Int'l Ladies' Garmfent Workers' Union, AFL-CIO

INT'L LADIES' GARMENT WORKERS' UNION, AFL-CIO 353 WE WILL offer to Eugene Fazendin, Walter Williams, John Schnapp, John Kinney, and Robert Urbach, immediate and full reinstatement to their former or substantially equivalent position, without prejudice to any rights and privileges previously enjoyed by them, and make them whole for any loss of wages suffered as a result of the discrimination against them. All our employees are free to become, remain, or refrain from becoming or re- maining, members of Office Employees International Union, Local No 9, AFL-CIO, or any other labor organization, except to the extent that such rights 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. We will not discriminate in regard to hue or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. NATIONAL FOOD STORES, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board' s Regional Office, Midland Building, 176 West Adams Street, Chicago, Illinois, 60603, Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions. International Ladies' Garment Workers' Union, AFL-CIO and Federation of Union Representatives . Case No. 2-CA-8849. April 29, 1963 DECISION AND ORDER On January 31, 1963, Trial Examiner Samuel M. Singer 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 attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief, and the Charging Party filed a brief in support of the Intermediate Report. 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 [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. The Trial Examiner found that the Respondent violated Section 8(a) (5) and (1) of the Act by its admitted refusal to bargain with FOUR, which had been certified by the Board as the representative of an appropriate unit of the Respondent's employees. The Respond- ent contends that because the Board refused to grant it a hearing on 142 NLRB No. 46. 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain challenged ballots, thereby denying it due process, the certifi- cation was invalid and there was no obligation upon it to bargain. The ballots had been challenged by FOUR on the ground that the voters should be excluded as supervisors. The Regional Director, following an investigation, issued a report in which he sustained the challenges and excluded the individuals in question on the ground that they lacked a sufficient community of interest with those in the unit. Thereafter, the Respondent filed exceptions to this report with the Board, setting forth in great detail the duties of these individuals and the Respondent's contentions regarding their unit placement. The Board found 1 that these individuals should be excluded from the unit for the same reasons as those relied upon by the Regional Director. We find, in agreement with the Trial Examiner, that the Respond- ent has been afforded an opportunity to litigate fully all the relevant issues in this case, and that it has not shown that there are material or substantial questions of fact or law that warrant a further hear- ing.2 Accordingly, we conclude, as did the Trial Examiner, that the certification was valid and the Respondent's admitted refusal to bar- gain violated Section 8(a) (5) and (1) of the Act. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. 1 Supplemental Decision, Direction , and Order, dated October 3, 1961, not published in NLRB volumes , in which the Board granted a hearing on certain other challenges, but denied a hearing as to the Respondent's contentions involved herein on the ground that they did not raise material and substantial questions of fact. 3 0 K. Van and Storage, Inc , 127 NLRB 1537, 1539, enfd. 297 F. 2d 74 (C.A. 5) ; J. R. Simplot Company, 138 NLRB 172 In NLR.B. v. The Joclsn Manufacturing Company, 314 F. 2d 627 ( CA. 2), mod 314 F. 2d 635 (C.A. 2), the United States Court of Appeals for the Second Circuit recently held that the Board properly conditions the right to a hearing with respect to challenged ballots on "a showing that factual issues are `substantial and niaterial'-a requirement not only proper but necessary to prevent dilatory tactics by employers or unions dis- appointed in the election returns." The court went on to find , contrary to the Board, that substantial and material issues had been raised and remanded that case to the Board for a hearing thereon The instant case presents a different situation and, applying the legal principle approved by the court in Joctsn, we are convinced , as was the Trial Examiner, that the Respondent in the instant case has not raised such substantial and material issues in this case. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed September 14, 1962, by the Federation of Union Representa- tives (herein called FOUR), the General Counsel of the National Labor Relations Board, by the Regional Director for the Second Region, issued a complaint on October 2, 1962, alleging that International Ladies' Garment Workers' Union, AFL-CIO (herein called Respondent or ILGWU), as the employer of certain of its staff members, refused to bargain collectively with FOUR, the certified majority representative of the employees in an appropriate bargaining unit. Respondent admits that it has refused to bargain with FOUR and to furnish it with certain requested information , although it questions the particular date on which the refusals commenced . Its basic defense is that the representation election in Case No. 2-RC- INT'L LADIES' GARMENT WORKERS ' UNION, AFL-CIO 355 11158 [131 NLRB 111] , upon the basis of which FOUR was certified as the statu- tory bargaining representative of its employees , is invalid. Pursuant to due notice, a hearing was held before Trial Examiner Samuel M. Singer in New York, New York, on November 26 and 27, 1962 . All parties were present and were afforded full opportunity to be heard and to introduce relevant evidence. Subsequent to the hearing the General Counsel and Respondent filed briefs. The Charging Party submitted a memorandum at the hearing. Upon the entire record I in the case, I make the following: FINDINGS OF FACT 1. THE STATUS OF RESPONDENT Respondent is an International labor organization consisting of numerous locals, joint boards, district councils, and regional departments , with a membership of over 400,000, and employs, among others, business agents, organizers , educational directors, and clericals. It has its principal office and place of business in New York, New York, and various other places of business in States other than New York, where it has engaged in representing employees for the purposes of collective bargaining with various employers who are engaged in interstate commerce, each of whom manufacturers or sells goods of a value in excess of $50,000. During the past year, which is a representative period , Respondent has received per capita dues and initiation fees valued in excess of $6,000,000 at its International offices in New York from locals chartered by the International and located throughout the United States. It has also received contributions for the death benefit fund as provided for by collective-bargaining agreements with employers located throughout the United States valued in excess of $1,000,000 , of which in excess of $ 100,000 was received from employers located outside the State of New York. Upon these uncontroverted facts I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR OGRANIZATION INVOLVED I find from the Board 's decision in the representation proceeding in Case No. 2-RC-11158, referred to above, that FOUR is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The representation proceeding On December 27, 1960, FOUR filed a petition for investigation and certification of representatives , seeking exclusive representation of certain staff members em- ployed by Respondent? Pursuant to Section 9(c) of the Act, the Regional Director thereafter directed that a hearing be held with respect to the petition.3 Following this hearing ( held on January 17 and February 8, 9, and 10, 1961 ), the Board on April 14, 1961 , issued its Decision and Direction of Election ( 131 NLRB 111) in which it found that the following individuals constituted an appropriate collective bargaining unit: All individuals on the payroll of International Ladies' Garment Workers' Union (as distinguished from its locals ) who serve as business agents, organizers, educational directors , and who do union label and political work, excluding office clericals, supervisors , professionals, watchmen, and guards as defined in the Act. The Board in its Decision and Direction of Election rejected Respondent 's conten- tion that the business agents, whom FOUR sought to be included in the unit, were "managerial employees, or for other reasons, should not be considered employees 'On January 7, 1963, I issued an order granting Respondent ' s motion to correct the transcript of the hearing . The order also corrects other typographical and obvious errors appearing in the transcript. 3 The record in the representation case, Case No 2-RC-1115'8, was treated by the parties to be automatically part of the record in the instant complaint case Under Section 9(d) of the Act the entire record in the representation proceeding would be included in the present one in enforcement or review proceedings under Section 10(e) or ( f) of the Act 3 The Regional Director acted pursuant to Section 102 63 of the Board's Rules and Regulations , Series 8, then in effect. 712-548-64-vol. 142-24 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD under the Act." The Board concluded that "on the basis of the record as a whole, particularly in view of their duties , responsibilities , lines of progression and training, that all the employees sought by [FOUR ] have sufficient community of interest to warrant their inclusion in the single unit as herein provided ." ( 131 NLRB 111, 112, footnote 3.) Pursuant to the Decision and Direction of Election , the Regional Director con- ducted an election among the employees in the above-mentioned unit on May 12, 1961 . Of the total ballots cast, 115 were for FOUR, 100 against it, 2 ballots were declared void, and 33 were challenged .4 Since the challenged ballots were sufficient in number to affect the results of the election, the Regional Director conducted an investigation into the validity of the challenges and also the objections filed by Respondent to the conduct of the election. In his report on objections and report on challenged ballots, issued June 29, 1961, the Regional Director recommended that : (a) the objections be overruled; (b) Re- spondent be sustained as to 11 of the 33 challenges and FOUR as to 19 challenges; and (c ) the ballots of 3 individuals remain unopened and held in abeyance until dis- position of pending unfair labor practice charges.5 As FOUR would thereby re- ceive a majority of the total valid ballots cast , the Regional Director recommended that FOUR be certified as the statutory representative in the bargaining unit. The Regional Director's report sets forth in detail the duties and functions of each of the challenged voters and the reasons underlying his findings that each should, or should not, be included in the appropriate bargaining unit. Only 10 of the original 33 challenged voters are still involved in this proceeding . Four of these are in- dividuals on the staff of Respondent 's official newspaper Justice; 6 two are employed in its political department (Evelyn Dubrow and David Wells); two are in the edu- cational department (Ralph Reuter and Fannia Cohn); and one is on Respondent's promotion staff (Harry Crone). The 10th challenged voter, James Barker, is the director of one of the International 's health fund committees and a part-time business agent. In general, the Regional Director found that the publication (Justice), politi- cal, educational, and promotion departments are service departments which are di- rectly responsible to the International's president as distinguished from the field personnel included in the bargaining unit, such as business agents, organizers, and educational directors, who are responsible to the locals ' managers and to regional directors; that the personnel in these departments have little contact with the field employees and what contact they do have is for the most part by telephone or cor- respondence; that whereas in the field there is generally an interchange of duties between organizers, business agents, and educational directors , this is not true of service department employees; and, most importantly, that the positions and func- tions of the nine employees in the departments in question are not those performed by the employees in the bargaining unit? As to James Barker, the Regional Director found that he spends 80 percent of his time as director of the health fund and only 20 percent of his time in duties falling within the scope of the unit and , therefore, that he is also outside the bargaining unit. Thereafter Respondent filed exceptions to the Regional Director's report, object- ing to most of his findings and recommendations, including those with respect to the challenges of the 10 individuals described above. Respondent first pointed out that all four employees in the political and educational departments were challenged by FOUR solely on the ground that they were supervisors and not because their positions were outside the unit-the ground relied on by the Regional Director for upholding three of these four challenges. Respondent then went on to say that, 4 The Board agents challenged the ballots of 9 employees on the ground that their names did not appear on the list of eligible voters ; the remaining 14 ballots were challenged by FOUR and Respondent on the grounds that the employees who cast them were either out- side the bargaining unit or were supervisors. 5 The three challenged voters were the subject of an unfair labor practice case , in which FOUR had alleged , among other things, that Respondent had discharged or transferred the employees in question for discriminatory reasons After investigation , the Regional Director dismissed the charge as to one employee ( 137 NLRB 1681 , footnote 3). The alleged discriminatory treatment of the remaining two (Constantine Sedares and Isadore Bloom ), was litigated in Cases Nos 2-CA-7857-1 and 2-CA-7923 [142 NLRB 82], in which Trial Examiner George A. Downing recently issued his Intermediate Report finding that Respondent's actions were not discriminatorily motivated and recommending dis- missal of the complaint as to these two employees ( IR-345-62). 9 Burton Berinsky, Meyer Miller, Saul Rosen, Samuel Weiss As to one individual on the educational staff, Fannia Cohn, the Regional Director further found that she is a supervisor and is disqualified from the unit on this ground also INT'L LADIES' GARMENT WORKERS' UNION, AFL-CIO 357 "We except to the Regional Director's findings and recommendations as to all nine ballots, and shall show that he erred in finding these nine staff members to be out- side the unit. . We shall show that all nine persons fall within the [unit] descrip- tion and therefore that their ballots should be admitted." There then followed a detailed statement of the "general errors" allegedly committed by the Regional Director in failing "to give a natural reading" to the unit description in the Board's Decision and Direction of Election , his alleged errors in emphasizing certain facts and ignoring others, and a lengthy analysis of the duties and positions of each of the 10 employees and the alleged community of interests of all departments , which, according to Respondent, justified the inclusion in the unit of the employees in question. Respondent sought to show that the Regional Director 's finding that the staff members in the departments have "little contact" with field employees, "can have no materiality in a unit of union representatives " and, in any event, is un- founded. Finally, Respondent urged the contention that "some members of the Political and Education Departments were permitted to vote without challenge," although "the duties of those who were challenged are no different in kind from theirs." As to the 10th individual, James Barker, Respondent emphasized that his functions were "similar to those rendered by other business agents" who were in- cluded in the unit. In conclusion, Respondent requested that the challenges to 19 ballots (including the 10 referred to above ) 8 which were then still in issue, "be overruled and the ballots . opened and counted" or, in the alternative, that "the Board should direct a hearing to develop the full facts concerning the ballots through examination and cross -examination." In its Supplemental Decision, Direction, and Order, issued October 3, 1961 (not published in NLRB volumes), the Board granted Respondent's request for a hear- ing on the challenges of nine staff members not involved in this proceeding, as to whom, the Board found, Respondent had raised "material and substantial questions of fact." The Board found that no such material and substantial questions were presented as to the 10 others involved in this proceeding , denied Respondent's re- quest for hearing as to them, and sustained the challenges by FOUR . The Board stated : As to the challenges to the ballots of [the 10 employees ] we find on the basis of the record that their duties primarily involve staff functions , and in general have only an indirect relationship with the rank and file members. We therefore agree with the Regional Director that the individuals in question do not have sufficient community of interests to be included in a unit of essentially field organizers and business agents. Accordingly, we sustain the challenge to their ballots. Addressing itself to Respondent 's procedural questions, the Board further stated: We find no merit in the contentions of the Employer [i.e., Respondent] that the Regional Director is precluded from disposing [of] the challenged ballots for reasons other than those alleged by the party at the time of the challenges. It is well-established that the Regional Director in his investigation is not re- stricted to matters raised by the parties, and that information uncovered during the course of his investigation may be used as the basis for his recommenda- tion. See, e.g., Carter-Lee Lumber Company, 119 NLRB 1374, 1376 . Nor do we find merit in Employer's contention that employees with duties similar to individuals whose challenges were sustained improperly voted. We find such contentions in the nature of post-election challenges which the Board does not consider. See, e.g., . N.L.R.B. v. A. J. Tower Company, 239 US. 324. We, therefore, deny the Employer's request for a hearing regarding the individuals in question. Respondent did not file a petition for reconsideration of the Board's Supplemental Decision, Direction , and Order. The subsequent steps in the representation proceeding are here relevant only inso- far as they culminated in the ultimate certification of FOUR on August 6, 1962, as the bargaining representative for the unit found appropriate by the Board 9 8 All 19 challenges were made by FOUR. 8In the interim, between November 8 and 21, 1961 , a hearing was conducted on the nine challenges , not here involved, as previously directed by the Board . On December 22, 1961, the hearing officer issued his report in which he recommended that the challenges be over- ruled and the ballots be opened and counted. In Its Second Supplemental Decision, Direction , Notice, and Order, Issued June 22, 1962 ( 137 NLRB 748 ), the Board adopted these recommendations . A revised tally of ballots issued pursuant to this decision showed 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The unfair labor practice proceeding On August 8, 1962, FOUR, addressed a registered letter to David Dubinsky, Respondent's president, requesting Respondent to meet and bargain with it and to sub- mit certain bargaining information. The letter was returned unopened on August 9, marked "refused." 10 In its answer to the complaint, Respondent admitted that it had thereafter on various occasions refused to negotiate with FOUR and to furnish it data relating to the wages, expenses, and fringe benefit schedules of the employees in the bargaining unit. Respondent set up the following three affirmative defenses for its conduct: (1) It was not an "employer" of the staff members in the unit found ap- propriate by the Board; (2) the staff members were not "employees" within the meaning of the Act; and (3) the Regional Director's "conclusion in his certification of August 6, 1962, that FOUR had been designated and selected by a majority of the staff members in the unit described by the Board in its Decision and Direction of Election of April 14, 1962, does not correspond with the actual facts" because it was based on the Board's ruling on challenged ballots, which ballots "the Board arbitrarily failed to count." Thereafter the General Counsel filed a motion to strike the affirmative defenses and for judgment on the pleadings on the ground that the issues raised in the answer had already been litigated and decided in the representation proceeding. In opposing this motion in the instant hearing Respondent contended, however, that it was entitled to submit evidence on its third affirmative defense because (1) it was never afforded a hearing on the challenged ballots and its was entitled to such hearing as a matter of right; (2) the procedures followed by the Board in the investigation and determina- tion of the issues involved in the 10 challenged ballots deprived it of due process of law; (3) the Board's refusal to grant it a hearing was arbitrary and unreasonable as it was entitled to such hearing under the Board's own Rules and Regulations be- cause its exceptions to the Regional Director's report raised substantial and material factual issues; and (4) the Board improperly applied its ruling with respect to post- election challenges in denying it an opportunity to show that individuals with duties similar to those of the excluded individuals voted in the election. Respondent con- ceded that it was granted a full hearing on the questions whether it was an "em- ployer" and whether the individuals in the unit were "employees" under the Act. It also conceded that it was afforded procedural due process in the determination of these questions by the Board.ii I granted the General Counsel's motion to strike the affirmative defenses from the answer because (a) admittedly none of the evidence proffered was newly discovered evidence or evidence unavailable for production in the representation hearing; (b) the matters raised as affirmative defenses were previously advanced, or could have been advanced, in the earlier proceeding; and (c) I considered myself bound by the Board's determination which were adverse to Respondent. I denied, however, the motion for judgment on the pleadings because evidence had been adduced at the hear- ing with respect to one allegation in the complaint, namely, the date of commence- ment of Respondent's refusals to bargain and submit bargaining data, and, further, because I deemed it more appropriate to rule upon the merits of the General Coun- sel's case in my Intermediate Report. Thereafter Respondent made offers of proof detailing the evidence it would have adduced to support its contentions. Based on my prior ruling, I rejected the proffered evidence. that there were 115 votes for, and 113 votes against, FOUR, with the 2 challenged ballots of the employees involved in the pending unfair labor practice proceeding still undisposed of (see supra, footnote 5). On July 26 , 1962, the Board , upon the petition of FOUR, directed the Regional Director to open the ballots of these two employees and certify FOUR if one or both ballots were cast for it, as in such situation the ultimate findings by the Board in the unfair labor practice proceeding could not change the final result of the election ( 137 NLRB 1681 ) The two ballots were thereafter opened, were found to have been cast in favor of FOUR, and thus were not determinative of the results of the election. 10 The foregoing findings are based on exhibits introduced at the hearing and on the uncontradicted testimony of Constantine Sedares , temporary chairman of FOUR, who testified on this point. No evidence or testimony was received on any other matter. 21 The foregoing questions, as well as the issue of the appropriateness of the unit, were litigated in the preelection hearing which culminated in the issuance of the Board 's Deci- sion and Direction of Election on April 14, 1961 ( supra). The voting eligibility of the individuals in question was not raised in the preelection hearing. INT'L LADIES' GARMENT WORKERS' UNION, AFL-CIO 359 Conclusions Respondent in its brief, in effect requests reconsideration of my ruling denying it the right to relitigate matters raised and determined in the prior representation pro- ceeding. It renews its request for a hearing "to grant to the ILGWU the due process previously denied it" with respect to the issue of the voting eligibility of the 10 challenged voters, and to take all necessary "corrective steps" to remedy the "fatal defects" in procedure. For the reasons already stated and set forth in greater detail below, I am constrained to deny Respondent's request and I hereby reaffirm my prior ruling. A. It has long been established that issues which were raised, or could have been raised, in the representation proceeding, may not be relitigated in the complaint proceeding 12 For "a single trial of the issues [is] enough." Pittsburgh Plate Glass Co v N.L.R B., 313 U S. 146, 162. While it is true that the prohibition on the intro- duction of evidence in the complaint hearing does not apply to newly discovered evidence, or evidence unavailable at the time of the representation proceeding, this admittedly is not the situation in this case , and I so find. Hence, Respondent was barred from litigating in the instant proceeding such questions , among others, as to whether it is an "employer" in relation to the individuals in the unit found ap- propriate by the Board and whether these individuals are "employees" within the meaning of the Act-questions which had been raised and decided in the prior representation proceeding. B. It is equally settled that an employer is not entitled to a postelection hearing as a matter of right. The only statutory requirement under Section 9(c) (1) of the Act is for a hearing prior to the election to determine whether or not a question concerning representation exists. Respondent was, of course, accorded such hearing. But "Nowhere in the Act is there a specific requirement that the Board conduct post-election hearings on objections" (N.L.R.B. v. O. K. Van Storage, Inc., 297 F. 2d 74, 75 (C.A. 5) ), "or as herein advanced, to exceptions to a regional director's 'Report on Objections'" (J. R. Simplot Company, 138 NLRB 172) Section 5(6) of the Administrative Procedure Act expressly exempts the certification of employee representatives from its formal procedural requirements for a hearing, 60 Stat. 239, 241, 5 U S.C. 1001, 1004. Respondent's contention in its brief that a party in a postelection hearing should, as a matter of justice and fairness, be entitled to litigate as of right any question which was not "anticipated" in the preelection hearing, is a matter that should be addressed to Congress and not to the Board. C. Nevertheless, the Board's Rules and Regulations do provide that the Board "may direct" even a postelection hearing where "it appears to the Board" that the excep- tions filed to the Regional Director's report on objections or challenged ballots "raise substantial and material factual issues." 13 It appears to me, and Respondent in its brief implicitly concedes, that the holding of a hearing under these provisions is discretionary with the Board. The Board, finding that a hearing may prove fruitful in resolving substantial and material factual questions in a given case, will in such case direct a hearing. Where, however, the Board finds otherwise, it is clear that the Board's determination to withhold a hearing is vulnerable only if it is shown that the Board's action was arbitrary or capricious. This, in substance, is the teaching of cases relied on by Respondent, such as N.L.R.B. v. Poinsett Lumber and Manufacturing Company, 221 F. 2d 121 (C.A. 4), where it was held that the Board's failure to grant a hearing was, under the circumstances of the particular case, im- proper. None of these cases stands for the proposition urged by Respondent that 11at some stage of an administrative agency's proceedings ... such agency must grant 12 N L R B. v Worcester Woolen Mills Corporation, 170 F. 2d 13, 16 (C.A 1), Bert denied 336 U S. 903 ; N L.R B v American Steel Buck Corp, 227 F 2d 927, 929 (C A 2) N 'L R B. v. Southern Bleachery & Print Works, Inc, 257 F. 2d 235, 241 (C A 4) NLRB. v West Kentucky Coal Company, 152 F 2d 198, 200-201 (C A 6), cert. denied 328 U S. 866; Allis-Chalmers Manufacturing Company v N L R.B , 162 F. 2d 435, 440-441 (C A. 7) ; Quaker City Life Insurance Company, 138 NLRB 61 "See Section 102.69(d) of the Board's Rules and Regulations, Series 8, in effect during the period here in question. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a hearing on any issue that is the subject matter of any ruling, decision, or determination." Here, the Board. after examining Respondent's detailed exceptions to the Regional Director's report, found that no material and substantial issues were pre- sented as to the 10 challenged voters in question, and the Board then denied Re- spondent a hearing on this matter. As a Trial Examiner of the Board, I am bound by the Board's finding. Air Control Products of St. Petersburg, Inc., 139 NLRB 413; Esquire, inc. (Coronet Instructional Films Division), 109 NLRB 530, 539, enfd. 222 F. 2d 255 (C.A. 7). See also N.L R.B. v. West Kentucky Coal Company, 152 F 2d 198, 201 (C.A. 6), cert. denied 328 U.S. 866. Certainly, it is not for me to say that the Board's denial of the hearing was arbitrary or capricious. D. Respondent's contention that the procedures followed in the investigation and determination of the issues deprived it of due process is predicated on the claim that it was never accorded adequate notice of the factual issues respecting at least the four individuals employed in the political and educational departments (Dubrow, Wells, Reuter, and Cohn) either in the investigatory or subsequent stages of the representation proceeding. Respondent in its brief thus puts this contention: "In the course of the Board Agent's ex parte investigation, and in the course of the consideration of the eligibility of these four voters, first by the Regional Director and ultimately by the Board itself, the important factual issues were changed and augmented, and as such, were ruled upon without giving notice of such new issues to the ILGWU, let alone opportunity for confrontation or hearing." 1. In support of its position of lack of notice of the issues in the investigatory stage, Respondent offered to prove that FOUR, without notice to Respondent, shifted its position as to why the four individuals were not eligible to vote; 14 that the Board investigator denied it the right to be present during his interviews of the witnesses; and that the investigator likewise denied it the right to secure or examine copies of the statements executed by the witnesses for the investigator. Respondent admitted at the hearing that these contentions were new, that they were not raised in its exceptions to the Regional Director's report, and that they were raised for the first time before me at the hearing. It is clear, therefore, and I so find, that these matters are not litigable in the camplaint proceeding. In any event, Respondent's contention with respect to the investigation, like its contention with respect to its right to a hearing, misconceives the nature and purpose of a representation proceeding. Such proceeding is not "contentious litigation, not even litigation, but investigation. It is made on behalf of the Board by members of its staff. The outcome is merely a certification of a bargaining representative." N.L.R.B. v. Botany Worsted Mills, 133 F. 2d 876, 882 (C.A. 3), cert. denied 319 U.S. 751. The proceeding is not "adversary" (N.L.R B. v. National Mineral Company, 134 F. 2d 424, 426 (C.A. 7), cert. denied 320 U.S. 753), and no action is taken against anyone. Indeed, many courts have observed that an employer has "little if any voice or interest" in such proceeding Foreman & Clark, Inc V. N.L R B., 215 F. 2d 396, 406 (CA. 9), cert. denied 348 U S. 887.15 It is therefore clear, and I find, that the denial of access to Respondent of the information obtained by the Board investigator in the course of his investigation did not constitute a denial of due process.16 2. Respondent's contention that the manner of disposition of the challenges by the Regional Director likewise "lack the essential elements of due process and fair play" is predicated on the claim that the Regional Director sustained the challenges to the ballots of three of the four individuals here in question on the ground that their positions and functions were not those performed by employees in the unit 14 FOUR originally challenged their eligibility on the ground that they were super- visory employees ; according to Respondent, FOUR subsequently urged that their work duties and functions fell outside the scope of the unit 15 See also Botany Worsted Mills and National Mineral Co , supra; N L.R B. v S H. Kress and Company, 194 F. 2d 444, 445 (C.A 6 ) ; N.L R.B v Kentucky Utilities Company, 182 F. 2d 810, 812=813 (C.A. 6). 16 Compare cases holding that statements of witnesses for the Government must be made available to counsel for purposes of cross-examination but only after the witnesses testified at the hearing See, e g , Chambers Manufacturing Corporation, 124 NLRB 721, enfd 278 F 2d 715 , 716 (C A 5 ) ; The Baser Tanning Company v. N L R B. , 276 F 2d 80, 83 ( CA 6), cert. denied 363 US. 830. INT'L LADIES' GARMENT WORKERS' UNION, AFL-CIO 361 and not, as was urged by FOUR, because they were supervisors.17 Respondent argues that the Regional Director's action was "entirely unanticipated" and came as a "complete surprise" and, hence, that it was never afforded an opportunity to address itself to the ground relied on by the Regional Director for excluding the employees in question. The Board in the representation proceeding has already rejected this contention in holding that the Regional Director is not precluded "from disposing [of] the challenged ballots for reasons other than those alleged by the party at the time of the challenges," 18 and this ruling is binding upon me. In any event, I cannot accept Respondent's claim that it was not afforded an oppor- tunity to address itself to any issue other than the supervisory issue. Contrary to Respondent's contention, the Regional Director's letter of May 19, 1961, shows on its face, that the Respondent was requested to state its position "with respect to the eligibilty or ineligibility of the challenged voters," without qualification, "in addition to submit factual information or evidence bearing on the reason for the challenge" given by FOUR.19 Moreover, even if it be true, as Respondent contends, that it first acquired knowledge of the ground relied on by the Regional Director after the issuance of his report, Respondent conceded at the complaint hearing that it did meet this ground in its exceptions 2u Indeed, as noted, supra, Respondent in its exceptions gave a detailed description of the duties and functions of the excluded employees to show that they "fall within the [unit] description" and that the Regional Director erred in excluding the employees on this very ground. Having been afforded full opportunity to present its position at some stage of the representa- tion proceeding, Respondent cannot validly claim a violation of due process requirements21 3. Finally, Respondent contends that it was again deprived of adequate notice of the issues under consideration when the Board allegedly "ignored the finding made by the Regional Director" and "introduced a wholly new determining factual issue in support of its conclusion" that the four employees (and also the remaining six) were ineligible to cast ballots. In my view, Respondent's contention is without substance. Respondent itself concedes in its brief that "The Board, in agreement with the Regional Director, concluded that they [the 10 individuals] were not eligible to vote and, like the Regional Director, based this conclusion on a finding that the work of their departments was outside the bargaining unit." The fact that the Board in its decision did not specifically allude to "the supporting findings made by the Regional Director and to which ILGWU addressed its exceptions" 22 does not establish that the Board "ignored" these "supporting findings." The Board was not required to comment explicitly on each and every subsidiary point made by 17 As noted snpi a, footnote 7, the Regional Director sustained the challenge to the vote of Cohn, one of the individuals in the educational department , on both grounds. is Cf NLR.B. v Dal-Tex Optical Co., Inc, 310 F. 2d 58 (CA 5). 19 This letter, upon which Respondent heavily relies , is appended to its brief It was sent to all of the parties , including Respondent, after the election and before the Regional Director issued his report "'Thus in one of his colloquies with the Trial Examiner, Respondent 's counsel stated' Mr. Topon: . . . we proceeded to address ourselves to the issues which were now presented to us by the regional director and we did so by way of our exceptions; their supervisor, Mr. Dubinsky ; their contact with other people in the unit , and the interchange, as well as the overall question of whether these departments are outside the unit. We put on full-we believe-full factual bases for refuting fully this finding by the regional director on the report on objections. TRIAL EXAMINER : In other words , you were afforded an opportunity to present your position , to set forth facts as you saw them. Mr TopoL: As to the issues which the regional director raised with regard to these people in his report on objections. . . . a Compare Department d Specialty Store Employees Union, etc. v Gerald A. Brown, 284 F 2d 619 , 628 (IC.A 9), cert. denied 366 U S. 934 , where the court stated, "Generally speaking, due process does not require a hearing at any particular time, but only before substantial rights are effected . This is true even though there is a material dispute as to the facts [ citing cases]." 21 Respondent lists these "supporting findings" as follows (brief, p. 22)' "(a) these de- partments [Political , Educational, Justice, Promotion ] are directly responsible to Presi- dent Dubinsky ; ( b) the personnel of these departments have little contact with `field employees ,' I e., staff members working in the field ; and ( c) there is not in these depart- ments the interchange that generally takes place in the field " 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Regional Director where it expressed no disagreement as to any of them and, in fact, adopted his ultimate findings and conclusions. Nor did the Board's specific finding that the excluded employees ' duties "primarily involve staff functions , and in general have only an indirect relationship with the rank-and-file members" introduce "a wholly new" issue. Contrary to Respondent's claim, the Regional Director in his report did deal with the relationship of the in- dividuals in question with the rank-and-file employees in the unit. For, throughout his report the Regional Director refers to the type of contacts , dealings, and asso- ciations these individuals have with the field employees and explains how they "service" the shops in which these rank-and-file union members are employed. In the final analysis, the basic test applied both by the Board and the Regional Director was whether the individuals involved had , by reason of their duties, associations, and other factors, a "sufficient community of interest to warrant their inclusion" in the established bargaining unit . This is the test which the Board laid down its original Decision and Direction of Election dated April 14, 1961 (before the Regional Director issued his report ) and which the Board later reiterated in its Supplemental Decision, Direction, and Order dated October 3, 1961 (when it reviewed the Regional Director's report). Accordingly, I must reject Respondent's contention that it was deprived of ade- quate notice of the "determining factual issues" considered by the Board as well as the Regional Director. I find that Respondent failed to establish that the procedures followed in the determination and investigation of the issues deprived it of due process of law. E. Respondent's remaining contention is that the Board improperly denied it an opportunity to show that two individuals in the political -education departments were allowed to vote in the election, even though their duties are similar to those of the challenged voters who were excluded from the bargaining unit. The Board, relying on N.L.R.B. v. A. J. Tower Company, 329 U.S. 324, rejected this contention on the ground that it was "in the nature of post-election challenges which the Board does not consider." Since the contention has already been determined by the Board, the determination is binding upon me and I have no alternative but to reject Respond- ent's position . Cf. N.L.R.B. v. Botany Worsted Mills, 133 F. 2d 876, 882 (C.A. 3), cert. denied 319 U.S. 751. Accordingly, for all of the foregoing reasons, I find and conclude that during all times material herein , FOUR has been, and now is, the certified collective-bargaining representative of Respondent's employees in the appropriate unit hereinbefore de- scribed. I further find and conclude that Respondent has, since August 9, 1962, refused to bargain collectively with the Union as the exclusive representative of its employees in the unit; and that Respondent by such refusal has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and, derivatively, also Section 8(a)(1) of the Act. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(5) and (1) of the Act, I will recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. International Ladies' Garment Workers' Union, AFL-CIO, Respondent herein, is an employer within the meaning of Section 2 (2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7 ) of the Act. 2 Federation of Union Representatives is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit of Respondent 's employees is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All individuals on the payroll of International Ladies' Garment Workers' Union (as distinguished from its locals ) who serve as business agents, organizers, edu- cational directors, and who do union label and political work, excluding office clericals, supervisors, professionals, watchmen, and guards as defined in the Act. 4. At all times since August 6 , 1962, Federation of Union Representatives has been, and continues to be, the exclusive bargaining representative of all the em- ployees in the aforementioned unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. INT'L LADIES' GARMENT WORKERS' UNION, AFL-CIO 363 5. By refusing, on and after August 9, 1962, to bargain collectively with the Federation of Union Representatives, as the exclusive representative of its employees in the aforesaid unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By refusing, on and after August 9, 1962, to furnish the Federation of Union Representatives with data relating to wages, expenses, and fringe benefit schedules of the employees in the aforesaid unit for the purpose of negotiating a collective- bargaining agreement covering such employees, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings and conclusions and the entire record, including the record in the representation case, and pursuant to Section 10(c) of the Act, Respondent International Ladies' Garment Workers' Union, AFL-CIO, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Federation of Union Representatives, as the duly certified exclusive representative of its employees in the following appro- priate unit: All individuals on the payroll of International Ladies' Garment Workers' Union (as distinguished from its locals) who serve as business agents, organizers, edu- cational directors, and who do union label and political work, excluding office clericals, supervisors, professionals, watchmen, and guards, as defined in the Act. (b) Refusing to furnish the Federation of Union Representatives, as the duly certified representative of its employees, with data relating to wages, expenses, and fringe benefit schedules of the employees in the appropriate unit for the purpose of negotiating a collective-bargaining agreement covering such employees. (c) In any like or related manner interfering with the efforts of the Federation of Union Representatives to bargain collectively with Respondent on behalf of the employees in the above-described unit, or to secure the aforesaid bargaining data. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Federation of Union Representatives, as the representative of its employees in the above-described appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Upon request, furnish the Federation of Union Representatives with data relating to wages, expenses, and fringe benefit schedules of the employees in the appropriate unit for the purpose of negotiating a collective-bargaining agreement covering such employees. (c) Post at its main office in New York City and at all of its other offices wherein it employs or stations employees in the appropriate unit, copies of the attached notice marked "Appendix." 23 Copies of the said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by Respond- ent's representative, be posted by it 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 notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director for the Second Region, in writing, within 20 days of the receipt of this Intermediate Report and Recommended Order, what steps it has taken to comply therewith.24 22 In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 24 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read' "Notify said Regional Director, in writing, within 10 days fiom the date of this Order, what steps the Respondent has taken to comply herewith " 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL bargain collectively, upon request, with the Federation of Union Representatives , as the exclusive bargaining representative of all our employees in the appropriate unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions , of employment, and, if an agreement is reached, embody such agreement in a signed contract. The appropriate unit is: All individuals on the payroll of International Ladies' Garment Workers' Union (as distinguished from its locals ) who serve as business agents, organizers, educational directors, and who do union label and political work, excluding office clericals , supervisors, professionals , watchmen, and guards as defined in the Act. WE WILL, upon request, furnish the Federation of Union Representatives, with data relating to wages, expenses, and fringe benefits schedules of the employees in the aforesaid appropriate unit for the purpose of negotiating a collective- bargaining agreement covering such employees. WE WILL NOT refuse to furnish the bargaining data as aforesaid or otherwise refuse to bargain collectively with the Federation of Union Representatives, nor will we in any like or related manner interfere with the efforts of the Fed- eration of Union Representatives to bargain collectively and to secure the aforesaid bargaining data. INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL-CIO, Employer. Dated---- --------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Second Regional Office, 745 Fifth Avenue, New York, New York, 10022, Telephone No. Plaza 1-5500, if they have any questions concerning this notice or compliance with its provisions. The Borden Company and Agricultural and Allied Workers Union No. 300, Amalgamated Meat Cutters and Butcher Work- men of North America, AFL-CIO. Case No. 15-CA-2076. April 29, 1963 DECISION AND ORDER On December 6, 1962, Trial Examiner George J. Bott issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the Respondent, the General Counsel, and the Charging Party filed exceptions to the Intermediate Report with supporting briefs. 142 NLRB No. 45.