Dino Boutiques, Inc.Download PDFNational Labor Relations Board - Board DecisionsDec 6, 1968173 N.L.R.B. 1155 (N.L.R.B. 1968) Copy Citation DINO BOUTIQUES, INC. Dino Boutiques , Inc. and its affiliated and subsidiary companies, M.J.A. Processing Corp., Pantwood Inc., Pantops , Inc., and E.M.M. Manufacturing, Inc. and International Ladies ' Garment Workers' Union, AFL-CIO, Local No. 415. Case 12- CA-4203 December 6, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On October 8, 1968, Trial Examiner Max Rosenberg issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations' of the Trial Examiner, as herein modified. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, Dino Boutiques, Inc. and its affiliated and subsidiary companies, M.J.A. Processing Corp., Pantwood, Inc., Pantops, Inc., and E.M.M. Manufacturing, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the t Respondent excepts, in ter alia , to the Trial Examiner's finding that the strike which commenced on May 3, 1968 , was caused and prolonged by Respondent 's unfair labor practices . Respondent similarly excepts to the Trial Examiner 's Recommended Order as it requires Respondent to reinstate the strikers within 5 days of their unconditional application at the termination of the str ;ke We find no ment in these exceptions. It is established Board policy to require reinstatement of strikers upon their unconditional application where a strike caused and prolonged by a 1155 Trial Examiner's Recommended Order, as so mod- ified: 1. In paragraph 1(b) of the Trial Examiner's Recommended Order, add the words "like or related" between the words "any" and "manner." 2. Delete paragraph 2(b) of the Trial Examiner's Recommended Order and substitute the following: (b) Upon unconditional application, offer imme- diate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all those employees who were on strike on May 3, 1968, or thereafter, dismissing, if necessary, any person hired on or after that date, and make such applicants whole for any loss of pay suffered by reason of Respondent's refusal, if any, to reinstate them beginning 5 days after their application to the date of Respondent's offer of reinstatement. 3. Add the following as paragraph 2(c), and reletter the following paragraphs accordingly: (c) Notify all those employees, if presently serving in the Armed Forces of the United States, of their right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 4. In the second indented paragraph of the appendix, add the words "like or related" between the words "any" and "manner". 5. Delete the third indented paragraph of the appendix and substitute the following: WE WILL upon unconditional application, offer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all those employees who were on strike on May 3, 1968, or thereafter, dismissing, if necessary, any person hired on or after that date, and make such applicants whole for any loss of pay suffered by reason of our refusal, if any, to reinstate them beginning 5 days after their appli- cation to the date of our offer of reinstatement. 6. Add the following as the fourth indented paragraph of the appendix: WE WILL notify all those employees, if pres- ently serving in the Armed Forces of the United States, of their right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Respondent's unfair labor practices is still in progress . Herman Sausage Co, Inc, 122 NLRB 168, enfd. 275 F.2d 229 (C.A. 5). It is also established policy as a part of such prospective remedial order to require a Respondent to make striking employees whole for any loss of pay occasioned by its failure to comply with an order requiring rein- statement within 5 days of the date of the employees ' unconditional application . Accordingly , the Trial Examiner 's Recommended Order is modified to include such a provision. 173 NLRB No. 174 1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Service Act, as amended, after discharge from the Armed Forces. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAx ROSENBERG, Trial Examiner. This proceeding, with all parties represented, was tried before me in Miami, Florida, on August 12, 1968, pursuant to an amended complaint filed by the General Counsel of the National Labor Relations Board and an amended answer filed thereto by Dino Boutiques, Inc. and its affiliated and subsidiary companies, M.J.A. Processing Corp., Pantwood, Inc., Pantops, Inc., and E.M.M. Manu- facturing, Inc , herein called the Respondent.' At issue is whether Respondent refused to bargain with International Ladies' Garment Workers' Union, AFL-CIO, Local No 415, herein called the Union, in violation of Section 8(a)(5) of the National Labor Relations Act, as amended, and whether a strike by Respondent's employees, which commenced on May 3, 1968,2 was caused by Respondent' s alleged engagement in the aforesaid unfair labor practices. At the conclusion of the hearing, the General Counsel orally argued his case. A brief has been received from the Charging Party, which has been duly considered. Upon the entire record made in this proceeding and my observation of the sole witness who testified, I hereby make the following FINDINGS OF FACT AND CONCLUSIONS I. THE RESPONDENT'S BUSINESS Respondent, Dino Boutiques, Inc., M.J.A. Processing Corp., Pantwood, Inc., Pantops, Inc., and E.M.M. Manufacturing, Inc., are now, and at all times material herein have been, affiliated corporations duly organized under the laws of the State of Florida, have common ownership, management and operations, and administers a common labor policy affecting the employees of the affiliated corporations. During the times material to this proceeding, Respondent engaged in the manufacture and sale of ladies' garments at its principal offices and places of business at 4000 N W. 36th Avenue, Miami, Dade County, State of Florida; 4001 N.W. 37th Avenue, Miami, Dade County, Florida; and 815 W. 18th Street, Hialeah, Dade County, Florida. During the preceding 12-month period, and in the course and conduct of its business operations, Respond- ent purchased goods and materials valued in excess of $50,000 which were received in Florida directly from points located outside that State. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that, commencing on or about March 20, and continuing to date, the Union requested Respondent to bargain collectively regarding the terms and conditions of employment for an appropriate unit of all production, maintenance, shipping and receiving employees at the various installations which comprise the Respondent, excluding all office clerical employees, guards, professional employees, and supervisors as defined in the Act and that, on and after that date, Respondent has declined to bargain with the Union and has thereby violated and is violating Section 8(a)(5) of the Act.' The complaint further alleges that Respondent's employees engaged in a strike on May 3 which was caused and prolonged by Respondent's refusal to recognize and bargain with the Union For its part, Respondent asserts that its refusal to deal with the Union as the exclusive representative of its employees was legally privileged because the Union had not been properly certified by the Board as their exclusive bargaining agent, and that the work stoppage which the employees precipitated was not occasioned by any unfair labor practices in which Respondent had indulged. The facts in this litigation are not in dispute and I find them to be as follows. Pursuant to a Stipulation for Certification Upon Consent Election executed by the Respondent and the Union on November 28, 1967 in Case No. 12-RC-2958, which was approved by the Regional Director for Region 12 on December 4, 1967, an election by secret ballot was conducted among the employees in the unit heretofore found appropriate on December 28, 1967. The tally of ballots in that election shows that, of approximately 277 eligible voters, 126 cast ballots in favor of the Union, 104 cast their votes against that labor organization, 16 ballots were challenged, and 3 ballots were void. As the challenged ballots were insufficient in number to affect the results of the election, the Union was declared the victor However, on January 4, Respondent filed timely objections to the election with the Regional Director. In those objections, Respondent alleged that (1) the Regional Director aided and abetted the Union's election triumph by making available to it certain pamphlets bearing the inscription "Prepared for Office of the General Counsel National Labor Relations Board Washington, D.C." which the Union utilized in its election campaign and which tended to destroy the integrity of the secret ballot election because its distribution purported to represent an endorsement of the Union by the Board; (2) during the critical period preceding the election, the Union distributed a handbill to the employees which implied that unless the Union won the election Respondent would close the plant, and which carried the inference that unless the Union was successful the employees would be punished for engaging in concerted activity, (3) shortly before the balloting, the Union engaged in unlawful preelection conduct by intimi- dating, threatening and coercing eligible voters to cast their ballots for the Union, (4) during the immediate period preceding the election, the Union engaged in illegal preelection conduct by circulating a handbill containing the names of 35 eligible voters who purportedly had previously endorsed the ' The complaint and amendment to the complaint , which issued on 2 Unless otherwise indicated, all dates herein fall in 1968 May 16, 1968 , and July 3, 1968 , respectively , are based upon a charge 3 I find that this unit for which the Union was certified constitutes filed onl April 18 , 1968 , and served on April 19, 1968 , and an an appropriate unit of employees for the purpose of collective amended charge which was filed on May 3, 1968 , and served on May 7 , bargaining as defined in Section 9(a) of the Act 1968. DINO BOUTIQUES, INC. 1157 Union or the contents of the handbill, although some of these employees named in the document had never authorized, agreed to, nor consented to the use of their names in connection with the Union's campaign literature, and that the Respondent did not have adequate time to bring this material misrepresentation to the attention of all employees before the election; and (5) by these acts, the Union deprived the employees of their right to make a free choice in the election. On January 5, the Respondent submitted to the Regional Director copies of the pamphlet and handbills to which it adverted in its objection. In accordance with the Board's Rules and Regulations and the terms of the Stipulation for Certification Upon Consent Election which the parties had executed, the Regional Director conducted an investigation of the objections during which all parties were afforded full opportunity to submit and present evidence on the issues. In his Report on Objections which he filed on February 6, the Regional Director, after a consid- eration of all the evidence presented, concluded that Respond- ent's objections to the election did not raise material and substantial issues affecting the election results, found the objections lacking in ment, overruled them in their entirety, and recommended to the Board that the Union be certified as the exclusive representative of the employees within the appropriate bargaining unit. Thereafter, on February 14, Respondent filed exceptions to the Regional Director's Report on Objections with the Board. In those exceptions, Respondent again urged its previous objections On March 20, after considering the Regional Director's Report, and the Respondent's exceptions thereto and supporting brief, the Board overruled the objections to the election, concluding that the exceptions raised no material or substantial issue of fact or law warranting reversal of the Regional Director's findings and recommendations. Accordingly, the Board certified the Union as the majority designee of Respondent's employees in the appropriate unit on that date. Meanwhile, on March 6, Joseph A. Perkins, Esq., Respond- ent's co-counsel, dispatched a letter to Herbert L. Kaplan, Esq., the Union's counsel, advising that Respondent had been experiencing management and supervisory problems which made the continued operation of the affiliate, Pantops, Inc., economically unfeasible. Attorney Perkins further recited that Respondent was seriously considering the cessation of the Pantops operation and subcontracting the work. Inasmuch as such a decision might affect the terms and conditions of employment of approximately 40 to 50 employees, Attorney Perkins suggested that both counsel meet to discuss the matter. By letter dated March 8, Attorney Kaplan set forth five dates which were agreeable to him for the meeting. On March 12, representatives of the Union and the Respondent convened and discussed the cessation of the Pantops operation. On March 15, Kaplan requested additional information concerning various matters dealing with that operation which was furnished by Perkins under letter dated April 2 On March 22, after receiving the Board's certificate, Kaplan wrote to Respondent setting forth the intelligence that the Union was in receipt of the certification and demanding that arrangements be made for negotiations regarding a labor agreement covering its employees. On March 25, Joseph A. Caldwell, Respondent's co-counsel, replied that Respondent's president was in Europe and was not scheduled to return until a few days later. Caldwell advised that he would contact Kaplan when the former's client arrived home and would then schedule a bargaining session. Not hearing further from Caldwell, Kaplan sent a telegram to Attorney Perkins demanding that the parties meet within 48 hours for the purposes of negotiating a contract, in consequence of which the parties held two meetings, on April 17 and again on May 2. It was stipulated at the hearing that these sessions were initiated by the Respondent for the sole purpose of attempting to obtain the Union's assistance in finding employment for the employees of Pantops, Inc. upon the elimination of that operation, and I so find It was further stipulated and I find that, at these meetings, Respondent steadfastly refused to recognize the Union for any_ other purpose or bargain with it over wages, hours, and other terms and conditions of employ- ment for the employees in the unit because it sought a judicial test of the validity of the Board's certification of the Union.4 On the evening of May 2, following the last joint con- frontation between the parties, the Union conducted a meeting among the employees in the unit. Juan Lozano, the Union's business agent, testified without contradiction and I find that the purpose of the meeting was to apprise the employees of what had transpired at the earlier session that day between officials of the Respondent and the Union. Lozano explained to the assemblage that these officials had discussed the closing of Pantops, Inc., and that Attorney Kaplan, or a Union representative had stated to Respondent's officers "now that we had certification from the Board, why we don't sit down and negotiate an agreement for the whole people of [Respondent]," to which Attorney Perkins replied, "I no hurry and listen, I want to tell you something. I still no recognize you as the bargaining agent for the employees of [Respondent] and I still protesting that election. I am only here because about Pantops department." Thereafter, em- ployee Margarito Fuentes moved that a strike vote be taken "because [Respondent] refused to bargain with the Union," which motion was seconded and unanimously carried. The following morning, May 3, pickets stationed themselves outside the main affiliate plant of Respondent. So far as appears on this record, this strike is still in progress. Concluding the chronology, on June 27, Respondent's Attorney Caldwell wrote Union Attorney Kaplan that "confirming my conversation with you on or about June 13, 1968, and again on June 25, 1968, please be advised that the above named Employer has plans to put into effect certain provisions with reference to permitting the vacation time and/or pay for its employees employed by the Company. This vacation schedule is tentatively set to be effective for the week of July 1, 1968. In the event that I do not hear from you with reference to the above previous discussions, I would proceed on the assumption that your organization has no objection to the implementation of this plan." It was stipulated and I find that the Union failed to respond to this letter.' In defense of this action, Respondent argues that it could legally refuse to recognize and bargain with the Union because the Board's grant of a certificate of majority representational status to the Union was invalid. In support of this assertion, Respondent has, in its responsive pleadings to the amended 4 The General Counsel does not urge that the proposed elimination 5 The General Counsel does not contend that the implementation of of Pantops' operations was violative of the Statute. the plan offended any provision of the Act. 1158 DECISIONS OF NATIONAL complaint, advanced the sames bases of infirmity on which it relied in attacking the propriety of the Regional Director's Report on Objections and the Board's decision certifying the Union in the representation proceeding. No newly discovered evidence was proffered in this hearing, and no claim is made that previously unavailable evidence is now in hand which would warrant reconsideration of the Board's previous determination. It is settled law that the Trial Examiner is bound by the Board's determination in an antecedent representation case, the nonconformity with which forms the basis for a refusal to bargain charge under Section 8(a)(5) of the Act, and that issues which were or could have been litigated in the representation proceeding may not, barring special circum- stances not here shown, be rehtigated in the subsequent unfair labor practice case.6 Accordingly, I deem myself bound by the Board's certification order of March 20, in the absence of any assertion that material, newly discovered evidence is available which would warrant upsetting that order, and I conclude that no triable issue exists. As Respondent concededly is refusing to bargain with the Union which the Board has certified, I conclude that Respondent has thereby violated Section 8(a)(5) of the Act and that a bargaining order should run against it. I also find, based on Lozano's undenied testimony, that the employees in the unit voted on May 2 to engage in a strike on the following day because of Respondent's refusal to bargain with the Union. I therefore conclude that the striking employees were unfair labor practice strikers who are entitled, upon their unconditional offer to return to work, to their same or substantially equivalent employment with Respondent, displacing, if necessary, any replacements lured during the strike. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent set forth in section I, above, have a close, intimate and substantial relation to trade, traffic and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. I have found that Respondent, by refusing, upon request, to recognize and bargain with the Union as the exclusive representative in an appropriate unit of Respondent's em- ployees, violated Section 8(a)(5) of the Act. I shall therefore recommend that Respondent, upon request, bargain with the Union concerning wages, hours, and other terms and con- ditions of employment for the employees in the unit here- tofore found appropriate, and, if an understanding is reached, embody such understanding in a signed agreement. I have also found that the strike, which began on May 3, LABOR RELATIONS BOARD was caused and prolonged by Respondent's commission of unfair labor practices and was, therefore, an unfair labor practice strike. I shall accordingly recommend that, upon their unconditional offer to abandon the strike and return to work, Respondent shall reinstate all strikers to their former or substantially equivalent employment, dismissing, if necessary, any replacements hired since the date of commencement of the strike. Inasmuch as it appears that many of Respondent's employees speak and read only Spanish, I shall recommend that the notice required to be posted by Respondent pursuant to the Recommended Order herein shall be printed in both English and Spanish Upon the basis of the foregoing findings of fact and conclusions, and the entire record in this proceeding, I make the following. CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production, maintenance, shipping and receiving employees employed by Respondent at its plants located at 4000 N.W 36th Avenue, Miami, Florida, 4001 N.W. 37th Avenue, Miami, Florida, and 815 W 18th Street, Hialeah, Florida, excluding all office clerical employees, guards, profes- sional employees, 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 At all times material herein, the Union has been the exclusive bargaining representative of the employees in the aforesaid unit within the meaning of Section 9(a) of the Act. 5. By refusing to bargain with the Union, upon request, concerning the wages, hours, and other terms and conditions of employment for employees in the aforementioned bargaining unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6 The work stoppage which began on May 3, 1968, was caused and prolonged by Respondent's unfair labor practices and was, therefore, an unfair labor practice strike. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that Respondent, Dino Boutiques, Inc, M.J.A. Processing Corp., Pantwood, Inc., and Pantops, Inc., located at 4000 N.W. 36th Avenue, Miami, Dade County, Florida; and 4001 N.W. 37th Avenue, Miami, Dade County, Florida, and E.M.M. Manufacturing, Inc., located at 815 W. 18th Street, Hialeah, Dade County, Florida, its officers, agents, successors, and assigns, shall: 6 See Pittsburgh Plate Glass Company v. N.L.R.B, 313 U.S. 146, 158, 161 -162, Thermo-Rite Manufacturing Company, 157 NLRB 310, 331. DINO BOUTIQUES, INC. 1 Cease and desist from: (a) Refusing to bargain collectively with International Ladies' Garment Workers' Union AFL-CIO, Local No 415, upon request, as the exclusive bargaining representative of a unit composed of all production, maintenance, shipping and receiving employees employed by Respondent, excluding all office clerical employees, guards, professional employees, and supervisors as defined in the Act. (b) In any manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the Union or any other labor organization, to bargain collectively through representatives of their own choosing for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities 2 Take the following affirmative action which I find is necessary to effectuate the policies of the Act. (a) Upon request, bargain collectively with International Ladies' Garment Workers' Union, AFL-CIO, Local No. 415, as the exclusive representative of the employees in the appropriate unit described above, with respect to rate of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Upon the abandonment of their unfair labor practice .strike and their unconditional offer to return to work, reinstate all strikers to their former or substantially equivalent employment dismissing, if necessary, any replacements hired since the commencement of the work stoppage. (c) Post at its plants in Miami and Hialeah, Florida, copies of the notice attached hereto and marked "Appendix "7 Copies of said notice, on forms to be provided by the Regional Director of Region 12, shall, after being duly signed by a repiesentative of Respondent, be posted by Respondent in both English and Spanish immediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply therewith.8 7 In the event that this Recommended Order be adopted by the Board , the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice in the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order " shall be substituted for the words " a Decision and Order." 8 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 1159 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that WE WILL NOT, upon request, refuse to bargain collec- tively with International Ladies' Garment Workers' Union, AFL-CIO, Local No 415, as the exclusive representative of all of our employees in the appropriate unit at the plants. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, or to join or assist International Ladles' Garment Workers' Union, AFL-CIO, Local No. 415, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities WE WILL upon their abandonment of the strike and their unconditional offer to return to work, reinstate all strikers to their former or substantially equivalent employ- ment, dismissing, if necessary, any replacements hired since the strike started All of our employees are free to become or refrain from becoming members of the International Ladies' Garment Workers' Union, AFL-CIO, Local No. 415, or any other labor organization DINO BOUTIQUES, INC AND ITS AFFILIATED AND SUBSIDIARY COMPANIES, M. J. A. PROCESSING CORP, PANTWOOD, INC., PANTOPS, INC, AND E.M.M. MANUFACTURING INC (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced , or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions , they may communicate directly with the Board's Regional Office , Room 706 , Federal Office Bldg., 500 Zack Street, Tampa, Florida 33602, Telephone 228-7711. Copy with citationCopy as parenthetical citation