Santee River Wool Combing Co., Inc

National Labor Relations Board - Board Decisions

Oct 24, 1975

221 N.L.R.B. 108 (N.L.R.B. 1975)

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.