Santee River Wool Combing Co., IncDownload PDFNational Labor Relations Board - Board DecisionsOct 24, 1975221 N.L.R.B. 108 (N.L.R.B. 1975) Copy Citation 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Santee River Wool Combing Company , Inc. and Textile Workers Union of America , AFL-CIO. Case 11-CA-6123 October 24, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO Upon a charge filed on May 20, 1975, and an amended charge filed on June 27, 1975, by Textile Workers Union of America, AFL-CIO, herein called the Union, and duly served on Santee River Wool Combing Company, Inc., herein called the Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 11, issued a complaint on July 16, 1975, 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 May 10, 1974, following a Board election in Case 11-RC-3575, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about December 1, 1974, 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 by unilat- erally and without prior notification to or consulta- tion with the Union, (1) on or about January 1, 1975, implementing a retirement program, (2) on or about February 6, 1975, implementing a safety shoe program, and (3) on or about December 1974 and February and March 1975 implementing and estab- lishing additional bus routes for the unit employees. Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 1, 1975, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 13, 1975, the Board issued an order transferring the proceeding to the Board and a Notice To Show 1 Official notice is taken of the record in the representation proceeding, Case 11-RC-3575, 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. 388 F .2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F. Supp. 573 (D.C. Va., 1967); 221 NLRB No. 21 Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent thereafter filed a response to Notice To Show Cause entitled "Respondent's Reply to Notice To Show Cause, Cross Motion for Summary Judgment, Motion to''Stay Proceedings and Brief in 'Support thereof." 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 response to the Notice To Show Cause, Respondent, in effect, admits the underlying representation proceeding but, on the basis of issues raised therein, denies the validity of the Union's certification and contends that due process requires a hearing on those issues. With respect to the 8(a)(5) allegations of the complaint, Respondent admits the unilateral actions but con- tends it had no obligation to bargain with the Union due to the invalid certification. The Respondent's duty to bargain based on the same certification was determined by the Board on June 26, 1975, in the Decision and Order2 in Case 11-CA-6036 wherein Respondent raised essentially the same issues it now raises. As in that case, we now find that Respondent is attempting to raise and relitigate issues already litigated and determined; this it may not do. 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.3 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. Follett Corp, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. 2 218 NLRB No. 138. 3 See Pittsburgh Plate Glass Co. v. N.L.RB., 313 U.S. 146, 162 ( 1941); Rules and Regulations of the Board , Secs. 102.67(1) and 102.69(c). SANTEE RIVER WOOL COMBING CO. As Respondent, in its answer, admits the unilateral conduct alleged in the complaint, there are no factual issues in this proceeding warranting a hearing. The Union having been certified and the unilateral conduct admitted, Respondent's Motions for Sum- mary Judgment and for dismissal of the complaint are denied as Respondent clearly had an obligation to bargain with the Union.4 Respondent's motion to stay proceedings pending a determination in Case 1l -CA-6036 by the United States Court of Appeals for the Fourth Circuit is denied. The pendency of collateral litigation does not suspend Respondent's duty to bargain. Accordingly, we shall grant the Motion for Summary Judgment .5 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Santee River Wool Combing Company, Inc., is now, and has been at all times material herein, a South Carolina corporation engaged in the manufac- ture of textiles at its plant located in Jamestown, South Carolina, the only plant involved in this proceeding. During the past 12 months, a representa- tive period, Respondent- received goods and raw materials from points outside the State of South Carolina valued in excess of $50,000, and during the same 12-month period, Respondent caused to be shipped directly to points outside the State of South Carolina products valued in excess of $50,000. 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. THEW LABOR ORGANIZATION INVOLVED Textile Workers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 4 Keystone Casing Supply, Inc, 196 NLRB 920 (1972). In its answer, Respondent denies a request to bargain from the Union on July 12 and May 17, 1974, but admits a request on February 19, 1975 Appended to the Motion for Summary Judgment is a copy of a July 12, 1974, letter addressed to Respondent's president in which the Union requests information and requests that negotiations begin in the very near future. Respondent does III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit 109 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 em- ployed by the Employer at its Jamestown, South Carolina, plant, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On October 12 and 13, 1972, 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 11, 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 May 10, 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 about July 12, 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 December 1, 1974, and continuing at all times thereafter to date, the 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 by unilaterally and without prior notification to or' consultation with the Union implementing a retirement program and a safety shoe program, and implementing and establishing additional bus routes for the unit employees. Accordingly, we' fmd that the Respondent has, since December 1, 1974, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the not controvert this letter nor the appended letter of July 19, 1974, purporting to be a response by Respondent's president to the July 12 letter in which he denies the request to bargain . We therefore find par. 12 of the complaint, to the extent it alleges requests to bargain on July 12, 1974, and on February 19, 1975, to be true. 5 Porta-Kamp Manufacturing Company, Inc , 189 NLRB 899 (1971). 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. 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(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. We shall also order the Respondent to cease making unilateral changes but shall prohibit it from rescind- ing those changes unless it be a result of collective bargaining. 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 com- mences to bargain in good faith-with 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 (C.A. 5, 1964), cert. denied 379 U.S., 817 (1964);. Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10,,1965). The Board, upon the basis of the foregoing facts and the entire record,,makes the following: CONCLUSIONS OF LAW 1. Santee River Wool Combing Company, Inc., is an employer'' engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Textile, Workers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. - 3. All production and maintenance employees employed by the Employer at' its Jamestown, South Carolina, plant, but excluding, all office clerical employees, 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 May 10, 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 onor about December 1, 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, by unilaterally implementing and or establishing a retirement program, safety shoe program, and additional bus routes for unit employees, 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 the Respondent, Santee River Wool Combing Company, Inc., James- town, South Carolina, 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 Textile Workers Union of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees em- ployed by the Employer at its Jamestown, South Carolina, plant, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. (b) Making any unilateral changes in the terms and conditions of employment of the unit employees, provided, however, that Respondent shall not - re- SANTEE RIVER WOOL COMBING CO. scind, abandon, or vary any term or condition of employment heretofore implemented or established, unless it be as a result of collective bargaining. (c) 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 Jamestown, South Carolina, plant, copies of the attached notice marked "Appendix." 6 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 Respon- dent 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 Order, what steps have been taken to comply herewith. 6 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." III APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF TIM 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 Textile Workers Union of America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT make any unilateral changes in the terms and conditions of employment of employees in the unit described below. WE WILL NOT rescind, abandon, or vary any term or condition of employment already imple- mented or established , unless it be a -result of collective bargaining. 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- ment. The bargaining unit is: All production and maintenance employees employed by the Employer at its-Jamestown, South Carolina, plant, but excluding all office clerical employees , professional em- ployees , guards and supervisors as defined in the Act. SANTEE RIVER WOOL COMBING COMPANY, INC. 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