Formfit/Rogers Co.

Formfit/Rogers Company and Local 76, International Ladies' Garment Workers' Union, AFL-CIO. Case 13-CA-7512. April 17,1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On November 9, 1966, Trial Examiner George J. Bott issued his Decision 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 Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's 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. 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Formfit/Rogers Company, Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THE REPRESENTATION PROCEEDING GEORGE J. BOTT, Trial Examiner: On December 23, 1965, the Regional Director for Region 13 issued a Decision and Direction of Election in which he found that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: i All cutting department employees at Employer's Plaza plant located on Roosevelt Road, Chicago, Illinois, including cutters, markers, examiners, tie-up and lay-up employees, spreaders and utility employees, excluding office clerical employees, professional employees, guards, supervisors as defined in the Act, and all other employees. ' The petition in Case 13-RC-10731 was filed on October 31, 1965, and the hearing on it was held on November 9 and 10, 1965 Pursuant to Section 102.67 of the Board's Rules and Regulations, Series 8, as amended, Formfit/Rogers Company, herein called the Employer or Respondent, filed with the Board a request for review of the Regional Director's Decision and Direction of Election. On February 4, 1966, the Board denied Respondent's request for review, stating that "it raises no substantial issues warranting review." The Regional Director conducted a secret-ballot election on February 8, 1966, in the unit which he had found appropriate, but the election was inconclusive because there were a sufficient number of challenged ballots to affect the results. In addition, on February 15, 1966, the Employer filed timely objections to the conduct of the election. Acting pursuant to Section 102.69 of the Board Rules and Regulations, the Regional Director conducted an investigation of the objections and challenges and, on March 31, 1966, he issued a Supplemental Decision on Objections and Challenges and Certification of Representative in which he overruled all of the Employer's objections to the election, sustained certain challenges, and overruled others, and certified that the Petitioner in the case, Local 76, International Ladies' Garment Workers' Union, AFL-CIO, herein called the Union, had been designated as the statutory representative of the employees in the unit found appropriate. Again acting in accordance with the Board Rules and Regulations, Respondent on May 2, 1966, filed with the Board a request for review of Regional Director's Supplemental Decision on Objections and Challenges and Certification of Respresentative, which was denied by the Board on June 6, 1966, on the ground that "it raises no substantial issues warranting review." On June 15, 1966, Respondent filed with the Board a motion for reconsideration of the Board's denial of its request for review, and on July 14, 1966, the Board ordered that "the Employer's Motion for Reconsideration of Board's order denying its request for review be, and, it hereby is, denied as it contains nothing not previously considered." THE COMPLAINT CASE Upon a charge of unfair labor practices filed by the Union on July 1, 1966, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing dated August 1, 1966, alleging violations of Section 8(a)(1) and (5) of the National Labor Relations Act, hereinafter called the Act. Respondent filed an answer admitting certain allegations of the complaint, but denying the commission of any unfair labor practices, and, in addition, affirmatively alleging that at no time has the Union represented an uncoerced majority of Respondent's employees and that the certification of representative issued in Case 13-RC-10731 is invalid. The hearing in this matter was held in Chicago, Illinois, on September 13, 1966, before me, and all parties were represented. At the hearing, after the introduction of the pleadings and after the General Counsel in an opening statement had outlined the prior representation proceeding, as I have set it out above, and contended that the matters litigated therein could not be relitigated in the present unfair labor practice proceeding unless the Respondent could show 164 NLRB No. 4 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it had newly discovered or previously unavailable evidence, I ruled that I would not permit litigation of issues which had been decided in the prior representation case. General Counsel then introduced, by agreement of the parties, the Union's letters requesting Respondent to meet and bargain, and the Respondent's replies declining the requests. General Counsel and the Union then rested.2 In the light of my ruling foreclosing the submission of any but newly discovered or previously unavailable evidence, counsel for Respondent made a lengthy and detailed offer of proof of evidence which Respondent would introduce if it were permitted to introduce evidence in the unfair labor practice proceeding.3 I rejected Respondent's offer of proof on the ground that there were no issues of fact litigable before me, and Respondent then rested. Subsequent to the hearing, General Counsel and Respondent filed briefs which I have considered. In its brief, Respondent states that "it has consistently taken issue with the actions of the Board (and particularly its Regional Director as its agent pursuant to Section 3(b) of the Act) in certifying the Union in the prior representation case, not only as to the unit originally found appropriate, but also as to the mechanics of the election, the handling of the many challenged ballots and the amending of the original unit after the election." Respondent also refers in its brief to the fact that it has also in the representation proceeding "taken issue with the actions of the Union which were calculated to, and did interfere with the free choice of the Respondent's employees, despite the contrary conclusion of the Board (but) the Respondent's efforts to rectify the many errors of the Board and the Regional Director have met with no success to date." Respondent's brief points to many alleged errors in the prior representation case relating to the unit findings, the Union's preelection campaign, the conduct of the election, and postelection procedures. Respondent contends that I was in error, in the circumstances of this case, in refusing to permit litigation of issues which had been decided in the representation case and rejecting evidence because it related to matters previously passed upon by the Board, and it argues that it should have been given a hearing before me on many matters, particularly on the objections and challenges, since it never had a hearing on those subjects and they had raised "substantial and material issues." I have carefully considered Respondent's arguments and the record in this proceeding, including the pleadings, Respondent's offer of proof, and the prior representation proceeding, and it is my opinion that Respondent seeks to relitigate in this unfair labor practice proceeding matters which the Regional Director and the Board have decided in the representation case. This it may not do before a Trial Examiner, because in the absence of newly dis- covered or previously unavailable evidence, issues which were or could have been raised in a related representation case may not be relitigated in a subsequent unfair labor practice proceeding,' and this policy holds even though a formal hearing on challenges or objections to an election z Before the close of the hearing, pert inent documents in the prior representation case, upon which my narration of the history of that proceeding is based, were introduced into evidence 3 Counsel for Respondent conceded that only two relatively minor items in its offer could be considered newly discovered or previously unavailable 4 Pittsburgh Plate Glass Company v. N.L.R.B, 313 U.S. 146; has not been provided, because one is only entitled to a hearing if the challenges or objections raise material and substantial issues of fact, a requirement which has been held proper to prevent dilatory tactics by employers or unions disappointed in the election returns.5 Counsel for Respondent frankly stated at the conclusion of his offer of proof, made pursuant to my ruling that 1 would accept only newly discovered or previously unavailable evidence, that it contained only two items which could be considered as previously unavailable in relation to the representation case. These items were the profit structure of the Respondent at the conclusion of its fiscal year ending July 31, 1966, and the stock market value of the securities held as assets of the Formfit Company Division's profit-sharing retirement fund. It appeared, however, that even these two items related to an objection to the election filed by the Employer based upon the Union's assertion in a preelection leaflet that employees had lost substantial sums of money because of "cuts" effected by the Employer by discontinuing a profit- sharing plan, among other things, and that the Regional Director had investigated this objection and overruled it in his Supplemental Decision from which Respondent requested Board review. Study of the Director's Supplemental Decision and the Respondent's request for review show that the issue of whether or not there was a profit-sharing plan, as such, and what losses employees suffered, if it in fact had been eliminated, as the Union charged, was litigated in the representation case. It also appears that the Employer presented evidence to the Director about its profit structure during the first 6 months of its fiscal year ending July 31, 1966, and also argued the relevance of the "appreciation or depreciation in the value of the fund's securities" as bearing on its contention that the Union's charge was false. It appeared to me at the hearing, that if the two items mentioned were actually newly discovered and previously unavailable within the meaning of that rule, they were in any event merely cumulative and would add nothing to the case, and I am now of the same view. A review of the representation case shows that Respondent had a hearing on the basic unit issue, and it also appears that the Regional Director investigated and ruled upon all the objections and challenged ballots. As permitted by the Board Rules and Regulations, he conducted an administrative investigation, and implicit in his Supplemental Decision on Objections and Challenges and Certification of Representative in his determination that there were no substantial and material issues of fact which required a hearing.6 I am not prepared to say after reviewing the documents in the representation case that an administrative investigation rather than a full hearing was not in order. In any case, whether or not the Regional Director was wrong in his findings and conclusions in regard to any or all aspects of the case or in error in not holding a hearing on objections or challenges, all of these matters, including the question of a hearing rather than an administrative investigation, have been considered by the Board and are N L R.B v American Steel Buck Corp, 227 F.2d 927 (C A 2), Producers, Inc., 133 NLRB 701, 704 5 N.L.R.B v Joclin Manufacturing Company, 314 F 2d 627, 630 (C.A. 2); N L R B. v. 0 K Van and Storage, Inc , 297 F 2d 74, 76 (C.A. 5), Sec 102.69 (c), Board Rules and Regulations , Series 8, as amended. 6 Sec 102.69(c), Board Rules. FORMFIT/ROGERS COMPANY not open for determination by me. As set out in the outline of the representation case above, Respondent requested Board review of the Regional Director's original Decision and Direction of Election, and the Board denied the request. After the Regional Director's Supplemental Decision on Objections and Challenges and Certification of Representative issued, Respondent asked that his actions be reviewed, and again the Board denied the appeal. Subsequently, Respondent filed a motion for reconsideration and this too was denied by the Board in an order which stated that the motion contained nothing not previously considered. Section 102.67(f) of the Board Rules provide, in part, that "Denial of a request for review shall constitute an affirmance of the regional director's action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding."7 A reading of Respondent's appeals and motion to the Board shows that it explicitly or implicitly raised before the Board every question it raised before the Regional Director and sought to litigate before me. The Board's disposition of the matter constitutes, at this stage of the proceeding, the law of the case, and I am foreclosed, in my opinion, by the previous action of the Board from reviewing the Regional Director's determinations.8 It appears, therefore, that there are no factual issues litigable before a Trial Examiner. Accordingly, on the basis of the records made before me, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent maintains at Chicago, Illinois, its principal office and place of business on South Peoria Street and a plant known as the Plaza plant on West Roosevelt Road where it is engaged in the business of manufacturing ladies' foundation and related garments. During the year prior to the issuance of the complaint, Respondent, in the course and conduct of its business operations, manufactured. sold, and distributed from said plant and places of business products valued in excess of $100,000 directly to points outside the State of Illinois. Respondent concedes, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. , II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit At all times material herein the following employees at the Respondent's Plaza plant constitute a unit appropriate for collective bargaining within the meaning of the Act: All cutting department employees at the Employer's Plaza plant located on Roosevelt Road, Chicago, Illinois, 3 including cutters, markers, examiners, tie-up and lay-up employees, spreaders and utility employees, excluding office clerical employees, professional employees, guards, supervisors as defined in the Act, and all other employees. 2. The certification On February 8, 1966, a majority of employees of Respondent in said unit, in a secret election conducted under the supervision of the Regional Director for Region 13, designated the Union as their representative for the purposes of collective bargaining with Respondent, and on March 31, 1966, the Regional Director certified the Union as the collective-bargaining representative of the employees in said unit and the Union continues to be such representative. B. The Request to Bargain and the Respondent's Refusal Commencing on or about April 6, 1966, and continuing to date and more particularly on April 6, June 13, and July 15, 1966, the Union has requested and is requesting Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all employees in the above-described unit . Commencing on or about April 11, 1966, and continuing to date, and more particularly on April 11, and June 15, 1966, the Respondent did refuse, and continues to refuse, to bargain collectively with the Union as exclusive collective- bargaining representative of all employees in said unit. Accordingly, I find that the Union was duly certified by the Regional Director as the collective-bargaining representative of the employees of the Respondent in the appropriate unit described above in the Regional Director's certification, and that the Union , at all times since March 31, 1966, has been and now is the exclusive bargaining representative of all employees in the aforesaid unit, within the meaning of Section 9(a) of the Act. I further find that Respondent has, since April 11, 1966, refused to bargain collectively with the Union as the exclusive bargaining 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 PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce 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 engaged in certain unfair labor practices, I will recommend that it cease and desist 7 See Mountain States Telephone and Telegraph Company, 136 NLRB 1612; Carolina Natural Gas Corporation, 157 NLRB 674 8 Respondent cites Russell-Newman Manufacturing Co, Inc., 158 NLRB 1260, as standing for the proposition that a Trial Examiner retains the right to permit litigation of the issues raised by Respondent in the earlier representation case I do not think the case can be interpreted as standing for such a broad holding, and it also appears that in that case the Board itself denied General Counsel's appeal from the Trial Examiner' s ruling denying General Counsel's motion for judgment on the pleadings. Moreover, in L. L Glascock, Inc , 160 NLRB 922, the Board held that the General Counsel's objection to the Examiner allowing the litigation of representation case matters was "well founded," but that the error was nonprejudicial 8 Counsel for Respondent's motion to correct record, which is unopposed , is granted 298-668 0-69-2 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, and upon the entire record in the cases, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All cutting department employees at Employer's Plaza plant located on Roosevelt Road, Chicago, Illinois, including cutter, markers, examiner, tie-up and lay-up employees, spreaders and utility employees, excluding office clerical employees, professional employees, guards, supervisors as defined in the Act, and all other employees, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since March 31, 1966, Local 76, International Ladies' Garment Workers' Union, AFL-CIO, has been, and continues to be the exclusive bargaining representative of all the employees in the unit set forth above for the purpose of collective bargaining within the meaning Section 9(a) of the Act. 5. By refusing, on and after April 11, 1966, to bargain collectively with said Union as the exclusive bargaining representative of all employees in the unit set forth above, the Respondent, Formfit/Rogers Company, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The unfair labor practices set forth above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings and conclusions and the record before me, I recommend that the Board issue the following: ORDER Formfit/Rogers Company, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local 76, International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive collective-bargaining representative of employees in the appropriate unit at Respondent's Plaza plant located on Roosevelt Road, Chicago, Illinois. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which 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 understanding in a signed agreement. (b) Post at its Chicago, Illinois, Plaza plant, copies of the attached notice marked "Appendix."10 Copies of said 10 In the event that this Recommended Order is adopted by the Board, the words "a Decision 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 is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " notice, to be furnished by the Regional Director for Region 13, shall, after being duly signed by the Company's representative, be posted by the Company 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 the Company to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director for Region 13, in writing, within 20 days from the date of the receipt of this Decision, what steps have been taken to comply herewith.' 1 i i In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " 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 Relations Act, as amended , we hereby notify our employees that: _ WE WILL NOT refuse to bargain collectively with Local 76, International Ladies' Garment Workers' Union , AFL-CIO, as the exclusive collective- bargaining representative of all our employees in the appropriate bargaining unit described below: All cutting department employees at our Plaza plant on Roosevelt Road, Chicago, Illinois, including cutters, markers, examiners , tie-up and lay-up employees , spreaders and utility employees, excluding office clerical employees , professional employees , guards, supervisors , as defined in the Act, and all other employees. WE WILL NOT in any like or related manner interfere with , restrain , or coerce any of our employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL bargain collectively with the said Union as the exclusive collective -bargaining representative of the appropriate unit and, if an understanding is reached , embody such understanding in a signed agreement. FORMFIT/ROGERS 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 353-7597.