Bogner of America, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bogner of America, Inc. and International Ladies' Garment Workers' Union, AFL-CIO. Case I-CA- 14044 June 12, 1978 DECISION AND ORDER BY CIIAIRMAN FANNING< AND MEMNBFRS PENELI.O AN) MI:RPIIY Upon a charge filed on January 13, 1978, by Inter- national Ladies' Garment Workers' Union, AFIL CIO, herein called the Union, and duly served on Bogner of America, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint and notice of hearing on January 26, 1978, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and ( ) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing be- fore an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that a majority of Respon- dent's employees in an appropriate unit selected the Union as their bargaining representative in a Board election conducted in Case I-RC-15256;' and that, commencing on or about January 5, 1978, 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. On February 3, 1978, Respondent filed its answer to the complaint admitting in part, and deny- ing in part, the allegations in the complaint. On February 24, 1978. counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 7, 1978, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General C'ounsel's Motion for Summary Judgment should not be granted. Respondent there- ()fficiall notice is taken if the reicord il the represenlati,, n prtceeding. Case I R(' 15256, as the teirn "record" is defined in Sees. 10268 ind 102.6 9(g) iof the Board's Ruls i Rles a gul tions, Series 8, as amended. See I /1' :c1 to ir,t'.r . In,. 166 NIlRB 938 (1967). enfd. 388 F.2d 683 (('.A. 4, 19681: (Goldcl n A 4 , cBet' cr e (;r 117 Ni.RB 151 1967). enfd. 415 F2d 26l i( A 5 19691: /Inertlw ('o v. Peneil, 269 1 Supp 573 (D.(C.Va. 1967): tllir ( orp, 164 N RB 378 ( 1967). enfd 397 F.2d 91 I(.A. 7, 1968): Sec 9(d) f the NI RA, as aIllended Aciordingl. we note that the Union was duly certified h6 the Board oen i)ecemblher 13, 1977. as the collective-hargiain- Ing represen:laive If Respondenl's nlipl.t) ees it the unit ftound aippropriate. after 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 complaint and response to the Notice To Show Cause Respondent attacks the valid- ity of the certification of the Union as its employees' bargaining representative and asserts that it has ob- tained previously unavailable evidence in support of its objections to the election. Our review of the record herein, including the rec- ord in Case I-RC-15256, discloses that pursuant to a Stipulation for Certification Upon Consent Elec- tion, an election was conducted among the employ- ees in the stipulated unit on July 29, 1977, and that the tally of ballots furnished the parties after the elec- tion showed four votes cast for, and one against, the Union. Respondent filed timely objections to con- duct affecting the results of the election which al- leged in substance that the Union (I) told employees they would lose their jobs if they did not vote for the Union, and (2) misinformed employees as to the con- sequences of signing authorization cards, refused to allow employees to withdraw their authorization cards, and created the belief among employees that they were required to vote for the Union. After an investigation, the Regional Director for Region 1, on September 12, 1977, issued his Report on Objections in which he recommended that the objections be overruled and a Certification of Representative in fa- vor of the Union issue. On September 29, 1977, Respondent filed excep- tions to the Regional Director's report in which it essentially reiterated the allegations set forth in its objections and the contentions made in support thereof, and contended that, in the event the Board did not sustain its objections, a hearing should be ordered thereon. On December 13, 1977, the Board issued a Decision and Certification of Representa- tive 2 in which it adopted the Regional Director's findings and recommendations and certified the Union as the exclusive bargaining representative of the employees in the unit stipulated to be appropri- ate. By letter dated January 5, 1978, in response to re- quests for bargaining by the Union, Respondent in- formed the Union that it considered the certification invalid and would not engage in collective bargain- ing. 2 Not reported in .olumes of Board Decisions. 236 NL.RB No. 91 822 BOGNER OF AMERICA. INC In response to the Notice To Show Cause, Respon- dent contends that the Board in Case I--RC-15256 erred in refusing to consider evidence of alleged mis- conduct which occurred prior to the filing of the peti- tion, relying on the Board's recent decision in lyon'. Restaurants, a wholly-owned subsidiarv of Consolidated Foods Company, 234 NLRB 178 (1978). In that case the Board reversed the Regional Director's find- ing that the rule enunciated in The Ideal Electric Hanti Manufacturing Companv,3 that only conduct which occurs after a petition is filed can constitute a basis for setting aside an election, precluded him from considering whether threats made to employees prior to the filing of the petition by the petitioner's repre- sentatives were objectionable. In finding a departure from the Ideal Electric rule warranted, however, the Board emphasized in Consolidated Foods that the threats to employees (that if they did not join the petitioner they would lose their jobs) were made to secure authorization cards and occurred in the con- text of the employer's continued checkoff of dues pursuant to the terms of an expired collective-bar- gaining agreement with a sister local of the peti- tioning union until shortly before the petition was filed. The Board then concluded that the proscribed conduct and the setting of the case were sufficiently similar to that found in Gibson's Discount Center. a Division of Scrivner-Boogart, Inc.,4 so as to require that an exception to the Ideal Electric rule be made. However, we view the exception in Consolidalted Foods as inapposite here, where the prepetition state- ment alleged to be objectionable was to the effect that, if the employees changed their minds about rep- resentation after certification, they could "vote the union out." 5 Furthermore, we agree with the Region- al Director that, in any event, the statement here did not constitute objectionable conduct. Respondent further contends in its response to the Notice To Show Cause that a written statement from an employee that he had been told by a union repre- sentative that if the Union won the election a super- visor who had been the subject of employee comp- laints "would be taken care of," i.e., discharged. constitutes newly discovered evidence of objectiona- ble conduct. We find this contention without merit. inasmuch as such a statement, even if made, would not be reasonably construed by employees as a threat within the Union's power to implement and therefore 134 NLRB 1275 (1961). 4 214 NLRB 221 (1974). 5Member Murphy would not in ans event apply the holding in ( ,t1, h doted Foods inasmuch as she adheres to the sle' expressed In hel p.alll, dissenting opinion in that case that the prepetitlon threat, theretn shouild have been found barred from consider:ltion bh Ideial ihlirrl, uprr would not justify setting aside the election. Finally. Respondent contends that a hearing on its objections should be ordered. However, it is well set- tled that the parties do not have an absolute right to a hearing. Only when the objecting party presents a prima .facie showing of "substantial and material" is- sues of fact concerning matters which would warrant the election being set aside does the right to an evi- dentiary hearing exist." Absent arbitrary action, this qualified right to a hearing satisfies all statutory and constitutional requirements.' In this case the Board fully considered Respondent's objections and excep- tions and did not order a hearing, but adopted the Regional Director's recommendations that the objec- tions be overruled. 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. 8 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 is there any merit to its allegation that 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 properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment." On the basis of the entire record, the Board makes the following: " I RK K X qhh1,, tlulatiut iiing ( , t5() 1 2d 914 1(' A 8. 1974) ' ,,lil/(iiti, d ( l/tfhIl It frl , f 4 tmir a. 4 F1I ( 10 / Iin fietd Wanut tliti~tlo ( atji,, 11I-, / V N. I R B. 424 1 Id 818. 828 (C A. )(' . 1970) See 'iiii,, l rh Plaw (,;la,i (, . I RB. 313 tS 146, h162 (1941: Ruilcs aind Rcltllinls of the Balrd. Scas 102 67(f) and 102 69(cl I it, .Ilsser It the comnplalint Responldentl denies the appropriatenes iof Ihe h.rgaiinig unit. contentiiig that only aI plantwide unit of production iid Illl lllllellT.TiC ieniplo\ es is sappropri.te, hut does not assert that the 1,:lIlOn of the ulIlt ki set forih in the Board's [)ecision and C ertificallon iof Representatlxe is Incorrett Respondent further denies that it is a Vermont corporation and del ils itl strect addrelss s set forth in par 3 of the com- plaint lloIser. Ithe record in ( 'Ase I R(' 1526 reveals that on Juls 12 1977, cilunsel for RespondetClT ekecuted a; Stipulation for (ertification 'pon ( onstClt 1:ilectlllon agreement In whilh Respondent stipulated to its st ate of 111tirpotlaoi tlid tI( Ii1 appropria eness of a unit of cutting room empliis- cc L t Respronldeint's 4 I-lscriin i enue. Ncs(port, Vermont. loaillon Re- spOnrdeit does T11O (Iisclls' Or offer II Its response to the Notice To Showc (.iue to liddicte . cnldence as to the alleged inappropriateness of the unit. aid uc fied that, haiing stipulated to the unit in the repreentation proceed- iyg Rcpielndc[11 is I11- testoppcd from den'sng that It is appropriate See ( , Ptitd, lirdhnk' ( ,,m/wln 164 Nl RB 144 (I1g67L rnfd 408 F2d 676 (' A S. 19til) itaitll founid Ihait Respmidtent riises no issue ias to the Iicatiotn of the iiorkplaici if t ih t ertlposecs. s.e further find it ininl.aterial a hether the COnpl l iiit Oeicttlx alleged Respiondent' stiate iof Incorporation or address 823 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is engaged in the manufacture and sale of clothing apparel, skiwear, and related prod- ucts at its plant located in Newport, Vermont. It an- nually ships products valued in excess of $50,000 di- rectly from its Vermont plant to States other than the State of Vermont. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employee 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. at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about January 5, 1978, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collec- tive bargaining of all employees in said unit. Accordingly, we find that Respondent has, since January 5, 1978, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appropri- ate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All cutting room employees employed by Re- spondent at its 4 Eastern Avenue, Newport, Ver- mont, location, excluding all other employees, office clerical employees, professional employ- ees, guards, and all supervisors as defined in the Act. 2. The certification On July 29, 1977, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector 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 December 13, 1977, and the Union continues 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 December 20, 1977, and IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section 111, above, occurring in connection with the 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. 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 fact and the entire record, makes the following: 824 BOGNER OF AMERICA, INC CONCLUSIONS OF LAW 1. Bogner of America, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Ladies' Garment Workers' Union. AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All cutting room employees employed by Re- spondent at its 4 Eastern Avenue. Newport. Ver- mont, location, excluding all other employees, office clerical employees, professional employees, guards, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since December 13, 1977, the above-named la- bor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about January 5, 1978, 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)(i) 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. 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. Bogner of America, Inc., Newport, Vermont, its offi- cers, 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 International Ladies' Garment Workers' Union, AFL-CIO, as the exclu- sive bargaining representative of its employees in the following appropriate unit: All cutting room employees employed by Re- spondent at its 4 Eastern Avenue, Newport, Ver- mont, location, excluding all other employees, office clerical employees, professional employ- ees. guards, and all supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of 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 offices and place of business in Newport. Vermont, copies of the attached notice marked "Appendix." 'I Copies of said notice, on forms provided by the Regional Director for Region I1 after being duly signed by Respondent's represen- tative, shall be posted by Respondent imnmediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are custonmarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by anv 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. i l In the eent Ihat this Order is enfoiced ho .a Judgment of a I nited Sta.te ('olurl of .ppcal. the xx,,rd, in the notilce realdin "Plinlied bh Order of the Nalioilal I iabir Relaltins HBoa;rd" hall read 'P,,)ted Puruant to a Judgmlent of the L niled Salte, ('o--rt of Appeal, tnfotrcing an Order of Ihe Nattllonat Labor Rclanon. s Board' APPENDIX Nolii- To E[iPioNt.xrs PosIl D) BY' OR)tE.R Ot TIH- NAII(ONAI l.AH()R Ri.I tFIONS BOARD An Agency of the United States Government \Wi :,iil o ri refuse to bargain collectively concerning rates of pay. wages, hours, and other terms and conditions of employment with Inter- national l adies' Garment Workers' Union, AFL ('10. as the exclusive representative of the employees in the bargaining unit described be- low Wi. in t. Nso in any like or related manner interfere with, restrain, or coerce our emploNees 825 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the exercise of the rights guaranteed them by Section 7 of the Act. WE WiiL, 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 employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All cutting room employees employed at our 4 Eastern Avenue, Newport, Vermont, lo- cation, excluding all other employees, office clerical employees, professional employees, guards, and all supervisors as defined in the Act. BOGNER OF AMERICA, INC 826