The Black Hawk Corp.

THE BLACK HAWK CORP. 267 The Black Hawk Corporation and Textile Workers Union of America, AFL-CIO-CLC. Case 11-CA-4145 June 11, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND BROWN Upon a charge filed by the Textile Workers Union of America, AFL-CIO-CLC, herein called the Union, the General Counsel for the National Labor Relations Board, by the Regional Director for Region 11, issued a complaint dated February 18, 1970, against The Black Hawk Corporation, 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) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing were duly served on the Respondent. With respect to the unfair labor practices, the complaint alleges in substance that on October 25, 1967, a majority of the employees, in a unit found appropriate by the Regional Director for Region 11 of the National Labor Relations Board,' designated and selected the Union as their representative for the purposes of collective bargaining, and on No- vember 17, 1969, said Regional Director certified the Union as the exclusive collective-bargaining representative of the employees in said unit. The complaint further alleges that since February 5, 1970, the Respondent has refused to bargain col- lectively with the Union as the exclusive collective- bargaining representative of its employees. On or about March 2, 1970, the Respondent filed its answer, admitting in part, and denying in part, the allegations of the complaint and requesting that the proceeding be dismissed. On March 23, 1970, the General Counsel filed with the Board a Motion for Summary Judgment and brief in support thereof, alleging that the mo- tion should be granted as a matter of law and that there is no factual matter in dispute which would require a hearing. Thereafter, on March 26, 1970, the Board issued an order transferring proceeding to the Board and notice to show cause. On April 8, 1970, the Respondent filed its opposition to Motion for Summary Judgment and motion for stay. 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 powers in connection with this case to a three- member panel. Upon the entire record in this case, the Board makes the following: RULING ON THE MOTION FOR SUMMARY JUDGMENT Pursuant to a petition filed by the Union the Re- gional Director for Region 11 issued on September 26, 1967, a Decision and Direction of Election finding the following unit of employees appropriate and directing an election therein: All employees at the Employer's Greenville, South Carolina, warehouse, excluding office clerical employees, working foremen, and su- pervisors as defined in the Act. On October 25, 1967, pursuant to the Decision and Direction of Election, an election was held among the employees in the unit described above, to determine whether or not they desired to be represented for collective-bargaining purposes by the Union. The tally of ballots showed that of ap- proximately 49 eligible voters, 63 cast ballots, of which 22 were for, and 24 were against, the Union, and 17 ballots were challenged. Thereafter, the Union filed timely objections to conduct affecting the results of the election. The Regional Director conducted an investigation of the objections and, on January 31, 1968, issued and duly served on the parties his Supplemental Decision, Direction, and Order Consolidating Cases, consolidating Case 11-RC-2609 with Cases 11-CA-3488 and I1-CA-3499. A hearing was held before a Trial Examiner of the National Labor Relations Board, and on July 23, 1969, the Board issued its Decision, Order, and Direction,2 which, in pertinent part, directed the Regional Director to open and count the 17 challenged ballots. The challenged ballots were opened and counted on November 5, 1969, revealing that a majority of the employees in the appropriate unit had designated and selected the Union as collective-bargaining representative. A certification of representative was issued to the Union on November 17, 1969. By letter dated January 30, 1970, the Union requested the Respondent to bargain collectively. The Respondent refused by a letter dated February 5, 1970. On February 17, 1970, the Union filed the charge upon which the complaint herein was predicated. In its opposition to General Counsel's Motion for Summary Judgment and in its motion for stay, Respondent asserts that the Decision, Order, and ' Decision and Direction of Election in Case 11-RC-2609 (not published in NLRB volumes) 183 NLRB No. 34 ' 177 NLRB No 944 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Direction in Cases 11-CA-3488, I1-CA-3499, and 11-RC-2609 is presently on review before the United States Court of Appeals for the Fourth Cir- cuit and that because the decision in this proceed- ing is dependent upon the results of that case, the Motion for Summary Judgment should be denied. Respondent further contends that failure to comply with a Board decision and order while it is undergo- ing judicial review does not constitute a violation of the Act, citing Harris-Woodson Co., 77 NLRB 819. The complaint in Harris-Woodson alleged, inter alia, that the respondent there had violated Section 8(a)(1) of the Act by failing to comply with a Board order in an earlier case directing it to rein- state certain employees who had been unlawfully discharged. The Board adopted the Trial Ex- aminer's holding that, normally, refusal to comply with a Board decision and order in an unfair labor practice proceeding does not itself violate the Act, since the remedy in such cases is through recourse to the courts to secure enforcement of the order as provided in Section 10(e) of the Act. Similarly, any party aggrieved by a final order of the Board may obtain judicial review pursuant to Section 10(f) of the Act. In effect, the complaint in Harris-Woodson sought to have the Board enforce its own remedial order in the earlier unfair labor practice case. That is not the case here. Here the issue is not the Respondent's failure to comply with the Board's order in the earlier unfair labor practice proceeding, but the failure to honor the certificate of the Union as the collective-bar- gaining representative, which is, classically, a viola- tion of Section 8(a)(5). The pendency of Respon- dent's petition for review of the earlier related un- fair labor practice cases does not constitute a valid defense to its refusal to bargain with the certified union.3 As all material issues have been previously de- cided by the Board, or admitted in Respondent's answer to the complaint, there are no matters requiring a hearing before a Trial Examiner. Ac- cordingly, the General Counsel's Motion for Sum- mary Judgment is granted. On the basis of the record before it, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, a wholly owned subsidiary of J. P. Stevens & Co., Inc., is, and at all times material herein has been, a South Carolina corporation owning and operating in Greenville, South Carolina, a warehouse for receiving, storing, and shipping cotton. During the 12-month period preceding February 18, 1969, a representative period, Respondent received from points outside the State of South Carolina for storage in its Green- ville, South Carolina, warehouse, cotton valued in excess of $50,000. During the same period, Respondent shipped cotton valued in excess of $50,000 from its Greenville, South Carolina, warehouse, to points outside the State of South Carolina. We find that Respondent is, and has been at all times material herein, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, AFL-CIO-CLC, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees constitute a unit ap- propriate for collective bargaining within the mean- ing of Section 9(b) of the Act: All employees at the Employer 's Greenville, South Carolina, warehouse, excluding office clerical employees, working foremen and su- pervisors as defined in the Act. 2. The certification On October 25, 1967, a majority of the em- ployees of Respondent in said unit, in a secret bal- lot election conducted under the supervision of the Regional Director for Region 11, designated the Union as their representative for the purposes of collective bargaining with the Respondent and, on November 17, 1969, the Regional Director cer- tified the Union as the collective-bargaining representative of the employees in said unit and the Union continues to be such representative. ' Clement Brothers Co., 170 NLRB 1327, Washington Aluminum Co, 128 NLRB 643, set aside 291 F 2d 869 (C A 4), reversed and remanded 370 U S 9, see also Daniel Construction Co, 341 F 2d 805, 809-8 10 (C A 4), cert denied 382 U S 831 Respondent's motion for stay is therefore de- nied THE BLACK HAWK CORP. B. The Request To Bargain and Respondent's Refusal Commencing on or about January 30, 1970, and continuing to date, the Union has requested and is requesting the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of the employees in the above- described unit. Since February 5, 1970, and con- tinuing to date, the Respondent has refused and continues to refuse to bargain collectively with the Union as exclusive collective-bargaining represen- tative of all employees in said unit. Accordingly, we find that the Union was duly certified as the collective-bargaining representative of the employees of the Respondent in the ap- propriate unit described above and that the Union at all times since November 17, 1969, has been and now is the exclusive collective -bargaining represen- tative of all employees in the aforesaid unit within the meaning of Section 9(a) of the Act. We further find that the Respondent has since February 5, 1970, refused to bargain collectively with the Union as the exclusive collective-bargaining representative of its employees in the appropriate unit. By such refusal Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the 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 the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 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 appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining representative for the period provided by law, we shall construe the initial year of certification as beginning on the date the 269 Respondent commences to bargain in good faith with the Union as the recognized bargaining representative of its employees in the appropriate unit. See Mar-Jac Poultry Co., 136 NLRB 785; Commerce Company dlbla Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Co., 149 NLRB 1419, 1421, enfd. 350 F. 2d 57 (C. A. 10). CONCLUSIONS OF LAW 1. The Black Hawk Corporation is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Textile Workers Union of America, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit is an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act: All employees at the Employer's Greenville, South Carolina, warehouse, excluding office clerical employees, working foremen and su- pervisors as defined in the Act. 4. Since November 17, 1969, that Union has been the exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 5. By refusing on February 5, 1970, and at all times thereafter, to bargain collectively with the Union as the exclusive bargaining representative of all the employees in the appropriate unit, the Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, the Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed 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)(1) 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 Respon- dent, The Black Hawk Corporation, Greenville, South Carolina, its officers, agents, successors, and assigns, shall: 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay , wages, hours, and other terms and conditions of employment with the Textile Workers Union of America, AFL-CIO-CLC, as the exclu- sive bargaining representative of its employees in the following appropriate unit: All employees at the Employer's Greenville, South Carolina, warehouse , excluding office clerical employees, working foremen, and su- pervisors as defined in the Act. (b) In any like or related manner interfering with, restraining , or coercing employees in the ex- ercise of 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 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 un- derstanding is reached, embody such understanding in a signed agreement. (b) Post at its place of business in Grenville, South Carolina, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's representative, shall be posted by the Respondent 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. (c) Notify the Regional Director for Region 11, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read " Posted An Agency of the United States Government WE WILL NOT refuse to bargain collectively with the Textile Workers Union of America, AFL-CIO-CLC, as the exclusive representa- tive of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of the rights guaranteed them by Section 7 of the National Labor Rela- tions Act. WE WILL, upon request, bargain with the above-named Union as the exclusive represen- tative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees at the Employer's Green- ville, South Carolina, warehouse, exclud- ing office clerical employees, working foremen, and supervisors as defined in the Act. THE BLACK HAWK CORPORATION (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 1624 Wachovia Building, 301 North Main Street, Winston- Salem, North Carolina 27101, Telephone 919-723-2300. Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "