Danville Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1974

210 N.L.R.B. 307 (N.L.R.B. 1974)

DANVILLE INDUSTRIES, INC.
Danville Industries , Inc. and United Textile Workers
of America, AFL-CIO. Case 5-CA-6428
April 29, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a charge filed on November 21, 1973, by
United Textile Workers of America, AFL-CIO,
herein called the Union, and duly served on Danville
Industries . Inc., herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region 5,
issued a complaint on January 2, 1974, 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 November 1,
1973, following a Board election in Case 5-RC-8454
the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; I and that,
commencing on or about November 5, more particu-
larly since November 16, 1973, 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, although
the Union has requested and is requesting it to do so.
On January 1(). -'974, Respondent filed its answer to
the ii admitting in part, and denying in part,
the ,iicgatlons in the complaint.
On January 28, 1974, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February 1,
1974, 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. Respon-
dent thereafter filed a response to Notice To Show
Cause.
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.
1 Official notice is taken of the record in the representation proceeding,
Case 5-RC-8454 , 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 Electrosysteme, Inc, 166 NLRB 938, end. 388 F.2d 683 (C A. 4, 1968);
307
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 again challenges
the validity of the underlying representation case,
and contends that the Board was in derogation of
due process in not ordering a hearing on its
objections thereto . We do not agree.
The record in Case 5-RC-8454 reveals an election
pursuant to a Stipulation for Certification Upon
Consent Election . Of 256 eligible voters , 234 cast
ballots, a tally showing 123 for, and 111 against, the
Union , with 10 challenged ballots . Respondent filed
timely objections to conduct affecting the results of
the election, requesting the election be set aside. The
objections , in substance , alleged: threats by the
Union to employees ; electioneering by the Union in
the vicinity of the polls; and union misrepresentation
of material facts.
Following an investigation , which included consid-
eration of affidavits of Respondent 's witnesses, the
Regional Director issued a Report on Objections to
the Election on July 25, 1973, overruling the
objections on the merits and recommending certifica-
tion of the Union . In his report, the Regional
Director , noting that an allegation of possible ballot
box tampering was untimely filed, nevertheless
reviewed the matter and concluded the allegation to
be without merit. Respondent thereafter filed excep-
tions to the Regional Director's report, reasserting its
original objections and further alleging the possibility
of ballot box tampering . Respondent again requested
that the election be set aside on its objections, or in
the alternative, that a hearing be held on th issues
raised by the objections . The Board issued a
Decision and Certification of Representative on
November 1, 1973, adopting the Regional Director's
findings, conclusions, and recommendation and
certifying the Union.
We find no merit in Respondent 's contention that
due process requires a hearing on its objections. The
objections were considered and rejected on the
merits by the Regional Director, and the Board
necessarily found there were no substantial or
material issues raised thereby in approving the
Regional Director's report and certifying the Union.
Absent a prima facie showing of substantial and
material issues which would warrant setting aside the
election , 2 a hearing is not required to satisfy the
Golden Age Beverage Co., 167 NLRB 151, enfd . 415 F.2d 26 (C.A, 5, 1969);
Intertype Co. v Penella, 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 Allied Foods, Inc., 189 NLRB 513, and cases cited in fn. 3.
210 NLRB No. 43
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mandates of due process . No such showing has been
made herein.
It thus appears that Respondent seeks again to
raise the issues litigated in the earlier representation
proceeding.
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(aX5) 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 a:fer 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
1. THE BUSINESS OF THE RESPONDENT
III. UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
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
employed by the Employer at its Danville,
Virginia , location , excluding professional employ-
ees, office clerical employees , guards and supervi-
sors as defined in the Act.
2. The certification
On May 3, 1973 , 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 5 designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent . The Union was certified as
the collective -bargaining representative of the em-
ployees in said unit on November 1, 1973, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act.
The Respondent , a Virginia corporation, is en-
gaged in the production of knit goods at its Danville,
Virginia, location . During the past 12 months, a
representative period , Respondent purchased and
received in interstate commerce goods and materials
valt ass f :mss of $50,000 from points outside the
Camrltv^l ;tth of Virginia . During the same period,
Respondent sold and shipped products to points
outside the Commonwealth of Virginia 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. THE LABOR ORGANIZATION INVOLVED
United Textile Workers of America, AFL-CIO, is
a labor organization within the meaning of Section
2(5) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about November 5, 1973, and
at all times thereafter , the Union has requested the
Respondent to bargain collect °.a 'c 7 , with it as the
exclusive collective-bargaining represQr.ativ^; cr all
the employees in the above-described unit. Corn-
mencing on or about November 5 and since
particularly November 16, 1973 , 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 representa-
tive for collective bargaining of all employees in said
unit.
Accordingly , we find that the Respondent has,
since November 5, 1973, 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 , Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(aX5) and
(1) of the Act.
s See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
DANVILLE INDUSTRIES, INC. 309
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(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
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 commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit . See Mar-Jac Poultry Company, Inc., 136
NLRB 785 (1962); Commerce 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(1964); 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. Danville Industries, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Textile 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
employed by the Employer at its Danville , Virginia,
location , excluding professional employees , office
clerical 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 November 1, 1973, 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 November 5, 1973,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(aX5) 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(axl) 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,
Danville Industries, Inc., its officers, agents, succes-
sors, 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 United Textile
Workers of America, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees
employed by the Employer at its Danville,
Virginia, location, excluding professional employ-
ees, office clerical employees, guards and supervi-
sors 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
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Danville, Virginia, location copies of
the attached notice marked "Appendix." 4 Copies of
said notice, on forms provided by the Regional
Director for Region 5 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 thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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 5 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
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 employ-
ees employed by the Employer at its Dan-
ville, Virginia, location, excluding profes-
sional employees, office clerical employees,
guards and supervisors as defined in the Act.
DANVILLE INDUSTRIES,
INC.
(Employer)
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 United
Textile Workers of America, AFL-CIO, as the
exclusive representative of the employees in the
bargaining unit described below.
Dated By
(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, Federal Building, Room 1019,
Charles Center, Baltimore, Maryland 21201, Tele-
phone 301-962-2822.