Spring City Knitting Co.

212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Spring City Knitting Company and International Ladies' Garment Workers' Union, AFL-CIO. Case 28-CA-5616 May 1, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on November 28, 1979, by International Ladies' Garment Workers' Union, AFL-CIO, herein called the Union, and duly served on Spring City Knitting Company, herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 28, issued a complaint and notice of hearing on January 2, 1980, against Respondent, alleging that Respondent had engaged in and was 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 National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an ad- ministrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on August 10, 1979, following a Board election in Case 28-RC- 3654, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about October 8, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining repre- sentative, although the Union has requested and is requesting it to do so. On January 18 and January 29, 1980, respectively, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On February 1, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 6, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. I Official notice is taken of the record in the representation proceed- ing, Case 28-RC-3654, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follettrr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 249 NLRB No. 33 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer and in its amended answer to the complaint, and/or in its reply to the General Coun- sel's motion, Respondent admits, inter alia, that the Union has requested Respondent to meet for the purpose of commencing negoitations for a collec- tive-bargaining agreement for the unit described infra, and that it has failed and refused to meet and to bargain with the Union. Respondent asserts that it may legally test the sufficiency of the Union's position. Respondent denies, inter alia, that the unit is appropriate and that the Union is the certified bargaining representative, and asserts that only a unit which also includes its production, mainte- nance, shipping, and receiving employees at its Glendale, Arizona, facility is appropriate. Respond- ent also denies that the employees designated and selected the Union as their representative for the purpose of collective bargaining, and asserts that the employees did not freely designate and select the Union because of the latter's conduct prior to and during the election. Respondent denies that it engaged in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act. In addi- tion, Respondent asserts that the Union intimidated employees and harassed Respondent by misusing the Board's subpena power at a preelection hear- ing. It asserts that summary judgment is inappropri- ate in this proceeding because there exist substan- tial questions of law and fact which can only be fully resolved after a hearing. The General Counsel contends that by denying the appropriateness of the unit, and by denying that the employees desig- nated and selected the Union as their representative and that the Union was duly certified as the exclu- sive bargaining agent, Respondent is attempting to preserve its legal claim that the certification was improper. The General Counsel also contends that Respondent fails to raise any material issues of fact of law which have not already been resolved by the Board in the underlying representation pro- ceeding. We agree with the General Counsel. Review of the record herein, including the record in Case 28-RC-3654, reveals that on June 6, 1979, following a hearing, the Regional Director for Region 28 issued his Decision and Direction of Election wherein, contrary to Respondent's conten- tion, he found appropriate a single-plant unit of all production, maintenance, shipping, and receiving SPRING CITY KNITTING COMPANY 213 employees at Respondent's Flagstaff, Arizona, fa- cility, but excluding office clericals, mechanics, retail store employees, professional employees, guards, and supervisors as defined in the Act. The Regional Director found no merit in Respondent's contention that the Hearing Officer committed re- versible error in refusing to grant Respondent's motion to quash union subpenas which were served on several employee witnesses, but who were not actually called as witnesses. On June 17, 1979, the Board denied Respondent's request for review as raising no substantial issues warranting review. Subsequently, on June 28, 1979, a majority of Re- spondent's employees in the appropriate unit desig- nated the Union as their representative for the pur- poses of collective bargaining with Respondent. On July 3, 1979, Respondent filed objections to the election which alleged that Petitioner misrepresent- ed Respondent's reason for closing one of its plants, and that agents of Petitioner trespassed on its premises to distribute literature. On August 10, 1979, the Regional Director issued a "Supplemental Decision on Objection to Conduct Affecting the Results of the Election and Certification of Repre- sentative," in which he overruled the objections in their entirety, and certified th Union. On or about August 30, 1979, Respondent filed with the Board a request for review of the Regional Director's Supplemental Decision, and on October 22, 1979, the Board denied review as no substantial issues warranting review had been raised. It thus appears that Respondent is attempting in this proceeding to relitigate issues fully litigated and finally deter- mined in the representation proceeding. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding. 2 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decisions rendered in the representation proceed- ing. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: 2 See Pittsburgh Pluate Glas Co. V ,VI. R.B, 13 US 146, Ih62 (1941) Rules and Rcgulations (if the Board, Sccs 102 67(f) and 1)2 69(c) FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, at all times material herein, has maintained its principal office and place of business in Royersford, Pennsylvania, and other facilities in Arizona, Georgia, and New Mexico, and has been engaged in the manufacture and nonretail sale and distribution of men's and boy's underwear. Re- spondent's plant in Flagstaff, Arizona, is the only facility involved in this proceeding. During the past 12-month period, Respondent, in the course and conduct of its business operations, manufac- tured, sold, and distributed at its places of business in the State of Arizona products valued in excess of $50,000 which were shipped from said places of business in interstate commerce directly to custom- ers located outside the State of Arizona. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will ef- fectuate the policies of the Act to assert jurisdic- tion herein. II. THE LABOR ORGANIZATION INVOLVED International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 1II. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees, and shipping and receiving employees em- ployed at the Respondent's facility located at 503 West Clay, Flagstaff, Arizona; excluding all office clerical employees, mechanics, retail store employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On June 28, 1979, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 28, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certi- fied as the collective-bargaining representative of the employees in said unit on August 10, 1979, and 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union continues to be such exclusive repre- sentative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about October 8, 1979, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about October 8, 1979, and continu- ing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Spring City Knitting Company is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, and shipping and receiving employees employed at Respondent's facility located at 503 West Clay, Flagstaff, Arizona; excluding all office clerical em- ployees, mechanics, retail store employees, profes- sional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. Since August 10, 1979, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about October 8, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged 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 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Spring City Knitting Company, Flagstaff, Arizona, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: SPRING CITY KNITTING COMPANY 215 All production and maintenance employees, and shipping and receiving employees em- ployed at the Respondent's facility located at 503 West Clay, Flagstaff, Arizona; excluding all office clerical employees, mechanics, retail store employees, professional employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Flagstaff, Arizona, facility copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 28, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, .efaced, or covered by any other material. I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted By order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (c) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees, and shipping and receiving employees em- ployed at the Employer's facility located at 503 West Clay, Flagstaff, Arizona; excluding all office clerical employees, mechanics, retail store employees, professional employ- ees, guards and supervisors as defined in the Act. SPRING CITY KNITTING COMPANY