Lowenstein, M., Corporation

264 NLRB No. 14 VFZ D--9270 Morganton, NC UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD M. LOWENSTEIN CORPORATION and AMALGAMATED CLOTHING AND TEXTILE WORKERS UNION, AFL--CIO, CLC Case 11--CA-10425 DECISION AND ORDER Upon a charge filed on May 17, 1982, by the Amalgamated Clothing and Textile Workers Union, AFL--CIO, CLC, herein called the Union, and duly served on M. Lowenstein Corporation, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 11, issued a complaint on June 1, 1982, amended on June 25, 1982, 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 and the 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 March 17, 1982, following a Board election in Case 11--RC--4999, the Union was duly certified as 264 NLRB No. 14 Dr-9270 the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencia on or about May 6, 1982, 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 June 10, 1982, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 7, 1982, counsel for the General Counsel filed directly with the Board a motion to strike portions of Respondent's answer to the complaint and notice of hearing and a Motion for Summary Judgment. Subsequently, on July 14, 1982, 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. 2 Respondent thereafter filed a response to the Notice To Show Cause. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations 1 Official notice is taken of the record in the representation proceeding, Case 11--RC--4999, 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 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. V. Penello, 269 F. Supp. 573 (D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 2 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. Subsequent to counsel for the General Counsel filing her Motion for Summary Judgment, the Charging Party on July 22, 1982, filed with the Board its own summary judgment motion. D--9270 Board has delegated its authority in this proceeding to a threemember 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 its Response to the Notice To Show Cause, Respondent denies the validity of the Union's certification based on its contention that the Board erred in overruling its objections to conduct affecting the results of the election. Counsel for the General Counsel asserts in her Motion for Summary Judgment that Respondent is attempting to relitigate issues which were fully litigated in the underlying representation proceeding. We agree. Our review of the record herein, including the record in Case 11--RC--4999, reveals that on June 2, 1981, the Acting Regional Director for Region 11 issued a Decision and Direction of Election directing that an election be held among Respondent's production and maintenance, plant clerical, and shipping and receiving employees at its Morganton, North Carolina, facility to determine whether those employees desired to be represented by the Union. On June 5, 1981, Respondent filed a request for reconsideration, and on June 15, 1981, Respondent and the Petitioner each filed a request for review. These requests were denied by the Board. Pursuant to the Acting Regional Director's election direction, an election was held on July 1, 1981.3 The tally of the ballots showed 101 votes for, and 94 votes against, the Petitioner. There were five challenged ballots. On July 9, 1981, Respondent filed objections to the election and to conduct affecting the results of the election. The Acting Regional Director for Region 11 directed on July 31, 1981, that a hearing be held before a hearing officer to hear testimony to resolve the issues raised by those objections. Following this hearing, the Hearing Officer in his Report and Recommendations on Objections issued November 5, 1981, recommended that all of Respondent's objections be overruled. Respondent subsequently timely filed exceptions to the Hearing Officer's Report and Recommendations on Objections. On March 17, 1982, the Board issued its Decision and Certification of Representative, in which it adopted the Hearing Officer's findings and recommendations overruling the employer's objections and certified the Petitioner as the exclusive bargaining representative of the employees in the unit. By letter of March 29, 1982, the Union requested that the Employer commence negotiations and provide the Union the following information: the name, job title, department, hiring date and wages of each employee in the bargaining unit; the base rates, individual piece rates, and average hourly earnings for those jobs with piece rates; a copy of the company's policy on 3 We hereby grant counsel for the General Counsel's motion to correct the Board's March 17, 1982, Decision and Certification of Representative in Case 11--RC-4999 to read that the election in that case was held, not June 2, 1981, as presently stated in that decision, but July 1, 1981. D--9270 vacation, sick leave, overtime, leave of absence, seniority, job promotions, insurance (including hospital, medical, sickness, and accident benefits), and layoff and recall procedures; a copy of all plant rules; a copy of the pension and/or profit-sharing plans; and a list of all company-supplied fringe benefits to employees. By letter of May 6, 1982, Respondent refused to begin negotiations and sub silentio refused to provide the requested information, stating that it intended to seek a review of the Board's certification decision in the U.S. Court of Appeals. 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 proceeding. 4 All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and 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. Further, there are no factual issues regarding the Union's request for information concerning the unit members, as Respondent, by its answer filed June 10, 1982, admitted that it refused to furnish the Union with the requested information. We 4 See Pittsburgh Plate Glass Co. V. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67 (f) and 102.69 (c). D--9270 therefore find that Respondent has' not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. 5 On the basis of the entire record, the Board makes the following: Findings of Fact I. The Business of Respondent Respondent is, and has been at all times material herein, a New York corporation with a plant in Morganton, North Carolina, where it engages in the manufacture and sale of jacquard woven upholstery fabrics. During the preceding 12 months, a representative period, Respondent shipped from its Morganton, North Carolina, plant directly to points outside the State of North Carolina finished products valued in excess of $50,000, and received at its Morganton, North Carolina, plant goods and raw materials directly from points outside the State of North Carolina 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. 5 We hereby deny counsel for the General Counsel's motion to strike portions of Respondent's answer to the complaint and notice of hearing. Assuming, arguendo, that the Union had standing to file its summary judgment motion, we find it unnecessary to rule thereon in view of our disposition of the General Counsel's motion. D--9270 II. The Labor Organization Involved Amalgamated Clothing and Textile 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 Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9 (b) of the Act: All production and maintenance employees, plant clerical employees, and shipping and receiving employees, including but not limited to, leadmen, shipping and warehouse supervisors, quality control inspectors, production clerk, yarn clerk, shipping clerk, order entry clerk, planning and scheduling clerks, color controller, keypunch and computer operators, temporary head loom fixer, and industrial engineering clerks at the Employer's Morganton, North Carolina, facility; excluding all weave instructors, mail carrier, office clerical employees, professional and technical employees, confidential employees, guards and supervisors as defined in the Act. 2. The certification On July 1, 1981, 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 11, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on March 17, 1982, and the Union continues to be such exclusive representative within the meaning of Section 9 (a) of the Act. 9270 B. The Request To Bargain and Respondent's Refusal Commencing on or about March 29, 1982, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about May 6, 1982, and continuing at all times thereafter to date, 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 Respondent has, since May 6, 1982, 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 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 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 D--9270 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, and provide the Union, upon request, information relevant for collective bargaining 6 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 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); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 6 In its Motion for Summary Judgment, the Charging Party requests that the Board include in its remedy: a bargaining order retroactive to the date of the election, July 1, 1981; the establishment of an interim grievance procedure; and the reimbursement of the Charging Party's costs and expenses, including reasonable attorney's fees. These extraordinary remedies are not warranted in this case and we decline to include them in our remedy. There is no reason to issue a retroactive bargaining order here, as opposed to the usual order requiring the employer, upon request, to bargain with the Union. See John Lubotsky Motor Sales, Inc., 206 NLRB 913 (1973); Consolidated Papers, Inc., 253 NLRB 283 (1980). It is well settled that the Board is Twithout power to compel a company or a union to agree to any substantive contractual provision of a collective-bargaining agreement. H. K. Porter Co., Inc., Disston Division-Danville Works V. N.L.R.B., 397 U.S. 99, 102 (1970), quoted in Nappe-Babcock Company, 245 NLRB 20, 22, fn. 7 (1979); see also J. P. Stevens and Company, Inc., 247 NLRB 420, 492 (1980). While the Board has granted the remedy of reimbursement of attorney's fees where it has found that the asserted defenses were SO insubstantial as to be considered patently frivolous, Tiidee Products, Inc., 194 NLRB 1234 (1972), we do not find in the instant case that Respondent's defenses are meritless on their face and hence they cannot be considered to constitute frivolous litigation. 9270 F.2d 600 (-5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: Conclusions of Law 1. M. Lowenstein Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Clothing and Textile Workers Union, AFL-- CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, plant clerical employees, and shipping and receiving employees, including but not limited to, leadmen, shipping and warehouse supervisors, quality control inspectors, production clerk, yarn clerk, shipping clerk, order entry clerk, planning and scheduling clerks, color controller, keypunch and computer operators, temporary head loom fixer, and industrial engineering clerks at the Employer's Morganton, North Carolina, facility; excluding all weave instructors, mail carrier, office clerical employees, professional and technical employees, confidential 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 March 17, 1982, the above-named labor organization has been and now is the certified and exclusive representative of D--9270. all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on or about May 6, 1982, 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, and by refusing to furnish the Union, upon request, with relevant information, 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 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 meaning 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 the Respondent, M. Lowenstein Corporation, Morganton, North 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 D--9. with Amalgamated Clothing and Textile Workers Union, AFL--CIO, CLC, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, plant clerical employees, and shipping and receiving employees, including but not limited to, leadmen, shipping and warehouse supervisors, quality control inspectors, production clerk, yarn clerk, shipping clerk, order entry clerk, planning and scheduling clerks, color controller, keypunch and computer operators, temporary head loom fixer, and industrial engineering clerks at the Employer's Morganton, North Carolina, facility; excluding all weave instructors, mail carrier, office clerical employees, professional and technical employees, confidential employees, guards and supervisors as defined in the Act. (b) Refusing to provide the above-named Union, upon request, information relevant for the purpose of collective bargaining. (c) 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 understanding is reached, embody such understanding in a signed agreement, and provide the Union, upon request, information relevant for the purpose of collective bargaining. D--9270 (b) Post at its Morganton, North Carolina, facility copies of the attached notice marked ''Appendix. 117 Copies of said notice, on forms provided by the Regional Director for Region 11, 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 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. Dated, Washington, D.C. September 24, 1982 John R. Van de Water, Chairman John H. Fanning, Member Don A. Zimmerman, Member NATIONAL LABOR RELATIONS BOARD (SEAL) 7 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. D--9270 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 Amalgamated Clothing and Textile Workers Union, AFL--CIO, CLC, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT refuse to provide the Union, upon request, information relevant for the purpose of collective bargaining. 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 abovenamed 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 understanding in a signed agreement. The bargaining unit is: All production and maintenance employees, plant clerical employees, and shipping and receiving employees, including but not limited to, leadmen, shipping and warehouse supervisors, quality control inspectors, production clerk, yarn clerk, shipping clerk, order entry clerk, planning and scheduling clerks, color controller, keypunch and computer operators, temporary head loom fixer, and industrial engineering clerks at the Employer's Morganton, North Carolina, facility; excluding all weave instructors, mail carrier, office clerical employees, professional and technical employees, confidential employees, guards and supervisors as defined in the Act. D--9270 WE WILL, upon request, furnish the Union with the information it requested by letter of March 29, 1982, which information is relevant to Union's role as the exclusive bargaining representative of the employees in the bargaining unit described above. M. LOWENSTEIN CORPORATION (Employer) 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 compliance with its provisions may be directed to the Board's Office, Federal Building, U.S Courthouse, Room 447, 251 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-- 761--3212.