Santee River Wool Combing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1975

218 N.L.R.B. 925 (N.L.R.B. 1975)

SANTEE RIVER WOOL COMBING CO., INC. 925
Santee River Wool Combing Company, Inc. and
Textile Workers Union of America, AFL-CIO.
Case 11-CA-6036
June 26, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon a charge filed on March 5, 1975, by Textile
Workers Union of America, AFL-CIO, herein called
the Union, and duly served on Santee River Wool
Combing Company, Inc., herein called the Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 11, issued a complaint on March 19, 1975,
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 May 10, 1974,
following a Board election in Case 11-RC-3575 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about February 27, 1975, 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.
Subsequently, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On April 2, 1975, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on April 9, 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. Respondent thereafter filed a response to
Notice To Show Cause.
On April 10, 1975, counsel for the General Counsel
filed an Amendment to Motion for Summary
Judgment to reflect the inclusion of additional
exhibits. On April 21, 1975, the Respondent filed a
n Official notice is taken of the record in the representation proceeding,
Case 11 -RC 3575, as the term "record" is defined in Secs. 102.68 and
102.690 of the Board's Rules and Regulations, series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F .2d 683 (C.A. 4,
218 NLRB No. 138
reply to Notice To Show Cause, Cross-Motion for
Summary Judgment, and brief in support thereof.
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
In its answer to the complaint and reply to the
Notice To Show Cause, Respondent disputes the
representative status of the Union because of its
objections to the election and because it alleges the
certification of the Union was based on improper
conclusions of law and fact. The General Counsel
alleges that the Respondent is attempting to relitigate
matters already considered and disposed of in
representation Case 11-RC 3575 and that it may not
do so.
Our review of the record in the representation case
shows that the election, conducted on October 12
and 13, 1972, pursuant to a Stipulation for Certifica-
tion Upon Consent Election, was won by the Union.
The Respondent filed timely objections alleging in
substance that electioneering occurred in the plant
while polls were open; and the Union made material
misrepresentations of fact, threats, and misrepresen-
tations that an employee, Pringle, had been dis-
charged for union activity when it knew he was on a
medical leave of absence. Following an investigation,
the Regional Director for Region 11 issued on
February 9, 1973, a Report on Objections, Direction,
and Amended Order Consolidating Cases, in which
he recommended that a hearing be held on the
objection concerning threats made by the Union and
that the remaining objections be overruled. Respon-
dent excepted to the Regional Director's Report on
Objections. On April 6, 1973, the Board, in a
Decision and Order, found that Respondent's other
objections raised credibility issues that could best be
resolved in a hearing.
Following a consolidated hearing on the objections
and other alleged unfair labor practices, the Admin-
istrative Law Judge issued a Decision in which he
found the Respondent had failed to sustain its
objections and recommended that they be overruled.
Respondent excepted to this Decision. On May 10,
1974, the Board, with Member Kennedy dissenting,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967 ), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F .Supp. 573 (D.C. Va., 1957);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA.
926 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
issued its Decision, Order, and Certification of
Representative,2 in which it affirmed the findings of
the Administrative Law Judge and specifically noted
that, while a. misconception concerning the nature of
Pringle's absence from the Respondent's plant was
"promoted, or at least tolerated" by the Union, that
misconception under the circumstances did not
warrant setting aside the election. The Board then
certified the Union as the exclusive representative of
all the employees in the unit found appropriate.
Thereafter, the Respondent filed a motion for
reconsideration by the full Board, again raising its
objection to misconceptions concerning employee
Pringle's discharge and the factual legal basis for the
Board's Decision, Order, and Certification of Repre-
sentative . On June 24, 1974, the Board issued its
Order Denying Motion for Reconsideration and
Order Correcting Decision3 in which it denied
Respondent's motion as it presented no new evi-
dence or matters not previously considered and,
therefore, lacked merit.
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 proceeding.4
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 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 find that the Respondent has not raised
any issue which is. properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
grant the General Counsel's Motion for Summary
Judgment and deny the Respondent's Cross-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
Santee River Wool Combing Company, Inc., is
now, and has been at all times material herein, a
South Carolina corporation engaged in the manufac-
ture of textiles at its plant located in Jamestown,
South Carolina, the only plant involved in these
2 Santee River Wool Combing Company, Inc., 210 NLRB 530.
3 Respondent had requested amendment of Member Kennedy's dissent
where he mentioned an allegation of an 8(aX5) violation. As the complaint
consolidated with the representation case for hearing did not contain an
proceedings. During the past 12 months, a represent-
ative period, Respondent received goods and raw
materials from points outside the State of South
Carolina valued in excess of $50,000, and during the
same 12-month period, Respondent caused to be
shipped directly to points outside the State of South
Carolina products 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
Textile Workers Union 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-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees em-
ployed by the Employer at its Jamestown, South
Carolina, plant, but excluding all office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
2. The certification
On October 12 and 13, 1972, 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 11, 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 May
10, 1974, and the Union continues to be such
exclusive representative within the meaning of
Section 9(a) of the Act.
8(ax5), allegation, the Board corrected the error by deleting the sentence in
question.
4 See Pittsburgh Plate Glass Co. v. N.L R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(1) and 102 .69(c).
SANTEE RIVER WOOL COMBING CO., INC.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about February 19, 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 February 27, 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 representative for collective bargaining of
all employees in said unit.
Accordingly, we fmd that the Respondent has,
since February 27, 1975, 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(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
927
(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. Santee River Wool Combing Company, Inc., is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Textile Workers Union ofAmerica, 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 Jamestown, South
Carolina, plant, but excluding all office clerical
employees , professional 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 May 10, 1974, 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 27, 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.
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(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,
Santee River Wool Combing Company, Inc., James-
town, South Carolina, 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 Textile Workers
Union of America, AFL-CIO, as the exclusive
928 DECISIONS OF NATIONAL
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees em-
ployed by the Employer at its Jamestown, South
Carolina, plant, but excluding all office clerical
employees, professional 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
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 Jamestown, South Carolina, plant
copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the
Regional Director for Region 11, 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,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER KENNEDY, dissenting:
For the reasons set forth in my dissenting opinion
in Santee River Wool Combing Company, Inc., 210
NLRB 530 (1974), I would have sustained Respon-
dent's objection to the representation election on the
ground that the Union' s election eve misrepresenta-
tion that Respondent discharged employee Pringle
for union activities, when in fact the Union knew
that Pringle had been granted a medical leave of
absence , was so substantial a misrepresentation as to
warrant setting aside the election. In accordance with
LABOR RELATIONS BOARD
the precedent of Weslock, Division of Tool Research &
Engineering Corporation, 199 NLRB 549 (1972), I
would have directed a new election because of the
Union's substantial -misrepresentation.
Accordingly, I would dismiss this 8(a)(5) complaint
because the certification in the underlying represen-
tation case is invalid in my view.
5 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."
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 Textile
Workers Union 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 Jamestown,
South Carolina, plant, but excluding all
office clerical employees, professional em-
ployees, guards and supervisors as defined in
the Act.
SANTEE RIVER WOOL
COMBING COMPANY, INC.