Farah Manufacturing Co., Inc.Download PDFNational Labor Relations Board - Board DecisionsMay 14, 1973203 N.L.R.B. 543 (N.L.R.B. 1973) Copy Citation FARAH MFG. CO. Farah Manufacturing Company , Inc. and El Paso Joint Board Amalgamated Clothing Workers of America, and Amalgamated Clothing Workers of America, AFL-CIO. Case 28-CA-2735 May 14, 1973 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO Upon a charge filed on October 10, 1972, by El Paso Joint Board, Amalgamated Clothing Workers of America, and Amalgamated Clothing Workers of America, AFL-CIO, herein called the Union, and duly served on Farah Manufacturing Company, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 28, issued a complaint on October 24, 1972, and the Regional Director issued an amended complaint on November 27, 1972, 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 Nation- al Labor Relations Act, as amended. Copies of the charge, complaints, 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 amended complaint alleges in substance that on Sep- tember 15, 1972, following a Board election in Case 28-RC-2054, the Union was duly certified as the ex- clusive collective-bargaining representative of Respondent's employees in the unit found appropri- ate;' and that, commencing on or about September 20, 1972, and at all times thereafter, and particularly on or about September 28 and October 9, 1972, Re- spondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has re- quested and is requesting it to do so. On November 29, 1972, Respondent filed its answer to the amended complaint admitting in part, and denying in part, the allegations in the complaint. On December 11, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment and subsequently the Union filed Motion for Summary Judgment and Issuance of 'Official notice is taken of the record in the representation proceeding, Case 28-RC-2054 as the term "record" is defined in Secs . 102.68 and 102 .69(f) of the Board 's Rules and Regulations , Series 8 , as amended . See LTV Electrosystems, Inc., 166 NLRB 938, enfd . 388 F .2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Company v. John Penello, Reg. Dir., 269 F . Supp . 573 (D.C.Va., 1967); Follett Corporation , 164 NLRB 378, enfd . 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. 543 Board Decision and Order. Subsequently, on Decem- ber 26, 1972, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summa- ry Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause, entitled Opposition to Order To Show Cause on Gen- eral Counsel's Motion for Summary Judgment? 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 amended complaint and in its response to the Notice To Show Cause in which it opposed the General Counsel's and Union's Motions for Summary Judgment, the Respondent, in sub- stance, argues that under due process of law, it is entitled to a hearing on the appropriateness of the unit as well as on the issues raised by the challenged ballots and by the 14 of its 20 timely filed objections. On the other hand, the General Counsel and Union contend that the questions of unit, challenged ballots, and ob- jections were earlier raised and determined by the Board in the underlying representation Case 28- RC-2054, and, absent newly discovered or previously unavailable evidence, they may not be relitigated herein. We agree. The record herein reflects that following the hear- ing in Case 28-RC-2054 in which all parties partici- pated, the Board, on September 22, 1970, issued its Decision and Direction of Election (185 NLRB 699), directing an election among the Respondent's em- ployees in the appropriate unit described in the com- plaint herein-' On October 2, 1970, the Respondent filed a Motion to Stay Decision and Direction of Elec- tion on the grounds that there was no testimony at the hearing about the composition of the unit and that the Board's unit determination was based upon the April 15, 1970, hearing in another representation proceed- ing in Case 28-RC-2023, the record of which was stipulated as part of the record in Case 28-RC-2054. By telegram of October 9, 1970, the Board denied the motion as the arguments presented in support thereof did not warrant the relief sought. The tally of ballots 2 The Respondent's request for oral argument is denied . The Motions for Summary Judgment and the Respondent's response in Opposition thereto adequately present the positions of the parties 3 By Order Correcting Second Supplemental Decision and Certification of Representative dated November 15, 1972, the Board corrected the descrip- tion of the appropriate unit to reflect the unit as earlier clarified by it in par. 4 of the July 30, 1971, Supplemental Decision and Order Directing Hearing. See fn 5 , infra. 203 NLRB No. 78 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD served on the parties after the election on October 14, 1970, shows that of approximately 331 eligible voters, 109 cast votes for, and 73 against the Union and that there were 258 challenged ballots and one void ballot. Timely objections to conduct affecting the results of the election were filed by both the Respondent and the Union. After investigation of the challenged ballots and objections and after consideration of the evidence submitted by the parties, the Regional Director is- sued, on March 3 , 1971, his report and recommenda- tions in which he recommended that 29 challenges be overruled, 225 be sustained, and.4 remained unre- solved , that 14 of the Respondent 's objections dealing generally with the Board 's alleged careless and ineffi- cient manner of conducting the election, particularly with respect to the challenges , be overruled, that a hearing be held upon 6 of the Respondent's 20 objec- tions depending on whether or not the Union received a majority vote, and finally, that a hearing be held on the Union's objections, only if it became necessary. Thereafter, the Respondent timely filed partial excep- tions to the Regional Director's report seeking to have the Board open and count the ballots of all cutters and markers in the appropriate unit, or in the alternative, to enlarge the unit and/or to conduct an immediate rerun election and urging that the Board reconsider the objections to the election. On July 30, 1971, the Board issued its Supplemental Decision and Order Directing Hearing finding that the Respondent 's exceptions raised no material or substantial issues of fact or law which warrant rever- sal of the Regional Director 's findings and recom- mendations and that it was unnecessary to provide for a hearing on the challenged ballots since , after adopt- ing the Regional Director 's recommendations on such ballots, the remaining challenged ballots to be count- ed were not sufficient in number to affect the results of the election. Since the Union received a majority of the valid votes cast, the Board, in accord with the Regional Director's recommendations overruling 14 of the Respondent's 20 objections, directed a hearing only on the Respondent 's 6 remaining objections .4 In addition, it clarified the appropriate unit's description to reflect the stipulation of the parties to include in- spectors (quality control) for markers, spreaders, and cutters. After a hearing on the six objections, the Hearing Officer, on May 19, 1972 , issued his Report on Objec- 4 The Respondent's six objections alleged, in substance , that a union ob- server openly solicited voters waning in line, that employees who had already voted shouted union slogans and obscenities at waiting voters, that an em- ployee, within hearing of a Board agent , "gestered with his fist and stated, 'you know what to vote-we have got it now,' " and that various union agents and supporters threatened , coerced , and/or interfered with employees' Sec- tion 7 rights tions in which he recommended that the six objections be overruled in their entirety and the Union be certi- fied. Thereafter, the Respondent filed timely excep- tions to the Hearing Officer's report. On September 15, 1972, the Board issued its Second Supplemental Decision and Certification of Representative adopt- ing the Hearing Officer's findings and recommenda- tions and certifying the Union as exclusive representative of all employees in the appropriate unit.' Thus, the Respondent's answer to the complaint as well as its responses to Notice To Show Cause, which argue that the Respondent is entitled to a hearing on the issues of unit, challenged ballots, and objections, merely reiterate the issues previously raised and con- sidered in the representation case. Moreover, it is well established that parties do not have an absolute right to a hearing on objections to an election. It is only when the moving party presents a prima facie showing of "substantial and material issues" which would war- rant setting aside the election that he is entitled to an evidentiary hearing. 6 It is clear that, absent arbitrary action, this qualified right to a hearing satisfies all statutory and constitutional requirements' It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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.' All issues raised by the Respondent in this proceed- ing 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, grant the General 3 On November 15, 1972, the Board issued an Order Correcting Second Supplemental Decision and Certification of Representative to correct the description of the appropriate unit to read as set forth in par 4 of its July 30, 1971, Supplemental Decision and Order Directing Hearing. 6Allied Foods, Inc, 189 NLRB 513, and cases cited in In 6 7 Amalgamated Clothing Workers of America [Winfield Manufacturing Company, Inc] v N L.R.B, 424 F 2d 818 , 828 (C A.D.C, 1970). 9 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). 9 The Respondent 's answer denies the request and refusal to bargain: attached to the General Counsel's Motion for Summary Judgment as Exhs. A and B are a letter from the Union dated September 20, 1972, requesting "a meeting as soon as possible to negotiate a collective bargaining agreement between us" and a letter from Respondent's Counsel dated October 9, 1972, denying the request . In its response to the Notice To Show Cause the Respon- dent neither alludes to nor controverts these letters. Thus, the truth of the factual allegations of the complaint concerning the request and refusal to bargain on or about October 9, 1972, stands admitted by the uncontroverted factual averments in the General Counsel's motion Schwartz Brothers, Inc, FARAH MFG. CO. Counsel's Motion for Summary Judgment.10 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Texas corporation with its prin- cipal office and places of business at 8889 Gateway West, El Paso, Texas, has been continuously engaged in the business of manufacturing and distributing men's dress and casual slacks and other men's cloth- ing. The Respondent maintains three other plants in El Paso, and other plants in San Antonio, and Victo- ria, Texas, and in Las Cruces and Albuquerque, New Mexico. During the last calendar year, the Respondent in the course and conduct of its business operations sold and shipped goods and materials valued in excess of $50,000 from its El Paso plants and places of business directly to customers outside the State of Texas and purchased, transferred, and had delivered to its El Paso plant and places of business, goods and materi- als valued in excess of $50,000 which were transported directly from States other than the State of Texas. We find, on the basis of the foregoing, that Respon- dent 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 effectu- ate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED El Paso Joint Board, Amalgamated Clothing Work- ers of America, and Amalgamated Clothing Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective -bargaining pur- poses within the meaning of Section 9(b) of the Act: All markers , spreaders, cutters and inspectors and District Records, Inc., 194 NLRB 150. 10 The Union 's request for a "make whole" remedy is denied for the rea- sons set forth in Ex-Cell-O Corporation, 185 NLRB 107; Thiem Industries, Inc., 199 NLRB No. 138 ; see also John Singer, Inc., 197 NLRB 88. In view of our ruling herein , we do not pass on the Union 's Motion for Summary Judgment. 545 (quality control) for markers, spreaders and cut- ters and all employees performing spreading and cutting functions in the sample room, all em- ployed in the Respondent's cutting operations located within Phase III of the Gateway Main Building at 8889 Gateway Blvd. West, El Paso, Texas, excluding all other employees, guards, watchmen and supervisors as defined in the Act. 2. The certification On October 14, 1970, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 28, 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 September 15, 1972, 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 September 20, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about October 9, 1972, 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 collec- tive bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since October 9, 1972, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practic- es 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 com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 appro- priate unit will be accorded the services of their select- ed bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bar- gain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785; Com- merce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5, 1964), cert . denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, 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. Farah Manufacturing Company, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. El Paso Joint Board , Amalgamated Clothing Workers of America, and Amalgamated Clothing Workers of America, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All markers, spreaders , cutters and inspectors (quality control) for markers , spreaders and cutters and all employees performing spreading and cutting functions in the sample room , all employed in the cutting operations located within Phase III of the Gateway Main Building at 8889 Gateway Blvd. West, El Paso, Texas, excluding all other employees, guards, watchmen and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. Since September 15, 1972, the above-named la- bor 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 October 9, 1972, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respon- dent 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 interfering with, restraining , and coercing , employees 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 mean- ing 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 Rela- tions Board hereby orders that Respondent, Farah Manufacturing Company, Inc., El Paso, Texas, 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 condi- tions of employment with El Paso Joint Board, Amal- gamated Clothing Workers of America, and Amalgamated Clothing Workers of America, AFL- CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All markers , spreaders , cutters and inspectors (quality control) for markers, spreaders and cut- ters and all employees performing spreading and cutting functions in the sample room, all em- ployed in the cutting operations located within Phase III of the Gateway Main Building at 8889 Gateway Blvd. West, El Paso, Texas, excluding all other employees, guards, watchmen and su- pervisors 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 El Paso, Texas, Gateway plant copies of the attached notice marked "Appendix." "Copies 11 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 FARAH MFG. CO. of said notice, on forms provided by the Regional Director for Region 28, after being duly signed by Respondent's representative, shall be posted by Re- spondent 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 28, 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with El Paso Joint Board, Amalgamated Clothing Work- ers of America, and Amalgamated Clothing Workers of America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner in- terfere 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 representative of all employees in the bargaining unit described 547 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 agreement. The bargaining unit is: All markers, spreaders, cutters and inspectors (quality control) for markers, spreaders and cutters and all employees performing spread- ing and cutting functions in the sample room, all employed in the cutting operations located within Phase III of the Gateway Main Build- ing at 8889 Gateway Blvd. West, El Paso, Tex- as, excluding all other employees, guards, watchmen and supervisors as defined in the Act. Dated By FARAH MANUFACTURING COMPANY, INC. (Employer) (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, 7011 Federal Building, U.S. Court- house, P.O. Box 2146, 500 Gold Avenue SW., Albu- querque, New Mexico 87101, Telephone 505-843-2508. of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Copy with citationCopy as parenthetical citation