T.I.L. Sportswear Corp.

T I L SPORTSWEAR CORP T.I.L. Sportswear Corporation and Amalgamated Clothing Workers of America, AFL-CIO. Case 26- CA-3921 May 24, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on February 12, 1971, by Amal- gamated Clothing Workers of America, AFL-CIO, herein called the Union, and duly served on T.I.L. Sportswear Corporation, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 26, issued a complaint on February 24, 1971, against Respondent, alleging that Respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Sec- tion 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and no- tice 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 January 21, 1971, following a Board election in Case 26-RC-3828 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 September 25, 1970, and at all times there- after, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Un- ion has requested and is requesting it to do so. On or about March 4, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and requesting that the complaint be dismissed in its entirety. In particular, the Respondent admits the allegations of the complaint that it refused to recognize and bargain with the Union, notwithstanding that the Union obtained a majority in the Board-conducted election on September 25, 1970, and was thereafter certified by the Board on January 21, 1971. However, the Respondent denies the validity of the certification and of the underlying majority status of the Union and also denies the conclusionary allegations that it violated the Act. By way of defense the Respondent avers, in substance, that it has been ' Official notice is taken of the record in the representation proceeding, Case 26-RC-3828 as the term "record" is defined in Secs 102.68 and 102 69(t) 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; Intertype 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(d) of the NLRA 190 NLRB No. 93 491 deprived of due process of the Regional Director's denial of a hearing on its objections to the election, and overruling of those objections, and by the Board's sus- taining of the Regional Director's ruling on objections and denial of Respondent's request for a hearing. On March 11, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 16, 1971, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Gen- eral Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a reply as its response to 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 powers in connection with this case 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 response to the Notice to Show Cause, the Respondent reiterates the position set forth in its an- swer contending again that the objections to the con- duct of the election were improperly overruled without a hearing. Accordingly, it requests that the Motion for Summary Judgment be denied and a hearing before a Trial Examiner be held herein. We find no merit in the Respondent's position and deny its requests. The record herein shows that, pursuant to a Stipula- tion for Certification Upon Consent Election in Case 26-RC-3828, an election was conducted on September 25, 1970, in which a majority of the eligible voters selected the Union as their collective-bargaining repre- sentative in the appropriate unit. Thereafter, the Re- spondent filed timely objections to conduct affecting the results of the election. The objections alleged that: (1) prounion employees allegedly threatened other em- ployees with bodily harm and with exposure of untrue stories concerning their personal and moral characters if they did not vote for the Union, thereby coercing and restraining these employees in the exercise of their rights and creating an atmosphere of fear and reprisal; (2) the Union distributed leaflets which allegedly con- tained untruths and material misrepresentations of facts which interfered with the employees' free choice; and (3) the objections raised crucial, material, and sub- stantial issues of fact and law which could only be resolved at a hearing. The Regional Director investigated the objections and on October 20, 1970, issued and served upon the parties his Report on Objections. In that Report, he found no need for a hearing and recommended that the objections be overruled in their entirety on grounds 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the alleged threats of prounion employees were not attributable to the Union, there was no independent evidence to support the conclusionary statement that an atmosphere of fear and reprisal had been created, and the union-circulated leaflets constituted legitimate election propaganda which the employees could prop- erly evaluate . Accordingly, he recommended that the Union be certified. Thereafter, the Respondent filed with the Board a Motion for Hearing and Due Process and Exceptions to the Regional Director's Report and Request for Re- view to which were attached witnesses ' affidavits and statements, allegedly raising crucial, material , and sub- stantial issues of fact and law requiring resolution by a hearing. In these documents , the Respondent advanced again the arguments and contentions raised in its objec- tions which the Board fully reviewed and considered therein . On January 21, 1971, the Board issued its Decision and Certification of Representative in which it found that the Respondent's "exceptions raise no material or substantial issues of fact of law which would warrant reversal of the Regional Director's findings and recommendations or require a hearing." Accordingly, the Board adopted the Regional Direc- tor's recommendation that the Respondent 's objections be overruled in their entirety, denied the motion for a hearing, and certified the Union. 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.2 All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior repre- sentation 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 prop- erly 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: ' See Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 (1941), Rules and Regulations of the Board , Secs 102 67 (f) and 102 69(c) FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is now, and has been at all times material herein, a corporation during business in the State of Mississippi with a plant and place of business at Aberdeen, Mississippi, where it is engaged in the manufacture of men's slacks. During the past 12 months Respondent in the course and conduct of its business operations at Aberdeen, Mississippi, purchased goods and materials valued in excess of $50,000 directly from points outside the State of Mississippi, and during the same period Respondent shipped goods valued in excess of $50,000 directly to points outside the State of Mississippi. We find, on the basis of the foregoing, that Respond- ent 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 assert jurisdiction herein. II THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, AFL- CIO, is 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 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 in- cluding plant clerical employees employed by the Respondent at the Aberdeen, Mississippi, plant, but excluding office clerical employees, guards and supervisors as defined in the Act. 2. The certification On September 25, 1970, a majority of the employees of Respondent in said unit, in a secret ballot'election conducted under the supervision of the Regional Direc- tor for Region 26, designated the Union as their repre- sentative for the purpose of collective bargaining with the Respondent. The Union was certified as the collec- tive-bargaining representative of the employees in said unit on January 21, 1971, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. T.I.L. SPORTSWEAR CORP B. The Request To Bargain and Respondent's Refusal Commencing on or about January 29, 1971, and at all times thereafter, the Union has requested the Re- spondent 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 February 4, 1971, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bar- gaining of all employees in said unit. Accordingly, we find that the Respondent has, since February 4, 1971, 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 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 Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, imtimate, 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 meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bar- gain collectively with the Union as the exclusive repre- sentative of all employees in the appropriate unit, and, if an understanding is reached, embody such under- standing in a signed agreement. In order to insure that the employees in the appropri- ate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall-construe the initial period of certification as begin- ning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce 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 493 1. T.I.L. Sportswear Corporation is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. 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 in- cluding plant clerical employees employed by the Re- spondent at the Aberdeen, Mississippi, plant, but ex- cluding office clerical employees, guards and supervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since January 21, 1971, the above-named labor organization has been and now is the certified and ex- clusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargain- ing within the meaning of Section 9(a) of the Act. 5. By refusing on or about February 4, 1971, 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 Respond- ent 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 in- terfering 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 engag- ing 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 Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, T.I.L. Sport- swear Corporation, 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 conditions of employment with Amalgamated Clothing Workers of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appro- priate unit: All production and maintenance employees in- cluding plant clerical' employees employed by the Respondent at the Aberdeen, Mississippi, plant, but excluding office clerical employees, guards and supervisors as defined in the Act. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaran- teed 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 la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect 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 agree- ment. (b) Post at its Aberdeen, Mississippi, plant copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Direc- tor for Region 26, after being duly signed by Respond- ent's representative, shall be posted by Respondent im- mediately 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 al- tered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. concerning rates of pay , wages, hours, and other terms and conditions of employment with Amal- gamated Clothing Workers of America, AFL- CIO, as the exclusive representative of the em- ployees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance em- ployees including plant clerical employees employed by the Respondent at the Aber- deen, Mississippi, plant, but excluding office clerical employees , guards and supervisors as defined in the Act. T.I.L. SPORTSWEAR CORPORATION (Employer) ' 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 " 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 Dated By (Representative) (Title) 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 compliance with its provisions may be directed to the Board's Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901- 534-3161.