Nappe-Babcock Company

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nappe-Babcock Company and Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC. Case 5-CA- 10662 September 19, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on March 26, 1979, by Amal- gamated Clothing and Textile Workers Union, AFL- CIO, CLC, herein called the Union, and duly served on Nappe-Babcock Company, herein called Respon- dent, the General Counsel of the National Labor Re- lations Board, by the Acting Regional Director for Region 5, issued a complaint and notice of hearing on April 27, 1979, against Respondent alleging that Re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing of Section 8(a)(5) and (I) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hear- ing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on February 7, 1979, following a Board election in Case 5-RC-10577 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about February 23, 1979, and at all times there- after Respondent has refused and continues to date to refuse to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On May 5, 1979, Respondent filed its answer to the com- plaint admitting in part and denying in part the alle- gations in the complaint. The Union and counsel for the General Counsel each filed directly with the Board a Motion for Sum- mary Judgment. The Union's motion was filed on June 28, 1979, and the General Counsel's motion was filed on July 13, 1979. Subsequently, on July 20, 1979, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment I Official notice is taken of the record in the representation proceeding, Case 5-RC 10577, 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 Electrosysemsr, 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); Inlertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follett Corp., 164 NLRB 378 (1967) enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. should not be granted. Respondent thereafter filed a response to the Notice to Show Cause, and the Gen- eral Counsel filed a response thereto. Respondent then filed a reply to the General Counsel's response. 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 Respondent denies that it refused a request to bargain, and in its amended answer Respondent contends that the Union never requested bargaining.' In response to the Notice To Show Cause Respondent also argues that the Union does not represent a majority of employ- ees, and that it was improperly certified because threats of violence created an atmosphere of fear and tension on the day of the election. Counsel for the General Counsel contends that the Union did request bargaining, that Respondent refused the request, and that Respondent seeks to relitigate issues previously considered in the underlying representation proceed- ing. Our review of the record herein, including the rec- ord in Case 5-RC-10577, discloses that pursuant to a Stipulation for Certification Upon Consent Election, an election was conducted among the employees in the stipulated unit on October 27, 1978. The tally of ballots showed that 161 votes were cast for, and 103 against, the Union, with I nondeterminative chal- lenged ballot. On November 6, 1978, Respondent filed timely objections to conduct affecting the results of the election, which alleged in substance that the Union paid certain employees to assist the Union in the election campaign, and that threats of violence created a tense and fearful atmosphere on election day. After an investigation, the Regional Director for Region 5 issued his Report on Objections in which he recommended that the objections be overruled. Re- spondent subsequently filed exceptions to the report, and on February 7, 1979, the Board issued a Decision and Certification of Representative which adopted the Regional Director's report and recommenda- tions.3 In his Motion for Summary Judgment, counsel for the General Counsel contends that, by letters dated February 13 and 28 and March 30, 1979, the Union 2 In its original answer, Respondent admitted that such a bargaining re- quest had been made. ' With respect to the objection concerning alleged union payments to em- ployees, the Board relied solely on the finding that there was no evidence that such payments were received by employees. 245 NLRB No. 5 20 NAPPE-BABCOCK COMPANY requested, and continues to request, that Respondent provide certain information necessary for collective bargaining, and that Respondent proceed to negotiate a collective-bargaining agreement. It is also alleged that by letter dated February 23, 1979, Respondent refused the bargaining request. Respondent argues that the Union's letters do not constitute a request to bargain, and that its February 23 letter is not a re- fusal. The Board finds, however, that a bargaining request was made by the Union and refused by Re- spondent, and that Respondent raises no genuine is- sue concerning these matters.4 With respect to the other issues raised by Respon- dent, it is well settled that in the absence of newly discovered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding alleg- ing a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been liti- gated in a prior representation proceeding.s Except for the allegation that it neither received nor refused a bargaining request, all issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evi- dence, nor does it allege that any special circum- stances 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 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 I. THE BUSINESS OF RESPONDENT At all times material herein, Respondent, a Dela- ware corporation with facilities located in Richmond, Virginia, has been engaged in the manufacture of home furnishings. During the past 12 months, a rep- resentative period, Respondent, in the course and 'The Union's February 13 letter sought information on, inter alia, the names and wages of employees, Resapondent's pension or profit-sharing plan, its insurance program, and vacations and holidays. The letter stated that the information was needed so that the parties could "proceed to negotiate a Labor Agreement between the Company and the Union." The request for the information was reiterated in the Union's letters of February 28 and March 30. Respondent's letter of February 23 indicated that the information would be forwarded "as soon as all litigation has been cleared." tSee Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 6'Asunming, argueno., that the Union had standing to file its summary judgment motion, we find it unnecessary to rule thereon in view of our disposition of the General Counsel's motion. conduct of its business operations, has sold and shipped in interstate commerce products valued in ex- cess of $50,000 to points located directly outside the Commonwealth of Virginia. We find, on the basis of the foregoing, that Respon- dent 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 Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding I. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by Respondent at its two Richmond. Vir- ginia, locations, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On October 27, 1978, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 5, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on February 7, 1979, and the Union contin- ues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about February 13, 1979, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about February 23. 1979, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the 21 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since February 13, 1979, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appropri- ate unit, and that, by such refusal, Respondent 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 operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce 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 and is engaging in unfair labor practices within the mean- ing 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement.7 In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/bla Lamar Hotel, 140 NLRB 266, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Con- The Union's motion urges that certain extraordinary remedies be im- posed. We deny the request that Respondent be ordered to pay the Union's costs and expenses, including attorney's fees. The Board has granted such relief where it has found that the asserted defenses were so insubstantial as to be considered patently frivolous. See Tiidee Products, Inc., 194 NLRB 1234 (1972). In the instant case, we do not find that Respondent's defenses are meritless on their face, and hence they cannot be considered to constitute frivolous litigation. We also deny the Union's request for the institution of an immediate 7- percent wage increase and the establishment of an "interim grievance proce- dure." It is well settled that the Board is "without power to compel a com- pany or a union to agree to any substantive contractual provision of a collec- tive-bargaining agreement." H. K. Porter Co., Inc., Disston Division-Danville Works v. N.LR.B. 397 U.S. 99, 102 (1970). struction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (lOth Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Nappe-Babcock Company is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by Respondent at its two Richmond, Virginia, locations, but excluding all office clerical employees, professional employees, guards and supervisors as de- fined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since February 7, 1979, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about February 23, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act, and thereby has 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 mean- ing 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 Rela- tions Board hereby orders that the Respondent, Nappe-Babcock Company, Richmond, Virginia, 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 con- ditions of employment with Amalgamated Clothing 22 NAPPE-BABCOCK COMPANY and Textile Workers Union, AFL-CIO, CLC. as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees em- ployed by Respondent at its two Richmond, Vir- ginia, locations, but excluding all office clerical 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 exercise 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 understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its Richmond, Virginia, facilities copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Re- spondent's representative, shall be posted by Respon- dent immediately upon receipt thereof, and be main- tained 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 Respondent to insure that said 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." notices are not altered. defaced, or covered by any other material. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR REI.ATIONS 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 Amal- gamated Clothing and Textile Workers Union, AFL-CIO, CLC, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees 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 representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees employed by us at our two Richmond, Vir- ginia, locations, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. NAPPE-BABCOCK COMPANY 23