Mr. Fine, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1974

211 N.L.R.B. 1002 (N.L.R.B. 1974)

1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Fine, Inc. and International Ladies' Garment
Workers' Union, Texas-Oklahoma District Coun-
cil, affiliated with International Ladies' Garment
Workers' Union, AFL-CIO. Case 16-CA-5448
June 25, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Upon a charge filed on February 8, 1974, by
International Ladies' Garment Workers' Union,
Texas-Oklahoma District Council, affiliated with
International Ladies' Garment Workers' Union,
AFL-CIO, herein called the Union, and duly served
on Mr. Fine, Inc., herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 16,
issued a complaint on February 15, 1974, 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 January 21,
1974, following a Board election in Case
16-RC-6377 the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate;'
and that, commencing on or about February 4, 1974,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collective-
ly with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On or about February
26, 1974, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the
allegations in the complaint.
On April 5, 1974, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on April 11, 1974, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the
General Counsel's Motion for Summary Judgment
should not be granted. Respondent thereafter filed a
response to Notice To Show Cause, entitled "Em-
ployer's Motion for Summary Judgment and Opposi-
tion to General Counsel's Motion for Summary
Judgment."
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 answer to the complaint and in its "Motion
for Summary Judgment and Opposition to the
General Counsel's Motion for Summary Judgment,"
Respondent admits, in substance, all the factual
allegations of the complaint, including its refusal to
recognize and bargain with the certified Union. It
denies, however, the validity of the certification on
the grounds that the Board erred in overruling its
objections to the election and that it was not
afforded a hearing on its objections to the election.
The record in the underlying representation pro-
ceeding, Case 16-RC-6377, indicates that an election
was conducted on September 27, 1973, pursuant to a
Stipulation for Certification Upon Consent Election.
The tally of ballots revealed that of the valid votes
cast 72 were for, and 66 against, the Union, and one
ballot was challenged. The objections alleged, in
substance, that the Union disputed a leaflet contain-
ing a substantial misrepresentation with respect to
wages and fringe benefits of employees at another
garment factory where the employees are represented
by the Union and that the leaflet was distributed at a
time when the Respondent could not make a reply.
Respondent filed timely objections and an untimely
"clarified Objection," which merely set forth its
objections more accurately. After an investigation,
the Regional Director issued a Report on Objections
in which he found that the statement made in the
leaflet did not constitute a substantial misrepresenta-
tion in the context in which it was made and he
recommended that the objections be overruled in
their entirety and that the Union be certified.
Respondent thereupon filed timely exceptions to the
Regional Director's Report on Objections in which it
reiterated and expatiated upon its initial objections
and, alternatively, requested a hearing on the issues
raised thereby. After considering these exceptions,
the Board found they raised no material or substan-
tial issues of fact or law warranting the reversal of the
Regional Director's findings and recommendations
or requiring a hearing. The Board, accordingly,
adopted the findings, conclusions, and recommenda-
1 Official notice is taken of the record in the representation proceeding , Golden Age Beverage Co., 167 NLRB 151, enfd . 415 F.2d 26 (C.A. 5, 1969);
Case 16-RC-6377, as the term "record" is defined in Secs. 102.68 and Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follett Corp., 164
102.69(f) of the Board's Rules and Regulations , Series 8, as amended. See NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
LTV Electrosystems, Inc., 166 NLRB 938, enfd . 388 F .2d 683 (C.A. 4, 1968);
211 NLRB No. 131
MR. FINE, INC.
tions of the Regional Director and certified the
Union.
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 the Respondent in this
proceeding 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,
deny the Respondent's Motion for Summary Judg-
ment and grant the General Counsel's Motion for
Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Texas corporation with its principal
place of business at Dallas, Texas, is engaged in the
manufacture and sale of ladies' garments. During the
past year, Respondent manufactured and shipped
from its plants in Texas products valued in excess of
$50,000 directly to points outside the State of Texas.
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
International Ladies' Garment Workers' Union,
Texas-Oklahoma District Council, affiliated with
International Ladies' Garment Workers' _ Jnion,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
1003
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees
employed at the plant of the Respondent at 2201
South Harwood Street, Dallas, Texas, exclusive of
all supervisors, office clericals, watchmen, and
guards as defined in the Act.
2. The certification
On September 27, 1973, 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 16 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
January 21, 1974, 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 abo'it January 25, 1974, and at
all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about February 4, 1974, and continu-
ing at all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since February 4, 1974, 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, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
2 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)
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 opera-
tions 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 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(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
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 certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229 , enfd . 328 F.2d 600 (C.A. 5),
cert . denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57
(C.A. 10).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Mr. Fine, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. International Ladies' Garment Workers' Un-
ion, Texas-Oklahoma District Council, affiliated
with International Ladies' Garment Workers' Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees
employed at the plant of the Respondent at 2201
South Harwood Street , Dallas, Texas, exclusive of all
supervisors, office clericals , watchmen, and guards 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 January 21, 1974, 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 February 4, 1974, 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 , Respon-
dent has interfered with, restrained , and coerced, and
is interfering with , restraining , and coercing, employ-
ees 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
meaning 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
Relations Board hereby orders that Respondent, Mr.
Fine , Inc., Dallas, Texas, its officers , agents, succes-
sors , 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 International La-
dies' Garment Workers' Union, Texas-Oklahoma
District Council, affiliated with International Ladies'
Garment Workers' Union, AFL-CIO, as the exclu-
sive bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees
employed at the plant of the Respondent at 2201
South Harwood Street, Dallas, Texas, exclusive of
all supervisors , office clericals , watchmen, and
guards 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 plant at 2201 South Harwood Street,
MR. FINE, INC.
Dallas, Texas, copies of the attached notice marked
"Appendix."3 Copies of said notice, on forms
provided by the Regional Director for Region 16
after being duly signed by Respondent's representa-
tive, 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 16 in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 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 of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
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 Inter-
national Ladies' Garment Workers' Union, Tex-
as-Oklahoma District Council, affiliated with
International Ladies' Garment 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
1005
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-
ment. The bargaining unit is:
All production and maintenance employ-
ees employed at the plant of the Respondent
at 2201 South Harwood Street, Dallas,
Texas, exclusive of all supervisors, office
clericals, watchmen, and guards as defined
in the Act.
MR. FINE, INC.
(Employer)
Dated By
(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, Federal Office Building, Room
8-A-24, 819 Taylor Street, Fort Worth, Texas 76102,
Telephone 817-334-2921.