Ken Lee, Inc.

National Labor Relations Board - Board Decisions

Jul 25, 1962

137 N.L.R.B. 1642 (N.L.R.B. 1962)

1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent to insure that such notices are not altered, defaced, or covered by any
other material.
(d) Notify the said Regional Director for the Tenth Region, in writing, within
20 days from receipt of this Recommended Order, what steps the Respondent has
taken to comply therewith."
It is further recommended that, unless the Respondent notifies said Regional Di-
rector in writing within 20 days, as aforesaid, that it will comply with the foregoing
recommendations, the National Labor Relations Board issue an order requiring com-
pliance therewith.
"In the event this Recommended Order be adopted by the Board, this provision shall
be modified to read: "Notify said Regional Director, in writing, within 1.0 days from the
date of this Order, what steps the 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 Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in the International Printing Pressmen
and Assistants Union of North America, or any other labor organization, by dis-
charging any employee, threatening to close our plant, or otherwise discriminat-
ing in regard to hire or tenure of employment or any term or condition of
employment.
WE WILL offer to James Allen Bethune immediate and full reinstatement to
his former or substantially equivalent position, and make him whole for any loss
of pay he may have suffered by reason of our discrimination against him.
WE WILL NOT in any manner infringe upon, interfere with, restrain, or coerce
our employees in the exercise of their rights to self-organization, to form, join,
or assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
EDWIN E . SWALLEY D/B/A SWALLEY
PRINTING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 528
Peachtree-Seventh Building , 50 Seventh Street , NE., Atlanta , Georgia, Telephone
Number, Trinity 6-3311 , Extension 5357, if they have any question concerning this
notice or compliance with its provisions.
Ken Lee, Inc. and International Ladies ' Garment Workers'
Union , AFL-CIO. Case No. 10-CA-4905. July 25, 1962
DECISION AND ORDER
Upon charges duly filed by International Ladies' Garment Workers'
Union, AFL-CIO, herein called the Union, the General Counsel of
the National Labor Relations Board, by the direction of the Regional
Director for the Tenth Region, issued a complaint dated February 20,
1962, against Ken Lee, Inc., herein called the Respondent alleging
that the Respondent had engaged in and was engaging in unfair
137 NLRB No. 182.
KEN LEE, INC. 1643
labor practices within the meaning of Section 8(a) (1) and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, as amended.
Copies of the charge, complaint, and notice of hearing before a Trial
Examiner were duly served upon the Respondent and the Union.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Rodgers and Fanning].
With respect to the unfair labor practices, the complaint alleges in
substance that the Union was and is the exclusive representative of all
the employees of the Respondent at its Atlanta, Georgia, plant in the
appropriate unit certified by the Board on December 26, 1961, and
that on January 23, 1962, and at all times thereafter, the Respondent
unlawfully bargained with the Union.
The Respondent's answer, filed on February 23, 1962, admits certain
jurisdictional and factual allegations of the complaint but denies the
commission of unfair labor practices.
On April 24, 1962, all parties to this proceeding entered into a stipu-
lation of facts, and requested that the proceeding be transferred
directly to the Board for findings of fact, conclusions of law, and
Decision and Order. The request states that the parties have waived
the rights to a hearing before a Trial Examiner and to the issuance
of an Intermediate Report. The parties also agree that their stipula-
tion and certain specified documents constitute the entire record in
the case.
On May 1, 1962, the Board granted the parties' request to transfer
the case to the Board. Briefs were thereafter filed by the General
Counsel, Respondent, and Union. Upon the basis of the parties' stipu-
lation, the briefs, and the entire record in the case, the Board makes
the following :
FINDINGS OF FACT
I. TIIE BUSINESS OF THE RESPONDENT
The Respondent, a Georgia corporation with its principal office
and place of business in Atlanta, Georgia, is engaged in the manufac-
ture, sale, and distribution of women's apparel and related products.
During the past 12 months, which period is representative of all times
material herein, the Respondent sold and shipped goods valued in
excess of $50,000 directly to customers outside the State of Georgia.
The Respondent admits, and we find, that it is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union, AFL- CIO, is a
labor organization as defined in Section 2(5) of the Act.
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
The unit referred to above was found appropriate by the Board in
its Decision and Direction of Election in Case No. 10-RC-4578, dated
February 16, 1960 (not published in NLRB volumes).
Pursuant to an election by secret ballot on March 10, 1960, conducted
under the supervision of the Regional Director for the Tenth Region
of the Board, a tally of ballots showed approximately 142 eligible
voters of which 59 were cast for the Union, 66 against the Union, and
17 were challenged ballots, the challenged ballots being sufficient to
affect the election. Among the challenged ballots were those of Helen
Alford, Sarah Farrell, and Eunice Johnson, who were challenged
because their names did not appear on the eligibility list. Respondent
contended that these three employees were terminated as a result of
pregnancy and were not eligible to vote as they had no reasonable
expectancy of reemployment in the foreseeable future.
On May 6, 1960, the Regional Director for the Tenth Region of
the Board issued a report on objections and challenged ballots which
recommended that seven challenges be sustained, nine be overruled,
and, if, after the revised tally of ballots issued, the remaining chal-
lenged ballot of Jacquelyn Richardson was determinative of the
results of the election, the final disposition of the case await the out-
come of the unfair labor practice proceeding in Case No. 10-CA-4420
where the employee status of Richardson was in issue.
Pursuant to charges filed in Cases Nos. 10-CA-4351, 4408, and
4420 [133 NLRB 1598], a consolidated complaint, as amended at the
hearing of May 31 to June 3, 1960, issued alleging Respondent's
independent violations of Section 8(a) (1), and violations of Section
8 (a) (3) of the Act by its discharge of Richardson (and another
employee not relevant to this proceeding), and its layoff and refusal
to recall 10 employees including Annie B. Massey and Mary Carey.
On December 28, 1960, the Intermediate Report issued in which it
was found, inter alia, that Respondent had discharged Richardson in
violation of Section 8(a) (3) of the Act, but in which it was recom-
mended that the complaint be dismissed as to the other alleged viola-
tions of Section 8 (a) (3) of the Act.
On January 6, 1961, the Board issued a Supplemental Decision and
Order Directing a Hearing in Case No. 10-RC-4578, in which it
adopted, pro forma, the Regional Director's recommendation to sus-
tain the challenges to three ballots, to overrule the challenges as to
two, and deferred resolution of the challenges of Massey and Richard-
son, both named as discriminatees in Case No. 10-CA-4420. It fur-
ther ordered that a hearing be held to resolve the issue raised as to the
remaining 10 challenged ballots.
Pursuant to the order of January 6, 1961, a hearing was held on
February 1 and 2,1961, and a hearing officer's report and recommenda-
KEN LEE, INC. 1645
tion on challenged ballots was issued on March 3, 1961. The report
found, inter alia, that three pregnant employees, Alford, Farrell, and
Johnson, did not have a reasonable expectancy of reemployment and
recommended that challenges to their ballots be sustained.
On May 8, 1961, the Board issued a Second Supplemental Decision
in which it directed the Regional Director to open and count 11 chal-
lenged ballots but deferred disposition of the challenged ballots of
Carey, Massey, and Richardson pending determination of their status
in Case No. 10-CA-4420, provided the ballots were determinative of
the election results after the opening and counting of the 11 chal-
lenged ballots. Among the 11 challenged ballots were those of Alford,
Farrell, and Johnson as to whom the Board found, contrary to the
hearing officer, that they had a "reasonable expectation to return to
work in the foreseeable future" and overruled the challenges to their
ballots.
Pursuant to the Second Supplemental Decision and Direction, the
Regional Director caused the 11 challenged ballots to be opened and
counted. The revised tally of ballots dated May 18, 1961, showed that
of the 11 ballots opened, 9 votes were cast for the Union and 2 against
the Union. The final tally of ballots showed that 68 votes were cast
for the Union and an equal number against the Union. As a result
the ballots of Carey, Massey, and Richardson became determinative
of the results of the election.
Following exceptions to the Intermediate Report by all the parties
in the unfair labor practice proceeding, the Board in its Decision and
Order, 133 NLRB 1598, on October 30, 1961, found that the Respond-
ent had discharged Richardson in violation of Section 8(a) (3) of
the Act and that, contrary to the Trial Examiner, Respondent vio-
lated Section 8(a) (3) of the Act in its layoff of and failure to recall
certain employees, including Carey and Massey.
On November 2, 1961, Respondent filed with the United States
Circuit Court of Appeals for the Fifth Circuit a petition docketed in
said circuit court as Case No. 19311 and styled Ken-Lee, Inc. v.
N.L.R.B. [52 LRRM 2016, decided December 20, 1962] to review and
set aside the Board's Order in the foregoing complaint proceeding in
which Carey, Massey, and Richardson were found to have been unlaw-
fully discharged by Respondent.
On November 29, 1961, the Board issued an order directing the
Regional Director to open and count the challenged ballots of Carey,
Massey, and Richardson. On December 4, 1961, the Respondent filed
with the Board a motion for reconsideration and stay of order direct-
ing opening and counting of challenged ballots. By telegraphic order
dated December 7, 1961, the Board denied the motion. The ballots of
Carey, Massey, and Richardson were thereupon opened by the Re-
gional Director on December 8, 1961, and he issued and prepared a
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
revised tally of ballots which showed that of the 3 ballots referred to,
2 were cast for the Union and 1 against the Union, with the result
that the 70 ballots for the Union in contrast of the 69 against the
Union, constituted a majority of the valid votes.
On December 13, 1961, the Respondent filed a motion for stay of
certification requesting the Board to stay the certification of the Union
pending determination of the status of Carey, Massey, and Richard-
son by the court of appeals. On December 21, 1961, the Board denied
as lacking merit the Respondent's motion. On December 26, 1961, the
Board by its Acting Regional Director for the Tenth Region certified
the Union as the majority representative of the employees in the
certified unit.
On or about January 12, 1962, the Union, by letter, requested the
Respondent to bargain collectively with respect to rates of pay, wages,
hours of employment, and other terms and conditions of employment
with the Union as the exclusive representative of all the employees in
the unit. On or about January 23, 1962, the Respondent, by letter,
refused to bargain with the Union.
The Respondent, in defending its refusal to bargain with the Union,
contends as follows :
(1) The Respondent may not be required to bargain with a Union
which has been certified by the Board on the basis of a previous Board
order, which order is to be reviewed by the circuit court of appeals
at the time of the certification. A finding of refusal to bargain, based
upon such order and subsequent certification of the Union, would
effectively deprive the Respondent of its rights under the statute to
have the final order of the Board reviewed under Section 10(f) of
the Act.
(2) The Board's ruling as to Alford, Farrell, and Johnson was im-
proper and contrary to existing Board policy.
The General Counsel and the Union contend (1) that the Respond-
ent was not excused from bargaining with the Union after certification
during the pendency of the Respondent's appeal from the Board order
on which the certification is in part based. (2) The Union also con-
tends that the Respondent may not relitigate in the instant unfair
labor practice proceeding the status _9f Alford, Farrell, and Johnson,
which the Board resolved, after hearing, in the representation pro-
ceeding.
We find merit in the position of the General Counsel and the Union.
As to (1), the Court of Appeals for the Sixth Circuit held in Old King
Cole, Inc. v. N.L.R.B.,' wherein the Board's bargaining order was en-
forced, that "the filing of a petition for review of an order of the Board
does not operate as a stay of the Board Order, which is consistent with
1 260 F. 2d 530.
KEN LEE, INC. 1647
Section 10(g) of the National Labor Relations Act." 2 As to (2), it
is the established policy of the Board not to allow a party to relitigate
in a complaint proceeding such as this one the legal effect of matters
which the party has already litigated and Board has decided in a prior
representation proceeding.3 In view of the foregoing, we find that
the Respondent by its refusal to bargain with the Union as the rep-
resentative of its employees in the appropriate unit has committed
unfair labor practices within the meaning of Section S (a) (1) and (5)
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 its operations as described in section I,
above, have a close, intimate, and substantial relation 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 the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a) (1) and (5) 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
reiiched,embody such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. International Ladies' Garment Workers' Union, AFL-CIO, is
a labor organization as defined in Section 2(5) of the Act.
2. All production and maintenance employees at Respondent's At-
lanta, Georgia, plant, including machine operators, floor girls, piece-
work clerk, pressers, cutters, porter, maintenance man, folders, and
the shipping clerk, but excluding office clerical employees, profes-
sional employees, guards, the floor lady, the cutting room leadman,
and all other supervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
3. The above-named labor organization was on December 26, 1961,
and at all times thereafter, the exclusive representative of all em-
2 Section 10(g) provides that the commencement of proceedings under 10(e) and (f),
which permit a Board petition for enforcement of its order or an aggrieved party's peti-
tion for review of a Board order before a circuit court of appeals, shall not, uole,s
specifically ordered by the court, operate as a stay of the Board's order
9 See Pittsburgh Plate Glass Company v N L.R B , 313 US 146, 161-162
1648 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
ployees in the aforesaid appropriate unit for purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
4. By refusing, on or since January 12, 1962, to bargain collectively
with the above-named labor organization as the exclusive representa-
tive of its employees in the aforesaid appropriate unit, the Respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (1) and (5) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting, commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Ken Lee, Inc., Atlanta,
Georgia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively concerning wages, hours, and
other terms and conditions of employment with International Ladies'
Garment Workers' Union, AFL-CIO, as the exclusive representative
of all its employees in the following appropriate unit : All production
and maintenance employees at Respondent's Atlanta, Georgia, plant,
including machine operators, floor girls, piece-work clerk, pressers,
cutters, porter, maintenance man, folders, and the shipping clerk, but
excluding office clerical employees, professional employees, guards,
the floor lady, the cutting room leadman, and all other supervisors as
defined in the Act.
(b) In any like or related manner interfering with the efforts of
International Ladies' Garment Workers' Union, AFL-CIO, to bar-
gain collectively.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the above-named labor
organization as the exclusive representative of all employees in the
appropriate unit, and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its plant at Atlanta, Georgia, copies of the notice hereto
marked "Appendix." 4 Copies of said notice, to be furnished by the
Regional Director for the Tenth Region, shall, after being duly signed
by the Respondent's authorized representative, be posted by the Re-
spondent immediately upon receipt thereof, and be maintained by it
4In the event that this Order is enforced by a decree of the United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Ordei "
KEN LEE, INC. 1649
for at least 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Tenth Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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, upon request, bargain with International Ladies'
Garment Workers' Union, AFL-CIO, as the exclusive repre-
sentative of all the employees in the bargaining unit described
below with respect to rates of pay, wages, hours of employment,
and other conditions of employment, and, if an understanding is
reached, embody such an understanding in a signed agreement.
WE WILL NOT in any like or related manner interfere with the
efforts of International Ladies' Garment Workers' Union, AFL-
CIO, to bargain collectively.
The bargaining unit is :
All production and maintenance employees at Respondent's
Atlanta, Georgia, plant, including machine operators, floor
girls, piece-work clerk, pressers, cutters, porter, maintenance
man, folders, and the shipping clerk, but excluding office
clerical employees, professional employees, guards, the floor
lady, the cutting room leadman, and all other supervisors as
defined in the Act.
KEN LEE, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate with the Board's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta 23,
Georgia, Telephone Number, Trinity 6-3311, if they have any ques-
tion concerning this notice or compliance with its provisions.
649856-63-vol. 137-105