Jasta Mfg. Co., Inc.

National Labor Relations Board - Board Decisions

May 21, 1980

249 N.L.R.B. 681 (N.L.R.B. 1980)

681JASTA MANUFACTURING COMPANY. INC.
Jasta Manufacturing Company, Inc. and Interna-
tional Ladies' Garment Workers' Union, AFL-
CIO. Case 1-CA-8892
May 21, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on January 31, 1980, by In-
ternational Ladies' Garment Workers' Union,
AFL-CIO, herein called the Union, and duly
served on Jasta Manufacturing Company, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 11, issued a complaint
on February 25, 1980, 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 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 January 16,
1980, following a Board election in Case I -RC-
4392, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about January 28, 1980,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collec-
tively with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On March 3, 1980,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
Respondent admitted that it met the Board's ju-
risdictional standards and that the Union is a labor
organization within the meaning of the Act. It
denies that the Union was properly certified on
January 16, 1980, as the collective-bargaining rep-
resentative of the employees in the unit. It further
denies that the Union is the exclusive bargaining
representative of Respondent's employees in the
described unit; or that it engaged in, or is engaging
I Official notice is taken of the record in the representation proceed-
ing, Case I l-RC-4392, 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. 383 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); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F 2d 91
(7th Cir 1968); Sec. 9(d) of the NLRA, as amended.
249 NLRB No. 97
in, unfair labor practices affecting commerce
within the meaning of Section 8(a)(l) and (5) and
Section 2(6) and (7) of the Act.
On March 10, 1980, counsel for the General
Counsel filed directly with the Board a "Motion to
Strike Portions of Respondent's Answer to Com-
plaint and Motion for Summary Judgment." Subse-
quently, on March 18, 1980, the Board issued an
order transferring the proceeding to the Board and
a Notice To Show Cause why the General Coun-
sel's Motion for Summary Judgment should not be
granted. Respondent thereafter filed a response to
Notice To Show Cause.
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 complaint and the Notice To
Show Cause, Respondent denies that the Union
was properly certified as representative of its em-
ployees, and therefore denies that it has any duty
to bargain with the Union.
Review of the record herein reveals that in Case
11 -RC-4392 the petition was filed by the Union on
July 22, 1977, and on August 12, 1977, the Region-
al Director approved a Stipulation for Certification
Upon Consent Election in which a unit of "all pro-
duction and maintenance employees, service
people, custodians, and regular part-time employees
at the Employer's Branchville, South Carolina,
plant, excluding all office clerical employees, pro-
fessional employees, guards and supervisors as de-
fined in the Act," was agreed to be an appropriate
unit for the purpose of collective bargaining. On
September 8, 1977, the Regional Director conduct-
ed an election. The tally of ballots showed that of
121 votes cast 57 were cast for the Union, 55 were
against the Union, and 9 were challenged. Subse-
quently, both parties filed timely objections to con-
duct affecting the results of the election.
On December 21, 1977, the Regional Director
issued his report, wherein he overruled Respond-
ent's objections in their entirety; overruled seven of
the Union's objections; directed that a hearing be
held to resolve challenges to ballots and the six re-
maining union objections; and consolidated the
Union's objections with the outstanding complaint
proceedings in Case 1l-CA-7215. On January 11,
1978, the Respondent filed exceptions with the
Board to the Regional Director's report; and on
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 7, 1978, the Board issued a Decision and
Order Directing Hearing. 2
The Administrative Law Judge on April 6, 1979,
issued his Decision in the consolidated cases, find-
ing that Respondent violated Section 8(a)(1) and
(3) of the Act.
Following exceptions filed by the parties, the
Board on October 12, 1979, issued its Decision and
Order in Jasta Manufacturing Company, Inc., 246
NLRB No. 16. It affirmed, as modified, the find-
ings and conclusions of the Administrative Law
Judge, and concluded, because of the pervasive
nature of the violations, that the Union became the
bargaining representative of the employees on June
10, 1977, when a majority of the employees signed
authorization cards. 3
The Board found, contrary to the Administrative
Law Judge, that Respondent violated Section
8(a)(1) by discharging Railey Jamison, Elijah Wil-
liams, James Holback, and Joseph Summers. 4
The Board directed that the ballots of Gloria
Williams, John C. Judy, Dorothy Infinger, Lucy B.
Infinger, Elijah Williams, Railey Jamison, and
James Holback be opened and counted and, in the
event that the Union received a majority of the
valid votes cast, a certification of representative
issue.
On January 16, 1980, the Regional Director cer-
tified the Union as bargaining representative.
Since January 18, 1980, the Union has requested
Respondent to bargaining collectively and, since on
or about January 28, 1980, Respondent has refused.
It is 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.s
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
2 Not reported in volumes of Board Decisions.
' Chairman Fanning would have issued a bargaining order of only
prospective application.
4 Member Penello dissented with respect to this finding
' See Pilruhrgh Plate Gluas 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).
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment. 6
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Jasta Manufacturing Company, Inc., is a South
Carolina corporation with a facility located in
Branchville, South Carolina, where it is engaged in
the business of manufacturing apparel. During the
past 12-month period, which is representative of all
times material herein, the Respondent shipped from
its Branchville facility to points outside the State of
South Carolina finished products valued in excess
of $50,000.
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.
1II. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees,
service people, custodians and regular part-
time employees at the Employer's Branchville,
South Carolina, plant, excluding all office
clerical employees, professional employees,
guards and supervisors as defined by the Act.
2. The certification
On September 8, 1977, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 11, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining repre-
e Member Penello would grant the Motion for Summary Judgment
based on the Respondent's misconduct in the underlying case, which the
Board found warranted the issuance of a bargaining order.
JASTA MANUFACTURING COMPANY, INC. 683
sentative of the employees in said unit on January
16, 1980, and the Union continues to be such exclu-
sive representative within the meaning of Section
9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about January 18, 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. In an
undated letter from the plant manager, received by
the Union on or about January 28, 1980, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
January 28, 1980, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent 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 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.
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. Jasta Manufacturing Company, Inc., is an em-
ployer 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 meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
service people, custodians and regular part-time
employees at Respondent's Branchville, South
Carolina, plant, excluding all office clerical em-
ployees, professional employees, guards and super-
visors as defined by the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since January 16, 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 January 28, 1980, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive 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)(l) 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,
Jasta Manufacturing Company, Branchville, South
Carolina, its officers, agents, successors, and as-
signs, shall:
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 em-
ployees in the following appropriate unit:
All production and maintenance employees,
service people, custodians and regular part-
time employees at the Respondent's Branch-
ville, South Carolina, plant, excluding all
office clerical employees, professional employ-
ees, guards and supervisors as defined by 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 Branchville, South Carolina, plant
copies of the attached notice marked "Appendix." 7
Copies of said notice, on forms provided by the
Regional Director for Region 11, after being 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
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 11,
in writing, within 20 days from the date of this
I 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."
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,
service people, custodians and regular part-
time employees at the Employer's Branch-
ville, South Carolina, plant, excluding all
office clerical employees, professional em-
ployees, guards and supervisors as defined
by the Act.
JASTA MANUFACTURING COMPANY,
INC.