Clothing Workers

National Labor Relations Board - Board Decisions

May 3, 1976

223 N.L.R.B. 1229 (N.L.R.B. 1976)

CLOTHING WORKERS 1229
Amalgamated Clothing Workers of America, AFL-
CIO, CLC and Amalgamated Staff Union . Case 2-
CA-13803
May 3, 1976
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
Upon a charge filed on July 3, 1975, by Amalga-
mated Staff Union, herein called the Union, and
duly served on Amalgamated Clothing Workers
of America, AFL-CIO, CLC, herein called Re-
spondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 2, issued a complaint on July 10, 1975,
against Respondent, alleging that Respondent has
engaged in and is engaging in unfair labor practices
affecting commerce within the meaning of Sections
8(a)(5) and (1) and 2(6) and (7) of the National La-
bor Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing before an Adminis-
trative Law Judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on March 26, 1975,
following a Board election in Case 2-RC-16050, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate in that proceeding;'
commencing on or about June 16, 1975, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representative
of Respondent's employees in said appropriate unit,
although the Union has requested and is requesting it
to do so; and that, by the foregoing refusal, Respon-
dent has engaged in and is engaging in conduct pro-
scribed by Section 8(a)(5) and (1) of the Act. On Au-
gust 6, 1975, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint and raising certain affir-
mative defenses.
On September 24, 1975, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and Issuance of Decision and
Order. He asserts, in effect, that Respondent is at-
'Official notice is taken of the record in the representation proceeding,
Case 2-RC-16050, 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 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F .Supp . 573 (D.C. Va., 1967);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA.
tempting to relitigate issues which were, or could
have been, litigated in the underlying representation
proceeding. Subsequently, on October 28, 1975, 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 Judgment
should not be granted. Respondent thereafter filed a
memorandum in opposition to the Motion for Sum-
mary Judgment and a Cross-motion for Summary
Judgment.
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 Motion for Summary Judgment
In its answer to the complaint Respondent admits
the service of the charge; that a Decision and Certifi-
cation of Representative issued in Case 2-RC-
l6050;2 and that the Union has requested and Re-
spondent has declined to recognize and bargain with
the Union. Respondent, however, denies that it has
engaged in any unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(1) and (5)
and 2(6) and (7) of the Act. Affirmatively, Respon-
dent asserts that the Board's Decision on Review and
Direction of Election, set forth in 210 NLRB 928
(1974), and its Order of July 2, 1974, denying
Respondent's motion for reconsideration of said De-
cision and Direction were contrary to law and con-
trary to the facts. Respondent further argues that the
Board erroneously considered the status of the voters
as a class in both its Decision and Direction of Elec-
tion, 210 NLRB 928, and its Supplemental Decision
and Certification of Representative, 217 NLRB No.
20.
In its answer to the complaint, Respondent alleges,
as an affirmative defense, that it was denied due pro-
cess of law by the manner in which it was denied
permission to challenge the ballots of certain voters.
Specifically, Respondent contends that the decision
not to permit Respondent to challenge the ballots of
these voters was not made by a three-member panel,
as required by the Act and the Code of Federal Re-
gulations, but by "employees of the Board." In its
memorandum in opposition to the Motion for Sum-
mary Judgment and Cross-motion for Summary
Judgment, Respondent essentially reasserts these
contentions. Thus, Respondent asserts that at the
counting of the mail ballots, it attempted to chal-
lenge the aforesaid ballots and that the Regional Of-
'217 NLRB No. 20 (1975).
223 NLRB No. 175
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fice telephoned the Executive Secretary's Office for
advice as to whether or not to permit such chal-
lenges . The Executive Secretary's Office referred the
request for advice to a panel comprised of one Board
Member and senior representatives of two other
Members who directed the Executive Secretary's Of-
fice to advise the Regional Office to reject the prof-
fered challenges. Respondent contends that this pro-
cedure denied it due process of law, citing KFC Na-
tional Management Corp. v. N. L. R B., 497 F.2d 298
(C.A. 2, 1974).
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(aX5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.3
The issues raised by Respondent in this proceed-
ing, and which Respondent sought to preserve for a
postelection challenge proceeding, involve the al-
leged managerial and/or supervisory status of the in-
dividuals whose ballots Respondent unsuccessfully
attempted to challenge. These issues were fully liti-
gated and considered in the underlying representa-
tion proceeding and Respondent has offered no new-
ly discovered or previously unavailable evidence
which would warrant relitigation of these issues.
Respondent's contention that it was denied due
process was also fully considered , discussed, and de-
cided in the Supplemental Decision and Certification
of Representative, 217 NLRB No. 20. Nor do we
find any violation of Respondent's right to due pro-
cess in the manner in which its attempt to challenge
ballots was rejected in the prior representation pro-
ceeding. Thus, in the Supplemental Decision and
Certification of Representative, 217 NLRB No. 20,
the Decision on Review and Direction of Election,
210 NLRB 928, and the Order denying Respondent's
motion for reconsideration, a majority of the Board
determined that the employees in dispute were nei-
ther managerial nor supervisors and, hence , consti-
tuted an appropriate unit for collective bargaining.
In light of these explicit and repeated findings by the
Board, the Regional Director could properly have re-
jected Respondent's request to challenge certain bal-
lots on these bases without again raising the issue to
the Board. Consequently, the mere fact that the Re-
gional Director sought the Board's advice instead
and the request for such advice was referred to one
Board Member and two senior representatives of
other Board Members cannot be said to have preju-
diced Respondent in any respect or denied it due
process of law. Accordingly, it is immaterial whether
or not the manner in which the advice was given was
proper. We therefore find that Respondent has not
raised any issue which is properly litigable in this
unfair labor practice proceeding. We shall, accord-
ingly, grant the General Counsel's Motion for Sum-
mary Judgment and deny Respondent's Cross-mo-
tion for Summary Judgment for dismissal.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is an unincorporated association with
its principal office and place of business located at 15
Union Square, in the city and State of New York and
is a labor organization engaged in representing em-
ployees for collective-bargaining purposes. During
the past 12 months, a representative period, Respon-
dent received revenues in excess of $100,000, of
which revenues in excess of $100,000 were received
from its affiliates located in States of the United
States other than the State of New York.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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 juris-
diction herein.
If. THE LABOR ORGANIZATION INVOLVED
Amalgamated Staff Union 4 is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All union label staff employees of the Respon-
dent working in and out of its International of-
fice located in New York, New York, excluding
all other employees, all office clerical employees,
4 In or about November 1974 the Amalgamated Clothing Workers South-
'See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U .S. 146. 162 ( 1941): ern Staff Union changed its name to the Amalgamated Staff Union and is
Rules and Regulations of the Board , Secs. 102.67(f) and 102 .69(c). so called herein.
CLOTHING WORKERS
professional employees , guards, and supervisors
as defined in the Act.
2. The certification
On July 24, 1974, a majority of the employees of
Respondent in said unit, in a secret mail ballot elec-
tion conducted under the supervision of the Regional
Director for Region 2, designated the Union as their
exclusive representative for the purpose of collective
bargaining with Respondent . The Union was certi-
fied as the exclusive collective -bargaining representa-
tive of the employees in said unit on March 26, 1975,
and the Union continues to be such exclusive repre-
sentative within the meaning of Section 9(a) of the
Act.
B. The Request To Bargain and Respondent 's Refusal
On or about April 18, 1975 , the Union requested
that Respondent recognize and bargain with the
Union as the exclusive representative of all employ-
ees in said unit . Commencing on or about June 16,
1975, Respondent has refused and continues to re-
fuse to recognize and bargain with the Union.
Accordingly , we find that Respondent has, since
June 16 , 1975, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit , and that , by such refusal , Respondent has en-
gaged in 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 opera-
tions as 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 obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit, and , if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
1231
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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
(C.A. 5, 1964), cert . denied 379 U.S. 817 ( 1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
( 1964), enfd . 350 F.2d 57 (C.A. 10, 1965).
The Board , upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. Amalgamated Clothing Workers of America,
AFL-CIO, CLC, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Amalgamated Staff Union is a labor organiza-
tion within the meaning of Section 2(5) of- the Act.
3. All union label staff employees of Respondent
working in and out of its International office located
in New York, New York, excluding all other employ-
ees, all office clerical employees, professional em-
ployees, guards , and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since March 26 , 1975, the above-named labor
organization has been and now is the certified repre-
sentative of all employees in the aforesaid appropri-
ate unit for the purpose of collective bargaining with-
in the meaning of Section 9(a) of the Act.
5. By refusing, on or about June 16, 1975, and at
all times thereafter , to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropraite unit , Respondent has en-
gaged 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 , Respondent
has interfered with , restrained, and coerced, and is
interfering with , restraining, and coercing, employees,
in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent, Amal-
gamated Clothing Workers of America, AFL-CIO,
CLC, New York, New York, its officers, agents, suc-
cessors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with the Amalgamated Staff
Union, as the exclusive bargaining representative of
its employees in the following appropriate unit:
All union label staff employees of the Respon-
dent working in and out of its International of-
fice located in New York, New York, excluding
all other employees, all office clerical employees,
professional employees, guards, and supervisors
as defined in the Act.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its New York , New York, location cop-
ies of the attached notice marked "Appendix ." S Cop-
ies of said notice , on forms provided by the Regional
Director for Region 2, after being duly signed by
Respondent 's representative , shall be posted by Re-
spondent immediately upon receipt thereof, and be
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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Amal-
gamated Staff Union as the exclusive represen-
tative of the employees in the bargaining unit
described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
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 de-
scribed below, with respect to rates of pay, wag-
es, hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All union label staff employees working in
and out of our International office located in
New York, New York, excluding all other em-
ployees, all office clerical employees, profes-
sional employees, guards, and supervisors as
defined in the Act.
AMALGAMATED CLOTHING WORKERS OF
AMERICA , AFL-CIO, CLC