Danville Industries, Inc.

DANVILLE INDUSTRIES, INC. Danville Industries, Inc. and United Textile Workers of America, AFL-CIO. Case 5-CA-6428 April 29, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a charge filed on November 21, 1973, by United Textile Workers of America, AFL-CIO, herein called the Union, and duly served on Danville Industries. Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 5, issued a complaint on January 2, 1974, 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 an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on November 1, 1973, following a Board election in Case 5-RC-8454 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; I and that, commencing on or about November 5, more particu- larly since November 16, 1973, and at all times thereafter, Respondent has refused, and continues 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 January 1(). -'974, Respondent filed its answer to the ii admitting in part, and denying in part, the ,iicgatlons in the complaint. On January 28, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 1, 1974, 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. Respon- dent thereafter filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 1 Official notice is taken of the record in the representation proceeding, Case 5-RC-8454, 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 Electrosysteme, Inc, 166 NLRB 938, end. 388 F.2d 683 (C A. 4, 1968); 307 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 again challenges the validity of the underlying representation case, and contends that the Board was in derogation of due process in not ordering a hearing on its objections thereto. We do not agree. The record in Case 5-RC-8454 reveals an election pursuant to a Stipulation for Certification Upon Consent Election. Of 256 eligible voters, 234 cast ballots, a tally showing 123 for, and 111 against, the Union, with 10 challenged ballots . Respondent filed timely objections to conduct affecting the results of the election, requesting the election be set aside. The objections, in substance, alleged: threats by the Union to employees ; electioneering by the Union in the vicinity of the polls; and union misrepresentation of material facts. Following an investigation , which included consid- eration of affidavits of Respondent's witnesses, the Regional Director issued a Report on Objections to the Election on July 25, 1973, overruling the objections on the merits and recommending certifica- tion of the Union . In his report, the Regional Director, noting that an allegation of possible ballot box tampering was untimely filed, nevertheless reviewed the matter and concluded the allegation to be without merit. Respondent thereafter filed excep- tions to the Regional Director's report, reasserting its original objections and further alleging the possibility of ballot box tampering . Respondent again requested that the election be set aside on its objections, or in the alternative, that a hearing be held on th issues raised by the objections. The Board issued a Decision and Certification of Representative on November 1, 1973, adopting the Regional Director's findings, conclusions, and recommendation and certifying the Union. We find no merit in Respondent's contention that due process requires a hearing on its objections. The objections were considered and rejected on the merits by the Regional Director, and the Board necessarily found there were no substantial or material issues raised thereby in approving the Regional Director's report and certifying the Union. Absent a prima facie showing of substantial and material issues which would warrant setting aside the election,2 a hearing is not required to satisfy the Golden Age Beverage Co., 167 NLRB 151, enfd. 415 F.2d 26 (C.A, 5, 1969); Intertype Co. v Penella, 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 Allied Foods, Inc., 189 NLRB 513, and cases cited in fn. 3. 210 NLRB No. 43 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mandates of due process . No such showing has been made herein. It thus appears that Respondent seeks again to raise the issues litigated in the earlier representation proceeding. 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(aX5) 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 proceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not a:fer 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 1. THE BUSINESS OF THE RESPONDENT III. UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective -bargain- ing purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by the Employer at its Danville, Virginia, location, excluding professional employ- ees, office clerical employees, guards and supervi- sors as defined in the Act. 2. The certification On May 3, 1973, 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 5 designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on November 1, 1973, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. The Respondent, a Virginia corporation, is en- gaged in the production of knit goods at its Danville, Virginia, location. During the past 12 months, a representative period, Respondent purchased and received in interstate commerce goods and materials valt ass f :mss of $50,000 from points outside the Camrltv^l ;tth of Virginia . During the same period, Respondent sold and shipped products to points outside the Commonwealth of Virginia valued in excess of $50,000. 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 United Textile Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about November 5, 1973, and at all times thereafter , the Union has requested the Respondent to bargain collect °.a 'c7 , with it as the exclusive collective-bargaining represQr.ativ^; cr all the employees in the above-described unit. Corn- mencing on or about November 5 and since particularly November 16, 1973, 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 representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since November 5, 1973, 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, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act. s See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). DANVILLE INDUSTRIES, INC. 309 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 opera- tions 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 com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) 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 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, enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817(1964); Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Danville Industries, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Textile 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 employed by the Employer at its Danville, Virginia, location, excluding professional employees , office clerical employees , guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 1, 1973, 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 November 5, 1973, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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(axl) 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, Danville Industries, Inc., its officers, agents, succes- sors, 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 United Textile Workers of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by the Employer at its Danville, Virginia, location, excluding professional employ- ees, office clerical employees, guards and supervi- sors 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 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Danville, Virginia, location copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 5 after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaft- er, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 5 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 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. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive 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 agree- ment. The bargaining unit is: All production and maintenance employ- ees employed by the Employer at its Dan- ville, Virginia, location, excluding profes- sional employees, office clerical employees, guards and supervisors as defined in the Act. DANVILLE INDUSTRIES, INC. (Employer) 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 United Textile Workers of America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. 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 compli- ance with its provisions may be directed to the Board's Office, Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21201, Tele- phone 301-962-2822.