Earle Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 11, 1980

252 N.L.R.B. 126 (N.L.R.B. 1980)

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