Celebrity Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1987

284 N.L.R.B. 688 (N.L.R.B. 1987)

688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Celebrity Inc. and Leather Goods, Plastics, Hand-
bags & Novelty Workers Union, Local 1, AFL-
CIO, a/w International Leather Goods, Plastics
& Novelty Workers Union, AFL-CIO. Case
22-CA-12618
30 June 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 16 March 1984 Administrative Law Judge
Steven B. Fish issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended Order
as modified.
In the remedy section of his decision, the judge
noted that the Board authorized the Regional Di-
rector to process a petition filed by United Electri-
cal, Radio and Machine Workers of America, UE
Local 404 (UE Local 404) concerning the repre-
sentation of the employees in the bargaining unit
with which the instant proceeding is concerned.
The judge observed that the bargaining order he
recommended in the instant case might be rendered
moot by the results of the election in the represen-
tation proceeding. That, in fact, has occurred. UE
Local 404 won the election (Case 22-RC-9063).
After the Regional Director overruled objections
to the election and challenges to certain ballots,
and the Board denied requests for review, the Re-
gional Director certified UE Local 404 as the rep-
resentative of the employees in the bargaining
The judge's analysis of the case is based on RCA Del Canbe, Inc.
262 NLRB 963 (1982) We recently reaffirmed the principles set forth m
that decision Len Marto: Corp., 282 NLRB 482 (1986).
By implication, the judge would have secured the Respondent's duty
to bargain with the incumbent union by an irrebuttable presumption of
continued majority status during the first 3 years of the 5-year term of
the parties' collective-bargaining agreement. An irrebuttable presumption
would have been available to the incumbent union to prevent withdrawal
of recognition, at least dunng a 3-year contract term Hagernan Under-
ground Construction, 253 NLRB 60, 62 (1980) For, as the Board stated in
Westwood Import Co., 251 NLRB 1213 (1980), "Mlle well-established rule
is that an employer may not normally refuse to continue dealing with a
union during the period in which their contract is a bar for purposes of
our representation proceedings" That presumption, however, would not
have applied even during the shorter period to prevent the Respondent,
had it demonstrated an actual loss or a good-faith reasonable doubt of the
Union's majonty status, from refusmg, as it did here, to negotiate for a
new agreement See Burger Pas, Inc., 273 NLRB 1001, 1002 (1984), enfd
785 F 2d 797 (9th Cir 1986).
unit.2 In these circumstances it would be inappro-
priate to order the Respondent to bargain with the
previous incumbent union, though we have found
here that the Respondent acted unlawfully when it
refused to continue bargaining with that union. Ac-
cordingly, we shall delete the judge's recommend-
ed bargaining order. See Len Martin Corp., supra,
fns. 3 and 4.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Celebrity, Inc., Haledon, New Jersey, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
"(a) Withdrawing from bargaining with an in-
cumbent union which is the exclusive bargaining
representative of its employees in the bargaining
unit based on an unconfirmed claim of majority
status or the filing of a representation petition by
an outside challenging union."
2. Delete paragraph 2(a) and reletter the subse-
quent paragraphs.
3. Substitute the attached notice for that of the
administrative law judge.
2 This panel did not participate in the authorization to proceed with
the election or the denial of the request for review, but we consider them
the law of the case
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 an incum-
bent union as the exclusive bargaining representa-
tive of our employees in the bargaining unit based
on an unconfirmed claim of majority status or the
filing of a representation petition by an outside
challenging union.
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.
CELEBRITY, INC.
Bernard Mintz, Esq., for the General Counsel.
284 NLRB No. 79
CELEBRITY, INC. 689
Aaron Locker, Esq. (Locker, Greenberg & Brainin), of
New York, New York, for the Respondent.
Sol Bogen, Esq., of New York, New York, for the Charg-
ing Party.
Robert Z Lewis, Esq., of New York, New York, for the
Intervenor.
DECISION
STATEMENT OF THE CASE
STEVEN B. FisH, Administrative Law Judge. On a
charge filed on August 12, 1983, 1 by Local 1, Leather
Goods Workers (Local 1 or Charging Party), the Re-
gional Director for Region 22 issued a complaint and
notice of hearing on September 26 alleging that Celebri-
ty, Inc. (Respondent) violated Section 8(a)(1) and (5) of
the Act by failing and refusing to bargain with Local 1.
A hearing on the above complaint was held before me
in Newark, New Jersey, on December 14.
At the hearing, I granted a motion to intervene in this
proceeding on behalf of Local 404, United Electrical and
Radio Machinists of America (Local 404 or the Interve-
nor).
Briefs have been received from the General Counsel,
Respondent, and Intervenor. The Charging Party pre-
sented oral argument in support of its position. All of the
above have been considered.
On the entire record, including my observation of the
demeanor of the witnessess, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a New York corporation engaged in the
manufacture, nonretail sale, and distribution of novelty
items, with a facility located in Haledon, New Jersey.
During the past year, Respondent sold and shipped from
its Haledon, New Jersey facility products and goods
valued in excess of $50,000 directly to points outside the
State of New Jersey.
It is admitted and I so find that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
It is also admitted and I so find that Local 1 is a labor
organization within the meaning of Section 2(5) of the
Act.
II. FACTS
In December 1964, Local 1 became the collective-bar-
gaining representative of Respondent's employees at a
plant in Bronx, New York.
In the summer of 1976, Dominick DiPaola, business
agent for Local 1, met with employees employed by Re-
spondent at its facility in Haledon, New Jersey, who
prior to that time had been represented for collective
bargaining by Local 999 of the Teamsters. DiPaola per-
suaded these employees of the advantages of representa-
tion by Local 1, and obtained signed authorization cards
from a majority of the employees. The cards were sub-
mitted to Richard Edelman, an industry arbitrator, who
conducted a card check at that time. As a result thereof,
Local 1 became the collective-bargaining representative
of Respondent's Haledon employees. Local 1 assumed
the contract that had been in effect between Respondent
and the Teamsters from 1976 to 1979.
Respondent and Local 1 then negotiated a new collec-
tive-bargaining agreement, running from February 1,
1979, to February 1, 1984. The unit covered includes all
production employees, machinery and plant maintenance
employees, maintenance cleaners, and porters, exclusive
of foremen and foreladies, floor ladies, executive profes-
sional or administrative employees, department heads,
head operators (not in excess of two (2)), clerical, or
office employees and watchmen.
The record reveals that in August 1979, Local 1 and
Respondent executed a letter, agreeing on two clauses to
be considered part of the contract, covering incentive
systems and notification to shop stewards of disciplinary
action.
In October 1982, DiPaola received a call from Aaron
Locker, Respondent's attorney, suggesting that the par-
ties meet to negotiate for a new contract. DiPaola agreed
and approximately 14 negotiating sessions were held
thereafter, between the parties, on various dates between
October 21, 1982, and August 12, 1983.
Present at these negotiations were, in addition to
Locker, Doyle Robison, Allan Unger, and Bonnie Sal-
kind, chief operating officer, a principal, and personnel
manager, of Respondent respectively.
For Local 1, DiPaola was present at all sessions and
its attorney, Sol Bogen, was present at the later meet-
ings.
No employees of Respondent attended any of these ne-
gotiation sessions. DiPaola explained in this connection
that he had not invited any employees to attend the earli-
er sessions because he was hopeful of obtaining an agree-
ment from Respondent to make payments into the Local
1 pension and insurance fund, which had not been in-
cluded in the existing contract. In fact the main issue dis-
cussed at the negotiations was the inclusion of such pro-
visions in the new contract.2
However, DiPaola was not successful in persuading
Respondent to agree to contribute to the Local 1 pension
or insurance funds. On June 14, DiPaola called a meeting
of employees at a church, and reported on the status of
negotiations at that time, including the fact that Re-
spondent had not agreed to pension and insurance contri-
butions. A negotiating committee of employees was se-
lected at that meeting. The committee was specifically
invited by Local 1 to attend the negotiation session of
August 12, 1983. None of the employees appeared there-
in. The record contains no explanation of why they
failed to be present.
At the August 12 session, the parties met and discussed
holidays, pensions, and insurance from 9:30 a.m. to 12
noon, at which time the parties caucused. About 12:30
p.m., Locker interrupted Local l's caucus and informed
2 The parties also discussed other issues, such as wages and holidays,
during these sessionsAll dates herein are in 1983 unless otherwise indicated.
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Local 1 representatives that he had received a phone
call and was told that a letter had been received at the
Haledon plant from Local 404, in which Local 404
claimed to represent Respondent's employees. Locker
continued that there seems to be a serious question of
representation and that, until the "dust settles," Respond-
ent would not negotiate any further with Local 1.
Bogen replied on behalf of Local 1 that it was the in-
cumbent union and that Respondent had no right to
break off negotiations and must sit down at the bargain-
ing table and continue negotiating. Locker replied that
Respondent would not negotiate further with Local 1
and insisted that the matter must be resolved by the
Board.
The letter sent to Respondent by Local 404 was intro-
duced into evidence. It is dated August 11 and is signed
by Jose Lugo, business agent for Local 404. It reads as
follows:
Celebrity, Inc.
Attn: President
400 West Broadway
Haledon, NJ.
Gentlemen:
Please be advised that the United Electrical,
Radio and Machine Workers of America (UE) and
its Local 404 has been designated by a majority of
your production and maintenance employees as
their collective bargaining representative.
Since UE now represents the majority of your
production and maintenance employees and is ready
to prove it, we request that no changes in existing
wages, hours and conditions be made except by ne-
gotiations with the UE.
You are further notified not to negotiate with any
other labor organization or conclude any collective
bargaining agreement with respect to the bargaining
unit herein involved until the question of represen-
tation is resolve [sic] by the National Labor Rela-
tions Board, 22 Region.
The rights of your employees to organize and
bargain collectively are protected by the United
States Government "Labor Management Relations
Act." We fully expect you to refrain from interfer-
ence with such rights or to allow any other organi-
zation to do so. We are prepared to take action
with the National Labor Relations Board to protect
the employee' [sic] interests should they be violated
in any way.
Very truly yours,
Jose A. Lugo, B.A.
Local 404, U.E.R. & M.W. OF A.
On August 12, Local 404 filed a petition for represen-
tation of Respondent's employees at Haledon in Case 22-
RC-9063. The petition was received by Respondent on
August 15. At that time the petitioned for unit consisted
of approximately 240 employees.
Lugo testified on behalf of Local 404 that he filed the
petition with the Board's Regional Office in Newark,
New Jersey. He further testified that he submitted 221
membership cards to the Board in support of such peti-
tion. The Intervenor introduced into the record a receipt
given to Lugo by a representative of the Region, dated
August 12. The receipt states that the Region has re-
ceived 221 signed and dated membership application
cards from Local 404. The name of Respondent is writ-
ten at the top of the receipt.
No other evidence was presented with respect to the
Local 404 cards, such as any testimony authenticating
the signatures appearing therein, the circumstances of
how or when the cards were obtained, or even whether
any of the alleged card signers were actually employed
by Respondent at the time. Indeed, the cards themselves
were not introduced.
Respondent never made any effort to look at Local
404's alleged cards, and Lugo admitted that he never in-
formed Respondent of how many cards he allegedly pos-
sessed, nor did he show or attempt to show Respondent
the receipt from the Board indicating that Local 404 may
have obtained 221 cards.
By letter dated November 8, DiPaola again requested
Respondent to bargain with it over terms for a new col-
lective-bargaining agreement. The letter was received by
Respondent about November 15.
Local 1 received no response, either orally or in writ-
ing, to this letter. There have been no further negotiating
sessions between the parties.
By letter dated January 4, 1984, from counsel for the
General Counsel, I have been advised that the Board, on
December 30, 1983, authorized the Regional Director to
process the petition filed m Case 22-RC-9063, notwith-
standing the pending 8(a)(5) complaint filed herein.3
III. ANALYSIS
In RCA Del Caribe, Inc., 262 NLRB 963 (1982), the
Board modified its prior approach in evaluating Midwest
Piping Co., cases dealing with the requirement of strict
employer neutrality in the face of competing representa-
tional claims.4
The Board, in reversing its prior position set forth in
Shea Chemical Corp., 121 NLRB 1027 (1968), has now
concluded that "the mere filing of a representation peti-
tion by an outside challenging union will no longer re-
quire or permit an employer to withdraw from bargain-
ing or executing a contract with an incumbent union."
RCA Del Caribe, supra at 965.
The General Counsel and the Charging Party contend
that this holding of RCA Del Caribe is dispositive of the
instant case. Respondent and the Intervenor contend,
however, that the facts herein are sufficiently distinguish-
able from the facts in RCA Del Caribe to render it inap-
posite to a determination of the issues before me.
The underlying rationale of the Board's reversal of its
Shea Chemical extension of Midwest Piping appears to be
that stability of collective-bargaining relationships and
the doctrine of presumption of continuing majority status
were not given their due, by adherence to those deci-
3 I have marked this letter as G C. Exh 4 and receive same in evi-
dence
4 63 NLRB 1060 (1945).
CELEBRITY, INC. 691
sions. Thus, the Board felt that preservation of the status
quo through an employer's continued bargaining with an
incumbent is the best way to approximate employer neu-
trality.
The doctrine of presumption of majority status re-
ferred to above is a long-established principle that has
been the subject of numerous Board and court cases over
the years. During the term of a collective-bargaining
agreement, it is generally held that a union enjoys an ir-
rebuttable presumption of majority status, and an em-
ployer cannot withdraw recognition or refuse to bargain
during this period of time.5
However, this principle applies only where the con-
tract bars the filing of a representation petition, at the
time of the refusal to bargain. Abbey Medical/Abbey
Rents, 264 NLRB 969 (1982); Universal Tool & Stamping,
182 NLRB 254 (1970). In the instant case the contract in
existence between the parties was for 5 years. That
agreement is of unreasonable duration, being in excess of
3 years, and will be treated for contract-bar purposes as
if it was limited to a reasonable (3-year) period. Union
Carbide Corp., 190 NLRB 191 (1971). Therefore, since
the refusal to bargain occurred in August 1983, more
than 3 years from the execution of the contract, the con-
tract does not provide Local 1 with an irrebuttable pre-
sumption of majority status.
However, it is well settled that Local 1, as the incum-
bent union, continues to enjoy a presumption of majority
status, but the presumption can be rebutted. 6 It is equally
clear that the burden of rebutting the presumption of ma-
jority rests on the party who would do so. Barrington
Plaza & Tragniew, Inc., 185 NLRB 962, 963 (1970); Lin-
coln Hills Nursing Home, 257 NLRB 1145, 1154 (1981).
The presumption can be rebutted by clear and con-
vincing proof that Local 1 did not in fact enjoy majority
support at the time of the refusal to bargain, 7 or by
showing that Respondent's refusal to continue bargaining
with Local 1 was predicated on a good-faith and reason-
ably grounded doubt of Local l's majority status, which
in turn must be supported by objective considerations.5
RCA Del Caribe, supra, does not foreclose the applica-
tion of the above principles, since the decision specifical-
ly states that it will not preclude an employer from with-
drawing recognition in good faith based on other objec-
tive considerations.9
It is therefore essential to decide whether either of the
two factors deemed sufficient by the Board to justify a
refusal to bargain with the incumbent have been estab-
lished. Respondent and the Intervenor contend that
actual loss of majority and reasonable doubt based on ob-
jective considerations have both been proven." The
5 Hageman Underground Construction, 253 NLRB 60 (1980); Barrington
Plaza, supra
Penne°, Inc., 250 NLRB 716 (1980); Terrell Machine Co., 173 NLRB
1480 (1969).
'Ref-Chem Co., 169 NLRB 376, 381 (1968); Barrington Plaza, supra at
963.
8 Triplett Co., 234 NLRB 985 (1978); Terrell Machine, supra-
9 See RCA Del Caribe, supra, fn. 12 at 965. See also Signal Transformer
Co, 265 NLRB 272, 274 (1982).
15 It is of course only necessary for Respondent or the Intervenor to
establish the presence of either of the two factors m order to prevail.
General Counsel and Cliar- ging Party on the other hand
assert obviously that neither of the above requirements
have been demonstrated by this record.
With respect to the issue of actual loss of majority
status, Respondent and the Intervenor place principal re-
liance on their contention that the record establishes that
Local 404 represented a majority of Respondent's bar-
gaining unit employees as of August 12 and that there-
fore it follows that Local 1 has in fact lost its majority
status. I do not agree.
The Intervenor asserts that it was uncontested at trial
that its petition was supported by 221 membership cards
out of 240 employees in Respondent's bargaining unit,
and that no question has arisen concerning the tmambi-
guity of the cards submitted by Local 404 to the Region.
However, the Intervenor and Respondent misperceive
the burden placed on them in this area. As noted above,
the burden of rebutting the presumption of majority rests
on the party who would do so, and it must be rebutted
by clear and convincing proof. Barrington Plaza, supra.
Thus, it is the burden of the Intervenor and/or Re-
spondent to demonstrate by clear and convincing proof
that Local 1 lost its majority status. It is not enough to
assert that it was uncontested or that no question was
raised at trial regarding the cards allegedly procured by
Local 404. It was the burden of Respondent or the Inter-
venor to affirmatively establish Local 404's majority
status by proper authentication of these alleged member-
ship cards. This they have fallen far short of establishing.
Thus, the only evidence presented on this issue con-
sists of Lugo's testimony that he submitted to the Board,
along with the Intervenor's petition, 221 membership
cards. Additionally, the record contains a receipt from
the Region indicating that in fact 221 signed and dated
cards were received in connection with the representa-
tion case involving Respondent. No testimony or other
evidence was presented to authenticate the signatures ap-
pearing on the cards, nor any testimony regarding the
circumstances of the execution of the cards. Indeed, the
cards were not even placed in evidence, nor was there
any testimony regarding the contents of the cards other
than that they were "membership" cards. Thus, it is not
clear whether the cards were unambiguous designations
of Local 404 as the exclusive representative of the signer,
much less whether such cards were intended as a revoca-
tion of any prior designation of Local 1 as their repre-
sentative. Moreover, while the parties stipulated that the
bargaining unit consisted of 240 employees as of August
12, there was no stipulation nor any other evidence es-
tablishing whether any of the alleged card signers were
employed in the unit at the time. In these circumstances,
Respondent and the Intervenor have not met their
burden of establishing that Local 1 has lost its majority
status. Guerdon Industries, 218 NLRB 658, 660 (1975).11
15 Respondent and the Intervenor also stress the fact that the Charging
Party in the instant case did not, unlike the Union in RCA Del Caribe,
prove by objective evidence that it contmued to represent a majority.
However, this distinction is without significance because the Board made
clear in fn. 16 at 967 therein that it did not rely on the fact that the
Union had submitted evidence of new authorizations, as an incumbent
union is not required to reaffirm its majority status after a petition has
been filed.
692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
That leaves for resolution the issue of whether Re-
spondent has demonstrated that it had on August 12, the
date of its refusal to continue bargaining with Local 1, a
good-faith reasonably grounded doubt of Local l's ma-
jority status based on objective considerations.
Respondent and the Intervenor rely primarily on the
letter sent by Local 404 and received by Respondent on
August 12. The letter claims that Local 404 has been
designated by a majority of Respondent's employees as
their collective-bargaining representative and offers to
prove the assertion. Moreover, the letter notifies Re-
spondent not to negotiate with any other union until the
question of representation is resolved by the Board. This
letter in and of itself constitutes no more than a mere un-
supported claim by Local 404 that it represented a ma-
jority and that inferentially Local 1 no longer possessed
majority support. Such a naked and unsupported asser-
tion by Local 404 is far from sufficient to establish the
requisite objective considerations to relieve Respondent
of its obligation to continue to bargain with the incum-
bent. Lincoln Hills Nursing Home, 257 NLRB 1145, 1155,
1156 (1981).
I note that Respondent made no effort to confirm
Local 404's claim of majority status, and was unaware at
the time of the refusal to bargain about how many cards
Local 404 may have obtained. Respondent was never
shown the cards, nor even the receipt for cards issued by
the Board, which was introduced in this record. While it
may be argued that the receipt from the Board contain-
ing the number of cards allegedly obtained by Local 404
might provide Respondent with a good-faith belief of
majority status, it is clear that Respondent cannot rely on
such evidence herein. It is well settled that an employer
must have a reasonable basis for doubting majority status
at the time of the refusal to bargain." Therefore, be-
cause Respondent did not, insofar as this record dis-
closes, become aware of the receipt or the number of
cards allegedly obtained by Local 404 until the hearing,
it cannot rely on such facts to support its refusal to bar-
gain.
Respondent and the Intervenor also argued that Re-
spondent's good-faith doubt of loss of majority status is
supported by the failure of its employees to attend any
negotiation sessions and, more particularly, the failure of
the newly elected negotiating committee to attend the
August 12 session, although they were invited by Local
1 to do so. I find any reliance on these events to be mis-
placed and find them not to be significant in assessing
Respondent's conduct.
Because the evidence reveals that no employees had
ever been present as part of Local l's negotiation team
from the start of negotiations in October 1982, 13 there is
no basis for any belief on the part of Respondent that
their absence indicates any lack of support for Local I.
Although the recently elected negotiating committee
failed to attend the August 12 meeting, there is no evi-
dence establishing or even suggesting that Respondent
12 Bartenders Assn. of Pocatello, 213 NLRB 651, 653 (1974); Triplett
Co. 234 NLRB 985, 986 (1978)
13 Indeed, the record does not even disclose whether any of Respond-
ent's employees were present during bargaining sessions in 1979 when the
parties negotiated their prior contract
was aware of either the fact that a committee had been
elected or that it was invited to attend any negotiations.
Moreover, even if it were found that Respondent was
so aware and it could be further concluded that such em-
ployees were not interested in participating in negotia-
tions,-14 this fact alone would not establish general em-
ployee disinterest in being represented by Local 1. Inter-
national Medication Systems, 253 NLRB 863, 868 (1980).
Finally, Respondent relies on the fact that its prior
contract with Local 1 had a duration of 5 years, as op-
posed to the 3-year contract present in RCA Del Caribe.
Although, as noted above, this fact is pertinent to a reso-
lution of whether the presumption of majority status ac-
corded to Local 1 is rebuttable or irrebuttable, it has no
other significance. Once the parties have mutually agreed
to bargain, as they have done here, regardless of the ter-
mination date of the contract, they become subject to the
same standards of good-faith bargaining otherwise appli-
cable. B.C. Studios, 217 NLRB 307, 312 (1975).
So, in sum, the Board law is clear that Respondent
cannot rely on the filing of the representation petition by
Local 404 to justify its refusal to continue bargaining
with Local 1, 15 and neither Respondent nor the Interve-
nor have established that Local 1 actually lost its majori-
ty status or that Respondent had a reasonably grounded
doubt of majority status based on objective consider-
ations, when Respondent on August 12 ceased bargaining
with Local 1.
Accordingly, Respondent has violated Section 8(a)(1)
and (5) of the Act by its refusal to continue bargaining
with Local 1, and I so find.
CONCLUSIONS OF LAW
1. Respondent is an employer in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Local 1 is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees constitute a unit appropri-
ate for collective bargaining:
All production employees, machinery and plant
maintenance employees, maintenance cleaners and
porters, employed by Respondent at its Haledon,
New Jersey facility, exclusive of foremen and fore-
ladies, floor ladies executive, professional or admin-
istrative employees, department heads, head opera-
tors (not in excess of two (2)), clerical or office em-
ployees, and watchmen.
4. Local 1 is, and at all times material has been, the
exclusive collective-bargaining representative for the em-
ployees in the unit described above.
14 I note that the record is silent concerning why the committee did
not attend negotiations
13 RCA Del Canbe, supra, Lutheran Hospital, 265 NLRB 1198 (1982)
I note further that, although the representation case petition was
filed by Local 404 on August 12, the record discloses that Respond-
ent did not receive a copy of same until August 15, 3 days after the
refusal to bargain Thus, Respondent was not even aware of the
filing of the petition until after its refusal to continue bargaining
CELEBRITY, INC. 693
5. Respondent has violated Section 8(a)(1) and (5) of
the Act by refusing to continue bargaining with Local 1
on and after August 12, 1983.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated Section
8(a)(1) and (5) of the Act, I shall order it to cease and
desist therefrom, and to take certain affirmative action
designed to effectuate the purposes and policies of the
Act.
The Charging Party requests that I recommend a
remedy that it deems essential to ensure its rights to a
fair opportunity to bargain with Respondent. The Charg-
ing Party notes that the Region, with the authorization
of the Board, has decided to process the representation
petition filed by Local 404, notwithstanding the penden-
cy of the instant case. Thus, it requests that it be given a
reasonable time to bargain with Respondent, and that a
specific period of time of from 3 to 6 months be ordered.
The General Counsel does not join in this request and
contends that the normal remedy for 8(a)(5) violations,
as amplified by RCA Del Caribe, supra, be recommend-
ed.
I agree with the General Counsel and do not deem it
appropriate to grant the special remedy requested by the
Charging Party. It may be true, as contended by the
Charging Party, that the decision to process the repre-
sentation case by the Board may render any order issued
in the instant case insignificant or moot. However, be-
cause the representation case is not before me, I cannot
make any recommendation in connection with the dispo-
sition of that case, nor can I assure that any recommend-
ed order that is issued by me shall take precedence over
the Board's actions in the representation case.
I shall leave the issue of the possible conflict between
the bargaining order that I shall recommend and the rep-
resentation case, to be considered by the Board in its
processing of the case, either at the stage of consider-
ation whether to direct an election or at the objection
stage of the proceeding, should Local 1 not be success-
ful.
I shall recommend, therefore, that Respondent bargain
on request with Local 1 and, if an understanding is
reached, to embody such agreement in a signed contract.
If Local 1 prevails in any election that may be ordered
by the Board, any contract executed with it will be valid
and binding. If Local 404 prevails, however, any con-
tract executed with Local 1 will be null and void. RCA
Del Caribe, supra at 966.
On these fmdings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed16
16 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the fmdings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
ORDER
The Respondent, Celebrity, Inc., Haledon, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Leather
Goods, Plastics, Handbags & Novelty Workers Union,
Local 1, AFL-CIO, a/w Intenational Leather Goods,
Plastics and Novelty Workers Union, AFL-CIO, as the
exclusive representative of the employees in the appro-
priate collective-bargaining unit described below, with
regard to wages, hours, working conditions, and other
terms and conditions of employment. The unit is:
All production employees, machinery and plant
maintenance employees, maintenance cleaners and
porters, employed by Respondent at its Haledon,
New Jersey facility, exclusive of foremen and fore-
ladies, floor ladies, executive, professional or admin-
istrative employees, department heads, head opera-
tors (not in excess of two (2)). clerical or office em-
ployees, and watchmen.
(b) In any like or related manner interfering with, re-
straining, 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 collectively with Local I as
the exclusive bargaining representative of the employees
in the appropriate unit described above with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Haledon, New Jersey facility, copies of
the attached notice marked "Appendix."" Copies of the
notice, on forms provided by the Regional Director for
Region 22, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable 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 Respondent
has taken to comply.
Board and all objections to them shall be deemed waived for all pur-
poses.
17 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."