Fred Whitaker Co.

National Labor Relations Board - Board Decisions

Jan 10, 1980

247 N.L.R.B. 216 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fred Whitaker Company and Amalgamated Clothing
& Textile Workers Union, AFL-CIO. Case 5-CA-
11285
January 10, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
Upon a charge filed on August 7, 1979, by
Amalgamated Clothing & Textile Workers Union,
AFL-CIO, herein called the Union, and duly served
on Fred Whitaker Company, herein called Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
5, issued a complaint and notice of hearing on
September 6, 1979, 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 National Labor Relations Act, as
amended. Copies of the charge, complaint, 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
complaint alleges in substance that on July 9, 1979,
following a Board election in Case 5-RC-10779, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about July 17, 1979, and at all times thereafter,
Respondent has refused, and continues to date to
refuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
September 14, 1979, Respondent filed its answer, and
on September 24, 1979, an amended answer, to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On September 28, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Thereafter, on October 4, 1979,
the Charging Party filed an identical Motion for
Summary Judgment. Subsequently, on October 9,
1979, the Board issued an order transferring the
proceeding to the Board and a Notice To Show Cause
why the General Counsel's and the Charging Party's
Motions for Summary Judgment should not be grant-
' Official notice is taken of the record in the representation proceeding, Case
5-RC-10779, 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 L TV
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
247 NLRB No. 31
ed. Respondent thereafter filed a response to the
Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 amended answer to the complaint, Respon-
dent contends (1) that the National Labor Relations
Board set the election on a date which deprived
Respondent of a reasonable opportunity to communi-
cate with its employees; and (2) that the Union made
substantial misrepresentations relating to, inter alia,
the Board's role and function in the election process,
plant closure, bargaining, and reduction of wages and
other benefits for engagiag in union activities. Counsel
for the General Counsel argues that all material issues
have been previously decided and there are no litigable
issues of fact requiring a hearing. We agree with
counsel for the General Counsel.
Review of the entire record herein, including that in
Case 5-RC-10779, establishes that, pursuant to a
Decision and Direction of Election by the Regional
Director, an election was held May 30, 1979, in which
the vote was 199 for and 145 against the Petitioner,
with 7 challenged ballots. Respondent filed timely
objections to conduct affecting the results of the
election, alleging the same conduct as objectionable as
noted above.
On July 9, 1979, the Regional Director issued his
Supplemental Decision and Certification of Represen-
tative overruling the objections and certifying the
Union as the exclusive representative. Respondent did
not file a request for review with the Board.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances 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.2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and 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
(5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va. 1967);
Follerr Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
'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).
216
FRED WHITAKER COMPANY
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
Respondent is a Pennsylvania corporation with its
principal offices located in Philadelphia, Pennsylvania.
It is engaged in the dyeing and processing of textile
yarns at its Roanoke, Virginia, plant. During the past
12 months, Respondent purchased and received mate-
rials and supplied valued in excess of $50,000 from
points outside the Commonwealth of Virginia.
We find, on the basis of the foregoing, that
Respondent 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
Amalgamated Clothing & Textile Workers Union,
AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
IIl. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute a
unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time production
and maintenance employees employed in the
Sample, Dyeing, Finishing, Spinning, Twisting,
Knitting, Winding, Shipping, Production Sched-
uling, Maintenance, Lab and Warehouse Depart-
ments, including leadmen, color computer opera-
tors, supply room employees, watchmen, produc-
tion clerk, quality control technician, receiving
clerk and drug room employees employed by the
Employer at its Roanoke, Virginia, location,
excluding all office clerical employees, profession-
al employees, guards and supervisors as defined
in the Act.
2. The certification
On May 30, 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 5, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on July 9, 1979, 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 July 17, 1979, and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
July 17, 1979, and continuing at all times thereafter to
date, Respondent has refused, and continues to refuse,
to recognize and bargain with the Union as the
exclusive representative for collective bargaining of all
employees in said unit.
Accordingly, we find that Respondent has, since
July 17, 1979, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has
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 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
commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce
and the free flow of commerce.
v. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
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 appro-
priate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recognized
bargaining representative in the appropriate 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. Fred Whitaker Company is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Amalgamated Clothing & Textile Workers
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time production
and maintenance employees employed in the Sample,
Dyeing, Finishing, Spinning, Twisting, Knitting,
Winding, Shipping, Production Scheduling, Mainte-
nance, Lab and Warehouse Departments, including
leadmen, color computer operators, supply room
employees, watchmen, production clerk, quality con-
trol technician, receiving clerk and drug room employ-
ees employed by the Employer at its Roanoke,
Virginia, location, excluding all office clerical employ-
ees, professional employees, guards and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since July 9, 1979, the above-named labor
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 July 17, 1979, 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 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
' 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
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in
Section 7 of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(l) 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
Relations Board hereby orders that the Respondent,
Fred Whitaker Company, Roanoke, Virginia, 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 Amalgamted Clothing & Textile
Workers Union, AFL-CIO, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All full-time and regular part-time production
and maintenance employees employed in the
Sample, Dyeing, Finishing, Spinning, Twisting,
Knitting, Winding, Shipping, Production Sched-
uling, Maintenance, Lab and Warehouse Depart-
ments, including leadmen, color computer opera-
tors, supply room employees, watchmen, produc-
tion clerk, quality control technician, receiving
clerk and drug room employees employed by the
Employer at its Roanoke, Virginia, location,
excluding all office clerical employees, profession-
al employees, guards and supervisors as defined
in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an understand-
ing is reached, embody such understanding in a signed
agreement.
(b) Post at Respondent's Roanoke, Virginia, plant
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the
Regional Director for Region 5, after being duly
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
218
FRED WHITAKER COMPANY
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 posted. Reason-
able steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Amal-
gamated Clothing & Textile Workers Union,
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit
described 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 agree-
rrent. The bargaining unit is:
All full-time and regular part-time production
and maintenance employees employed in the
Sample, Dyeing, Finishing, Spinning, Twisting,
Knitting, Winding, Shipping, Production
Scheduling, Maintenance, Lab and Warehouse
Departments, including leadmen, color com-
puter operators, supply room employees,
watchmen, production clerk, quality control
technician, receiving clerk and drug room
employees employed by the Employer at its
Roanoke, Virginia, location, excluding all of-
fice clerical employees, professional employees,
guards and supervisors as defined in the Act.
FRED WHITAKER COMPANY
219