Formfit/Rogers Co.

National Labor Relations Board - Board Decisions

Apr 17, 1967

164 N.L.R.B. 1 (N.L.R.B. 1967)

Formfit/Rogers Company and Local 76,
International Ladies' Garment Workers'
Union , AFL-CIO. Case 13-CA-7512.
April 17,1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On November 9, 1966, Trial Examiner George J.
Bott issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting 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 the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Formfit/Rogers
Company, Chicago, Illinois, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THE REPRESENTATION PROCEEDING
GEORGE J. BOTT, Trial Examiner: On December 23,
1965, the Regional Director for Region 13 issued a
Decision and Direction of Election in which he found that
the following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act: i
All cutting department employees at Employer's Plaza
plant located on Roosevelt Road, Chicago, Illinois,
including cutters, markers, examiners, tie-up and lay-up
employees, spreaders and utility employees, excluding
office clerical employees, professional employees, guards,
supervisors as defined in the Act, and all other employees.
' The petition in Case 13-RC-10731 was filed on October 31,
1965, and the hearing on it was held on November 9 and 10, 1965
Pursuant to Section 102.67 of the Board's Rules and
Regulations, Series 8, as amended, Formfit/Rogers
Company, herein called the Employer or Respondent, filed
with the Board a request for review of the Regional
Director's Decision and Direction of Election. On
February 4, 1966, the Board denied Respondent's request
for review, stating that "it raises no substantial issues
warranting review."
The Regional Director conducted a secret-ballot
election on February 8, 1966, in the unit which he had
found appropriate, but the election was inconclusive
because there were a sufficient number of challenged
ballots to affect the results. In addition, on February 15,
1966, the Employer filed timely objections to the conduct
of the election.
Acting pursuant to Section 102.69 of the Board Rules
and Regulations, the Regional Director conducted an
investigation of the objections and challenges and, on
March 31, 1966, he issued a Supplemental Decision on
Objections and Challenges and Certification of
Representative in which he overruled all of the Employer's
objections to the election, sustained certain challenges,
and overruled others, and certified that the Petitioner in
the case, Local 76, International Ladies' Garment
Workers' Union, AFL-CIO, herein called the Union, had
been designated as the statutory representative of the
employees in the unit found appropriate.
Again acting in accordance with the Board Rules and
Regulations, Respondent on May 2, 1966, filed with the
Board a request for review of Regional Director's
Supplemental Decision on Objections and Challenges and
Certification of Respresentative, which was denied by the
Board on June 6, 1966, on the ground that "it raises no
substantial issues warranting review."
On June 15, 1966, Respondent filed with the Board a
motion for reconsideration of the Board's denial of its
request for review, and on July 14, 1966, the Board
ordered that "the Employer's Motion for Reconsideration
of Board's order denying its request for review be, and, it
hereby is, denied as it contains nothing not previously
considered."
THE COMPLAINT CASE
Upon a charge of unfair labor practices filed by the
Union on July 1, 1966, the General Counsel of the National
Labor Relations Board issued a complaint and notice of
hearing dated August 1, 1966, alleging violations of
Section 8(a)(1) and (5) of the National Labor Relations Act,
hereinafter called the Act. Respondent filed an answer
admitting certain allegations of the complaint, but denying
the commission of any unfair labor practices, and, in
addition, affirmatively alleging that at no time has the
Union represented an uncoerced majority of Respondent's
employees and that the certification of representative
issued in Case 13-RC-10731 is invalid.
The hearing in this matter was held in Chicago, Illinois,
on September 13, 1966, before me, and all parties were
represented.
At the hearing, after the introduction of the pleadings
and after the General Counsel in an opening statement had
outlined the prior representation proceeding, as I have set
it out above, and contended that the matters litigated
therein could not be relitigated in the present unfair labor
practice proceeding unless the Respondent could show
164 NLRB No. 4 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it had newly discovered or previously unavailable
evidence, I ruled that I would not permit litigation of
issues which had been decided in the prior representation
case. General Counsel then introduced, by agreement of
the parties, the Union's letters requesting Respondent to
meet and bargain, and the Respondent's replies declining
the requests. General Counsel and the Union then rested.2
In the light of my ruling foreclosing the submission of
any but newly discovered or previously unavailable
evidence, counsel for Respondent made a lengthy and
detailed offer of proof of evidence which Respondent
would introduce if it were permitted to introduce evidence
in the unfair labor practice proceeding.3 I rejected
Respondent's offer of proof on the ground that there were
no issues of fact litigable before me, and Respondent then
rested.
Subsequent to the hearing, General Counsel and
Respondent filed briefs which I have considered. In its
brief, Respondent states that "it has consistently taken
issue with the actions of the Board (and particularly its
Regional Director as its agent pursuant to Section 3(b) of
the Act) in certifying the Union in the prior representation
case, not only as to the unit originally found appropriate,
but also as to the mechanics of the election, the handling
of the many challenged ballots and the amending of the
original unit after the election." Respondent also refers in
its brief to the fact that it has also in the representation
proceeding "taken issue with the actions of the Union
which were calculated to, and did interfere with the free
choice of the Respondent's employees, despite the
contrary conclusion of the Board (but) the Respondent's
efforts to rectify the many errors of the Board and the
Regional Director have met with no success to date."
Respondent's brief points to many alleged errors in the
prior representation case relating to the unit findings, the
Union's preelection campaign, the conduct of the election,
and postelection procedures. Respondent contends that I
was in error, in the circumstances of this case, in refusing
to permit litigation of issues which had been decided in the
representation case and rejecting evidence because it
related to matters previously passed upon by the Board,
and it argues that it should have been given a hearing
before me on many matters, particularly on the objections
and challenges, since it never had a hearing on those
subjects and they had raised "substantial and material
issues."
I have carefully considered Respondent' s arguments
and the record in this proceeding, including the pleadings,
Respondent's offer of proof, and the prior representation
proceeding, and it is my opinion that Respondent seeks to
relitigate in this unfair labor practice proceeding matters
which the Regional Director and the Board have decided
in the representation case. This it may not do before a
Trial Examiner, because in the absence of newly dis-
covered or previously unavailable evidence, issues which
were or could have been raised in a related representation
case may not be relitigated in a subsequent unfair labor
practice proceeding,' and this policy holds even though a
formal hearing on challenges or objections to an election
z Before the close of the hearing, pert inent documents in the
prior representation case, upon which my narration of the history
of that proceeding is based, were introduced into evidence
3 Counsel for Respondent conceded that only two relatively
minor items in its offer could be considered newly discovered or
previously unavailable
4 Pittsburgh Plate Glass Company v . N.L.R.B, 313 U.S. 146;
has not been provided, because one is only entitled to a
hearing if the challenges or objections raise material and
substantial issues of fact, a requirement which has been
held proper to prevent dilatory tactics by employers or
unions disappointed in the election returns.5
Counsel for Respondent frankly stated at the conclusion
of his offer of proof, made pursuant to my ruling that 1
would accept only newly discovered or previously
unavailable evidence, that it contained only two items
which could be considered as previously unavailable in
relation to the representation case. These items were the
profit structure of the Respondent at the conclusion of its
fiscal year ending July 31, 1966, and the stock market
value of the securities held as assets of the Formfit
Company Division's profit-sharing retirement fund. It
appeared, however, that even these two items related to an
objection to the election filed by the Employer based upon
the Union's assertion in a preelection leaflet that
employees had lost substantial sums of money because of
"cuts" effected by the Employer by discontinuing a profit-
sharing plan, among other things, and that the Regional
Director had investigated this objection and overruled it in
his Supplemental Decision from which Respondent
requested Board review. Study of the Director's
Supplemental Decision and the Respondent's request for
review show that the issue of whether or not there was a
profit-sharing plan, as such, and what losses employees
suffered, if it in fact had been eliminated, as the Union
charged, was litigated in the representation case. It also
appears that the Employer presented evidence to the
Director about its profit structure during the first 6 months
of its fiscal year ending July 31, 1966, and also argued the
relevance of the "appreciation or depreciation in the value
of the fund's securities" as bearing on its contention that
the Union's charge was false. It appeared to me at the
hearing, that if the two items mentioned were actually
newly discovered and previously unavailable within the
meaning of that rule, they were in any event merely
cumulative and would add nothing to the case, and I am
now of the same view.
A review of the representation case shows that
Respondent had a hearing on the basic unit issue, and it
also appears that the Regional Director investigated and
ruled upon all the objections and challenged ballots. As
permitted by the Board Rules and Regulations, he
conducted an administrative investigation, and implicit in
his Supplemental Decision on Objections and Challenges
and Certification of Representative in his determination
that there were no substantial and material issues of fact
which required a hearing.6 I am not prepared to say after
reviewing the documents in the representation case that
an administrative investigation rather than a full hearing
was not in order.
In any case, whether or not the Regional Director was
wrong in his findings and conclusions in regard to any or
all aspects of the case or in error in not holding a hearing
on objections or challenges, all of these matters, including
the question of a hearing rather than an administrative
investigation, have been considered by the Board and are
N L R.B v American Steel Buck Corp, 227 F.2d 927 (C A 2),
Producers, Inc., 133 NLRB 701, 704
5 N.L.R.B v Joclin Manufacturing Company, 314 F 2d 627, 630
(C.A. 2); N L R B. v. 0 K Van and Storage, Inc , 297 F 2d 74, 76
(C.A. 5), Sec 102.69 (c), Board Rules and Regulations , Series 8,
as amended.
6 Sec 102.69(c), Board Rules.
FORMFIT/ROGERS COMPANY
not open for determination by me. As set out in the outline
of the representation case above, Respondent requested
Board review of the Regional Director's original Decision
and Direction of Election, and the Board denied the
request. After the Regional Director's Supplemental
Decision on Objections and Challenges and Certification
of Representative issued, Respondent asked that his
actions be reviewed, and again the Board denied the
appeal. Subsequently, Respondent filed a motion for
reconsideration and this too was denied by the Board in an
order which stated that the motion contained nothing not
previously considered. Section 102.67(f) of the Board
Rules provide, in part, that "Denial of a request for review
shall constitute an affirmance of the regional director's
action which shall also preclude relitigating any such
issues in any related subsequent unfair labor practice
proceeding."7 A reading of Respondent's appeals and
motion to the Board shows that it explicitly or implicitly
raised before the Board every question it raised before the
Regional Director and sought to litigate before me. The
Board's disposition of the matter constitutes, at this stage
of the proceeding, the law of the case, and I am foreclosed,
in my opinion, by the previous action of the Board from
reviewing the Regional Director's determinations.8
It appears, therefore, that there are no factual issues
litigable before a Trial Examiner. Accordingly, on the
basis of the records made before me, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent maintains at Chicago, Illinois, its principal
office and place of business on South Peoria Street and a
plant known as the Plaza plant on West Roosevelt Road
where it is engaged in the business of manufacturing
ladies' foundation and related garments. During the year
prior to the issuance of the complaint, Respondent, in the
course and conduct of its business operations,
manufactured. sold, and distributed from said plant and
places of business products valued in excess of $100,000
directly to points outside the State of Illinois. Respondent
concedes, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act. ,
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
At all times material herein the following employees at
the Respondent's Plaza plant constitute a unit appropriate
for collective bargaining within the meaning of the Act:
All cutting department employees at the Employer's
Plaza plant located on Roosevelt Road, Chicago, Illinois,
3
including cutters, markers, examiners, tie-up and lay-up
employees, spreaders and utility employees, excluding
office clerical employees, professional employees, guards,
supervisors as defined in the Act, and all other employees.
2. The certification
On February 8, 1966, a majority of employees of
Respondent in said unit , in a secret election conducted
under the supervision of the Regional Director for Region
13, designated the Union as their representative for the
purposes of collective bargaining with Respondent, and on
March 31, 1966, the Regional Director certified the Union
as the collective-bargaining representative of the
employees in said unit and the Union continues to be such
representative.
B. The Request to Bargain and the Respondent's Refusal
Commencing on or about April 6, 1966, and continuing
to date and more particularly on April 6, June 13, and
July 15, 1966, the Union has requested and is requesting
Respondent to bargain collectively with it as the exclusive
collective-bargaining representative of all employees in
the above-described unit . Commencing on or about
April 11, 1966, and continuing to date, and more
particularly on April 11, and June 15, 1966, the
Respondent did refuse, and continues to refuse, to bargain
collectively with the Union as exclusive collective-
bargaining representative of all employees in said unit.
Accordingly, I find that the Union was duly certified by
the Regional Director as the collective-bargaining
representative of the employees of the Respondent in the
appropriate unit described above in the Regional
Director's certification, and that the Union , at all times
since March 31, 1966, has been and now is the exclusive
bargaining representative of all employees in the aforesaid
unit, within the meaning of Section 9(a) of the Act. I
further find that Respondent has, since April 11, 1966,
refused to bargain collectively with the Union as the
exclusive bargaining representative of its employees in the
appropriate unit , and that, by such refusal, the
Respondent has engaged 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 the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, 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 engaged in certain unfair
labor practices, I will recommend that it cease and desist
7 See Mountain States Telephone and Telegraph Company, 136
NLRB 1612; Carolina Natural Gas Corporation, 157 NLRB 674
8 Respondent cites Russell-Newman Manufacturing Co, Inc.,
158 NLRB 1260, as standing for the proposition that a Trial
Examiner retains the right to permit litigation of the issues raised
by Respondent in the earlier representation case I do not think
the case can be interpreted as standing for such a broad holding,
and it also appears that in that case the Board itself denied
General Counsel's appeal from the Trial Examiner' s ruling
denying General Counsel's motion for judgment on the pleadings.
Moreover, in L. L Glascock, Inc , 160 NLRB 922, the Board held
that the General Counsel's objection to the Examiner allowing the
litigation of representation case matters was "well founded," but
that the error was nonprejudicial
8 Counsel for Respondent's motion to correct record, which is
unopposed , is granted
298-668 0-69-2
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Upon the foregoing findings of fact, and upon the entire
record in the cases, I make the following:
CONCLUSIONS OF LAW
1. Respondent is 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 cutting department employees at Employer's
Plaza plant located on Roosevelt Road, Chicago, Illinois,
including cutter, markers, examiner, tie-up and lay-up
employees, spreaders and utility employees, excluding
office clerical employees, professional employees, guards,
supervisors as defined in the Act, and all other employees,
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times since March 31, 1966, Local 76,
International Ladies' Garment Workers' Union,
AFL-CIO, has been, and continues to be the exclusive
bargaining representative of all the employees in the unit
set forth above for the purpose of collective bargaining
within the meaning Section 9(a) of the Act.
5. By refusing, on and after April 11, 1966, to bargain
collectively with said Union as the exclusive bargaining
representative of all employees in the unit set forth
above, the Respondent, Formfit/Rogers Company, has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
6. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings and conclusions
and the record before me, I recommend that the Board
issue the following:
ORDER
Formfit/Rogers Company, their officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 76,
International Ladies' Garment Workers' Union,
AFL-CIO, as the exclusive collective-bargaining
representative of employees in the appropriate unit at
Respondent's Plaza plant located on Roosevelt Road,
Chicago, Illinois.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which 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 understanding in a signed agreement.
(b) Post at its Chicago, Illinois, Plaza plant, copies of
the attached notice marked "Appendix."10 Copies of said
10 In the event that this Recommended Order is 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 is 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 "
notice, to be furnished by the Regional Director for
Region 13, shall, after being duly signed by the Company's
representative, be posted by the Company 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
the Company to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify said Regional Director for Region 13, in
writing, within 20 days from the date of the receipt of this
Decision, what steps have been taken to comply
herewith.' 1
i i In the event that this Recommended Order is 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 Respondent has taken to comply herewith "
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, as amended , we hereby notify our
employees that: _
WE WILL NOT refuse to bargain collectively with
Local 76, International Ladies' Garment Workers'
Union , AFL-CIO, as the exclusive collective-
bargaining representative of all our employees in the
appropriate bargaining unit described below:
All cutting department employees at our Plaza plant
on Roosevelt Road, Chicago, Illinois, including
cutters, markers, examiners , tie-up and lay-up
employees , spreaders and utility employees,
excluding office clerical employees , professional
employees , guards, supervisors , as defined in the Act,
and all other employees.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce any of our
employees in the exercise of their rights guaranteed in
Section 7 of the National Labor Relations Act.
WE WILL bargain collectively with the said Union as
the exclusive collective -bargaining representative of
the appropriate unit and, if an understanding is
reached , embody such understanding in a signed
agreement.
FORMFIT/ROGERS
COMPANY
(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, 881 U.S.
Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago, Illinois 60604, Telephone
353-7597.