Joy Silk Mills, Inc., And United Textile Workers Of America, A. F. L., 1263 (1949)

In the Matter of JoY SILK MILLS, INC., and UNITED TEXTILE WORKERS OF AMERICA, A. F. L.

Case No. IO-CA-645.-Decided September 13, 1949 DECISION AND ORDER On May 27, 1949, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief.

The Respondent has also requested oral argument, which is hereby denied, because the record, in our opinion, adequately reflects the issues and the positions of the parties.

The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed.

The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except insofar as they are inconsistent with the Decision and Order herein.

  1. We agree with the Trial Examiner's finding that the Respondent has refused to recognize and bargain with the Union within the meaning of Section 8 (a) (5) of the Act.2 However, we disagree with the Trial Examiner's findings that the refusal took place on and after October 12, 1948, and that until this date, the Respondent was acting in good faith in its dealings with the Union.

    I Pursuant to the provisions of Section 3 (b) of the Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston,

    Reynolds, and Murdock].

    I Member Murdock concurs in finding the violation of Section 8 (a) (5) solely because he feels bound by the decisions of the Board in the Oufman Lumber and D. H. Holmes cases cited in footnote 5.

    1263 As more fully set forth in the Intermediate Report, the Union represented a majority of the employees in the appropriate unit on September 24, 1948, when it made its initial request for recognition.3 The Respondent refused the reqlrst, insisting that the Union prove its majority status in a Board-o,, Jucted election. The Union thereupon filed a representation petition with the Board. On September 30, at a conference attended by the Respondent's attorney, a field examiner of the Board, and the Union's spokesman, the Respondent's attorney indicated that Respondent would agree to a consent election if an investigation proved that the Respondent was subject to the Act's jurisdiction. On October 7, the Respondent gave its consent to an election which was held on October 19, 1948. However, beginning on October 12, and continuing until the election, the Respondent, as detailed in the Intermediate Report, engaged in acts of interference and coercion which made a free election impossible.

    We have previously held that an employer may in good faith insist on a Board election as proof of the Union's majority but that it 'unlawfully refuses to bargain if its insistence on such an election is motivated, not by any bona fide doubt as to the union's majority, but rather by a rejection of the collective bargaining principle or by a desire to gain time within which to undermine the union.'4 In cases of this type the question of whether an employer is acting in good or bad faith at the time of the refusal is, of course, one which of necessity must be determined in the light of all relevant facts in the case, including any unlawful conduct of the employer, the sequence of events, and the time lapse between the refusal and the unlawful conduct.

    In the instant case, the Respondent engaged in unfair labor practices during the preelection period, the first of its illegal acts having occurred only 5 days after it.agreed to a consent election and less than 3 weeks after the Union's initial bargaining request. Under these circumstances we find, contrary to the Trial Examiner, that the Respondent's insistence upon an election was not motivated by a good 3 We agree with the Trial Examiner's conclusion that the telephone call from Jacobs to Gilbert on September 24, 1948, constituted a request to bargain. However, we disagree with the Trial Examiner's subsidiary finding to the effect that the request was not express or formal but rather implied or to be inferred from Jacobs' telephone conversation. According to Jacobs' version of the conversation which was credited by the Trial Examiner.

    Jacobs asked Gilbert if he was willing to recognize the Union as the bargaining representative of the production and maintenance employees, adding that the Union had been authorized by these employees to represent them. This testimony, in our opinion, clearly establishes that the bargaining demand of September 24, was express and we so find.

    In its brief, the Respondent contends that the Trial Examiner's credibility findings with respect to the telephone conversation between Jacobs and Gilbert on September 24, are unsupported by the record and moreover are without logic. We do not agree. Furthermore, the importance of observation of witnesses to any finding of their credibility is such that we will not overrule the credibility findings of Trial Examiners unless they are clearly erroneous. See Matter of Minnesota Mining and Manufacturing Company, 81 N. L. R. B. 557.

    4 Matter of Artcraft Hosiery Company, 1265 faith doubt of the Union's majority.5 On the contrary, we are convinced that the real reason the Respondent rejected the Union's request on September 24, was to gain time within which to undermine the Union's support. Accordingly, we find that a refusal took place on September 24, and from that time on, the Respondent refused to bargain collectively within the meaning of Section 8 (a) (5) of the Act as amended.

  2. In its brief, the Respondent contends that a remedial order direct ing it to bargain with the Union, would deprive the Respondent of its right under Section 9 (c) (1) (b) of the Act to petition the Board for an election. This position is clearly untenable. We have found that on September 24 when the Union made its bargaining demand, it was the majority representative of the Respondent's employees in the appropriate unit. Having refused the Union's request in violation of the Act, the Respondent cannot now be heard to say that it entertains an honest doubt as to the Union's majority status, and that until an election is held, its duty to bargain is suspended.' 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 Respondent, Joy Silk Mills,

    Inc., and its officers, agents, successors, and assigns shall:

  3. Cease and desist from:

    (

    1. Refusing to bargain collectively with United Textile Workers of America, A. F. L. as the exclusive representative of all production and maintenance employees employed by the Respondent at its Hartsville, South Carolina, plant, excluding clerical and office employees, guards, professional employees, and all supervisors as defined in the Act;

    5 Under the Trial Examiner's theory of the case a refusal did not occur until October 12.

    In his view, only the events which preceded October 7, the time the Respondent agreed to a consent election were relevant to the issue of the Respondent's motive in insisting upon an election. As no unfair labor practices occurred during this period, the Trial Examiner concluded that the Respondent was acting in good faith when it refused the Union's initial request and sought an election. Turning then to the Respondent's unfair labor practices which began on October 12, the Trial Examiner found that this illegal conduct, standing alone, constituted a refusal to bargain because it demonstrated that whatever doubts [the Respondent] had previously entertained were no longer genuine, and that it sought to evade its obligation to recognize and to bargain with the Union.

    As our decision indicates, we do not subscribe to the Trial Examiner's theory of the issue under discussion. We are of the opinion that the unfair labor practices, because of their nature and timing, color the Respondent's intent on September 24, and support a finding that the doubt advanced on that day by the Respondent as the reason for refusing to bargain with the Union, was feigned and advanced in bad faith. See Matter of The Cuffman Lumber Company, Inc., 753; Matter of Georgia Twine and Cordage Company, 76 N. L R. B. 84.

    * See Franks Bros. Company v. N. L. R. B., 321 U. S. 702; Matter of People's Motor Empress, Inc.,

    R. B. 296.

    (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Textile Workers of America, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection and to refrain from any or 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 guaranteed by Section 7 thereof.

  4. Take the following affirmative action which the Board finds will effectuate the policies of the Act:

    (

    1. Upon request, bargain collectively with United Textile Workers of America, A. F. L., as the exclusive representative of all its employees in the above-described unit with respect to wages, rates of pay, hours of employment, and, if an understanding is reached, embody such understanding in a signed agreement;

    (b) Post at its plant at Hartsville, South Carolina, copies of the notice...

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