Corral Sportswear Co.

436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Forth Worth, Texas, Telephone No. Edison 5-4211, Extension 2131. Corral Sportswear Company and International Union of Operat- ing Engineers, Local 670, AFL-CIO. Case No. 16-CA-2410. December 29,1965 DECISION AND ORDER Upon charges duly filed by International Union of Operating Engineers, Local 670, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 16, issued a complaint dated August 31, 1965, against Corral Sportswear Company, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices 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, complaint and notice of hearing before a Trial Examiner were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges, in substance, that on or about May 11, 1965, the Union was duly certified by the Board i as the exclusive bargaining representative of Respondent's employees in the unit found appropriate by the Board and that, since on or about July 16, 1965, Respondent has refused to recognize or bargain with the Union as such exclusive bargaining representative, although the Union has requested it to do so. On or about October 6, 1965, the parties executed a stipulation whereby they agreed to the submission of this case directly to the Board on a stipulated record 2 for findings of fact, conclusions of law, and a Decision and Order. The parties waived a hearing before a Trial Examiner, the making of findings of fact and conclusions of law by a Trial Examiner, and the issuance of a Trial Examiner's Decision. 'Decision and certification of representative in Case No 16-RC-3745 On June 30, 1965, the Board by telegraphic order denied Respondent's petition for reconsideration of this Decision and certification of representative 2 The record as stipulated to by the parties consists of the stipulation and the follow- ing, the charge , the complaint and notice of hearing, the answer to the complaint, and the entire proceedings in Case No. 16-RC-3745. 156 NLRB No 58. CORRAL SPORTSWEAR COMPANY 437 Respondent expressly reserved the right to contest on the basis of its previous contentions the validity of the findings of fact, conclusions of law, and certification in Case No. 16-RC-3745. The parties also reserved the right to contest the findings and conclusions and order to be made by the Board in the instant proceeding and to preserve their rights in respect thereto in the event of court review. Further, all parties expressly reserved the right to file briefs .3 On October 11, 1965, the Board issued an Order approving Stipula- tion and Transferring Proceeding to the Board. 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 Fanning and Jenkins]. Upon the basis of the aforementioned stipulation, the brief and the entire record in this case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a cor- poration duly organized and existing by virtue of the laws of the State of Oklahoma with its office and place of business at Ardmore, Okla- homa, where it is engaged in the manufacture, sale, and distribution of leather sportswear and related products. During the year preced- ing the execution of the stipulation Respondent in the course and con- duct of its business operations received at its Ardmore, Oklahoma, plant goods valued in excess of $50,000 directly from States other than the State of Oklahoma. Respondent admits, and we find, that Respondent 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. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that International Union of Operating Engineers, Local 670, AFL-CIO is a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES After the Union filed a petition in Case No. 16-RC-3745, the Union and Respondent entered into a stipulation for certification upon con- sent election which was approvdd by the Regional Director for Region 16 on or about September 22, 1964. In that stipulation both parties agreed that the following employees constitute a unit appropriate for A brief has been received from the General Counsel. 438 DECISIONS OF NATIONA^ LABOR RELATIONS BOARD the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees employed at the Respondent's Ardmore, Oklahoma, plant, excluding office clerical employees, truckdrivers, guards, watchmen, and supervisors as defined in the Act. On or about October 2, 1964, a secret-ballot election was conducted pursuant to the aforesaid stipulation under the supervision of the Regional Director. The tally of ballots disclosed that of approxi- tnately 76 eligible voters, 36 voted for and 35 against the Union, and 5 ballots were challenged. The challenged ballots were, therefore, sufficient in number to affect the results of the election. On or about November 27, the Regional Director issued his report on challenged ballots, in which he recommended that hearing be held to resolve the challenges. The Board adopted the recommendation of the Regional Director and ordered a hearing, which was held on January 26, 1965. On February 17, 1965, the Hearing Officer issued his report on challenged ballots in which he recommended that the challenges to all of the challenged ballots be sustained. Since it appeared on his recommended disposition of the challenged ballots that the Union had received a majority of the valid votes cast, the Hearing Officer further recommended that the Union be certified as the exclusive bargaining representative of the employees in the appro- priate unit described above. Thereafter, Respondent filed timely exceptions to the Hearing Officer's report on challenged ballots. On May 11, 1965, the Board issued its Decision and certification of representative, in which it over- ruled Respondent's exceptions to the Hearing Officer's report, deter- mined to be appropriate the aforementioned unit which was agreed upon by the parties, and certified the Union as the exclusive bargain- ing representative of the employees in that unit. On June 18, 1965, Respondent filed a petition for reconsideration, requesting that the Board reconsider its Decision and certification of representative dated May 11, 1965, rescind the certification of the Union, set aside the results of the election conducted on October 2, 19643 and direct that another election be conducted. On June 30, 1965, the Board denied Respondent's petition for reconsideration.' 4 Respondent' s principal contention in support of its exceptions , which was repeated in its petition for reconsideration , was that the Board should reject, in addition to the five challenged ballots, the ballots of four other employees whom Respondent claimed to be supervisors All of these additional four employees had voted without challenge in the election. By attacking the voting eligibility of these employees in its exceptions Respondent was in effect, seeking to make postelection challenges to their ballots. How- ever, the Board's traditional policy, upheld by the Supreme Court, is not to entertain postelection challenges. N.L.R.B. v. A. J. Tower Company, 329 U.S. 324 . Consistent with that policy, the Board in Case No . 16-RC-3745 found no merit in Respondent's contention CORRAL SPORTSWEAR COMPANY 439 On or about June 30 and July 14, 1965, the Union requested Respondent to bargain collectively with respect to rates of pay, hours of employment, and other terms and conditions of employment of the employees in the appropriate unit. Commencing on or about July 16, 1965, and at all times thereafter, Respondent refused, and continued to refuse to bargain collectively with the Union. As the basis for its refusal to bargain Respondent has asserted in effect that the Board's certification of the Union in Case No. 16-RC-3745 was erroneous on the grounds alleged by it in its Exceptions to the Hear- ing Officer's report and in its petition for reconsideration. In its answer to the complaint herein, Respondent contests only the Union's status as the exclusive bargaining representative of the employees in the appropriate unit. That issue, however, has already been decided by the Board in the representation case (No. 16-RC- 3745). It is well settled that, absent special circumstances, not present here, the Board will not reexamine in an unfair labor practice pro- ceeding a determination which it has made in a prior representation case involving the same parties.s Accordingly, we find that the Union was duly certified by the Board as the collective-bargaining representative of the employees of the Respondent in the appropriate unit described above and in the Board's certification and that the Union at all times since May 11, 1965, has been and now is the exclusive bargaining representative of all the employees in the aforesaid unit, within the meaning of Section 9 (a) of the Act. We further find that Respondent has since July 16, 1965, refused to bargain collectively with the Union as the exclusive bar- gaining representative of its employees in the appropriate unit, and that, by such refusal, the 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 PRACTICE UPON COMMERCE The acts of the Respondent set forth in section III, above, occurring in connection with its operations as described in section I, above, have a close, intimate, and substantial relation 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 the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act, 5 E.g., The Western and Southern Life Insurance Company, 142 NLRB 28, 30 and cases cited therein. 9 Graphic Arts Finishing Co., Inc., 153 NLRB 1327; Salerno -Megowen Biscuit Company, 152 NLRB 604. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 trait, and, if an understanding is reached, embody such understanding in a signed agreement. CONCLUSIONS OF LAW 1. Corral Sportswear Company is an Employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 670, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed at the Respondent's Ardmore, Oklahoma, plant excluding office clerical employees, truckdrivers, guards, watchmen, and supervisors as defined in the Act constitute a unit appropriate for the purpose of collective bargaining, within the meaning of Section 9 (b) of the Act. 4. On May 11, 1965, and at all times thereafter, the above-named labor organization was and has been the certified and exclusive rep- resentative of all employees in the aforesaid appropriate unit for the purposes of collective-bargaining, within the meaning of Section 9(a) of the Act. 5. By refusing on or about July 16, 1965, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged 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 to them in Section 7 of the Act, and has thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a) (5) 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 Relations Board hereby orders that the Respondent, Corral Sportswear Company, Ardmore, Oklahoma, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of employment, with International Union CORRAL SPORTSWEAR COMPANY 441 of Operating Engineers, Local 670, AFL-CIO, as the exclusive and duly certified bargaining representative of its employees in the follow- ing appropriate unit : All production and maintenance employees employed at Respond- ent's Ardmore, Oklahoma, plant, excluding office clerical employees, truckdrivers, guards, watchmen, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaranteed to them by 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 organiza- tion, 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 understanding in a signed agreement. (b) Post at its Ardmore, Oklahoma, plant, copies of the attached notice marked "Appendix." 7 Copies of said notice, to be furnished by the Regional Director for Region 16, shall, after being duly signed by Respondent's representative, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director for Region 16, in writing, within 10 days from the date of this Decision and Order, what steps Respond- ent has taken to comply herewith. 7 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order," the words "a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WAVE WILL NOT refuse to bargain collectively with International Union of Operating Engineers, Local 670, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 representative of all employees in the bargaining unit described below with respect to 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 our production and maintenance employees employed at our Ardmore, Oklahoma, plant excluding office clerical employees, truckdrivers, guards, watchmen, and supervisors as defined in the Act. CORRAL SPORTSWEAR COMPANY, 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, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No. Baltimore 1-7000, if they have any questions concerning this notice or compliance with its provisions. Watkins Center and Retail Clerks Union Local 455, AFL-CIO, Retail Clerks International Association , AFL-CIO Watkins Center and Julia M. Godeke. Cases Nos. 23-CA-1839 and P3-CA-1848. December 29,1965 DECISION AND ORDER On July 8, 1965, Trial Examiner W. Gerard Ryan issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 156 NLRB No. 44.