Hanes Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hanes Corporation and Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC. Case 5-CA- 12494 January 14, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on August 5, 1980, by Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC, herein called the Union, and duly served on Hanes Corporation, herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 5, issued a complaint on August 19, 1980, against Respondent, alleging that Respon- dent 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 pro- ceeding. With respect to the unfair labor practices, the complaint alleges in substance that on June 25, 1980, following a Board election in Case 5-RC- 11004, the Union was duly certified as the exclu- sive collective-bargaining representative of Respon- dent's employees in the unit found appropriate;' and that, commencing on or about July 23, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, and to furnish relevant bargaining information, although the Union has requested and is requesting it to do so. On August 26, 1980, Re- spondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On September 11, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. 2 Subsequently, on September 23, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent ' Official lnotice is taken of the record in the representation proceed- ing, Case 5 RC- II(t4, as the term "record" is defined in Secs 1(1268 and 102.6 9(g) of the Board\' Rules and Regulations, Series 8, as alllded See LT'V Electroysrel, Inc.. 16h NlRB 938 (1067), enfd 388 'F2d 683 (4th Cir 19h68) G(ioIlen Age Beverage Co, 167 NLRB 151 (19h7). entfd 415 F.2d 26 (5th Cir 1I69)1 Intert'pe C(' vs Penello, 2h9 F'Supp 573 (DC.Va. 1967): Follett Corp., 164 NlRB 378 (1967), enfd 397 F 2d 'li (7th Cir 1968); Sec. 9(d) of the NIRA, its amendedl 2 The Union also filed a Motioln for Sutrinary Juldgilenlit herein it re- quested the imposition of extraordinary remedies 254 NLRB No. 63 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 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 General Counsel's Motion for Summary Judgment In its answer to the complaint and in its response to the Notice To Show Cause, Respondent admits its refusal to bargain, but contends that it had no duty to bargain because the Union was not proper- ly certified. Respondent attacks the Union's certifi- cation on the basis of several of its objections to the election in the underlying representation pro- ceeding which the Board previously considered and rejected, and further contends that the Region- al Director erred by not holding a hearing on its objections to the election, and that it is now enti- tled to a hearing. Review of the record herein, including the record in Case 5-RC- 11004, discloses that pursuant to a Stipulation for Certification Upon Consent Election, approved on November 1, 1979, an elec- tion was conducted on November 20 and 21, 1979, which resulted in 569 votes for, and 504 votes against, the Union, and 50 challenged ballots, an in- sufficient number to affect the results. Thereafter, Respondent filed timely objections to conduct af- fecting the results of the election. The Regional Di- rector issued his Report on Objections on April 15, 1980, wherein he recommended that Respondent's objections be overruled in their entirety and that an appropriate Certification of Representative issue. Respondent filed timely exceptions to the Re- gional Director's report. On June 25, 1980, the Board issued its Decision and Certification of Rep- resentative in which it adopted the Regional Direc- tor's findings and recommendations and certified the Union as the collective-bargaining representa- tive of Respondent's employees in the stipulated appropriate unit. In its response to the Notice To Show Cause, Respondent is attempting to raise and relitigate issues already litigated and determined, and this it may not do. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled 532 IANES CORPORATION to relitigate issues which were or could have been litigated in a prior representation proceeding.3 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, 4 nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the General Counsel's Motion for Summary Judg- ment. 5 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a North Carolina corporation, is en- gaged in the manufacture and sale of clothing ap- parel at its Brooks plant located in Galax, Virginia. During the past 12 months, a representative period, in the course and conduct of its business oper- ations, Respondent purchased and received in inter- state commerce at its Galax, Virginia, location products and materials valued in excess of $50,000 directly from points located outside the Common- wealth of Virginia. During the same period, Re- spondent sold and shipped from its Galax, Virginia, location goods and materials valued in excess of $50,000, directly to points located outside the Com- monwealth of Virginia. We find, on the basis of the foregoing, that Re- spondent 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. 3 See Pittsburgh Plate Glass Co. v. L.R.., 313 ;S 146, 162 (1941); Rules and Regulations of the Board, Sees 102.67(f and 102.6 9 (c). ' As a supplement to its October 6, 1980, response to the Notice lo Show Cause. Respondent submitted an affidavit also dated October , 1980, relating to the contentions raised in its Objection 8, buit which does not represent that the "facts" alleged therein are newl. discovered or previously unavailable. We therefore reject the affidavit. Moreover, the actual premises o Ahich Objection is based een if true. do not make out a misrepresentation that reasonably may be expected to have had a significant impact on the election. 6 In its response to the Notice To Show Cause. Respondent requests that the Board consolidate this case with Case 5-CA-12348, scheduled for hearing on October 7, 1980. Inasmuch as the hearing ill Case 5 CA 12348 has been held, this request is moot Inasmuch as we have granted the General Counsel's Motion for Sum- mary Judgment. e find it unnecessary to grant the Ul.lion's Molion for Summary Judgment also Nevertheless, we he coinsidrrd the extraor- dinary remedies requested by the LUrion il ts molion. 11. THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR ABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All employees employed by the Employer at its Brooks Plant, Galax, Virginia, location, but excluding all office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. 2. The certification On November 20 and 21, 1980, 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 5, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on June 25, 1980, 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 Respondents Refusal Commencing on or about June 27, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit, and to furnish it with relevant and necessary bargaining information concerning the employees in the above-described unit. Commencing on or about July 23, 1980, 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 bargain- ing of all employees in said unit and to furnish rel- evant and necessary bargaining information. Accordingly, we find that Respondent has, since and at all times thereafter, refused to bargain col- lectively with the Union as the exclusive represen- tative of the employees in the appropriate unit, and that, by such refusal, Respondent has engaged in 533 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. 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, 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 furnish the Union, upon request, relevant and necessary bargaining information con- cerning the employees in the bargaining unit. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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 (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).6 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Hanes 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 employees employed by the Employer at its Brooks Plant, Galax, Virginia, location, but ex- cluding all office clerical employees, professional 6 We hereby deny the Union's request for certain extraordinary reme- dies including a bargaining order retroactive to the date of the election, establishment of an "interim grievance procedure," and the imposition of costs and expenses, including attorneys fees. to the Union See Nappc'- Babcock Company. 245 NLRB 20 (1980). employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Since June 25, 1980, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about July 23, 1980, 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 to furnish relevant and necessary bargaining information con- cerning said employees, 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, Respon- dent 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 en- gaged 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 Re- lations Board hereby orders that the Respondent, Hanes Corporation, Galax, Virginia, 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 Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC, as the exclusive bargaining representative of its employees in the following appropriate unit: All employees employed by the Employer at its Brooks Plant, Galax, Virginia, location, but excluding all office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. (b) Refusing to furnish relevant and necessary bargaining information concerning employees in the above-described unit. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 534 HANES CORPORATION . 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 under- standing in a signed agreement, and furnish the above-named labor organization, upon request, rel- evant and necessary bargaining information con- cerning the employees in the appropriate unit. (b) Post at its Brooks Plant in Galax, Virginia, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 5, 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 Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. I 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 b) Order of the National Labor Relations HBoard" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National l.abor 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 Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC, as the ex- clusive representative of the employees in the bargaining unit described below. WE WILL NOT refuse to furnish the above- named Union with relevant and necessary bar- gaining information concerning employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 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, and upon request, furnish the Union with relevant and necessary bar- gaining information concerning the employees in the bargaining unit described below. The bargaining unit is: All employees employed by the Employer at its Brooks Plant, Galax, Virginia, loca- tion, but excluding all office clerical employ- ees, professional employees, guards and su- pervisors as defined in the Act. HANES CORPORATION 535