J. M. Wood Manufacturing Co., Inc.

22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. M. Wood Manufacturing Company, Inc. and South- west Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO. Case 16-CA-4051 January 25, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS Upon an original charge and first amended charge filed on July 14 and August 4, 1970, by Southwest Regional Joint Board, Amalgamated Clothing Work- ers of America, AFL-CIO, herein called the Union, and duly served on J. M. Wood Manufacturing Com- pany, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 16, issued a com- plaint on August 6, 1970, against Respondent, alleg- ing that Respondent had engaged in and was engaging in unfair labor practices affecting commerce 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 on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on or about June 17, 1970, following a Board election in Case 16-RC-5076 the Union was duly certified as the exclusive collec- tive-bargainmg representative of Respondent's em- ployees in the unit found appropriate;' and that, commencing on or about June 30, 1970, and at all times thereafter, Respondent has refused and contin- ues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, al- though the Union has requested and is requesting it to do so. On August 17, 1970, Respondent filed its answer to the complaint admitting in part, and deny- ing in part, the allegations in the complaint. The Re- spondent admits all of the factual allegations of the complaint, except those paragraphs which relate to the underlying representation case which alleges that a majority of the employees of the Respondent in the unit described in the complaint, by an election, desig- nated and selected the Union as their representative for the purpose of collective bargaining and that on June 17, 1970, the Regional Director certified the Un- ion. The Respondent also denies that it violated Sec- tion 8(a)(5) and (1) of the Act. ' Official notice is taken of the record in the representation proceeding, Case 16-RC-5076, as the term "record" is defined in Secs. 102.68 and 102. 69(f) of the Board's Rules and Regulations, Series 8, as amended . See LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F.2d 683 (C A. 4, 1968); Golden Age Beverage Co, 167 NLRB 151, Inter" Co v. Penello, 269 F Supp. 573 (D C. Va, 1967); Follett Corp., 164 NLRB 378, enfd. 397 F.2d 91 (C A. 7, 1968), Sec. 9(J) of the NLRA On August 23, 1970, counsel for the General Coun- sel filed directly with the Board a Motion for Summa- ry Judgment in which he contends that the Respondent's answer to the complaint raises no issue not already disposed of in the representation proceed- ing, and prays the Board to grant the Motion for Summary Judgment. Subsequently, on September 10, 1970, the Board issued an Order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after filed a Response to Notice To Show Cause. On October 30, 1970, the Board issued its Order Granting Motion and Amending Complaint in which the Board granted the General Counsel's Motion To Amend Complaint, amended the complaint to reflect the proper date of the election at which the Union was selected as the employees' bargaining representative, and permitted the Respondent to file with the Board an amended answer to the complaint and any supple- mental or amended response to the Motion for Sum- mary Judgment previously filed. Thereafter, by telegram dated November 9, 1970, the Respondent moved to amend paragraph 3 of its answer by deleting the incorrect date "February 11, 1969," and substitut- ing the correct date "July 16, 1969," thereby admit- ting, rather than denying, paragraph 3 of its answer "that pursuant to said election, the Regional Director for the Sixteenth Region of the National Labor Rela- tions Board certified the Union as the exclusive bar- gaining representatives of said employees." 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 proceeding, includ- ing the record in Case 16-RC-5076, the Board makes the following: RULING ON THE MOTION FOR SUMMARY JUDGMENT As reflected above, the Respondent's answer ad- mits all of the factual allegations of the complaint, including its refusal to recognize the bargain with the Union which had been certified as the collective bar- gaining representative of the employees described in the complaint. Affirmatively, the Respondent raises defenses relating to (1) the appropriateness and scope of the unit, (2) the Union's failure to represent an uncoerced majority, and (3) the Regional Director's erroneous rulings concerning challenges to ballots and objections to the election.2 In its response to the 2 Respondent also contends that the Motion for Summary Judgment should be denied because the Board 's denial of Respondent's requests for review filed at various stages of the representation case proceeding did not 188 NLRB No. 4 J. M. WOOD MFG. CO. Notice To Show Cause, the Respondent contends that a summary judgment cannot be granted if material facts remain in dispute after the pleadings have been entered. By this assertion, and more specifically by its denials, in whole or in part, of the allegations of the complaint, the affirmative defenses alleged in its an- swer, and the arguments propounded in its response to the General Counsel's motion, the Respondent is attempting to relitigate the same issues which it raised in the representation proceeding in Case 16-RC- 5076. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances a Respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.3 All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously 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 the 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: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent is a corporation duly organized under and existing by virtue of the laws of the State of Texas, having an office and place of business in the city of Waco, Texas, where it is, and has been at all times material herein, engaged in the manufacture, sale, and distribution of work clothes, sportswear, and related products. During the past year, the Respon- dent, in the course and conduct of its business opera- tions, purchased, transferred, and delivered to its Waco, Texas, plant goods and materials valued in excess of $50,000, which goods and materials were transported to said place of business directly from the States of the United States other than the State of involve independent review by the Board of the record in Case 16-RC-5076, citing, inter aha, Pepsi-Cola Bottling Company v N L R.B., 409 F 2d 676 (C A. 2). However, in ruling on this motion, the Board has, as indicated, reviewed the record in that case. On the basis of such review, we find no ground for disturbing the Regional Director's findings and conclusions. 7 See Pittsburgh Plate Glass Co. v. N.LR B, 313 U.S. 146, 162 ( 1941), Rules and Regulations of the Board , Secs. 102.67(f) and 102 69(c) 23 Texas, and sold and shipped finished products, valued in excess of $50,000, to points outside of the State of Texas. We find, on the basis of the foregoing, that Respon- dent 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 effectu- ate the policies of the Act to assertjurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Southwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All production and maintenance employees of Respondent employed at its Waco, Texas, plant including plant clerical employees and watch- men exclusive of office clerical employees, pro- fessional employees, guards, and supervisors as defined in the Act. 2. The certification On July 16, 1969, 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 16 designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on June 17, 1970, 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 June 23, 1970, and at all times thereafter, the Union has requested the Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about June 30, 1970, and continuing at all times there- after to date, the Respondent has refused, and contin- ues to refuse, to recognize and bargain with the Union 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the exclusive representative for collective bargain- ing of all employees in said unit. Accordingly, we find that the Respondent has, since June 30, 1970, 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 operations described in section I, above , have a close, intimate, and substantial relationship 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 Respondent has engaged in and is engaging in unfair labor practices within the meaning 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 appro- priate unit, and, if an understanding is reached, em- body such understanding in a signed agreement. In order to insure thEkt a employees in the appro- priate unit will be accorded the services of their select- ed bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bar- gain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785; Com- merce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F .2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd . 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. J. M. Wood Manufacturing Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Southwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. All production and maintenance employees of Respondent employed at its Waco, Texas, plant in- cluding plant clerical employees and watchmen exclu- sive of office clerical employees, professional employees, guards, and supervisors constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since June 17, 1970, the above-named labor or- ganization has been and now is the certified and ex- clusive 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 June 30, 1970, 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 Respon- dent 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 thereby has 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 Rela- tions Board hereby orders that Respondent, J. M. Wood Manufacturing Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and condi- tions of employment, with Southwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees of Respondent employed at its Waco , Texas, plant including plant clerical employees and watch- men exclusive of office clerical employees, pro- fessional employees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guar- anteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: J. M. WOOD MFG. CO. (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 understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its Waco, Texas, plant copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be posted by Re- spondent 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 16, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 25 ing Workers of America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner in- terfere 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 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. The bargaining unit is: All production and maintenance employees of Respondent employed at its Waco, Texas, plant including plant clerical employees and watch- men exclusive of office clerical employees, pro- fessional employees, guards, and supervisors as defined in the Act. J. M. WOOD MANUFACTURING COMPANY, INC (Employer) Dated By (Representative) (Title) APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively con- cerning rates of pay, wages, hours, and other terms and conditions of employment with South- west Regional Joint Board, Amalgamated Cloth- This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 8A24 Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921.