Russ Togs, Inc.

National Labor Relations Board - Board Decisions

Jul 9, 1971

192 N.L.R.B. 49 (N.L.R.B. 1971)

R&M KAUFMANN, DIV. OF RUSS TOGS, INC. 49
R & M Kaufmann, a Division of Russ Togs, Inc. and
District 65, Whosesale, Retail, Office and Process-
ing Union . Case 13-CA-10451
July 9, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a ,charge filed on March 11, 1971, by District
65, Wholesale, Retail, Office and Processing Union,
herein called the Union, and duly served on R & M
Kaufmann, a Division of Russ Togs, Inc., herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 13, issued a complaint on April 1,
1971, 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 a
Trial Examiner were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges , in substance that on January 26,
1971, following a Board election in Case
13-RC-11887 the Union was duly certified as the
exclusive collective-bargaining representative of Rer
spondent's employees in the unit found appropriate;1
and that, commencing on.or about February 26, 1971,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represent-
ative , although the Union has requested and is
requesting it to do so. On April 11, 1971, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the complaint.
Respondent admits that in the Board-conducted
election of January '18, 1971, a majority of its
employees selected the Union as its bargaining
representative and that on January 26, 1971, the
Union was certified as exclusive collective-bargaining
representative of employees in the unit found to be
appropriate. Respondent denies, however, that the
Union is a representative or labor organization within
the meaning of the Act and asserts that the Union's
certification is invalid since it defines an inappropri-
ate unit.
On April 20, 1971, counsel for the General Counsel
i Official notice is taken of the record in the representation proceeding,
Case , 13-RC-11887, 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 Co. v.'Peneio,
192 NLRB No. 14
filed directly with,the Board a Motion for Summary
Judgment. Subsequently, on April 26,197 the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment' should not
be granted. Respondent thereafter filed, a response, to
Notice To Show Cause, characterized as an Answer to
Motion for Summary Judgment. -,
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated, its
powers in connection with 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 to the Motion for
Summary Judgment Respondent contends that, the
Union does not, qualify as a, labor organization or,
alternatively, that it is disqualified from representing
apparel' salesmen. It further denies that the unit set
forth in the complaint is an appropriate unit.
Accordingly, it prays that the Board deny the Motion
for Summary Judgment.
Respondent's contentions present the same repre-
sentation issues which, had been, considered and
determined by the Board, in its Decision and Direc-
tion of Election (187 NLRB No. 20) issued in the
antecedent representation proceedings in Case
13-RC-11887. There the Board found that the union
met the Act's definition of a labor organization,
rejected respondent's ' contention that the bargaining
unit should include resident salesmen, and granted
the union's request for a unit- limited to traveling
commission salesmen . Accordingly, we find no merit
in the Respondent's contentions.
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 ptoceeding.2
All issues raised, by the Respondent in this pioceed-
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
269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378 , enfd. 397
F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
2 See Pittsburgh Plate Glass Co v. N.GR.B., 313 U.S. 146,162 (1941);
Rules and Regulations of the Board , Sees. 102.67(1) and 102:69(c).
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
1. THE BUSINESS OF THE RESPONDENT,
Respondent, a New York corporation, with` a plant
and place of business in Aurora, Illinois, is engaged in
the manufacture and sale of women's apparel. During
the past fiscal or calendar year, Respondent manufac-
tured, sold, and shipped finished products valued in
excess of $1 million from its plant in Aurora, Illinois,
directly to customers located in States of the United
States other,than the State of Illinois.
,,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. THE LABOR ORGANIZATION INVOLVED
District 65, Wholesale, Retail, Office and Process-
ing Union is a labor organization 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 the Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All traveling commission sales employees, exclud-
ing all other employees, resident sales employees,
showroom employees, factory employees, office
employees, shipping and receiving employees,
stock employees,' trucking employees, guards and
supervisors as defined in the Act.
2. The certification
On January 18,,197 1, 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 13 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 January 26, 1971, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) ofrthe Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about February 23, 1971, 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 February 26, 1971', 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 employ-
ees in said unit.
Accordingly, we find that ' the Respondent has, since
February 26, 1971, 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
engaged in and is 'engaging in unfair labor practices
within the meaning of Section 8 (a)(5) and' ( 1) of the
Act.
IV. TIM 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
commerce among-the several States and tend to lead
to labor disputes burdening -and 'obstructing com-
merce 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
appropriate unit, and , if an'understanding is reached,
embody such understanding in a signed , agreement.
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 certification
as beginning on the date Respondent commences to
bargainin good faith with the Union as the reeognizzed
bargaining representative in the appropriate unit.
See Mar-Jac Poultry Company, Inc., 136 NLRB 785;
Commerce Company d/b/a Lamar Hotel, 140 NLRB
226, 229, enfd . 328 F .2d 600 (C.A. 5), cert. denied 379
R&M KAUFMANN, DN. OF RUSS TOGS, INC. 51
U.S. 817; Burnett Construction Company, 149 NLRB
1419,142 1, 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. R & M Kaufmann, a Division of Russ Togs,
Inc., is'an employer engaged in commerce within-the
meaning of Section 2(6) and (7) of the Act.
,2. District ' 65, Wholesale, Retail, Office and
Processing Union, is alabor organization within the
meaning of Section 2(5) of the Act.
3. , All traveling commission sales employees,
excluding all other employees, resident sales-employ-
ees, showroom employees, factory employees, office
employees, shipping, and receiving employees, stock
employees, trucking employees, guards and'-supervi-
sors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Since January 26, 1971, 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 February 26, 1971, 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 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 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 Respondent,R&M
Kaufmann, a Division of Russ Togs, 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 conditions
of employment with District 65, Wholesale, Retail,
Office and Processing Union as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All traveling commission sales . employees, ex-
cluding all other employees, resident sales employ-
ees, showroom employees, factory - employees,
office employees, shipping and receiving employ-
ees, stock employees, trucking employees, guards
and supervisors as defined in the Act.
(b),Iri 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 understand-
ing is reached,,' embody such understanding in a
signed agreement.
(b) Post at its plant and place of business in Aurora,
Illinois, copies of the attached notice marked
"Appendix."3 Copies of said notice, on forms
provided by the Regional Director for Region 13,
after being duly signed by Respondent's representa-
tive, 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 In the event that the Board 's 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 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 District
65, Wholesale, Retail, Office and Processing
Union 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 employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, ,upon request , bargain with the above- R , & M KAuFmANN, A
named Union, as the exclusvie representative of all DIVISION OF Russ Toos,
employees - in the bargaining unit described below, INC.
with respect , to rates of pay, ;wages, hours, and (Employer)
other terms and conditions of employment , and, if
an understanding is reached, embody such under-
-standing .in, a signed agreement ..;The bargaining
unit is:
All traveling commission sales employees,
excluding all other employees, resident sales
employees , showroom employees, factory
employees, office employees , shipping and
receiving ,employees , stock employees , truck-
ing employees , guards and - supervisors as
defined in the Act.
Dated By
(Representative) (Title)
This is wan,officialnotice and must not be defaced ,by
anyone.
This notice must remain posted for 60 consecutive
days from thedate of postingand must,not be altered,
defaced, or covered by any other material.
,Any questions , conceding this notice or compliance
with its' provisions may be directed to, the Board's
Office, Room 881, Everett Dirksen Building, 219
South Dearborn Street, Chicago, Illinois_ ,60604,
Telephone 312-353-75,72. ,