Unoco Apparel, Inc.

UNOCO APPAREL, INC. Unoco Apparel, Inc. and International Ladies' Gar- ment Workers' Union, AFL-CIO. Case 15-CA-5015 November 26, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 26, 1974, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions, General Counsel filed exceptions and a supporting brief, and Charging Party filed a brief in answer to Respondent's exceptions. 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. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions' of the Administrative Law Judge and to adopt his recommended Order, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that Unoco Apparel, Inc., Selma, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified herein: 1. Substitute the following paragraph for paragraph 2(a): "(a) Upon request, bargain collectively with Interna- tional Ladies' Garment Workers' Union, AFL-CIO, as the exclusive representative of all employees in the unit above before changing rates of pay and production quotas." 2. Substitute the attached notice for the Administra- tive Law Judge's notice. I The Administrative Law Judge by inadvertance incorrectly described the appropriate bargaining unit in the Notice to Employees Accordingly, the "Notice" has been amended to correct these deficiencies 2 In adopting the Administrative Law Judge's finding that Respondent violated Sec 8(a)(5) and (1) of the Act, we find it unnecessary to rely on his conclusion that Respondent was estopped from questioning the Union's majority status because at the time of the unilateral action there was an unremedied unfair labor practice APPENDIX 89 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 with the International Ladies' Garment Workers' Union, AFL-CIO, by changing rates of pay and production quotas without notice to, or consul- tation with, said Union. The appropriate bargaining unit is: All production and maintenance employees, in- cluding packers, employed by Respondent at its Selma, Alabama plant; excluding office clerical employees, plant clerical employees, profes- sional employees, guards and supervisors as de- fined in the Act. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce employees in the ex- ercise of their rights guaranteed in Section 7 of the Act. WE WILL, upon request, bargain collectively with International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive representa- tive of all employees in the unit described above before changing rates of pay and production quotas. WE WILL, upon request, furnish the Interna- tional Ladies' Garment Workers' Union, AFL-CIO, with all records necessary and relevant to decide whether it desires restoration of the rates of pay and production quotas in effect prior to early September 1973. WE WILL revoke the unilateral changes in rates of pay and production quotas instituted in early September 1973, and restore the rates of pay and production quotas in effect prior thereto, and we will make employees whole for any losses they may have suffered by reason of the unlawful changes if the International Ladies' Garment Workers' Union, AFL-CIO, as the representative of the employees in the appropriate unit, so desires. UNOCO APPAREL, INC. DECISION STATEMENT OF THE CASE HENRY L JALETTE, Administrative Law Judge: This case involves an allegation that the above-named Respondent vi- olated Section 8(a)(1) and (5) of the Act by granting an increase in wages to its employees and changing employee production quotas without notification to and/or consulta- tion with the above-named Union which had been certified as 215 NLRB No. 4 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the exclusive representative of the employees in question. The Respondent admits making the changes in question without notice to or consultation with the Union but contends that by reason of circumstances described below it was under no obligation to notify or consult with the Union. The proceed- ing was initiated by a charge filed by the Union on September 24, 1973,' pursuant to which complaint issued on December 6. On May 29, 1974, hearing was held in Birmingham, Alabama. Upon the entire record, and after due consideration of the brief filed by General Counsel, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT The complaint alleges, and Respondent in its answer ad- mits, that Respondent is a corporation licensed to do business in the State of Alabama and that it is engaged in the manufac- ture of jeans and dungarees at a plant in Selma, Alabama. The complaint alleges further that Respondent, during the past year, in the course and conduct of its business operations, purchased and received goods and materials valued in excess of $50,000 which were shipped to it directly from points outside the State of Alabama, and that during the same period, Respondent shipped and sold goods and materials valued in excess of $50,000 directly to points outside of the State of Alabama. Respondent, in its answer, denied these allegations. However, the Board had asserted jurisdiction over Respondent in Unoco Apparel, Inc., 208 NLRB 601 (1974), where Respondent had admitted identical allegations. Moreover, jurisdiction had been asserted over Respondent in 1972 in a representation case. In view of these prior cases, General Counsel offered no evidence on jurisdiction in this proceeding. At the hearing herein, Respondent's counsel did not assert that there had been any change either in Respondent's opera- tions or its volume of business; rather, he predicated his denial of the jurisdictional allegations on the assertion that Respondent did not purchase and receive goods or ship and sell goods as alleged in the complaint, but instead that Re- spondent performed services on goods belonging to others. Thus, it appeared that Respondent's denial of the allegations of the complaint was of a technical nature and was not based on the existence of any genuine issue of fact. Accordingly, I deem the denials of the jurisdictional allegations to be sham within the meaning of Section 102.21 of the Board's Rules and Regulations, Series 8, as amended, and they are hereby stricken. I find that during the year preceding the issuance of complaint Respondent performed services valued in excess of $50,000 on goods shipped to it directly from points outside. the State of Alabama and Respondent shipped goods valued in excess of $50,000 directly to points outside the State of Alabama. I further find that Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. ' Unless otherwise indicated all dates are in 1973. II THE LABOR ORGANIZATION INVOLVED International Ladies' Garment Workers' Union, AFL-CIO, herein called the Union, is and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts On April 13, 1972, in a Board-conducted election, a majority of Respondent's employees in an appropriate unit' designated the Union as their representative for pur- poses of collective bargaining, and on April 21, 1972, the Union was certified as the exclusive collective-bargaining re- presentative of the employees in said unit. Thereafter, beginning on or about May 1, 1972, the Union requested bargaining and bargaining sessions occurred on May 15 and 23, June 12, August 3 and 29, and September 13, 1972. On October 12, 1972, the Union filed an unfair labor prac- tice charge in Case 15-CA-4655 alleging that Respondent was violating Section 8(a)(1) and (5) of the Act. On October 23, 1972, a bargaining session was held. On November 13, 1972, the Union was advised by the General Counsel that a complaint would issue on its charge in Case 15-CA-4655. That same day, the Union requested another meeting and Respondent agreed to meet on Novem- ber 30, 1972. This meeting was later canceled at the request of Respondent's attorney and negotiator, Mark Taliaferro. A meeting was thereafter scheduled for December 11, 1972, but this was canceled at the request of the Union. In the meantime, on November 20, 1972, pursuant to the charge in Case 15-CA-4655, the General Counsel had issued a complaint alleging that Respondent had violated Section 8(a)(1) and (5) of the Act by bargaining in bad faith and by refusing to furnish requested financial records. On February 13 and 14, 1973, hearing was held before Administrative Law Judge, Jerry B. Stone who issued his Decision on April 12, 1973, wherein he concluded that the evidence did not support a finding that Respondent had engaged in bad-faith bargain- ing, but that it supported a finding that Respondent had been guilty of a refusal to bargain by refusing to furnish certain financial information. Thereafter, the Union and General Counsel filed exceptions to Judge Stone's Decision. On Janu- ary 22, 1974, the Board adopted the Decision. Unoco Apparel, Inc., supra. From the time that it canceled the meeting scheduled for December 11, 1972, until the date of the hearing in the instant case, the Union has not requested bargaining, nor has it requested the financial data which Judge Stone and the Board held Respondent had unlawfully withheld from it. The only communication between the Union and Respondent during this interval of time was a telegram to Attorney Taliaferro 2 The complaint alleges, the answer admits, and I find that a unit of all production and maintenance employees, including packers, employed by Respondent at its Selma, Alabama plant; excluding office clerical em- ployees, plant clerical employees, professional employees, guards and super- visors as defined in the Act constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Sec 9(b) of the Act. UNOCO APPAREL, INC 91 from the Union on February 13, 1973 , respecting an unau- dited financial report Taliaferro had sent to the Union. On or about August 31 , or the first part of September, Respondent admittedly changed the wage rates of employees in the appropriate unit and , in some instances, changed as- sociated production quotas. Respondent admittedly did so without notice to, or consultation with , the Union. B. Analysis and,Conclusions The foregoing facts are based on the pleadings and stipula- tions of the parties, plus the findings of the Board in the case reported at 208 NLRB 601, of which I take official notice. These facts pose one issue : was Respondent legally justified in changing rates of pay and production quotas without no- tice to, or consultation with, the Union. Respondent has filed no brief and I must therefore specu- late somewhat about its defense from the pleadings and state- ments of counsel at the hearing . From these, it appears that Respondent's defense is that it had no obligation to notify or consult with the Union either because the Union did not represent a majority at the time of the unilateral changes, or because the Union had abandoned any claim to representa- tive status by reason of its inaction from December 1972 to the time of the unilateral changes. If such be the defense, I reject it for lack of merit. As to the Union's majority status, there is a presumption of majority inasmuch as it had been certified by the Board. As the certification was more than a year old as of August 31, 1973, the presumption of majority status would normally be rebuttable.3 In this case, General Counsel contends that Respondent is estopped from questioning the Union 's majority status be- cause at the time of the unilateral action, and even now, there is an unremedied unfair labor practice! There is merit to General Counsel's position. At the time of the unilateral action, there was outstanding against Respondent Judge Sto- ne's finding that it had violated Section 8(a)(5) of the Act by refusing to furnish relevant information and his recommen- dation that Respondent be ordered , upon request, to furnish such information, a finding and recommendation subse- quently affirmed by the Board . True, Judge Stone found no violation based on surface bargaining and did not recommend that Respondent be ordered to bargain in good faith, but he did find that the Union was the exclusive bargaining re- presentative of the unit employees . In the face of this decision, Respondent was not free to question the Union's majority status, nor was it free to engage in unilateral action. But even if Respondent was not estopped from questioning the Union's majority status, its unilateral conduct was unlaw- ful because Respondent offered no evidence to rebut the pre- sumption of majority status. The only basis for questioning the Union's majority status which Respondent evidently re- lies on is the Union's prolonged inactivity. Such inactivity afforded Respondent no basis for questioning the Union's majority status or for believing the Union had abandoned the unit employees. Respondent made a similar contention in the prior case and it was rejected for reasons given by Judge Stone 3 Celanese Corporation of America, 95 NLRB 664, 672 (1951) 4 NLR.B v Warren Company, Inc., 350 U S 107 (1955). in 208 NLRB at 605-606. Nothing occurring thereafter war- rants a different conclusion now. In The Little Rock Downtowner, Inc., 168 NLRB 107 (1967), the Board held that a Union is not required to con- tinue negotiations which appear to be futile because the em- ployer is not bargaining in good faith and that an absence of 8 months from the bargaining table could not therefore be reasonably regarded as an abandonment of the unit em- ployees or an indication of loss of employee support. Simi- larly here, beginning with the charge in Case 15-CA-4655 filed in October 1972, the Union has contended that Re- spondent had engaged in surface bargaining and that further negotiations would be futile unless and until Respondent were ordered to bargain in good faith. Unlike in Little Rock Downtowner, the Union here lost on this issue both before Judge Stone and the Board . However, I do not understand that a Union's absence from the bargaining table is justified only where its belief that the employer has engaged in surface bargaining and that further negotiations are futile is sustained by the Board . The Union's contention was hardly frivolous as shown by the dissent of Board Member Penello. Rather, it appears to me that the question still to be answered is did the union abandon the unit employees and did the employer have reason to believe that it had. In this case, in September 1973, at the time of the unilateral actions complained of herein, the Union was still pressing its position concerning Respondent's bad faith through its exceptions to Judge Sto- ne's decision . Under the circumstances, Respondent could not reasonably regard the Union's absence from the bargain- ing table as an abandonment of the unit employees, and I seriously question that Respondent honestly believed that the Union had abandoned the unit employees . If it had any doubt about the matter, a simple telephone call, a telegram, or a letter to the Union could have settled the question. Based on the foregoing, I find that there was a presumption of the Union's majority status at the time of the unilateral changes, that no evidence was adduced to overcome the pre- sumption, that the Union had not abandoned the unit em- ployees, and that Respondent had no objective basis for ques- tioning the Union's majority status or for believing it had abandoned the unit employees . Accordingly, I find that Re- spondent violated Section 8(a)(1) and (5) of the Act by its changes in the rates of pay and production quotas of unit employees without notice to, or consultation with , the Union. IV THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent set forth above , occurring in connection with its operations described 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 unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered to cease and desist there- 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from and to take appropriate affirmative action designed to effectuate the policies of the Act. It is not clear from the record herein whether the unilateral changes made by Respondent operated to the detriment of the employees and caused them to suffer loss of earnings. If it were to appear that employees were adversely affected, it would be appropriate to order Respondent to revoke the changes and to restore conditions in existence prior thereto.' However, as it cannot be predicted with certainty whether the employees herein desire such revocation, I shall recommend that restoration be conditional upon the affirma- tive desire of the affected employees for such, as expressed through their collective-bargaining representative. I shall fur- ther recommend that Respondent make available to the Un- ion, upon request, all records necessary and relevant to decide whether it desires restoration of the changes in rates of pay and production quotas. If the employees have suffered a loss of earnings by reason of Respondent's unlawful conduct, it would also be appropri- ate and necessary to effectuate the policies of the Act to recommend that Respondent make all unit employees whole for such loss of earnings. However, if the employees acting through their collective-bargaining representative express the desire to retain the new rates and production quotas, a make whole remedy would be unnecessary and inappropriate. Ac- cordingly, I shall recommend that employees be made whole for any losses suffered by reason of the unilateral changes only if the employees express the desire for restoration as provided above. In such event, all losses to be reimbursed shall be computed in accordance with the formula set forth in F W. Woolworth Company, 90 NLRB 289 (1950), to which shall be added interest at the rate of 6 percent per annum in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. Unoco Apparel, Inc., is an employer engaged in com- merce 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, including packers, employed by Respondent at its Selma, Alabama plant, but excluding office clerical employees, plant clerical employees, professional employees, guards and supervisors as defined in the Act constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. International Ladies' Garment Workers' Union, AFL-CIO, is, and at all times material herein has been, the exclusive representative of the employees in the unit de- scribed above, within the meaning of Section 9(a) of the Act. 5. By making changes in rates of pay and production quotas of unit employees without notice to, or consultation with, the above-named Union, Respondent has engaged in, and is engaging in, an unfair labor practice within the mean- ing of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. 5 Great Western Broadcasting Corporation, d/b/a KXTV, 139 NLRB 93, 96 (1962) Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER6 Respondent Unoco Apparel, Inc., its officers , agents, successors, and assigns, shall- 1. Cease and desist from: (a) Refusing to bargain with International Ladies' Gar- ment Workers' Union, AFL-CIO, as the exclusive bargain- ing representative of its employees in the unit described above, by changing rates of pay and production quotas with- out notice to, or consultation with, said Union. (b) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist the above-named labor organization, or any other labor organization, to bar- gain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any or all activities. 2. Take the following affirmative action designed to effec- tuate the policies of the Act: (a) Upon request, bargain collectively with International Ladies' Garment Workers' Union, AFL-CIO, as the exclu- sive representative of all employees in the unit described above, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Upon request, furnish the above-named labor organiza- tion all records necessary and relevant to decide whether it desires restoration of the rates of pay and production quotas in effect prior to early September 1973. (c) Revoke the unilateral changes in rates of pay and pro- duction quotas initiated in early September 1973, and restore those rates of pay and production quotas in effect prior thereto, and make employees whole for any losses they may have suffered by reason of the unlawful changes, if the above- named labor organization, as the exclusive representative of the employees in the appropriate unit, so desires. (d) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all re- cords relevant and necessary to a determination of the amounts due employees under the terms of this recom- mended Order. (e) Post at is Selma, Alabama, facility, copies of the at- tached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's authorized represen- tative, shall be posted by it immediately upon receipt thereof, 6 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes I 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " UNOCO APPAREL, INC 93 and be maintained by it for 60 consecutive days thereafter, in tered, defaced, or covered by any other material. conspicuous places, including all places where notices to em- (f) Notify the Regional Director for Region 15, in wasting, ployees are customarily posted . Reasonable steps shall be within 20 days from the receipt of this Decision, what steps taken by Respondent to insure that said notices are not al - it has taken to comply herewith.