Durham Hosiery Mills, Inc.

National Labor Relations Board - Board Decisions

Nov 12, 1975

221 N.L.R.B. 600 (N.L.R.B. 1975)

600 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
Durham Hosiery Mills, Inc. and United Textile
Workers"of America, AFL-CIO. Case 5-CA-7345
November 12, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on June 16, 1975, by United
Textile Workers of America, AFL-CIO, herein
called the Union, and duly served on Durham
Hosiery Mills, Inc:, herein called the Respondent, the
General Counsel of the National' Labor Relations
Board, by the Regional Director for Region 5, issued
a complaint on August 6, 1975, 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 r' epresentative of the employees
of Danville Industries, Inc.,, hereafter Danville, in the
unit found appropriate.
The complaint further alleges that-on April 29,
1974, the Board issued a Decision and Order'
finding that Danville had violated Section 8(a)(5)
and (1) of the Act by refusing to bargain with the
Union, and ordering that it commence to bargain
therewith, and that on January 27, 1975, the United
States Court of Appeals for the Fourth Circuit issued
its decision per curiam enforcing the Board's Order in
full.2
The complaint alleges that since January 2, 1974,
Respondent has been the successor of Danville and
had knowledge of the Union's certification and
Danville's obligation to bargain therewith, but since
June 24, 1975, Respondent has refused and continues
to refuse to bargain as successor to Danville although
the Union is requesting and has requested it to do so.
On August 15, 1975, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint, and requesting that
the complaint be dismissed in its entirety for failure
to state a cause of action. Respondent admits, inter
alia, the Union's certification as bargaining repre-
i 210 NLRB 307 (1974)
2 510 F.2d 968.
3 The Respondent is not seeking to relitigate the issues in Case 5-RC-
221 NLRB No. 84
sentative of all Danville employees in the appropriate
unit, that it purchased the assets of Danville at its
Danville, Virginia, location and continued the
manufacture of products which had previously been
manufactured by Danville at this location, and that it
has refused to bargain with the Union upon request.
It denies, however, that- it is a successor to Danville.
On August 28, 1975,` counsel for the General
Counsel filed directly' with the Board a Motion for
Summary Judgment, together with exhibits. He
submits, in effect, that, by virtue of Respondent's
admissions ,and the evidence he attaches, as a matter
of law, the Respondent has violated Section 8(a)(5)
and (1) of the Act. Subsequently, on,September 8,
1975, 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, in response to Notice To Show
Cause,. a statement in , opposition to the General
Counsel's Motion for Summary Judgment and an
amended statement, submitting that, inasmuch as it
was not a party. in the representation case or the
previous 8(a)(5) proceeding involving Danville, and
successorship was not litigated therein, it is not
attempting to relitigate an issue litigated in the prior
representation case. Although conceding the accura-
cy of the facts alleged in the complaint and, in the
General Counsel's motion, it asserts however that
these facts are insufficient to establish successorship
and that due process requires an evidentiary hearing
in which Respondent may, present evidence militat-
ing against a finding of successorship herein.
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
As indicated above, Respondent stipulates that the
facts alleged in the Motion for Summary Judgment
are accurate and do not materially vary from those
alleged in paragraph 6 of the complaint, but asserts
that these facts are insufficient to establish successor-
ship and that a hearing is required on this issue.3
The facts alleged by the General Counsel, both in
his motion and in paragraph 6 of the complaint, in
support of the conclusion of successorship, are as
follows: Respondent has continued the operations of
Danville at the same location, utilizing the same
8454 in which it was not a party and in which the Union admittedly was
certified as the exclusive bargaining representative of the Danville
employees in the appropriate unit.
DURHAM HOSIERY MILLS, INC.
equipment and producing the same product for the
same customers, using the same employees to
perform the same job functions under the same
supervision.4
From these admitted facts, the conclusion clearly
follows that Respondent is the successor to Dan-
ville,5 and, in view of these' facts standing admitted,
no hearing is required to satisfy the mandates of due
process. It is well settled that a successor employer is
obligated to bargain, upon request, with the exclusive
representative of the employees of its predecessor,
where, as here, it retains all of the employees in the
unit and continues the same operation, and that a
refusal to do so violates Section 8(a)(5) of the Act .6
Accordingly, we shall grant the General Counsel's
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 Durham Hosiery Mills, Inc., is a
North Carolina corporation with a facility located in
Danville, Virginia, which is the only facility involved
herein, where it is engaged in the manufacture of
knitted goods. During the past 12 months, a
representative period, Respondent has sold and
shipped products in interstate commerce valued in
excess of $50,000 to customers located outside the
Commonwealth of Virginia.
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.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
4 In a statement by Respondent which the General Counsel attaches as
an exhibit to his motion, Respondent states, inter aka, that there was no
hiatus in the operation upon the transfer of ownership, and that it was
aware of the Union's certification as the exclusive representative of the
601
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees em-
ployed by the Employer at its Danville, Virginia,
location, excluding professional employees, office
clerical employees, guards, and supervisors 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. The Union was certified as the collective-
bargaining representative of the employees 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.
B. Respondent's Successorship to Danville
Industries, Inc.
Thereafter, on January 2, 1974, Danville Industries,
Inc., sold its Danville Knitting Mills Division to
Respondent herein. Respondent purchased all assets,
including real property, production facilities, and
inventory, and continued the operations at the same
location where it produced the same products for the
same customers as had Danville Industries, Inc. In so
doing, Respondent utilized the same unit employees
under the same supervisory personnel.
C. The Request To Bargain and Respondent's
Refusal
Commencing on or about June 24, 1975, 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 June 24 , 1975, 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 is the
successor to Danville and has , since June 24, 1975,
and at all times thereafter , refused to bargain
collectively with the Union as the exclusive repre-
employees in the appropriate umt. Respondent does not now controvert this
statement.
5 N.L.R.B v Burns International Security Services, Inc., 406 U.S. 272, 279
(1972); Howard Johnson Company, 198 NLRB No. 98 (1972); Ranch-Way,
Inc., 203 NLRB 911 (1973).
6 Howard Johnson Company, supra, fn. 5.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative 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. 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.
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 Union as
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. Durham Hosiery Mills, 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 de-
fined 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. Since January 2, 1974, Respondent has been
and is the successor to Danville Industries, Inc.
6. By refusing on or about June 24, 1975, 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.
7. 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.
8. 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,
Durham Hosiery Mills, Inc., Danville, Virginia, 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 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 em-
ployed by the Employer at its Danville, Virginia,
location, excluding professional employees, office
clerical employees, guards, and supervisors 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
DURHAM HOSIERY, MILLS, INC. 603
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 Danville, Virginia, facility copies of
the attached notice marked "Appendix." 7 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 there-
after, 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 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
r 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."
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.
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 Danville,
Virginia, location, excluding professional
employees, office clerical employees, guards,
and supervisors as defined in the Act.-
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
DURHAM HOSIERY
MILLS, INC.