J. M. Wood Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jan 25, 1971

188 N.L.R.B. 22 (N.L.R.B. 1971)

22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. M. Wood Manufacturing Company, Inc. and South-
west Regional Joint Board , Amalgamated Clothing
Workers of America , AFL-CIO. Case 16-CA-4051
January 25, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon an original charge and first amended charge
filed on July 14 and August 4, 1970, by Southwest
Regional Joint Board, Amalgamated Clothing Work-
ers of America, AFL-CIO, herein called the Union,
and duly served on J. M. Wood Manufacturing Com-
pany, Inc., herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 16, issued a com-
plaint on August 6, 1970, against Respondent, alleg-
ing 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 a Trial Examiner were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on or about June 17,
1970, following a Board election in Case 16-RC-5076
the Union was duly certified as the exclusive collec-
tive-bargainmg representative of Respondent's em-
ployees in the unit found appropriate;' and that,
commencing on or about June 30, 1970, and at all
times thereafter, Respondent has refused and contin-
ues to date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative, al-
though the Union has requested and is requesting it
to do so. On August 17, 1970, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint. The Re-
spondent admits all of the factual allegations of the
complaint, except those paragraphs which relate to
the underlying representation case which alleges that
a majority of the employees of the Respondent in the
unit described in the complaint, by an election, desig-
nated and selected the Union as their representative
for the purpose of collective bargaining and that on
June 17, 1970, the Regional Director certified the Un-
ion. The Respondent also denies that it violated Sec-
tion 8(a)(5) and (1) of the Act.
' Official notice is taken of the record in the representation proceeding,
Case 16-RC-5076, 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, Inter" Co v. Penello, 269 F
Supp. 573 (D C. Va, 1967); Follett Corp., 164 NLRB 378, enfd. 397 F.2d 91
(C A. 7, 1968), Sec. 9(J) of the NLRA
On August 23, 1970, counsel for the General Coun-
sel filed directly with the Board a Motion for Summa-
ry Judgment in which he contends that the
Respondent's answer to the complaint raises no issue
not already disposed of in the representation proceed-
ing, and prays the Board to grant the Motion for
Summary Judgment. Subsequently, on September 10,
1970, the Board issued an Order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after filed a Response to Notice To Show Cause. On
October 30, 1970, the Board issued its Order Granting
Motion and Amending Complaint in which the Board
granted the General Counsel's Motion To Amend
Complaint, amended the complaint to reflect the
proper date of the election at which the Union was
selected as the employees' bargaining representative,
and permitted the Respondent to file with the Board
an amended answer to the complaint and any supple-
mental or amended response to the Motion for Sum-
mary Judgment previously filed. Thereafter, by
telegram dated November 9, 1970, the Respondent
moved to amend paragraph 3 of its answer by deleting
the incorrect date "February 11, 1969," and substitut-
ing the correct date "July 16, 1969," thereby admit-
ting, rather than denying, paragraph 3 of its answer
"that pursuant to said election, the Regional Director
for the Sixteenth Region of the National Labor Rela-
tions Board certified the Union as the exclusive bar-
gaining representatives of said employees."
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 powers
in connection with this case to a three-member panel.
Upon the entire record in this proceeding, includ-
ing the record in Case 16-RC-5076, the Board makes
the following:
RULING ON THE MOTION FOR SUMMARY JUDGMENT
As reflected above, the Respondent's answer ad-
mits all of the factual allegations of the complaint,
including its refusal to recognize the bargain with the
Union which had been certified as the collective bar-
gaining representative of the employees described in
the complaint. Affirmatively, the Respondent raises
defenses relating to (1) the appropriateness and scope
of the unit, (2) the Union's failure to represent an
uncoerced majority, and (3) the Regional Director's
erroneous rulings concerning challenges to ballots
and objections to the election.2 In its response to the
2 Respondent also contends that the Motion for Summary Judgment
should be denied because the Board 's denial of Respondent 's requests for
review filed at various stages of the representation case proceeding did not
188 NLRB No. 4
J. M. WOOD MFG. CO.
Notice To Show Cause, the Respondent contends that
a summary judgment cannot be granted if material
facts remain in dispute after the pleadings have been
entered. By this assertion, and more specifically by its
denials, in whole or in part, of the allegations of the
complaint, the affirmative defenses alleged in its an-
swer, and the arguments propounded in its response
to the General Counsel's motion, the Respondent is
attempting to relitigate the same issues which it raised
in the representation proceeding in Case 16-RC-
5076.
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.3
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 Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation duly organized
under and existing by virtue of the laws of the State
of Texas, having an office and place of business in the
city of Waco, Texas, where it is, and has been at all
times material herein, engaged in the manufacture,
sale, and distribution of work clothes, sportswear, and
related products. During the past year, the Respon-
dent, in the course and conduct of its business opera-
tions, purchased, transferred, and delivered to its
Waco, Texas, plant goods and materials valued in
excess of $50,000, which goods and materials were
transported to said place of business directly from the
States of the United States other than the State of
involve independent review by the Board of the record in Case 16-RC-5076,
citing, inter aha, Pepsi-Cola Bottling Company v N L R.B., 409 F 2d 676 (C A.
2). However , in ruling on this motion , the Board has, as indicated , reviewed
the record in that case . On the basis of such review, we find no ground for
disturbing the Regional Director 's findings and conclusions.
7 See Pittsburgh Plate Glass Co. v. N.LR B, 313 U.S. 146, 162 ( 1941), Rules
and Regulations of the Board , Secs. 102.67(f) and 102 69(c)
23
Texas, and sold and shipped finished products, valued
in excess of $50,000, to points outside of 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
Southwest Regional Joint Board , 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 production and maintenance employees of
Respondent employed at its Waco, Texas, plant
including plant clerical employees and watch-
men exclusive of office clerical employees, pro-
fessional employees, guards, and supervisors as
defined in the Act.
2. The certification
On July 16, 1969, 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 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 June 17, 1970, 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 June 23, 1970, and at all
times thereafter, the Union has requested the Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about June 30, 1970, and continuing at all times there-
after to date, the Respondent has refused, and contin-
ues to refuse, to recognize and bargain with the Union
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the exclusive representative for collective bargain-
ing of all employees in said unit.
Accordingly , we find that the Respondent has,
since June 30, 1970 , 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 , Respondent has en-
gaged 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 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.
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 appro-
priate unit , and, if an understanding is reached, em-
body such understanding in a signed agreement.
In order to insure thEkt a 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), 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. J. M. Wood Manufacturing Company , Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Southwest Regional Joint Board , Amalgamated
Clothing Workers of America, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the
Act.
3. All production and maintenance employees of
Respondent employed at its Waco, Texas , plant in-
cluding plant clerical employees and watchmen exclu-
sive of office clerical employees , professional
employees , guards , and supervisors constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
4. Since June 17, 1970 , the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 June 30 , 1970, 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
meaning of Section 8 (a)(1) 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 Rela-
tions Board hereby orders that Respondent, J. M.
Wood Manufacturing Company, Inc., 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 Southwest Regional Joint
Board , Amalgamated Clothing Workers of America,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All production and maintenance employees of
Respondent employed at its Waco , Texas, plant
including plant clerical employees and watch-
men exclusive of office clerical employees, pro-
fessional employees , guards , and supervisors as
defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
J. M. WOOD MFG. CO.
(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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Waco, Texas, plant copies of the
attached notice marked "Appendix."4 Copies of said
notice, on forms provided by the Regional Director
for Region 16, 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 16, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 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 be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
25
ing 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
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 production and maintenance employees of
Respondent employed at its Waco, Texas, plant
including plant clerical employees and watch-
men exclusive of office clerical employees, pro-
fessional employees, guards, and supervisors as
defined in the Act.
J. M. WOOD MANUFACTURING
COMPANY, INC
(Employer)
Dated By
(Representative) (Title)
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 South-
west Regional Joint Board, Amalgamated Cloth-
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, 8A24 Federal Office Building, 819
Taylor Street, Fort Worth, Texas 76102, Telephone
817-334-2921.