Hanes Corp.

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 532 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hanes Corporation and Amalgamated Clothing and
Textile Workers Union, AFL-CIO, CLC. Case
5-CA- 12494
January 14, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on August 5, 1980, by
Amalgamated Clothing and Textile Workers
Union, AFL-CIO, CLC, herein called the Union,
and duly served on Hanes Corporation, herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 5, issued a complaint on August
19, 1980, against Respondent, alleging that Respon-
dent 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 and the 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 June 25,
1980, following a Board election in Case 5-RC-
11004, the Union was duly certified as the exclu-
sive collective-bargaining representative of Respon-
dent's employees in the unit found appropriate;'
and that, commencing on or about July 23, 1980,
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, and to furnish relevant bargaining
information, although the Union has requested and
is requesting it to do so. On August 26, 1980, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On September 11, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. 2 Subsequently, on September
23, 1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
' Official lnotice is taken of the record in the representation proceed-
ing, Case 5 RC- II(t4, as the term "record" is defined in Secs 1(1268
and 102.6
9
(g) of the Board\' Rules and Regulations, Series 8, as alllded
See LT'V Electroysrel, Inc.. 16h NlRB 938 (1067), enfd 388 'F2d 683
(4th Cir 19h68) G(ioIlen Age Beverage Co, 167 NLRB 151 (19h7). entfd 415
F.2d 26 (5th Cir 1I69)1 Intert'pe C(' vs Penello, 2h9 F'Supp 573
(DC.Va. 1967): Follett Corp., 164 NlRB 378 (1967), enfd 397 F 2d 'li
(7th Cir 1968); Sec. 9(d) of the NIRA, its amendedl
2 The Union also filed a Motioln for Sutrinary Juldgilenlit herein it re-
quested the imposition of extraordinary remedies
254 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 General Counsel's Motion for
Summary Judgment
In its answer to the complaint and in its response
to the Notice To Show Cause, Respondent admits
its refusal to bargain, but contends that it had no
duty to bargain because the Union was not proper-
ly certified. Respondent attacks the Union's certifi-
cation on the basis of several of its objections to
the election in the underlying representation pro-
ceeding which the Board previously considered
and rejected, and further contends that the Region-
al Director erred by not holding a hearing on its
objections to the election, and that it is now enti-
tled to a hearing.
Review of the record herein, including the
record in Case 5-RC- 11004, discloses that pursuant
to a Stipulation for Certification Upon Consent
Election, approved on November 1, 1979, an elec-
tion was conducted on November 20 and 21, 1979,
which resulted in 569 votes for, and 504 votes
against, the Union, and 50 challenged ballots, an in-
sufficient number to affect the results. Thereafter,
Respondent filed timely objections to conduct af-
fecting the results of the election. The Regional Di-
rector issued his Report on Objections on April 15,
1980, wherein he recommended that Respondent's
objections be overruled in their entirety and that an
appropriate Certification of Representative issue.
Respondent filed timely exceptions to the Re-
gional Director's report. On June 25, 1980, the
Board issued its Decision and Certification of Rep-
resentative in which it adopted the Regional Direc-
tor's findings and recommendations and certified
the Union as the collective-bargaining representa-
tive of Respondent's employees in the stipulated
appropriate unit. In its response to the Notice To
Show Cause, Respondent is attempting to raise and
relitigate issues already litigated and determined,
and this it may not do.
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
532
IANES CORPORATION
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, 4 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
General Counsel's Motion for Summary Judg-
ment. 5
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a North Carolina corporation, is en-
gaged in the manufacture and sale of clothing ap-
parel at its Brooks plant located in Galax, Virginia.
During the past 12 months, a representative period,
in the course and conduct of its business oper-
ations, Respondent purchased and received in inter-
state commerce at its Galax, Virginia, location
products and materials valued in excess of $50,000
directly from points located outside the Common-
wealth of Virginia. During the same period, Re-
spondent sold and shipped from its Galax, Virginia,
location goods and materials valued in excess of
$50,000, directly to points located outside the Com-
monwealth of Virginia.
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.
3 See Pittsburgh Plate Glass Co. v. L.R.., 313 ;S 146, 162 (1941);
Rules and Regulations of the Board, Sees 102.67(f and 102.6 9 (c).
' As a supplement to its October 6, 1980, response to the Notice lo
Show Cause. Respondent submitted an affidavit also dated October ,
1980, relating to the contentions raised in its Objection 8, buit which does
not represent that the "facts" alleged therein are newl. discovered or
previously unavailable. We therefore reject the affidavit. Moreover, the
actual premises o Ahich Objection is based een if true. do not make
out a misrepresentation that reasonably may be expected to have had a
significant impact on the election.
6 In its response to the Notice To Show Cause. Respondent requests
that the Board consolidate this case with Case 5-CA-12348, scheduled
for hearing on October 7, 1980. Inasmuch as the hearing ill Case 5 CA
12348 has been held, this request is moot
Inasmuch as we have granted the General Counsel's Motion for Sum-
mary Judgment. e find it unnecessary to grant the Ul.lion's Molion for
Summary Judgment also Nevertheless, we he coinsidrrd the extraor-
dinary remedies requested by the LUrion il ts molion.
11. THE LABOR ORGANIZATION INVOLVED
Amalgamated Clothing and Textile Workers
Union, AFL-CIO, CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
111. THE UNFAIR ABOR 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 employees employed by the Employer at
its Brooks Plant, Galax, Virginia, location, but
excluding all office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
2. The certification
On November 20 and 21, 1980, 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 bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on June 25, 1980, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
B. The Request To Bargain and Respondents
Refusal
Commencing on or about June 27, 1980, 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, and to
furnish it with relevant and necessary bargaining
information concerning the employees in the
above-described unit. Commencing on or about
July 23, 1980, and continuing at all times thereafter
to date, Respondent has refused, and continues to
refuse, to recognize and bargain with the Union as
the exclusive representative for collective bargain-
ing of all employees in said unit and to furnish rel-
evant and necessary bargaining information.
Accordingly, we find that Respondent has, since
and at all times thereafter, refused to bargain col-
lectively with the Union as the exclusive represen-
tative of the employees in the appropriate unit, and
that, by such refusal, Respondent has engaged in
533
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 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, and furnish the Union, upon request,
relevant and necessary bargaining information con-
cerning the employees in the bargaining unit.
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).6
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Hanes Corporation is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Amalgamated Clothing and Textile Workers
Union, AFL-CIO, CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All employees employed by the Employer at
its Brooks Plant, Galax, Virginia, location, but ex-
cluding all office clerical employees, professional
6 We hereby deny the Union's request for certain extraordinary reme-
dies including a bargaining order retroactive to the date of the election,
establishment of an "interim grievance procedure," and the imposition of
costs and expenses, including attorneys fees. to the Union See Nappc'-
Babcock Company. 245 NLRB 20 (1980).
employees, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since June 25, 1980, 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 July 23, 1980, 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, and to furnish
relevant and necessary bargaining information con-
cerning said employees, 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, Respon-
dent 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,
Hanes Corporation, Galax, 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 Amalgamated
Clothing and Textile Workers Union, AFL-CIO,
CLC, as the exclusive bargaining representative of
its employees in the following appropriate unit:
All employees employed by the Employer at
its Brooks Plant, Galax, Virginia, location, but
excluding all office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
(b) Refusing to furnish relevant and necessary
bargaining information concerning employees in
the above-described unit.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
534
HANES CORPORATION
. 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, and furnish the
above-named labor organization, upon request, rel-
evant and necessary bargaining information con-
cerning the employees in the appropriate unit.
(b) Post at its Brooks Plant in Galax, Virginia,
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 thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, 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.
I 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 b)
Order of the National Labor Relations HBoard" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National l.abor 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 Amalgamated Clothing and Textile
Workers Union, AFL-CIO, CLC, as the ex-
clusive representative of the employees in the
bargaining unit described below.
WE WILL NOT refuse to furnish the above-
named Union with relevant and necessary bar-
gaining information concerning 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 represen-
tative 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 agreement, and upon request, furnish
the Union with relevant and necessary bar-
gaining information concerning the employees
in the bargaining unit described below. The
bargaining unit is:
All employees employed by the Employer
at its Brooks Plant, Galax, Virginia, loca-
tion, but excluding all office clerical employ-
ees, professional employees, guards and su-
pervisors as defined in the Act.
HANES CORPORATION
535