Unifemme, Inc.

UNIFEMME, INC. 607 Unifemme, Inc. and Missouri, Kansas, Nebraska, Iowa and Minnesota District Council of the International Ladies Garment Workers' Union, AFL-CIO. Case 17-CA-7099 October 22, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Upon a charge filed on April 26, 1976, by Missou- ri, Kansas, Nebraska, Iowa and Minnesota District Council of the International Ladies' Garment Work- ers' Union, AFL-CIO, herein called the Union, and duly served on Unifemme, Inc., herein called the Re- spondent, the General Counsel of the National La- bor Relations Board, by the Regional Director for Region 17, issued a complaint and notice of hearing on May 7, 1976, against Respondent, alleging that Respondent had engaged in and was engaging in un- fair 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 no- tice 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 March 30, 1976, following a Board election in Case 17-RC-7750, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;I and that,-commenc- ing on or about April 12, 1976, 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. On May 19, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 22, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 29, 1976, 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 i Official notice is taken of the record in the representation proceeding, Case 17-RC-7750, as the term "record" is defined in Secs 102 68 and 102 69(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, 1968), 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 , 1967), Follett Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91 (C A 7, 1968). Sec 9(d) of the NLRA, as amended Notice To Show Cause, entitled "Respondent Em- ployer's Memorandum - in Opposition to General Counsel's Motion for Summary Judgment." 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 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 In its answer to the complaint and response to the Notice to Show Cause, the Respondent denies the Union's representative status on the basis of (1) its election objections upon which a hearing was not, but should have been, held; (2) the intervention of the Union despite inadequacies in the showing of in- terest; and (3) the improper refusal of the Regional Director to permit the Respondent to withdraw from the Stipulation for Certification Upon Consent Elec- tion executed on June' 19, 1975, with Amalgamated Clothing Workers of America, Southwest Regional Joint Board, herein called Joint Board, which filed the petition in Case 17-RC-7750.2, In his motion, counsel for the General Counsel contends that the issues raised by the Respondent were litigated in the underlying representation case and may not be reliti- gated herein. We agree. Review of the record herein, including that in the representation proceeding, Case 17-RC-7750, shows that on August 1, 1975, the election, conducted pur- suant to the aforesaid stipulation, was won by the Union which had been permitted to intervene over the Joint Board's and Respondent's opposition.' The, Respondent filed timely objections to conduct affect- ing the results of the election, alleging, in substance, that (1) the Regional Director was in error in grant- ing the Union's motion to intervene and a hearing should be -held thereon; (2) the Regional Director abused his discretion in refusing Respondent's re- quest to withdraw from the stipulation and in not holding a hearing thereon prior to the election; (3) 2 The Joint Board's original representation petition was filed on May 22. 1975, and an amended petition was filed on June 3, 1975 3 On June 24, 1975, the Union filed a motion to intervene to which the Joint Board filed on June 27, 1975, a formal motion in opposition to motion to intervene attacking the validity of the Union's showing of interest On July 14, 1975, the Regional Director issued his order granting motion to intervene finding, after investigation, that the Union's showing of interest was timely and devoid of any evidence of fraud and ordering that the Union be afforded a participatory interest in the proceeding and a place on the ballot in the election. By letter dated July 16, 1975, the`Respondent sought to withdraw from the stipulation because the Union's intervention seriously affected the Respondent's "understandings" with the Joint Board as to unit issues By letter dated July 18, 1975, the Regional Director denied the Re- spondent's request in the absence of good cause shown for vacating the stipulation The tally of ballots showed that 3 votes were cast for the Joint Board, 40 for the Union, and 20 for neither, with I void ballot and 3 chal- lenged ballots which were not determinative of the election results 226 NLRB No. 103 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union made substantial misrepresentations as to wages, wage rates, and- benefits received by employ- ees represented by the Union at other plants when the Respondent did not have an opportunity to re- spond; and (4) the Union impaired the election by other conduct. After investigation, the Regional Di- rector, on October 24, 1975, issued his Report on Ob- jections in which he 'recommended that the-objec- tions be overruled and the Union be certified. As to Objection 1, he found that the Union's participation in the election did not prejudice the Respondent's interests and was not an abuse of his discretion espe- cially in view of the fact that (a) the Union' s inter- vention was limited to participation in the election under the terms agreed upon by the Respondent and Joint Board; (b) the Respondent had the right to challenge the eligibility of three persons who were the subject of "understandings" and could have com- municated the "understandings" to the Union; and (c) there was an absence of determinative challenges. As to Objection 2, the Regional'Director found that the Respondent had failed to furnish sufficient evi- dence or citation of authority to support its conten- tion of an abuse of discretion in the denial of the Respondent's request to withdraw from the stipula- tion. As to Objection 3, the Regional Director con- cluded that there was no showing that any represen- tative or person speaking on behalf of the Union made any material misrepresentation warranting set- ting aside the election. Finally, as to Objection 4, no evidence was submitted nor did the investigation dis- close any evidence to support this objection. The Respondent then filed with the Board timely exceptions to the Regional Director's report and a supporting brief with attached exhibits, reiterating its objections and contentions and seeking a hearing on the issues raised by the objections. The Union filed an answering brief to the Respondent's exceptions. On March 30, 1976, the Board, after considering the record in the light of the exceptions and briefs, adopted'the Regional Director's findings and recom- mendations and certified the Union. It thus appears that the Respondent is attempting to relitigate issues raised and resolved in the representation case. In ad- dition, in adopting the Regional Director's findings and recommendations that the objections be over- ruled in their entirety, the Board necessarily found that there were no substantial or material issues war- ranting a hearing .4 It is well established that parties do not have an absolute right to a hearing and the denial of a hearing where the objections raised no substantial or material issues does' not constitute a denial of due process.' Nor is a hearing warranted in ° Prestolite Wire Division, Eltra Corporation, 225 NLRB No 1 (1976) this proceeding as evidentiary hearings are not re- quired in unfair labor practice cases, and summary judgment- is `appropriate where, as here, there are no properly litigable issues of fact to be resolved.6 It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.' All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to` reexamine the de- cision 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 The Respondent is a corporation with its principal place of business or plant at Warrensburg, Missouri, where it is engaged in the manufacture and distribu- tion of uniforms and related wearing apparel. In the course and conduct of its business at the plant, Re- spondent annually sells and distributes goods and products valued in excess of $50,000 directly' to cus- tomers located outside the State of Missouri. I We find, on' the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED Missouri, Kansas, Nebraska, Iowa and'Minnesota District Council of the International Ladies' Gar- ment Workers' Union, -AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 5 GTELenkurt, Incorporated, 218 NLRB 929 (1975), Heavenly Valley Ski Area, ,a California Corporation, and Heavenly Valley, a Partnership, 215 NLRB 734 (1974) 6 Locust Industries, Inc, 221 NLRB 604 (1975), Janler Plastic Mold Corpo- ration, 191 NLRB 162 (1971) 7 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) UNIFEMME, INC. 609 III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit tions described in section I, above, have a close, inti- mate, 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. The following employees of the Respondent con- stitute a unit appropriate for collective -bargaining purposes within the meaning of Section 9(b) of the Act: All production, maintenance and shipping de- partment employees employed at the.Employ- er's Warrensburg, Missouri,, facilities, excluding all office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. 2. The certification On August 1, 1976, 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 17, 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 March 30, 1976, 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 April 5, 1976, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about April 12, 1976, 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 employees in said unit. Accordingly, we find that the Respondent has, since April 12, 1976, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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 opera- V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the-appro- priate unit will be accorded the services of their se- lected 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 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur- nett Construction Company, 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: CONCLUSIONS OF LAW 1. Unifemme, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Missouri, Kansas, Nebraska, Iowa and Minne- sota District Council of the International Ladies' Garment Workers' Union, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All Production, maintenance and shipping de- partment employees employed at the Employer's Warrensburg, Missouri, facilities, excluding all office clerical , employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since March 30, 1976, 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 collctive bar- gaining within the meaning of Section 9(a) of the Act. 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. By refusing on or about April 12, 1976, 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 Re- spondent in the appropriate unit, Respondent has en- gaged 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 mean- ing 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 Re- lations Board hereby orders that Respondent, Uni- femme, Inc., Warrensburg, Missouri, 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 con- ditions of employment with Missouri, Kansas, Ne- braska, Iowa and Minnesota District Council of the International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production, maintenance and shipping de- partment employees employed at the Employ- er's Warrensburg, Missouri, facilities, excluding all office clerical employees, professional em- ployees, guards 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 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Warrensburg, Missouri, plant copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 17, 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 no- tices 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 17, in writing, -within 20 days from the date of this Order, what steps have been taken to comply herewith. S 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 " 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 Mis- souri, Kansas, Nebraska, Iowa and Minnesota District Council of the International Ladies' Garment Workers' Union, AFL-CIO, as the ex- clusive 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. WE WILL, upon request, bargain with the above-named Union, as the exclusive represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, 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, maintenance and shipping department employees employed at the Em- ployer's Warrensburg, Missouri, facilities, ex- cluding all office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. UNIFEMME, INC.