Earle Industries, Inc.

EARLE INDUSTRIES, INC. Earle Industries, Inc. and International Ladies Gar- ment Workers Union, AFL-CIO. Case 26-CA- 8426 September 11, 1980 DECISION AND ORDER Upon a charge filed on May 9, 1980, by Interna- tional Ladies Garment Workers Union, AFL-CIO, herein called the Union, and duly served on Earle Industries, Inc., herein called Respondent, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for Region 26, issued a complaint and notice of hearing on May 20, 1980, against Respondent, alleging that Re- spondent 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 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 March 13, 1980, following a Board election in Case 26-RC- 5628, the Union was duly certified asthe exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate; and that, commencing on or about April 10. 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining repre- sentative, although the Union has requested and is requesting it to do so. On June 3, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the com- plaint. On June 11, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on July 7, 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 Summary Judg- ment should not be granted. Respondent thereafter filed a brief in opposition to the Motion for Sum- mary Judgment. Upon the entire record in this proceeding,' the Board makes the following: Official notice is taken of the record in the representation proceed- ing, Case 26-RC-5628, 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 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 252 NLRB No. 24 Ruling on the Motion for Summary Judgment In its opposition to the Motion for Summary Judgment, Respondent contests the validity of the Union's certification. Specially, Respondent con- tends that the Board erred in adopting the Region- al Director's recommendations with respect to de- termine challenged ballots in the election held in Case 26-RC-5628. Counsel for the General Coun- sel contends that Respondent is raising issues which were considered and resolved in the repre- sentation case, and this it may not do. We agree. The second election in Case 26-RC-5628 was conducted on June 22, 1979, pursuant to a Supple- mental Decision and Direction 2 issued by the Board. The tally of ballots shows that, of approxi- mately 100 eligible voters, 48 cast ballots for, and 47 against, the Union; there were 100 challenged ballots. Thereafter, both Respondent and the Union filed timely objections to conduct affecting the re- sults of the election. On August 3, 1979, the Re- gional Director issued and served upon the parties his Report on Challenges and Objections in which he recommended that the challenges to seven bal- lots be overruled and that a hearing be directed to resolve the challenges to the three remaining bal- lots. The Regional Director, while overruling the parties' other objections, further recommended that the Union's Objection 2 be sustained, and that the election held in Case 26-RC-5628 be set aside in the event that a revised tally of ballots showed that the Union had not received a majority of the bal- lots cast. After the Employer filed limited exceptions to the Regional Director's report, the Board issued its Second Supplemental Decision and Order on March 3, 1980,3 in which it adopted the Regional Director's recommendations as to the resolution of the challenged ballots. Contrary to the Regional Director's findings, however, the Board overruled the Union's Objection 2 as it found that Respond- ent had not engaged in any conduct to warrant the setting aside of the election results.4 Accordingly, the Board ordered, inter alia, that the Regional Di- rector open and count those ballots to which chal- lenges had been overruled, and that he thereafter prepare a revised tally of ballots and issue the ap- propriate certification. On March 10, 1980, a re- vised tally of ballots issued which shows that 53 cast ballots for, and 49 against, the Union, and that the three remaining challenged ballots are no longer determinative of the election results. Ac- cordingly, on March 13, 1980, the Regional Direc- 2 Not reported in volumes of Board Decisions. 3 248 NLRB 67. 4 Chairman Fanning dissented on this issue. 126 EARLE INDUSTRIES, INC. tor certified the Union as the exclusive collective- bargaining representative of Respondent's employ- ees in the appropriate unit. It 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 to relitigate issues which were or could have been litigated in a prior representation proceeding.5 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, 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 Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Earle Industries, Inc., is a corporation with an office and place of business in Earle, Arkansas, where it is engaged in the manufacture of closet accessories, garment bags, and other related prod- ucts. In the course and conduct of its business op- erations, Respondent annually sells and ships from its Earle, Arkansas, facility goods and materials valued in excess of $50,000 directly to points locat- ed outside the State of Arkansas. 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. II. THE LABOR ORGANIZATION INVOLVED International Ladies Garment Workers Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining I 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). purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees, in- cluding shipping and receiving employees, em- ployed at the Employer's Earle, Arkansas, fa- cility; excluding all office clerical employees guards and supervisors as defined in the Act. 2. The certification On June 22, 1979, 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 26, 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 March 13, 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 Respondent's Refusal Commencing on or about April 10, 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. Com- mencing on or about April 10, 1980, and continu- ing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since April 10, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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. 127 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. 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). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Earle Industries, Inc., is an employer engaged in commerce 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 mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees, including shipping and receiving employees, em- ployed at Respondent's Earle, Arkansas, facility, excluding all office clerical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 4. Since March 13, 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 April 10, 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, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent 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, Earle Industries, Inc., Earle, Arkansas, 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 International Ladies Garment Workers Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, in- cluding shipping and receiving employees, em- ployed at the Employer's Earle, Arkansas, fa- cility; excluding all office clerical employees, guards and supervisors as defined in the Act. (b) 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. 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 under- standing in a signed agreement. (b) Post at its facility in Earle, Arkansas, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 26, afterbeing 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 s 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 128 EARLE INDUSTRIES, INC. posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 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 International Ladies Garment Workers Union, AFL-CIO, as the exclusive representa- tive of the 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees, including shipping and receiving employees, employed at the Employer's Earle, Arkan- sas, facility; excluding all office clerical em- ployees, guards and supervisors as defined in the Act. EARLE INDUSTRIES, INC. 129