Omi Georgia, Incorporated

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 451 (N.L.R.B. 1981)

OMI GEORGIA, INCORPORATED
Omi Georgia, Incorporated and International Mold-
ers and Alliled Workers Union, AFL-CIO-
CLC, Local 324. Case 10-CA-16959
September 30,1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on May 4, 1981, and an
amended charge filed on May 21, 1981, by Interna-
tional Molders and Allied Workers Union, AFL-
CIO-CLC, Local 324, herein called the Union, and
duly served on Omi Georgia, Incorporated, herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Acting Re-
gional Director for Region 10, issued a complaint
on May 27, 1981, 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 charges and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on February 10,
1981, following a Board election in Case 10-RC-
11952,' the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate;
and that, commencing on or about March 6, 1981,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collec-
tively with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On June 8, 1981, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On June 22, 1981, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on June 25, 1981,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
'Official notice is taken of the record in the representation proceeding,
Case IO-RC-11952, 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 (4th
Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 FSupp. 573
(D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
258 NLRB No. 63
thereafter filed a response to the Notice To Show
Cause.
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 his Motion for Summary Judgment, the Gen-
eral Counsel submitted, in effect, that Respondent
is endeavoring to relitigate Case 10-RC-11952 in
this proceeding, and that Respondent does not aver
any newly discovered or previously unavailable
evidence. He therefore moved that the Board issue
an Order To Show Cause why a decision should
not be issued finding that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act.
In its answer to the complaint and its response to
the Notice To Show Cause, Respondent in effect
attacks the certification of the Union as the bar-
gaining representative of the employees in the unit
found appropriate by asserting that the Board made
erroneous findings concerning objections to con-
duct of the election, and avers that it has reason to
believe that its request for review in Case 10-RC-
11952 was not considered and acted upon by a
proper quorum of Board Members.
Our review of the record, including that in Case
10-RC-11952, shows that, following a second elec-
tion in that representation proceeding and the filing
of timely objections by the Employer, the Regional
Director for Region 10 issued a Second Supple-
mental Decision and Certification of Representa-
tive in which he certified the Union as the collec-
tive-bargaining representative of the employees in
the unit found appropriate. Thereafter, the Board
denied Respondent's request for review of the Re-
gional Director's Second Supplemental Decision. 2
It thus appears that Respondent's contentions were
considered by the Board and rejected in that pro-
ceeding and, therefore, may not be reconsidered
here.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
2 With respect to its allegation that its request for review may not have
been considered and acted upon by a proper quorum of Board Members,
Respondent filed a "Motion for Production of Documents and Materi-
als." We have construed this motion to be a request for information pur-
suant to the Freedom of Information Act, 5 U.S.C. §552, and have re-
ferred the motion to the Office of the Executive Secretary for considera-
tion and response in conformity with that act. The Office of the Execu-
live Secretary acted upon this request by letter of August 4, 1981. ad-
dressed to Respondent's attorney
451
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to relitigate issues which were or could have been
litigated in a prior representation proceeding. 3
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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 Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we 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 RESPONDENT
The Respondent, Omi Georgia, Incorporated, is
a Georgia corporation with an office and place of
business located in Columbus, Georgia, engaged in
the manufacture of yarn. In the course and conduct
of its business during the 1-year period ending May
27, 1981, it sold and shipped from its Columbus,
Georgia, facility finished products valued in excess
of $50,000 directly to customers located outside the
State of Georgia.
We find, on the basis of the foregoing, that Re-
spondent 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 Molders and Allied Workers
Union, AFL-CIO-CLC, Local 324, is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees
employed by the Respondent at its Columbus,
Georgia plant including opening tenders,
3 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).
picker tenders, drawing tenders and card
tenders in the carding department; spinners in
the spinning department; winder tenders or
backers in the winding department; and all
sweepers, warehouse employees, laboratory
technicians and overhaulers; but excluding all
office clerical employees, professional employ-
ees, guards and supervisors as defined in the
Act.
2. The certification
On January 9, 1981, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 10, designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on February 10, 1981, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about March 4, 1981, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about March 6, 1981, and continu-
ing at all times thereafter to date, 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.4
Accordingly, we find that Respondent has, since
March 6, 1981, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
4 On either February 24, 1981, as acknowledged in Respondent's
March 6, 1981, letter, or on March 4, 1981, as alleged in the complaint,
the Union requested from Respondent certain information necessary in
contemplation of engaging in collective bargaining. By letter of March 6,
1981, Respondent, in effect, refused to furnish the information based on
its request for review of the certification of the Union. As Respondent
has averred no other reasons for its refusal to furnish the information as
alleged in the complaint, we construe it as part of its refusal to recognize
and bargain with the Union.
452
OMI GEORGIA. INCORPORATED
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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Omi Georgia, Incorporated, is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. International Molders and Allied Workers
Union, AFL-CIO-CLC, Local 324, is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees
employed by the Respondent at its Columbus,
Georgia plant including opening tenders, picker
tenders, drawing tenders and card tenders in the
carding department; spinners in the spinning de-
partment; winder tenders or backers in the winding
department; and all sweepers, warehouse employ-
ees, laboratory technicians and overhaulers; but ex-
cluding all office clerical employees, professional
employees, guards and supervisors as defined by
the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since February 10, 1981, 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 March 6, 1981, 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 prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged 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 Re-
lations Board hereby orders that the Respondent,
Omi Georgia, Incorporated, Columbus, Georgia, 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 International Mold-
ers and Allied Workers Union, AFL-CIO-CLC,
Local 324, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All production and maintenance employees
employed by the Respondent at its Columbus,
Georgia plant including opening tenders,
picker tenders, drawing tenders and card
tenders in the carding department; spinners in
the spinning department; winder tenders or
backers in the winding department; and all
sweepers, warehouse employees, laboratory
technicians and overhaulers; but excluding all
office clerical employees, professional employ-
ees, guards and supervisors as defined in the
Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
453
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Columbus, Georgia, facility copies
of the attached notice marked "Appendix." 5 Copies
of said notice, on forms provided by the Regional
Director for Region 10, 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. Rea-
sonable 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 10,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
MEMBER JENKINS, DISSENTING:
Since I would have granted review of the Em-
ployer's Objection 1, I would deny the General
Counsel's Motion for Summary Judgment.
s 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 Pursu-
ant 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 International Molders and Allied Work-
ers Union, AFL-CIO-CLC, Local 324, as the
exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All production and maintenance employees
employed by us at our Columbus, Georgia
plant including opening tenders, picker
tenders, drawing tenders and card tenders in
the carding department; spinners in the spin-
ning department; winder tenders or backers
in the winding department; and all sweepers,
warehouse employees, laboratory techni-
cians and overhaulers; but excluding all
office clerical employees, professional em-
ployees, guards and supervisors as defined in
the Act.
OMI GEORGIA, INCORPORATED
454