Master Apparel Corp.

313 316 NLRB No. 72 MASTER APPAREL CORP. 1 The Respondent’s failure to file a request for review of the Act- ing Regional Director’s Decision and Direction of Election con- stitutes a waiver of its right to raise the no-hearing issue in this un- fair labor practice proceeding. NLRB v. Louisiana Industries, 414 F.2d 227, 228 (5th Cir. 1969); Sec. 102.67(f) of the Board’s Rules. Master Apparel Corporation and Furniture Work- ers Division, I.U.E., Local 282, AFL–CIO. Case 26–CA–16522 February 15, 1995 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND BROWNING Upon a charge filed on November 14, 1994, the General Counsel of the National Labor Relations Board issued a complaint on November 29, 1994, al- leging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refus- ing the Union’s request to bargain following the Union’s certification in Case 26–RD–813. (Official no- tice is taken of the ‘‘record’’ in the representation pro- ceeding as defined in the Board’s Rules and Regula- tions, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the complaint. On January 23, 1995, the General Counsel filed a Motion for Summary Judgment. On January 25, 1995, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the mo- tion should not be granted. On February 8, 1995, the Respondent filed a response. The Board has delegated its authority in this pro- ceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bargain but attacks the validity of the certification on the basis of its objection to the election in the rep- resentation proceeding. In addition, in its response to the Notice to Show Cause, the Respondent contends that the Acting Regional Director failed to hold a hear- ing prior to finding that a question concerning rep- resentation existed and directing the election.1 All representation issues raised by the Respondent were or could have been litigated in the prior represen- tation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre- viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation pro- ceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judg- ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation, with an office and place of business in Somerville, Tennessee, has been engaged in the manufacture of pants. During the 12-month period ending October 31, 1994, the Respondent, in conducting its business oper- ations, sold and shipped from its facility goods valued in excess of $50,000 directly to points outside the State of Tennessee. During the same period, the Re- spondent purchased and received at its facility, goods valued in excess of $50,000 directly from points lo- cated outside the State of Tennessee. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held May 12, 1994, the Union was certified on July 6, 1994, as the collective- bargaining representative of the employees in the fol- lowing appropriate unit: All production and maintenance employees em- ployed by Respondent at its Somerville, Ten- nessee facility, excluding all office clerical em- ployees, watchmen and guards, and supervisors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain About November 4, 1994, the Union, by letter, re- quested the Respondent to bargain and, since about November 9, 1994, the Respondent has refused. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing since November 9, 1994, to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit the Respondent has engaged in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 If 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.’’ REMEDY Having found that the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the un- derstanding in a signed agreement. To ensure that the employees are accorded the serv- ices of their selected bargaining agent for the period provided by the law, we shall construe the initial pe- riod of the certification as beginning the date the Re- spondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Master Apparel Corporation, Somerville, Tennessee, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Furniture Workers Di- vision, I.U.E., Local 282, AFL–CIO as the exclusive bargaining representative of the employees in the bar- gaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu- sive representative of the employees in the following appropriate unit on terms and conditions of employ- ment, and if an understanding is reached, embody the understanding in a signed agreement: All production and maintenance employees em- ployed by Respondent at its Somerville, Ten- nessee facility, excluding all office clerical em- ployees, watchmen and guards, and supervisors as defined in the Act. (b) Post at its facility in Somerville, Tennessee, cop- ies of the attached notice marked ‘‘Appendix.’’2 Cop- ies of the notice, on forms provided by the Regional Director for Region 26, after being signed by the Re- spondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Furniture Workers Division, I.U.E., Local 282, AFL–CIO as the exclusive representative of the employees in the bar- gaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All production and maintenance employees em- ployed by us at our Somerville, Tennessee facil- ity, excluding all office clerical employees, watch- men and guards, and supervisors as defined in the Act. MASTER APPAREL CORPORATION