Georgetown Dress Corp.

GEORGETOWN DRESS CORPORATION 41 Georgetown Dress Corporation and International La- dies' Garment Workers' Union, AFL-CIO. Case 11-CA-5951 March 24, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO Pursuant to the provisions of Section 3(b) of the National Labor Realtions 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 Upon a charge filed on November 25, 1974, by Inter- national Ladies' Garment Workers' Union, AFL-CIO, herein called the Union, and duly served on Georgetown Dress Corporation, herein called the Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 11, issued a complaint on November 29, 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, com- plaint, 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 com- plaint alleges in substance that on November 6, 1974, follLowing a Board election in Case 11-RC-3343 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 November 14, 1974, 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 Union has requested and is requesting it to do so. Thereafter, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the allega- tions in the complaint and raising affirmative defenses thereto. On December 27, 1974, counsel for the General Counsel filed directly with the Board a motion for summary judgment. Subsequently, on January 6, 1975, 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 response to notice to show cause and the Union filed a reply thereto. I Official notice is taken of the record in the representation proceeding, Case 11-RC-3343, as the term "record" is defined in Secs 102 68 and 102 159(g) of the Board's Rules and Regulations , Series 8, as amended See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd 388 F.2d 683 (C.A 4, 1967), Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415 F 2d 26 (C.A. 5, 1969); Intertype Co. v Penello, 269 F Supp 573 (D C. Va., 1957), Follett Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91 (C.A. 7, 1968), Sec 9(d) of the NLRA In its answer to the complaint and response to the notice to show cause, Respondent, in effect, disputes the representative status of the Union because the Board improperly set aside the first election and over- ruled its objections to the second election. In addition it contends that, because of changes in conditions at Respondent's business and employee turnover, the re- sults of the second election are unrepresentative of em- ployees sentiment at the time the request to bargain was made. Our review of the record herein, including that in Case 11-RC-3343, reveals that, pursuant to a stipula- tion for certification upon consent election, an election was conducted among the employees in the stipulated bargaining unit on August 24, 1971, which the Union lost. The Union filed timely objections to conduct af- fecting the results of the election, alleging in substance supervisory instructions to employees to vote against the Union; intimidation and threats of plant closing if the Union won the election; interrogation of employees; and discrimination against prounion employees. After investigation of the objections, the Regional Director on December 10, 1971, issued his Report on Objections and Direction in which he recommended that two ob- jections be overruled and a hearing be held on the remaining objections. Absent exceptions, the Board on December 28, 1971, adopted the Regional Director's report. Thereafter, the Regional Director consolidated, for hearing before an Administrative Law Judge, the objections from the representation proceeding, Case 11-RC-3343, and the complaint proceeding against the Respondent, Case 11-CA-4674, based on the Re- spondent's preelection conduct. After hearing, the Administrative Law Judge, in his August 10, 1972, Decision, recommended that the ob- jections on which the hearing was directed be sustained and that a new election be held. The Respondent then filed exceptions to the Decision. The Board, after con- sidering the record and the Decision in light of the exceptions, cross-exceptions, and briefs, on January 8, 1973, issued its Decision, Order, and Direction of Sec- ond Election (201 NLRB 102), in which it affirmed the Administrative Law Judge's rulings, findings, and con- clusions and directed a new election. The Union won the second election held on February 15, 1973, and the Respondent filed timely objections to 217 NLRB No. 8 42 ` DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct affecting results of the election, alleging, in substance, that the Union made promises of benefits; threatened bodily harm and damage to property of employees and loss of employment to employees who opposed its election; made misrepresentations to em- ployees; and that an atmosphere of fear and coercion existed at the time of the election . After investigation, the Regional Director in a Second Report on Objec- tions issued on May 17, 1973, recommended that the objections be overruled and the Union certified. The Board, after considering the Respondent's exceptions to the report, issued on Order on October 4, 1973, directing a hearing on some of the objections and re- serving decision on the others . On December 27, 1973, the Regional Director consolidated for hearing the ob- jections in the representation proceeding, Case I1-RC-3343, and the complaint against the Union in CAse 11-CB-383 based on the Union's preelection conduct. After the hearing, the Administrative Law Judge issued a Decision on May 31 , 1974, in which he recom- mended that the objections be overruled. The Respond- ent filed motions to reopen record to receive evidence rejected by the Administrative Law Judge, exceptions, and briefs. After considering the record and the Ad- ministrative Law Judge's Decision in light of the excep- tions, briefs, and motions, the Board issued its Deci- sion, Order, and Certification of Representative (214 NLRB No. 108), on November 6, 1974, in which it affirmed the rulings, findings, and conclusions of the Administrative Law Judge and adopted his Order recommending that the objections be overruled. The Board also denied Respondent's motion to receive re- jected evidence, overruled the remaining objections upon which decision had been reserved, and certified the Union. Although Respondent alleges in its answer reversible errors committed in the underlying representation case, in its response to the notice to show cause it indicates that it does not wish to raise those matters now, for it concedes that such matters may not be relitigated herein;2 but it only seeks to preserve such matters for judicial review. Nevertheless, as indicated above, we have reviewed the record and find that not only was no reversible or prejudicial error committed, but also that the Respond- ent was accorded full due process at every stage of the representation proceedings below . Further, with re- spect to the objections upon which the Respondent did not receive a hearing, it is well settled that the parties do not havean absolute right to a hearing on objections to an election and a denial of a hearing thereon does not deprive the Respondent of due process, where, as here, 2 See Pittsburgh Plate Glass Company v N.L.R B., 313 U.S 146, 162 (1941), Rules and Regulations of the Board, Sees. 102.67(£) and 102 69(c) they did not raise material and substantial issues war- ranting a hearing.' - Respondent now raises the defense that, because of changed circumstances arising out of employee turn- over and substantial changes in operational, facts in connection with its business since the February 1973 election, the results of that election are not representa- tive of employee sentiment at the time of the Union's request to bargain on November 8, 1974, In support of this position Respondent alleges a drop in the number of employees and economic reasons causing substantial reduction in business. It is well established that since the Union was selected by majority employee choice, Respondent's obligation to bargain extends for 1 year from the date of the Union 's certification herein on November 6, 1974, and employee turnover, diminished employment, or reduced operation does not constitute "unusual circumstances" within the Supreme Court's decision in Ray Brooks v. NL.R.B.4 To entertain this defense, moreover, would produce the anomalous re- sult of permitting the Respondent to benefit because of a lapse of time occasioned from affording the Respond- ent the opportunity to fully participate in an adversary manner thereby abrogating the importance of the Board's election.' Accordingly, we find no merit in the Respondent's defense and shall grant the General Counsel's 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 Respondent is now, and has been at all times material herein, a corporation engaged in the manufac- ture of dresses at its factory located in Georgetown, South Carolina. During the past 12 months, which period is representative of all times material herein, Respondent received goods and raw materials directly from points outside the State of South Carolina valued in excess of $50,000, and during the same 12-month period Respondent caused to be shipped directly to points outside the State of South Carolina products valued in excess of $50,000. 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. 3 Big Three Industries, Inc., Formerly Big Three Industrial Gas & Equip- ment Co., 214 NLRB No 104 (1974), Raub Supply Company, 215 NLRB No 75 (1974). 4 348 U S 96 (1954); see also Nichols-Homeshield, Inc., 214 NLRB No 85 (1974); Leatherwood Drilling Company, 209 NLRB 618 (1974), Lloyd A. Fry Roofing Co., Inc., 192 NLRB 791 (1971). 5 Holly Farms Poultry Industries, Inc., 189 NLRB 663 (1971) GEORGETOWN DRESS CORPORATION 43 II THE LABOR ORGANIZATION INVOLVED ]International Ladies' Garment Workers' Union, 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 at the Employer's Georgetown, South Carolina, plant, including truckdrivers and plant clerical em- ployees, but excluding office clerical employees and supervisors as defined in the Act.' 2. The certification On February 15, 1973, 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 11, 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 November 6, 1974, 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 November 8, 1974, 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 November 14, 1974, 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 November 14, 1974, 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 , 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 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 (1962); Com- merce 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); Burnett Construction Com- pany, 149 NLRB 1419, 1421 (1964), 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: 6 In its answer to the complaint , the Respondent, while admitting that the Regional Director had approved the stipulation for certification upon con- sent election , denies that the Regional Director made a finding with respect to the appropriateness of the stipulated unit . Implicit in the Regional Direc- tor's approval of the stipulation is a finding that the appropriate collective- bargaining unit to which the parties stipulated is appropriate and a specific finding to that effect is unnecessary. Further, it is significant that the stipula- tion for certification upon consent election provides for the waiver of find- ings of fact and conclusions of law prior to the election In any event, as the Respondent stipulated to the appropriate unit herein and as the Respondent litigated the entire representation proceeding without questioning the ap- propriateness of the unit then or now , we agree with the General Counsel that the Respondent should be estopped from raising this matter, and the denial is stricken CONCLUSIONS OF LAW 1. Georgetown Dress Corporation is an employer engaged 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 meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Employer's Georgetown, South Carolina, plant, in- 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cluding truckdrivers and plant clerical employees, but excluding office clerical employees 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 6, 1974, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bar- gaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about November 14, 1974, 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, Georgetown Dress Corporation, Georgetown, South Carolina, 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 International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive bargain- ing representative of its employees in the following ap- propriate unit: All production and maintenance employees at the Employer's Georgetown, South Carolina, plant, including truckdrivers and plant clerical em- ployees, but excluding office clerical employees and 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 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 Georgetown, South Carolina, factory copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Re- gional Director for Region 11, 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 11, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the works 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 " 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 International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner inter- fere 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 under- GEORGETOWN DRESS CORPORATION 45 standing in a signed agreement . The bargaining plant, including truckdrivers and plant clerical unit is: employees, but ,excluding office clerical em- All production and maintenance employees of ployees and supervisors as defined in the Act. the Employer's Georgetown, South Carolina, GEORGETOWN DRESS CORPORATION