Russ Togs, Inc.

R&M KAUFMANN, DIV. OF RUSS TOGS, INC. 49 R & M Kaufmann, a Division of Russ Togs, Inc. and District 65, Whosesale, Retail, Office and Process- ing Union. Case 13-CA-10451 July 9, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a ,charge filed on March 11, 1971, by District 65, Wholesale, Retail, Office and Processing Union, herein called the Union, and duly served on R & M Kaufmann, a Division of Russ Togs, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a complaint on April 1, 1971, 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 (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 complaint alleges, in substance that on January 26, 1971, following a Board election in Case 13-RC-11887 the Union was duly certified as the exclusive collective-bargaining representative of Rer spondent's employees in the unit found appropriate;1 and that, commencing on.or about February 26, 1971, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represent- ative, although the Union has requested and is requesting it to do so. On April 11, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Respondent admits that in the Board-conducted election of January '18, 1971, a majority of its employees selected the Union as its bargaining representative and that on January 26, 1971, the Union was certified as exclusive collective-bargaining representative of employees in the unit found to be appropriate. Respondent denies, however, that the Union is a representative or labor organization within the meaning of the Act and asserts that the Union's certification is invalid since it defines an inappropri- ate unit. On April 20, 1971, counsel for the General Counsel i Official notice is taken of the record in the representation proceeding, Case , 13-RC-11887, 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; Intertype Co. v.'Peneio, 192 NLRB No. 14 filed directly with,the Board a Motion for Summary Judgment. Subsequently, on April 26,197 the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment' should not be granted. Respondent thereafter filed, a response, to Notice To Show Cause, characterized as an Answer to Motion for Summary Judgment. -, Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated, its powers in connection with 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 to the Motion for Summary Judgment Respondent contends that, the Union does not, qualify as a, labor organization or, alternatively, that it is disqualified from representing apparel' salesmen. It further denies that the unit set forth in the complaint is an appropriate unit. Accordingly, it prays that the Board deny the Motion for Summary Judgment. Respondent's contentions present the same repre- sentation issues which, had been, considered and determined by the Board, in its Decision and Direc- tion of Election (187 NLRB No. 20) issued in the antecedent representation proceedings in Case 13-RC-11887. There the Board found that the union met the Act's definition of a labor organization, rejected respondent's ' contention that the bargaining unit should include resident salesmen, and granted the union's request for a unit- limited to traveling commission salesmen. Accordingly, we find no merit in the Respondent's contentions. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances 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 ptoceeding.2 All issues raised, by the Respondent in this pioceed- 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 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. 2 See Pittsburgh Plate Glass Co v. N.GR.B., 313 U.S. 146,162 (1941); Rules and Regulations of the Board, Sees. 102.67(1) and 102:69(c). 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 1. THE BUSINESS OF THE RESPONDENT, Respondent, a New York corporation, with` a plant and place of business in Aurora, Illinois, is engaged in the manufacture and sale of women's apparel. During the past fiscal or calendar year, Respondent manufac- tured, sold, and shipped finished products valued in excess of $1 million from its plant in Aurora, Illinois, directly to customers located in States of the United States other,than the State of Illinois. ,,We find, on the basis of the foregoing, that Respondent 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 jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED District 65, Wholesale, Retail, Office and Process- ing Union 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 purposes within the meaning of Section 9(b) of the Act: All traveling commission sales employees, exclud- ing all other employees, resident sales employees, showroom employees, factory employees, office employees, shipping and receiving employees, stock employees,' trucking employees, guards and supervisors as defined in the Act. 2. The certification On January 18,,197 1, a majority of the employees of Respondent in said unit, in a secret ballot election conducted , under the supervision of the Regional Director for Region 13 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 January 26, 1971, and the Union continues to be such exclusive representative within the meaning of Section 9(a) ofrthe Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about February 23, 1971, and at all times thereafter, the Union has requested the Respondent to bargain collectively with "it as the exclusive collective-bargaining , representative of all the employees in the above-described unit. Com- mencing on or about February 26, 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 bargaining of all employ- ees in said unit. Accordingly, we find that ' the Respondent has, since February 26, 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. TIM 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 commerce among-the several States and tend to lead to labor disputes burdening -and 'obstructing com- merce 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 appropriate unit, and, if an'understanding is reached, embody such understanding in a signed ,agreement. In order to insure that the employees in the appropriate 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 beginning on the date Respondent commences to bargainin good faith with the Union as the reeognizzed 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 R&M KAUFMANN, DN. OF RUSS TOGS, INC. 51 U.S. 817; Burnett Construction Company, 149 NLRB 1419,142 1, 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. R & M Kaufmann, a Division of Russ Togs, Inc., is'an employer engaged in commerce within-the meaning of Section 2(6) and (7) of the Act. ,2. District ' 65, Wholesale, Retail, Office and Processing Union, is alabor organization within the meaning of Section 2(5) of the Act. 3. , All traveling commission sales employees, excluding all other employees, resident sales-employ- ees, showroom employees, factory employees, office employees, shipping, and receiving employees, stock employees, trucking employees, guards and'-supervi- sors as defined in the Act, constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since January 26, 1971, the above-named labor 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 February 26, 1971, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent 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 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 Relations Board hereby orders that Respondent,R&M Kaufmann, a Division of Russ Togs, 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 conditions of employment with District 65, Wholesale, Retail, Office and Processing Union as the exclusive bargain- ing representative of its employees in the following appropriate unit: All traveling commission sales . employees, ex- cluding all other employees, resident sales employ- ees, showroom employees, factory - employees, office employees, shipping and receiving employ- ees, stock employees, trucking employees, guards and supervisors as defined in the Act. (b),Iri 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 understand- ing is reached,,' embody such understanding in a signed agreement. (b) Post at its plant and place of business in Aurora, Illinois, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's representa- tive, 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 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 In the event that the Board's 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 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 concerning rates of pay, wages, hours, and other terms and conditions of employment with District 65, Wholesale, Retail, Office and Processing Union as the exclusive representative of the employees 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 Section 7 of the Act. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, ,upon request, bargain with the above- R , & M KAuFmANN, A named Union, as the exclusvie representative of all DIVISION OF Russ Toos, employees-in the bargaining unit described below, INC. with respect ,to rates of pay, ;wages, hours, and (Employer) other terms and conditions of employment , and, if an understanding is reached, embody such under- -standing .in, a signed agreement..;The bargaining unit is: All traveling commission sales employees, excluding all other employees, resident sales employees, showroom employees, factory employees, office employees, shipping and receiving ,employees, stock employees, truck- ing employees, guards and - supervisors as defined in the Act. Dated By (Representative) (Title) This is wan,officialnotice and must not be defaced ,by anyone. This notice must remain posted for 60 consecutive days from thedate of postingand must,not be altered, defaced, or covered by any other material. ,Any questions , conceding this notice or compliance with its' provisions may be directed to, the Board's Office, Room 881, Everett Dirksen Building, 219 South Dearborn Street, Chicago, Illinois_ ,60604, Telephone 312-353-75,72. ,