballots which
showed that of approximately 117 eligible voters, 107 ballots were cast,
of which 62 were for, and 45 were against, the Union.
Thereafter, the Respondent filed timely objections to the second
election, alleging that a preelection leaflet circulated by the Union to
approximately 100 employees contained material misstatements of
fact and therefore prevented the exercise of the employees' free choice
in the election. The Regional Director conducted an investigation
and on November 28, 1961, issued and served upon the parties his re-
port on objections in which he found that the Respondent's objec-
tions did not raise material and substantial issues affecting the elec-
tion and recommended that the objections be overruled and that the
Board issue a certification of representatives.
The Respondent filed timely exceptions to the Regional Director's
report on objections. On February 21, 1962, the Board issued
its Supplemental Decision and Certification of Representatives,4
certifying the United Furniture Workers of America, AFL-CIO, as
the exclusive collective-bargaining representative of the employees in
the unit found appropriate. The Board found in this Decision that
the Respondent's exceptions did "not raise material or substantial is-
sues warranting reversal of the Regional Director's recommendations,
and that the cases cited in the brief in support thereof are inapposite."
Thereafter, on March 15, 1962, the Union wrote 'a ale&ter to Re-
spondent requesting the Respondent to meet with the Union in bar-
gaining sessions and requesting that Respondent furnish to the Union
certain data relating to the names, job classifications, rates of pay, and
other terms and conditions of employment of Respondent's employees.
On March 21, 1962, the Respondent replied to the Union's letter, and
enclosed with its reply a copy of a letter which the Respondent on
that date had mailed to the Regional Director stating Respondent's
refusal to bargain collectively with the Union. At all times since
Not published in NLRB volumes
' Not published in NLRB volumes.
SAM BELZ UPHOLSTERED PRODUCTS COMPANY, INC . 437
that date, the Respondent has refused, and continues to refuse, to
meet with any representative of the Union or to furnish to the Union
the requested data above described.
The Respondent admits the jurisdictional and factual allegations
of the complaint, but denies the commission of any unfair labor prac-
tices, contending that its objection to the second election should have
been sustained. The Respondent's objection alleged that preelection
leaflets circulated by the Union were false. The leaflets, circulated
prior to the second election, stated that the Union had objected to the
first election because (1) the employer was guilty of surveillance of a
union meeting and (2) the employer had changed its vacation sched-
ule in order to influence the results of the election. In the next para-
graph, the leaflets contained the statement that "the government
agreed that the Union was RIGHT and ordered a new election to
be held within 30 days."
Respondent contends the Union knew, and the fact is, that the
Board had sustained only the first objection and had overruled any
others and, that this misstatement of fact in the union leaflets involved
the interpretation of legal as well as factual questions "beyond the
scope of the education and training of the employees." Contending
that the preelection leaflets prevented the exercise of the employees'
free choice, the Respondent claims the certification of the Union was
invalid, and therefore Respondent had no duty to bargain.
The Regional Director's report on the objection to the second elec-
tion and the stipulation of the parties in this case establish that about
a week before the second election, the Respondent's vice president and
the Respondent's treasurer called a meeting of, employees and told
them that the statements circulated by the Union were not true and
that the Government had not set the election aside because of changes
in vacation schedules. On these facts, the Regional Director found
that Respondent "had ample opportunity after receipt of the leaflet
to refute any statements made therein, and to answer the leaflet by
any legitimate means at its disposal." The Regional Director further
found that the "assertions in the leaflet are in the nature of campaign
propaganda, and they were not such as to be within the sole knowledge
of the Petitioner so as to preclude the Employer's having an oppor-
tunity to answer them," and recommended that the Respondent's
objection be overruled. After Respondent filed exceptions to the
Regional Director's report, the Board reviewed the Respondent's
objections, the Regional Director's report, and the exceptions thereto,
and overruled the objections and issued its certification. Thus, we
find, in agreement with the General Counsel that the issue which the
Respondent now seeks to litigate in the present case has already been
decided by the Board in the representation case upon facts which are
not in dispute. The Respondent has given no reason why the Board
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should reach a different conclusion in this proceeding. We reaffirm
our previous conclusions .5
The Respondent, in its brief, urges that the Board should reconsider
its decision to certify the Union on the ground that the certification
is in conflict with the case of Allis-Chalmers Manufacturing Com-
pany, a Delaware Corporation v. N.L.R.B., 261 F. 2d 613 (C.A. 7),
where the court set aside an order of the Board and held that the
inaccuracy of a union preelection statement related to a material
matter. However, we are convinced that the Union's conduct here
in question did not warrant, and does not warrant, setting aside the
second election, and that therefore the case relied upon by Respondent
is inapposite. See Anchor Manufacturing Company, Division of
Basic Products Corp. v. N.L.R.B., 300 F. 2d 301 (C.A. 5).
Accordingly, we find that Respondent's affirmative defense alleging
the invalidity of the second election is without merit, and that
Respondent, by its admitted refusal to bargain with the Union as
the certified bargaining representative of its employees, and by refus-
ing to furnish the Union with data relating to names, job classifica-
tions, rates of pay, and other terms and conditions of employment,
has violated Section 8 (a) (5) and (1) 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 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 commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor
practices, we shall order that it cease and desist therefrom and that
they take certain affirmative action designed to effectuate the policies
of the Act.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Sam Belz Upholstered Products Company, Inc., is an employer
within the meaning of Section 2(2) of the Act and is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. United Furniture Workers of America, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
6 See International Telephone and Telegraph Corporation, Industrial Products Division,
129 NLRB 221.
SAM BELZ UPHOLSTERED PRODUCTS COMPANY, INC . 439
3. All production and maintenance employees, including truck-
drivers, employed at Respondent's Memphis, Tennessee, plant, exclud-
ing office clerical employees, professional and technical employees,
watchmen and guards, and supervisors as defined in the Act, con-
stitute 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 on February 21, 1962,
and has been at all times thereafter, the certified exclusive representa-
tive of all the employees in the above-described unit for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
5. By refusing to bargain collectively with, and by refusing to
furnish data relating to names, job classifications, rates 'of pay, and
other terms and conditions of employment to, the above-named labor
organization as the exclusive representative of all the employees in
the unit described above, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section
8(a) (5) of the Act.
6. By the aforesaid conduct, Respondent has interfered with, re-
strained, and coerced employees in the exercise of rights guaranteed
by Section 7 of the Act, and has thereby engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Sam Belz Up-
holstered Products Company, Inc., Memphis, Tennessee, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Furniture Work-
ers of America, AFL-CIO, as the exclusive bargaining representative
of the employees in the following appropriate unit : All production
and maintenance employees, including truckdrivers, employed by Re-
spondent at its Memphis, Tennessee, plant, excluding office clerical
employees, professional and technical employees, watchmen and
guards, and supervisors as defined in the Act.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed by Section
7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Upon request, furnish United Furniture Workers of America,
AFL-CIO, with data relating to names, job classifications, rates of
pay, and other terms and conditions of employment of its employees
in the above-described appropriate unit.
(b) Upon request, bargain collectively with the United Furniture
Workers of America, AFL-CIO, as the exclusive representative of
the employees in the appropriate unit, as above found, and, if an
understanding be reached, embody such understanding in a signed
agreement.
(c) Post at its Memphis, Tennessee, plant, copies of the notice at-
tached hereto marked "Appendix." 6 Copies of said notice, to be
furnished by the Regional Director for the Twenty-sixth Region, shall,
after being duly signed by the Respondent's authorized representative,
be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for at least 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for the Twenty-sixth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
8 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
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 United Furni-
ture Workers of America, AFL-CIO, as the exclusive bargaining
representative of the employees in the following appropriate
unit :
All production and maintenance employees, including
truckdrivers, at our plant in Memphis, Tennessee, excluding
office clerical employees, professional and technical employees,
watchmen and guards, and supervisors as defined in the Act.
WE WILL, upon request, furnish the above-named labor organi-
zation data relating to names, job classifications, rates of pay,
and other terms and conditions of employment of our employees
in the above-described appropriate unit.
COLONY MATERIALS, INC. 441
WE WILL, upon request, bargain collectively with the aforesaid
labor organization as the exclusive representative of the employ-
ees in the appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce employees in the exercise of rights guaranteed
by Section 7 of the Act.
SAM BELZ UPHOLSTERED PRODUCTS COMPANY, 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.
Employees may communicate directly with the Board's Regional
Office, Seventh Floor Falls Building, 22 North Front Street, Memphis,
Tennessee; Telephone Number Jackson 7-5451, if they have any ques-
tion concerning this notice or compliance with its provisions.
Colony Materials, Inc. and International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers Local No. 492.
Case No. 28-CA-677 (formerly 33-CA-677). September 5, 1962
SUPPLEMENTAL DECISION AND AMENDED ORDER
On December 19, 1961, the Board 1 issued a Decision and Order z
herein, finding that the Respondent had discriminated against cer-
tain strikers by refusing to accept their unconditional offers to return
to work. Thereafter, on January 19, 1962, the Respondent filed a mo-
tion for reconsideration to reopen the record to take further evidence
as to the cause of the strike, inasmuch as the Trial Examiner and the
parties erroneously assumed, without litigating the matter, that the
Board, in a prior decision involving this Respondent,' had deter-
mined that the strike was an unfair labor practice strike. By order
dated February 28, 1962, the Board remanded instant case to Trial
Examiner Wallace E. Royster for a further hearing on this matter.
On June 11, 1962, the Trial Examiner issued the attached Supple-
mental Intermediate Report. Thereafter, the Respondent filed ex-
ceptions to the Supplemental Intermediate Report and a supporting
brief.
1 Consisting of Members Fanning and Brown , with Member Rodgers concurring with the
result reached.
2134 NLRB 1347.
8 Colony Materials, Inc., 130 NLRB 105.
138 NLRB No. 53.