Jasta Mfg. Co., Inc.

681 JASTA MANUFACTURING COMPANY. INC. Jasta Manufacturing Company, Inc. and Interna- tional Ladies' Garment Workers' Union, AFL- CIO. Case 1-CA-8892 May 21, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on January 31, 1980, by In- ternational Ladies' Garment Workers' Union, AFL-CIO, herein called the Union, and duly served on Jasta Manufacturing Company, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 11, issued a complaint on February 25, 1980, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce 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 administrative law judge were duly served on the parties to this pro- ceeding. With respect to the unfair labor practices, the complaint alleges in substance that on January 16, 1980, following a Board election in Case I -RC- 4392, 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 January 28, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On March 3, 1980, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. Respondent admitted that it met the Board's ju- risdictional standards and that the Union is a labor organization within the meaning of the Act. It denies that the Union was properly certified on January 16, 1980, as the collective-bargaining rep- resentative of the employees in the unit. It further denies that the Union is the exclusive bargaining representative of Respondent's employees in the described unit; or that it engaged in, or is engaging I Official notice is taken of the record in the representation proceed- ing, Case I l-RC-4392, 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. 383 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); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F 2d 91 (7th Cir 1968); Sec. 9(d) of the NLRA, as amended. 249 NLRB No. 97 in, unfair labor practices affecting commerce within the meaning of Section 8(a)(l) and (5) and Section 2(6) and (7) of the Act. On March 10, 1980, counsel for the General Counsel filed directly with the Board a "Motion to Strike Portions of Respondent's Answer to Com- plaint and Motion for Summary Judgment." Subse- quently, on March 18, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Coun- sel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. 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 to the complaint and the Notice To Show Cause, Respondent denies that the Union was properly certified as representative of its em- ployees, and therefore denies that it has any duty to bargain with the Union. Review of the record herein reveals that in Case 11 -RC-4392 the petition was filed by the Union on July 22, 1977, and on August 12, 1977, the Region- al Director approved a Stipulation for Certification Upon Consent Election in which a unit of "all pro- duction and maintenance employees, service people, custodians, and regular part-time employees at the Employer's Branchville, South Carolina, plant, excluding all office clerical employees, pro- fessional employees, guards and supervisors as de- fined in the Act," was agreed to be an appropriate unit for the purpose of collective bargaining. On September 8, 1977, the Regional Director conduct- ed an election. The tally of ballots showed that of 121 votes cast 57 were cast for the Union, 55 were against the Union, and 9 were challenged. Subse- quently, both parties filed timely objections to con- duct affecting the results of the election. On December 21, 1977, the Regional Director issued his report, wherein he overruled Respond- ent's objections in their entirety; overruled seven of the Union's objections; directed that a hearing be held to resolve challenges to ballots and the six re- maining union objections; and consolidated the Union's objections with the outstanding complaint proceedings in Case 1l-CA-7215. On January 11, 1978, the Respondent filed exceptions with the Board to the Regional Director's report; and on 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 7, 1978, the Board issued a Decision and Order Directing Hearing. 2 The Administrative Law Judge on April 6, 1979, issued his Decision in the consolidated cases, find- ing that Respondent violated Section 8(a)(1) and (3) of the Act. Following exceptions filed by the parties, the Board on October 12, 1979, issued its Decision and Order in Jasta Manufacturing Company, Inc., 246 NLRB No. 16. It affirmed, as modified, the find- ings and conclusions of the Administrative Law Judge, and concluded, because of the pervasive nature of the violations, that the Union became the bargaining representative of the employees on June 10, 1977, when a majority of the employees signed authorization cards. 3 The Board found, contrary to the Administrative Law Judge, that Respondent violated Section 8(a)(1) by discharging Railey Jamison, Elijah Wil- liams, James Holback, and Joseph Summers. 4 The Board directed that the ballots of Gloria Williams, John C. Judy, Dorothy Infinger, Lucy B. Infinger, Elijah Williams, Railey Jamison, and James Holback be opened and counted and, in the event that the Union received a majority of the valid votes cast, a certification of representative issue. On January 16, 1980, the Regional Director cer- tified the Union as bargaining representative. Since January 18, 1980, the Union has requested Respondent to bargaining collectively and, since on or about January 28, 1980, Respondent has refused. 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.s 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 decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor 2 Not reported in volumes of Board Decisions. ' Chairman Fanning would have issued a bargaining order of only prospective application. 4 Member Penello dissented with respect to this finding ' See Pilruhrgh Plate Gluas Co v. N.L.R.B., 313 U.S. 146, 162 (1941). Rules and Regulations of the Board, Secs. 102 67(f) and 102.69(c). practice proceeding. Accordingly, we grant the Motion for Summary Judgment. 6 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Jasta Manufacturing Company, Inc., is a South Carolina corporation with a facility located in Branchville, South Carolina, where it is engaged in the business of manufacturing apparel. During the past 12-month period, which is representative of all times material herein, the Respondent shipped from its Branchville facility to points outside the State of South Carolina finished products valued in excess of $50,000. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction 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, service people, custodians and regular part- time employees at the Employer's Branchville, South Carolina, plant, excluding all office clerical employees, professional employees, guards and supervisors as defined by the Act. 2. The certification On September 8, 1977, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 11, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining repre- e Member Penello would grant the Motion for Summary Judgment based on the Respondent's misconduct in the underlying case, which the Board found warranted the issuance of a bargaining order. JASTA MANUFACTURING COMPANY, INC. 683 sentative of the employees in said unit on January 16, 1980, and the Union continues to be such exclu- sive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about January 18, 1980, 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. In an undated letter from the plant manager, received by the Union on or about January 28, 1980, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since January 28, 1980, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 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. Jasta Manufacturing Company, Inc., is an em- ployer engaged in commerce within the meaning of Section 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, service people, custodians and regular part-time employees at Respondent's Branchville, South Carolina, plant, excluding all office clerical em- ployees, professional employees, guards and super- visors as defined by the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since January 16, 1980, 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 January 28, 1980, 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)(l) 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, Jasta Manufacturing Company, Branchville, South Carolina, its officers, agents, successors, and as- signs, shall: 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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: All production and maintenance employees, service people, custodians and regular part- time employees at the Respondent's Branch- ville, South Carolina, plant, excluding all office clerical employees, professional employ- ees, guards and supervisors as defined by 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 Branchville, South Carolina, plant copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 11, 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, defaced, or covered by any other material. (c) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this 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." 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, service people, custodians and regular part- time employees at the Employer's Branch- ville, South Carolina, plant, excluding all office clerical employees, professional em- ployees, guards and supervisors as defined by the Act. JASTA MANUFACTURING COMPANY, INC.