Hale Mfg., Co.

HALE MANUFACTURING COMPANY Hale Manufacturing Company and Southern New En- gland Joint Board, Amalgamated Clothing & Tex- tile Workers Union, AFL-CIO-CLC. Case I-CA- 12794 May 24, 1978 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY. AND TRUESDALE Upon a charge filed on February 25, 1977, and an amended charge filed July 18, 1977, by Southern New England Joint Board, Amalgamated Clothing & Textile Workers Union, AFL-CIO-CLC, herein called the Charging Party or the Union, both duly served on Hale Manufacturing Company, herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 1, issued an amended complaint and notice of hearing on July 22, 1977, against Re- spondent, alleging, inter alia, that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Sec- tion 8(a)(5) and (I) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, the amended charge, the amended complaint, and the notice of hearing before an Ad- ministrative Law Judge were duly served on the par- ties to this proceeding. With respect to the unfair labor practices, the amended complaint alleges in substance that on May 27, 1977, following a Board election in Case 1--RC- 14799, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; ' and that, commencing on or about June 13, 1977, and at all times thereafter, Respondent has refused, and con- tinues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. Thereafter, Respondent filed its answer to the amended complaint admitting in part, and deny- ing in part, the allegations contained therein. 2 I Official notice is taken of the record in the representation proceeding, Case I-RC-14799, as the term "record" is defined in Secs. 102.68 and 102,6 9 (g) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosvystern. Inc., 166 NLRB 938 (1967)., enfd. 388 F.2d 683 (C.A. 4. 1968); Golden Age Beverage Co.. 167 NLRB 5II (1967), enfd 415 F 2d 26 (C.A 5, 1969); Inter!vpe Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967): Follerr Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (C.A. 7. 1968): Sec 9(d) of the NLRA, as amended. 2 On October 13, 1977, the Regional Director for Region I approved a settlement agreement executed by the Union and Respondent and a remedi- al notice to employees to be posted by Respondent with respect to pars. 8 and 9 of the amended complaint, which alleged that Respondent had en- gaged in conduct violative of Sec. 8(a)(3( of the Act In addition. the Union requested withdrawal of the unfair labor practice charges alleging that Re- On October 20, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with exhibits attached. On Oc- tober 25, 1977, the Charging Party filed directly with the Board a Motion for Summary Judgment. Subse- quently, on October 31, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's and/or the Charging Party's Motion for Summary Judgment should not be granted. Respondent, on November 14, 1977, filed a response to the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the amended complaint and in its response to the Notice To Show Cause, Respondent admits the Union's request and its refusal to bargain, but in substance attacks the validity of the Union's certification on the basis of its objections to the elec- tion in the underlying representation proceeding. Re- spondent further contends that the failure of the Board to grant a hearing on its objections deprived it of due process of law, and that it is entitled to a hearing on these issues. Review of the record herein, including the record in Case 1-RC-14799, discloses that an election con- ducted pursuant to a Stipulation for Certification Upon Consent Election on December 16, 1976, re- sulted in a vote of 82 to 79 in favor of the Union, with no ballots challenged. Respondent filed timely objections to conduct affecting the results of the elec- tion, alleging in substance that the election was con- ducted in an atmosphere of intimidation and fear of reprisal created by the Union; the Union promised and/or misrepresented to the employees that they would receive specific wages and pension benefits if the Union won the election; and the Union promised certain employees positions in the Union and jobs in other plants where the Union had contracts if they voted for the Union. After investigation, the Regional Director issued a Report on Objections on February 2, 1977, in which he recommended that Respondent's objections be overruled in their entirety, and that the Union be certified. Thereafter, Respondent filed exceptions to spondent had engaged in unilateral conduct violative of Sec. 8(a(5) on which par. 15 of the amended complaint ,as based. Accordingly, summary judgment has not been sought with respect to these allegations of the amended complaint 236 NLRB No. 31 289 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Regional Director's report. On May 27, 1977, the Board, having considered the Regional Director's re- port, Respondent's exceptions thereto, and the entire record, adopted the findings, conclusions, and rec- ommendations of the Regional Director and certified the Union as exclusive bargaining agent of employ- ees in the unit stipulated to be appropriate. It thus appears that Respondent is attempting in this pro- ceeding to relitigate issues fully litigated and finally determined in the representation proceeding. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances, a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.3 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or pre- viously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is proper- ly litigable in this unfair labor practice proceeding.4 In this proceeding, Respondent contends that due process entitled it to a hearing on its objections to the election. Prior to adopting the findings, conclusions, and recommendations of the Regional Director's Re- port on Objections, the Board considered the report, Respondent's exceptions thereto, and the entire rec- ord in the case. By its adoption of the report recom- mending that Respondent's objections be overruled, the Board necessarily found that the objections raised no substantial or material issues warranting a hearing.5 Further, it is well established that parties do not have an absolute right to a hearing on objections to an election. It is only when the moving party pre- sents a prima facie showing of substantial and mate- rial issues which would warrant setting aside the elec- tion that it is entitled to an evidentiary hearing. It is clear that, absent arbitrary action, this qualified right to a hearing satisfies the constitutional requirements of due process.6 Accordingly, we conclude that Re- 'See Pittsburgh Plate Glass Co v N.L.R.B., 313 U.S. 146, 162 (1941): Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 4 With respect to the alleged misrepresentations in the underlying repre- sentation proceeding, Member Truesdale agrees with the Board's original Decision and Order inasmuch as in his opinion the alleged misrepresenta- tions would not warrant setting aside the election under any view of the law sMadisonville Concrete Co., a Division of Corumn. Inc., 220 NLRB 668 (1975); Evansville Auto Parts. Inc.. 217 NLRB 660 (1975). Furthermore, in his report the Regional Director specifically concluded that the Employer's objections raised no substantial or material issues warranting a hearing. GTE Lenkurt, Incorporated. 218 NLRB 929 (1975): Heavenly Valley Ski Area, 215 NI RB 734 (1974); Amalgamated Clothing Workers of America spondent by refusing, upon request, to bargain col- lectively with the Union has violated Section 8(a)(5) and (I) of the Act.7 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent maintains its principal office and place of business at Putnam, Connecticut, where it is engaged in the manufacture, sale, and distribution of synthetic textiles and related products. Respondent, in the course and conduct of its business, annually receives goods valued in excess of $50,000 directly from points located outside the State of Connecticut, and annually ships goods valued in excess of $50,000 directly to points located outside the State of Con- necticut. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert juris- diction herein. 11. THE LABOR ORGANIZATION INVOLVED Southern New England Joint Board, Amalgamat- ed Clothing & Textile Workers Union, AFL-CIO- CLC, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes [Winfield Manufacturing Company. Inc.] v. N L.R B. 424 F.2d 818, 828 (C.A.D.C., 1970). Respondent's request for oral argument is hereby denied. Additionally. we note that in his Motion for Summary Judgment counsel for the General Counsel refers to a letter, dated June 9, 1977, sent by the Union to Respon- dent, in which it requested Respondent to supply certain information and to prepare a schedule of meetings. Counsel for the General Counsel, however. has not submitted a copy of such a letter. Furthermore, although counsel for the General Counsel has submitted a copy of Respondent's letter of June 13. 1977. in which it acknowledged receipt of the Union's June 9 letter, but declined to furnish information and refused to bargain with the Union, Respondent's letter does not disclose the specific nature of the information sought by the Union. Finally, the amended complaint does not allege a violation of Sec. 8(a)(5) based on a refusal to provide information to the Union, and counsel for the General Counsel and the Union have not specif- ically sought a finding of such a violation in their Motions for Summary Judgment. 290 HALE MANUFACTURING COMPANY within the meaning of Section 9(b) of the Act: All production and maintenance employees including truckdrivers and warehousemen em- ployed by Respondent at its Putnam and Day- ville, Connecticut, locations, but excluding of- fice and plant clerical employees, professional employees, foremen, second hands, watchmen, guards and supervisors as defined in the Act. 2. The certification On December 16, 1976, a majority of the employ- ees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Regional Director for Region 1, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on May 27, 1977, and the Union contin- ues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about June 9, 1977, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about June 13, 1977, and continuing at all times thereafter to date, Respondent has refused, and con- tinues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since June 13, 1977, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section 1, above, have a close, inti- mate, 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 has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement.8 In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur- nett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW I. Hale Manufacturing Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Southern New England Joint Board, Amalga- mated Clothing & Textile Workers Union, AFL- CIO-CLC, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees in- cluding truckdrivers and warehousemen employed by Respondent at its Putnam and Dayville, Connect- 8 The Union in its Motion for Summary Judgment requested that the Board additionall) provide extraordinary remedial relief by ordering Re- spondent to apply any) agreement subsequently reached between the Union and Respondent retroactively to June 13, 1977, the date of Respondent's refusal to bargain, and by ordering Respondent to pay to the Union its costs and expenses in this proceeding. including reasonable attorneys' fees. On November 14, 1977, Respondent filed its response to the Notice To Show Cause in which, however, it did not address the Union's request for addi- tional relief. Subsequently, on November 21, 1977, Respondent filed a docu- ment entitled "Memorandum in Opposition to Motion for Relief." Thereaf- ter, the Union filed a motion to stnke Respondent's memorandum. contending that the memorandum was untimely filed inasmuch as the No- tice To Show Cause specifically referred to the Union's request for addition- al relief and required that a response thereto be filed on or before Novem- ber 14. 1977 We agree with the Union's contention and, accordingly, we hereby grant its motion to strike However, we deny the Union's request for additional relief inasmuch as we find no circumstances presented herein which warrant a departure from our usual remedy, in cases of this kind, of providing a prospective bargaining order, and as we find that Respondent's defenses are not frivolous See Rabco Metal Products, Inc., 225 NLRB 236 (1976). 291 DECISIONS OF NATIONAL LABOR RELATIONS BOARD icut, locations, but excluding office and plant clerical employees, professional employees, foremen, second hands, watchmen, guards and supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since May 27, 1977, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 13, 1977, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its facilities located at Putnam and Dayville, Connecticut, copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's represen- tative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. In the event that this Order is enforced b) a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States ( Court of Appeals Enforcing an Order of the National Labor Relationls Board." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Hale Manufacturing Company, Putnam, Connecti- cut, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Southern New England Joint Board, Amalgamated Clothing & Textile Workers Union, AFL-CIO-CLC, as the exclusive bargaining representative of its employees in the fol- lowing appropriate unit: All production and maintenance employees including truckdrivers and warehousemen em- ployed by Respondent at its Putnam and Day- ville, Connecticut, locations, but excluding of- fice and plant clerical employees, professional employees, foremen, second hands, watchmen, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of APPENDIX NOTIiCE To EMPLOYEES POSIED- BY ORDER OF -HE NATIONAI. LABOR RELATIONS BOARD An Agency of the United States Government WE WILL. NO* refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Southern New England Joint Board, Amalga- mated Clothing & Textile Workers Union, AFL-CIO-CLC, as the exclusive representative of the employees in the bargaining unit de- scribed below. WE WILl. NOI 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 wII i. upon request, bargain with the above-named Union, as the exclusive represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of 292 HALE MANUFACTURING COMPANY employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees including truckdrivers and warehousemen employed by us at our Putnam and Dayville, Connecticut, locations, but excluding office and plant clerical employees, professional em- ployees, foremen, second hands, watchmen, guards and supervisors as defined in the Act. HALE MANUFACTURING COMPANY 293