D'Armigene, Inc.

National Labor Relations Board - Board Decisions

Aug 3, 1965

154 N.L.R.B. 187 (N.L.R.B. 1965)

D'ARMIGENE, INC.
APPENDIX
187
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership by any of our employees in Truck
Drivers, Warehousemen and Helpers of Jacksonville, Local Union No. 512, affil-
iated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or in any other labor organization, by discharging or
otherwise discriminating against employees in regard to their hire or tenure of
employment, or any other term or condition of employment.
WE WILL offer King Adams immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other
rights and privileges previously enjoyed.
WE WILL make whole King Adams for any loss of pay he may have suffered
as a result of the discrimination against him.
WE WILL NOT interrogate our employees concerning their union sentiments,
whether they have signed union cards, or as to the union activities of other
employees, invite employees to report to management concerning the union
activities of other employees, tell employees that wage increases are being
withheld because of union activities, or in any other manner interfere with,
restrain, or coerce our employees in the exercise of their rights to self-organiza-
tion, to bargain collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bargaining, or other
mutual aid or protection, or to refrain from any or all such activities.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of any labor organization.
I V. SUTPHIN, CO.-ATLANTA, INC,
Employer
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing Act of 1948, as amended, after discharged from the Armed Forces.
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Room 706,
Federal Office Building, 500 Zack Street, Tampa, Florida, Telephone No. 228-7711.
D'Armigene , Inc. and Local 107, International Ladies ' Garment
Workers' Union , AFL-CIO. Case No. 29-CA-181. August 3,
1965
DECISION AND ORDER
On June 9, 1965 , Trial Examiner Sidney Lindner issued his Deci-
sion in the above-entitled proceeding , finding that the Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision.
154 NLRB No. 13.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial errors was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire record in the case,
and hereby adopts the findings,' conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
Respondent, D'Armigene, Inc., Bay Shore, Long Island, New York, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
1 The Trial Examiner 's Decision is hereby corrected so that the unit description in-
cludes cuttermarkers rather than cuttermakers.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On a charge duly filed on March 16, 1965, by Local 107 , International Ladies'
Garment Workers ' Union, AFL-CIO, herein called the Union, the General Counsel
of the National Labor Relations Board by the Regional Director for Region 29
issued a complaint , together with a notice of hearing dated March 29, 1965, copies
of which were duly served upon the parties . The complaint alleges, in substance
that D 'Armigene, Inc., herein called the Respondent , refused to bargain with the
Union in violation of Section 8(a)(1) and (5) of the Act.
Respondent 's answer denied certain allegations of the complaint , including those
relating to the appropriateness of the bargaining unit ,' the status of the Union as
exclusive representative of all employees in said unit and the commission by Respond-
ent of any unfair labor practices within the meaning of the Act. As affirmative
defenses the Respondent alleged that the unit does not constitute a unit appropriate
for collective -bargaining purposes within the meaning of Section 9 (b) of the Act,
that the Board's rulings on challenged ballots were erroneous (Case No. 29-RC-6),
and that the Board's denial of a stay pending decision by the Court of Appeals with
respect to the Board 's Order in 148 NLRB 2 was a denial of due process.
On May 3, 1965, the General Counsel filed and served a motion for judgment on
the pleadings . In support thereof he contended that: ( 1) the affirmative defenses
pleaded by the Respondent had been raised and litigated in the underlying repre-
sentation proceeding , Case No. 29-RC-6, and the Respondent may not relitigate
these issues in the complaint proceeding before the Trial Examiner, who is bound
by the Board 's decision ; ( 2) on March 3, 1965, the Union requested Respondent to
recognize it as the exclusive collective -bargaining representative of the Respondent's
employees in the aforesaid unit and since March 5, 1965, the Respondent refused to
recognize and bargain collectively with the Union (which facts were alleged in the
complaint and admitted in the Respondent 's answer thereto ); and (3 ) the allega-
1 The following employees of Respondent were found to constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act:
All cutting department employees employed by Respondent at its plant in Bay Shore,
Long Island, New York, including cutters, cuttermakers, and assorters , but excluding all
other production and maintenance employees , office clerical employees , sales employees,
professional employees , watchmen , guards, and supervisors as defined in the Act.
D'ARMIGENE, INC. 189
tions of the complaint must be found to be true and the Trial Examiner should
make findings of fact and conclusions based thereon and recommend an appropriate
order.
On May 10, 1965, Trial Examiner Sidney Lindner issued and caused to be served
on all the parties, an order directing the Respondent to show cause, on or before
May 20, 1965, why the motion should not be granted and the issues raised by the
pleadings herein should not be resolved without further hearing. The order also
directed Respondent to submit any evidence newly discovered or not available at
the time of the representation proceeding by way of an offer of proof.
In Response to the order to show cause, I received Respondent's offer of proof
dated May 18, 1965, in which Respondent offered as proof the record in Case No.
2-CA-9396 and the Board's Decision therein, 148 NLRB 2 (of which record the
Board took administrative notice in its Decision and Order dated February 4, 1965
(Case No. 29-RC-6), on the challenged ballots herein), and the fact that said
proceeding is pending on appeal before the Court of Appeals for the Second Circuit
(also noted by the Board in said Decision and Order).
It appearing, therefore, that there are no issues of fact herein requiring a hearing
before a Trial Examiner for the purpose of issuing a Decision, I deem this case
submitted for decision on the pleadings, the motion papers and the record in Case
No. 29-RC-6. The hearing herein heretofore indefinitely postponed is hereby can-
celed, and I make the following:
Rulings on the Motion
The issues raised by Respondent's answer and offer of proof were previously raised
and determined by the Board in the underlying representation case (Case No. 29-
RC-6). It is well settled that such issues, absent newly discovered evidence, none
of which is offered here, may not be relitigated in this case.2
It is apparent from the foregoing that there are no factual issues litigable before
me. Accordingly, the General Counsel's motion is granted on the basis of the entire
record herein, including the representation case, and I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent is a New York corporation engaged at Bay Shore , Long Island,
New York, in the manufacture and sale of women's uniforms . During the past 12
months, Respondent purchased supplies, materials , and products valued in excess of
$50,000 which were shipped directly to its Bay Shore plant from suppliers located
outside the State of New York, and manufactured , sold, and shipped products in
excess of $ 50,000 in interstate commerce to customers in other States. I find that
the Respondent is now, 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.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Representation Proceeding
a. The unit
All cutting department employees employed by Respondent at its plant in Bay
Shore, Long Island, New York, including cutters, cuttermakers, and assorters, but
excluding all other production and maintenance employees, office clerical employ-
ees, sales employees, professional employees, watchmen, guards, and supervisors as
defined in the Act, constitute a unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act.
2 Pittsburgh Plate Glass Company v . N.L.R.B., 313 U S. 146; Metropolitan Life In-
surance Company, 141 NLRB 337, enfd. 328 F 2d 820 (C A. 3) ; Metropolitan Life In-
surance Company, 141 NLRB 1074, enfd. 330 F. 2d 62 ( C A. 6) ; Esquire , Inc. (Coronet
Instructional Films Division), 109 NLRB 530, 538-539, enfd 222 F. 2d 253 (CA. 7).
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The certification
On or about January 24, 1964, a majority of the employees of the Respondent in
said unit, in a secret election conducted under the supervision of the Regional
Director for Region 2, designated and selected the Union as their representative for
the purposes of collective bargaining with Respondent, and on February 23, 1965,
the Board certified the Union as the collective-bargaining representative of the
employees in said unit and the Union continues to be such representative.
c. The request to baigain and the Respondent's refusal
On or about March 3, 1965, and continuing 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 appropriate unit. On or
about March 5, 1965, Respondent did refuse, and continues to refuse, to recognize
and bargain collectively with the Union as the exclusive collective-bargaining repre-
sentative of all the employees in said unit.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, occurring in connection
with its operations set forth in section I, have a close, intimate, and substantial rela-
tion 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 commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain unfair
labor practices, I shall recommend that it cease and desist therefrom and take affirm-
ative action designed to effectuate the policies of the Act.
Upon the foregoing findings of fact and the entire record in the case, including
the representation proceedings, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act
3. All cutting department employees employed by Respondent at its plant in Bay
Shore, Long Island, New York, including cutters, cuttermakers, and assorters, but
excluding all other production and maintenance employees. office clerical employees,
sales employees, professional employees, watchmen, guards, and supervisors as
defined in the Act, constitute a unit appropriate for the purpose of collective bargain-
ing within the meaning of Section 9 (b) of the Act.
4. Since on or about February 23, 1965, the Union has been, and is the exclusive
representative for the purposes of collective bargaining of the employees in the unit
described above.
5. By refusing to bargain collectively with the Union as the exclusive representative
of the employees in the appropriate unit on or about March 5, 1965, and thereafter,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) and (1) of the Act.
6 The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in this case and in the representation proceeding, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, I recommend that the
Respondent, D'Armigene, Inc , its officers, agents, successors, and assigns, shall.
1. Cease and desist from-
(a) Refusing to bargain collectively with Local 107, International Ladies' Garment
Workers' Union, AFL-CIO, as the exclusive bargaining representative of its employ-
ees in the following unit:
All cutting department employees employed by Respondent at its plant in Bay
Shore, Long Island, New York, including cutters, cuttermakers, and assorters, but
excluding all other production and maintenance employees, office clerical employees,
sales employees, professional employees, watchmen, guards, and supervisors as
defined in the Act.
D'ARMIGENE, INC. 191
(b) Interfering with the efforts of Local 107, International Ladies' Garment
Workers' Union , AFL-CIO, to negotiate for or represent the employees in the said
appropriate unit as the exclusive bargaining agent
2. Take the following affirmative action , which it is found will effectuate the
policies of the Act.
(a) Upon request , bargain collectively with Local 107, International Ladies' Gar-
ment Workers ' Union , AFL-CIO, as the exclusive representative of all the employees
in the appropriate unit described above, with respect to Iates of pay, wages , hours of
employment , and other conditions of employment , and, if an understanding is
reached, embody such understanding in a signed agreement.
(b) Post at its Bay Shore , Long Island, New York, plant , copies of the attached
notice marked "Appendix ." 3 Copies of said notice , to be furnished by the Regional
Director for Region 29, shall , after being duly signed by Respondent 's representative,
be posted by it 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 29, writing , within 20 days from the
receipt of this Decision and Recommended Order, what steps the Respondent has
taken to comply herewith.4
3 In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board 's Order is enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
'In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director, in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Local 107, International
Ladies' Garment Workers' Union , AFL-CIO , as the exclusive representative of
the employees in the bargaining unit described below
WE WILL NOT interfere with the efforts of Local 107, International Ladies'
Garment Workers ' Union, AFL-CIO, to negotiate for or represent as exclusive
bargaining agent the employees in the bargaining unit described below
WE WILL, upon request , bargain with the above -named union , as the exclusive
representative of all the employees in the bargaining unit described below with
respect to rates of pay, wages , hours of employment , and other conditions of
employment , and, if an understanding is reached , embody such an understanding
in a signed agreement.
The bargaining unit is:
All cutting department employees employed by Respondent at its plant in
Bay Shore , Long Island, New York, including cutters, cuttermakers, and
assorters , but excluding all other production and maintenance employees,
office clerical employees , sales employees , professional employees , watch-
men, guards , and supervisors -as defined in the Act.
D'ARMIGENE, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, Fourth
Floor, 16 Court Street, Brooklyn, New York, Telephone No. 596-5386.