Farah Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

May 14, 1973

203 N.L.R.B. 543 (N.L.R.B. 1973)

FARAH MFG. CO.
Farah Manufacturing Company , Inc. and El Paso Joint
Board Amalgamated Clothing Workers of America,
and Amalgamated Clothing Workers of America,
AFL-CIO. Case 28-CA-2735
May 14, 1973
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
Upon a charge filed on October 10, 1972, by El
Paso Joint Board, Amalgamated Clothing Workers of
America, and Amalgamated Clothing Workers of
America, AFL-CIO, herein called the Union, and
duly served on Farah Manufacturing Company, Inc.,
herein called the Respondent, the General Counsel of
the National Labor Relations Board, by the Acting
Regional Director for Region 28, issued a complaint
on October 24, 1972, and the Regional Director issued
an amended complaint on November 27, 1972,
against Respondent , alleging that Respondent 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 Nation-
al Labor Relations Act, as amended. Copies of the
charge, complaints, and notice of hearing before an
Administrative Law Judge were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the
amended complaint alleges in substance that on Sep-
tember 15, 1972, following a Board election in Case
28-RC-2054, the Union was duly certified as the ex-
clusive collective-bargaining representative of
Respondent's employees in the unit found appropri-
ate;' and that, commencing on or about September
20, 1972, and at all times thereafter, and particularly
on or about September 28 and October 9, 1972, Re-
spondent has refused, and continues to date to refuse,
to bargain collectively with the Union as the exclusive
bargaining representative, although the Union has re-
quested and is requesting it to do so. On November
29, 1972, Respondent filed its answer to the amended
complaint admitting in part, and denying in part, the
allegations in the complaint.
On December 11, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and subsequently the Union filed
Motion for Summary Judgment and Issuance of
'Official notice is taken of the record in the representation proceeding,
Case 28-RC-2054 as the term "record" is defined in Secs . 102.68 and 102
.69(f) of the Board 's Rules and Regulations , Series 8 , as amended . See LTV
Electrosystems, Inc., 166 NLRB 938, enfd . 388 F .2d 683 (C.A. 4, 1968);
Golden Age Beverage Co., 167 NLRB 151; Intertype Company v. John Penello,
Reg. Dir., 269 F . Supp . 573 (D.C.Va., 1967); Follett Corporation , 164 NLRB
378, enfd . 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
543
Board Decision and Order. Subsequently, on Decem-
ber 26, 1972, the Board issued an order transferring
the proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Summa-
ry Judgment should not be granted. Respondent
thereafter filed a response to Notice To Show Cause,
entitled Opposition to Order To Show Cause on Gen-
eral Counsel's 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 amended complaint and in its
response to the Notice To Show Cause in which it
opposed the General Counsel's and Union's Motions
for Summary Judgment, the Respondent, in sub-
stance, argues that under due process of law, it is
entitled to a hearing on the appropriateness of the unit
as well as on the issues raised by the challenged ballots
and by the 14 of its 20 timely filed objections. On the
other hand, the General Counsel and Union contend
that the questions of unit, challenged ballots, and ob-
jections were earlier raised and determined by the
Board in the underlying representation Case 28-
RC-2054, and, absent newly discovered or previously
unavailable evidence, they may not be relitigated
herein. We agree.
The record herein reflects that following the hear-
ing in Case 28-RC-2054 in which all parties partici-
pated, the Board, on September 22, 1970, issued its
Decision and Direction of Election (185 NLRB 699),
directing an election among the Respondent's em-
ployees in the appropriate unit described in the com-
plaint herein-' On October 2, 1970, the Respondent
filed a Motion to Stay Decision and Direction of Elec-
tion on the grounds that there was no testimony at the
hearing about the composition of the unit and that the
Board's unit determination was based upon the April
15, 1970, hearing in another representation proceed-
ing in Case 28-RC-2023, the record of which was
stipulated as part of the record in Case 28-RC-2054.
By telegram of October 9, 1970, the Board denied the
motion as the arguments presented in support thereof
did not warrant the relief sought. The tally of ballots
2 The Respondent's request for oral argument is denied . The Motions for
Summary Judgment and the Respondent's response in Opposition thereto
adequately present the positions of the parties
3 By Order Correcting Second Supplemental Decision and Certification of
Representative dated November 15, 1972, the Board corrected the descrip-
tion of the appropriate unit to reflect the unit as earlier clarified by it in par.
4 of the July 30, 1971, Supplemental Decision and Order Directing Hearing.
See fn 5 , infra.
203 NLRB No. 78
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
served on the parties after the election on October 14,
1970, shows that of approximately 331 eligible voters,
109 cast votes for, and 73 against the Union and that
there were 258 challenged ballots and one void ballot.
Timely objections to conduct affecting the results of
the election were filed by both the Respondent and
the Union.
After investigation of the challenged ballots and
objections and after consideration of the evidence
submitted by the parties, the Regional Director is-
sued, on March 3 , 1971, his report and recommenda-
tions in which he recommended that 29 challenges be
overruled, 225 be sustained, and.4 remained unre-
solved , that 14 of the Respondent 's objections dealing
generally with the Board 's alleged careless and ineffi-
cient manner of conducting the election, particularly
with respect to the challenges , be overruled, that a
hearing be held upon 6 of the Respondent's 20 objec-
tions depending on whether or not the Union received
a majority vote, and finally, that a hearing be held on
the Union's objections, only if it became necessary.
Thereafter, the Respondent timely filed partial excep-
tions to the Regional Director's report seeking to have
the Board open and count the ballots of all cutters and
markers in the appropriate unit, or in the alternative,
to enlarge the unit and/or to conduct an immediate
rerun election and urging that the Board reconsider
the objections to the election.
On July 30, 1971, the Board issued its Supplemental
Decision and Order Directing Hearing finding that
the Respondent 's exceptions raised no material or
substantial issues of fact or law which warrant rever-
sal of the Regional Director 's findings and recom-
mendations and that it was unnecessary to provide for
a hearing on the challenged ballots since , after adopt-
ing the Regional Director 's recommendations on such
ballots, the remaining challenged ballots to be count-
ed were not sufficient in number to affect the results
of the election. Since the Union received a majority of
the valid votes cast, the Board, in accord with the
Regional Director's recommendations overruling 14
of the Respondent's 20 objections, directed a hearing
only on the Respondent 's 6 remaining objections .4 In
addition, it clarified the appropriate unit's description
to reflect the stipulation of the parties to include in-
spectors (quality control) for markers, spreaders, and
cutters.
After a hearing on the six objections, the Hearing
Officer, on May 19, 1972 , issued his Report on Objec-
4 The Respondent's six objections alleged, in substance , that a union ob-
server openly solicited voters waning in line, that employees who had already
voted shouted union slogans and obscenities at waiting voters, that an em-
ployee, within hearing of a Board agent , "gestered with his fist and stated,
'you know what to vote-we have got it now,' " and that various union agents
and supporters threatened , coerced , and/or interfered with employees' Sec-
tion 7 rights
tions in which he recommended that the six objections
be overruled in their entirety and the Union be certi-
fied. Thereafter, the Respondent filed timely excep-
tions to the Hearing Officer's report. On September
15, 1972, the Board issued its Second Supplemental
Decision and Certification of Representative adopt-
ing the Hearing Officer's findings and recommenda-
tions and certifying the Union as exclusive
representative of all employees in the appropriate
unit.'
Thus, the Respondent's answer to the complaint as
well as its responses to Notice To Show Cause, which
argue that the Respondent is entitled to a hearing on
the issues of unit, challenged ballots, and objections,
merely reiterate the issues previously raised and con-
sidered in the representation case. Moreover, it is well
established that parties do not have an absolute right
to a hearing on objections to an election. It is only
when the moving party presents a prima facie showing
of "substantial and material issues" which would war-
rant setting aside the election that he is entitled to an
evidentiary hearing. 6 It is clear that, absent arbitrary
action, this qualified right to a hearing satisfies all
statutory and constitutional requirements'
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances a respondent in a proceeding alleging 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.'
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discovered
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 the Respondent has not raised any issue
which is properly litigable in this unfair labor practice
proceeding.' We shall, accordingly, grant the General
3 On November 15, 1972, the Board issued an Order Correcting Second
Supplemental Decision and Certification of Representative to correct the
description of the appropriate unit to read as set forth in par 4 of its July
30, 1971, Supplemental Decision and Order Directing Hearing.
6Allied Foods, Inc, 189 NLRB 513, and cases cited in In 6
7 Amalgamated Clothing Workers of America [Winfield Manufacturing
Company, Inc] v N L.R.B, 424 F 2d 818 , 828 (C A.D.C, 1970).
9 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).
9 The Respondent 's answer denies the request and refusal to bargain:
attached to the General Counsel's Motion for Summary Judgment as Exhs.
A and B are a letter from the Union dated September 20, 1972, requesting
"a meeting as soon as possible to negotiate a collective bargaining agreement
between us" and a letter from Respondent's Counsel dated October 9, 1972,
denying the request . In its response to the Notice To Show Cause the Respon-
dent neither alludes to nor controverts these letters. Thus, the truth of the
factual allegations of the complaint concerning the request and refusal to
bargain on or about October 9, 1972, stands admitted by the uncontroverted
factual averments in the General Counsel's motion Schwartz Brothers, Inc,
FARAH MFG. CO.
Counsel's Motion for Summary Judgment.10
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Texas corporation with its prin-
cipal office and places of business at 8889 Gateway
West, El Paso, Texas, has been continuously engaged
in the business of manufacturing and distributing
men's dress and casual slacks and other men's cloth-
ing. The Respondent maintains three other plants in
El Paso, and other plants in San Antonio, and Victo-
ria, Texas, and in Las Cruces and Albuquerque, New
Mexico.
During the last calendar year, the Respondent in
the course and conduct of its business operations sold
and shipped goods and materials valued in excess of
$50,000 from its El Paso plants and places of business
directly to customers outside the State of Texas and
purchased, transferred, and had delivered to its El
Paso plant and places of business, goods and materi-
als valued in excess of $50,000 which were transported
directly from States other than the State of Texas.
We find, on the basis of the foregoing, that Respon-
dent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
El Paso Joint Board, Amalgamated Clothing Work-
ers of America, and Amalgamated Clothing Workers
of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
III. UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective -bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All markers , spreaders, cutters and inspectors
and District Records, Inc., 194 NLRB 150.
10 The Union 's request for a "make whole" remedy is denied for the rea-
sons set forth in Ex-Cell-O Corporation, 185 NLRB 107; Thiem Industries,
Inc., 199 NLRB No. 138 ; see also John Singer, Inc., 197 NLRB 88. In view
of our ruling herein , we do not pass on the Union 's Motion for Summary
Judgment.
545
(quality control) for markers, spreaders and cut-
ters and all employees performing spreading and
cutting functions in the sample room, all em-
ployed in the Respondent's cutting operations
located within Phase III of the Gateway Main
Building at 8889 Gateway Blvd. West, El Paso,
Texas, excluding all other employees, guards,
watchmen and supervisors as defined in the Act.
2. The certification
On October 14, 1970, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 28, designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on September 15, 1972, 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 September 20, 1972, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about October 9, 1972, and continuing at all
times thereafter to date, the Respondent has refused,
and continues to refuse, to recognize and bargain with
the Union as the exclusive representative for collec-
tive bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since October 9, 1972, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor practic-
es 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 operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
546 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 mean-
ing of Section 8(aX5) 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 appro-
priate unit will be accorded the services of their select-
ed bargaining agent for the period provided by law,
we shall construe the initial period of certification as
beginning on the date Respondent commences to bar-
gain in good faith with the Union as the recognized
bargaining representative in the appropriate unit. See
Mar Jac Poultry Company, Inc., 136 NLRB 785; Com-
merce Company d/b/a Lamar Hotel, 140 NLRB 226,
229, enfd. 328 F.2d 600 (C.A. 5, 1964), cert . denied 379
U.S. 817; Burnett Construction Company, 149 NLRB
1419, 1421, 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. Farah Manufacturing Company, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. El Paso Joint Board , Amalgamated Clothing
Workers of America, and Amalgamated Clothing
Workers of America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All markers, spreaders , cutters and inspectors
(quality control) for markers , spreaders and cutters
and all employees performing spreading and cutting
functions in the sample room , all employed in the
cutting operations located within Phase III of the
Gateway Main Building at 8889 Gateway Blvd. West,
El Paso, Texas, excluding all other employees, guards,
watchmen and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the
Act.
4. Since September 15, 1972, the above-named la-
bor organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9 (a) of the
Act.
5. By refusing on or about October 9, 1972, 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 Respon-
dent in the appropriate unit, Respondent has engaged
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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Farah
Manufacturing Company, Inc., El Paso, Texas, 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 condi-
tions of employment with El Paso Joint Board, Amal-
gamated Clothing Workers of America, and
Amalgamated Clothing Workers of America, AFL-
CIO, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All markers , spreaders , cutters and inspectors
(quality control) for markers, spreaders and cut-
ters and all employees performing spreading and
cutting functions in the sample room, all em-
ployed in the cutting operations located within
Phase III of the Gateway Main Building at 8889
Gateway Blvd. West, El Paso, Texas, excluding
all other employees, guards, watchmen and su-
pervisors 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 El Paso, Texas, Gateway plant copies
of the attached notice marked "Appendix." "Copies
11 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
FARAH MFG. CO.
of said notice, on forms provided by the Regional
Director for Region 28, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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 posted. Reasonable
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 28, 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 con-
cerning rates of pay, wages, hours, and other
terms and conditions of employment with El
Paso Joint Board, Amalgamated Clothing Work-
ers of America, and Amalgamated Clothing
Workers of America, AFL-CIO, as the exclusive
representative of the employees in the bargaining
unit described below.
WE WILL NOT in any like or related manner in-
terfere 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 representative of
all employees in the bargaining unit described
547
below, with respect to rates of pay, wages, 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 markers, spreaders, cutters and inspectors
(quality control) for markers, spreaders and
cutters and all employees performing spread-
ing and cutting functions in the sample room,
all employed in the cutting operations located
within Phase III of the Gateway Main Build-
ing at 8889 Gateway Blvd. West, El Paso, Tex-
as, excluding all other employees, guards,
watchmen and supervisors as defined in the
Act.
Dated By
FARAH MANUFACTURING
COMPANY, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 7011 Federal Building, U.S. Court-
house, P.O. Box 2146, 500 Gold Avenue SW., Albu-
querque, New Mexico 87101, Telephone
505-843-2508.
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."