Ida Lace, Inc.

IDA LACE, INC. 271 Ida Lace, Inc. and Production, Merchandise & Dis- tribution Employees Union, Local 210, Interna- tional Brotherhood of Teamsters,_ Chauffeurs, Warehousemen and Helpers of America. Case 2-CA-21110 29 January 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON Upon a charge filed by the Union 19 June 1985, the General Counsel of the National Labor Rela- tions Board issued a complaint 1 August 1985 against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act. The complaint alleges that on 25 April 1985, fol- lowing a Board election in Case 2-RC-19820, the Union was certified as the exclusive collective-bar- gaining representative of the Company's employees in the unit found appropriate.' (Official notice is taken of the "record" in the representation pro- ceeding as defined in the Board's Rules and Regu- lations, Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint further al- leges that. since 15 May 1985 the Company has re- fused to bargain with the Union. On 18 August 1985 the Company filed its answer, amended by letter dated 12 September 1985, admitting in part and denying in part the allegations in the com- plaint. On 15 October 1985 the General Counsel filed a Motion for Summary Judgment. On 17 October 1985 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Company filed, a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Company's amended answer admits that the Union requested bargaining and the Company does not contend it ever responded to that request. The Company instead attacks the certification's validity based on its election objection which the Board overruled in the representation proceeding. The Company also contends the Union never made a "valid" demand to bargain for employees in the certified unit: The General Counsel argues that no ' 275 NLRB 211 hearing is necessary to resolve the.Company's con- tentions. We agree. The record,, including the record in Case 2-RC- 19820, reveals that an election was held 2 Novem- ber 1984 pursuant to a Stipulated, Election Agree- ment. The tally of ballots shows 14 for and ,6 against the Union,, with 1 nondeterminative chal- lenged ballot. On 8 November 1984- the Company filed a, timely objection to the election. On 11 De- cember 1984 the Regional Director for Region 2 issued his report, recommending that the Compa- ny's objection be overruled and that a Certification of Representative be issued. On 21 December 1984 the Company filed exceptions. The Board on 25 April 1985 adopted the Regional Director's report and certified the Union as exclusive collective-bar- gaining representative of the employees in the stip- ulated unit. On 14 May 1985 Union Attorney Ira A. Sturm mailed a letter to the Company stating in pertinent part: Our law firm [Manning, Raab, Dealy & Sturm] represents Local 210 International Brotherhood of Teamsters Chauffeurs Ware- housemen and Helpers of America. Said Union has been certified by the National Labor Rela- tions Board as the representative of your em- ployees in, a unit including all full time and regular part-time production and maintenance employees excluding all office clerical employ- ees, professionals, guards and supervisors. It is requested that you contact the under- signed to arrange for a mutually convenient time to commence negotiations. The Company's amended answer admits the Union requested bargaining by this letter. It is well settled that in the absence of newly dis- covered and 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 that were or could have been litigated in a prior representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations. Except for the question whether the Union made a proper request for bargaining, the issues the Company raises were or could have been litigated in the prior representation proceeding. The Com- pany does not offer to adduce at a hearing any newly discovered and previously unavailable evi- dence with respect to those issues, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding. The' Union's bargaining 278 NLRB No. 35 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD request is fully set forth in the record and the Company admits the request was made. It does not contend there are any additional facts that would bear on whether the request was proper. We thus find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment.2 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a New York corporation, is en- gaged in- cutting, separating, and wholesale distrib- uting of lace and related products at and from its Bronx, New York facility, where it annually pur- chases and receives goods, products, and materials valued in excess of $50,000 from firms located out- side the State of New York. The Company admits and we find that it is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. and regular part-time production and mainte- nance employees excluding all office clerical employees, professionals, guards, and supervi- sors. The Company contends the Union's request was not "valid" because the unit the Union described differed from that the Board certified. In order to impose upon an employer a duty to bargain, a union must request bargaining in a manner that "clearly define[s] the unit for which recognition is sought."3 In this case, the Union omitted a specific reference to shipping and receiv- ing employees in its bargaining request although the Board included those employees in the certified unit. The request, however, clearly referred to the certified unit. The request thus cannot reasonably be construed as one for bargaining in a unit other than the unit the Board certified.4 Rather, we con- clude that the Union's request can only reasonably be construed as requesting bargaining for all em- ployees in the certified unit.5 Since the Company admits the Union made the request, and because it does not contend it ever responded, we find the Company unlawfully refused to bargain, violating Section 8(a)(5) and (1) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the 2 November 1984 election, the Board on 25 April 1985 certified the Union as col- lective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time production and maintenance employees and shipping and receiving employees employed by the Employ- er at its 856 East 136th Street, Bronx, New York facility; but excluding all office clerical employees, and all professional employees, guards, and supervisors as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain As set forth above, the Union's 14 May 1985 letter requesting bargaining identified the Union and stated: Said Union has been certified by the National Labor Relations Board as the representative of your employees in a unit including all full time 2 In joining his colleagues in granting the General Counsel's Motion for Summary Judgment, Member Babson notes that to the extent the Re- spondent attacks the Union's certification the Respondent is not entitled to litigate in this proceeding issues which were or could have been liti- gated in the underlying representation proceeding CONCLUSIONS OF LAW By refusing on and after 15 May 1985 to bargain with the Union as the exclusive collective-bargain- ing representative of employees in the appropriate unit, the Company has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 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 understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the 3 C. L. Bailey Grocery Co, 100 NLRB 576, 579 (1952), see Motown Record Corp, 197 NLRB 1255, 1261, (1972), Chester Valley, Inc, 251 NLRB 1435, 1450 (1980), enfd in relevant part 652 F 2d 263 (2d Cir 1981). 4 Contrast Motown Record Corp, supra, 197 NLRB at 1261 (union de- manded bargaining for technical engineering department employees, in later representation petition, it expanded unit to include recording engi- neers, 'Board concluded union "abandoned " its demand for bargaining only for the technical engineering department employees, absent expand- ed bargaining demand, employer had no duty to bargain) 5 Contrast Chester Valley, Inc, supra, 251 NLRB at 1450 (union bar- gaining demand incomplete , did not refer to another source that properly defined unit); C. L. Bailey Grocery, supra, 100 NLRB at 577-580 (union's overly inclusive oral bargaining demand did not sufficiently refer to proper description in proposed contract) IDA LACE, INC. period provided by law, we shall construe the ini- tial period of the certification as beginning the date the Respondent 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, Ida Lace , Inc., Bronx, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Production, Mer- chandise & Distribution Employees Union, Local 210, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica as the exclusive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: Ally full-time and regular part-time production and maintenance employees and shipping and receiving employees employed by the Employ- er at its 856 East 136th Street, Bronx, New York facility; but excluding all office clerical employees, and all, professional employees, guards and supervisors as defined in the Act. (b) Post at its facility in Bronx, New York, copies of the attached notice marked "Appendix."6 6 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 Nation- al 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 " 273 Copies--of the notice, on forms provided by the Re- gional Director for Region 2, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all- places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, 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 Respondent 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Production, Merchandise & Distribution Employees Union, Local 210, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica as the exclusive bargaining representative of our employees in the bargaining unit. WE WILL NOT in" any like or related manner interfere with, restrain, or coerce you in the exer- cise 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 full-time and regular part-time production and maintenance employees and shipping and receiving employees employed by the Employ- er at -its 856 East 136th Street, Bronx, New York facility; but excluding all office clerical employees, and all professional employees, guards and supervisors as defined in the Act. IDA LACE, INC.