# Petition — Durham Hosiery Mills, Inc. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1939%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 434 U.S. 828 ## Text IN THE Supreme Court of the Bnited States Ocroser TERM, 1976 Dunn Hostrery Mutts, Inc., Petitioner, v. NationaL LABOR RELATIONS Boarp, Respondent. James M. Mrizs G. Tuomas Harper HaynswortH, BaLpWIN AND Mus, P.A. Post Office Box 10005 Greenville, South Carolina 29603 1 — 2—ßVWt ̈f—½3ʒ⸗e D. C. Page . 1 Zi 2 eee eee eee eee 2 Statutes and RegulationnSœ s 3 eee sees eee eee eee 3 1 6 rr dees eee sse eee eee 13 CITATIONS Cases: Golden State Bottling Co. v. NLRB, 414 U.S. 168 r ˙ ny cob e 3, 6 Lincoln Private Police, Inc., 189 NLRB 717, 76 LRRM eee 7 NLRB v. Bata Shoe Co., 377 F.2d 821 (4th Cir. 1967). 8 NLRB v. Boston Needham Industrial Cleaning Co., 526 r eee 7 NLRB v. Burns Int’! Security Services, Inc., 406 U.S. ZE 8, 12 NLRB v. Gebhardt-Vogel Tanning Co., 389 F.2d 71 r eee 9, 13 NLRB v. KVP Sutherland Paper Co., 356 F.2d 671 D ̃ eee 9 NLRB v. MarSalle Convalescent Home, 425 F. 2d 566 RE A 10 NLRB v. Union Brothers, Inc., 403 F.2d 883 (4th Cir. esse 8 NLRB v. Union Carbide Caribe, Inc., 423 F. 2d 231 (1st OE rr 11 Perma Vinyl Corp., 164 NLRB 968, 65 LRRM 1168 (1967), enforced in pertinent part sub. nom. United States Pipe d Foundry Company v. NLRB, 398 F. 2d 544 (5th Cir. 19689))))))) 6,7 United States Rubber Co. v. NLRB, 373 F.2d 602 (5th .es 8 Sratute anp Reecuations: National Labor Relations Act, 29 U.S.C. §158(a)(5).. 3 Board’s Rules and Regulations, series 8, as amended eee eee eee ee ee » @ — ee IN THE Supreme Court of the United States Ocronen Team, 1976 No. Dunnam Hoseny Miss, Id, Petitioner, v. NATIONAL, Lawson Reiations Boarp, Respondent. Petitioner, Durham Hosiery Mills, Ine., by and through its counsel, Haynsworth, Baldwin and Miles, prays that a Writ of Certiorari issue to review the judgment of the United States Court of Appeals for the District of Columbia Circuit entered in this case on March 2, 1977, in which enforcement of the Order of the National Labor Relations Board which was en- tered on November 12, 1975 was granted. The decision of the Court of Appeals for the Dis- trict of Columbia Cireuit (No, 75-2176) was reported to Local Rule 13(¢) without opinion at 551 F.2d 466, The opinion of the National Labor Relations Board (Board) is reported at 221 NLRB No. , 90 LRRM 1544, 1975-76 CCH NLRB 116,621. The opin- ion of the Board is reprinted in the Appendix accom- panying this petition. The judgment of the Court of Appeals was entered on March 2, 1977. Petitioner’s Motion for Reconzid- eration of Petitioner's Second Motion to Enlarge Time in which to Petition for Rehearing and Petitioner's Motion to Stay Issuance of Mandate Pending Petition for Certiorari were filed on April 21, 1977 and are still pending. This Court has jurisdiction to review the judgment by Writ of Certiorari under 28 U.S.C. § 1254(1). The Petitioner purchased a plant from Danville In- dustries, Inc, (Danville) and began operations on or about January 2, 1974. On April 4, 1975 Region Five of the Board wrote to the Petitioner requesting that it supply answers to twelve (12) questions concerning the sale of Danville’s plant to Petitioner. On the basis of the Petitioner’s answers to these questions the Gen- eral Counsel filed with the Board in Washington, D.C. a Motion for Summary Judgment stating that the Pe- titioner was a successor employer to Danville and therefore obligated to bargain with the union which had previously been certified as the representative of of an unfair labor practice; ie, suecessorship. Sum- ee SSeS r mary judgment, without affording Durham a hearing on the question of successorship, is improper because (1) it is contrary to those procedural safeguards which were affirmed by the Supreme Court in Golden State Bottling Co. v. NLRB, (Golden State) 414 U.S. 168 (1973), (2) it violates the Petitioner’s constitutional right to due process of law and (3) its use will create The question thus presented is: Does Judgment on the factual issue of whether the is a successor employer deny the Petitioner its right to due process? STATUTES AND REGULATIONS National Labor Relations Act: Section 8(a)(5) [29 U.S.C. § 158(a)(5)] „It shall be an unfair labor practice for an em- the representatives of bis employees subject t ves of his 8 [[[ Board’s Rules and Regulations, series 8, as amended: Section 102.24 (in pertinent part) Tr II- HAU made shall be filed in writing with the 20 provisions of encfinn 108.50." STATEMENT OF THE CASE I. Jurisdiction Below This case was before the Court of Appeals for the District of Columbia Circuit on a Petition for Review 4 filed by Petitioner seeking review of the Decision and Order of the National Labor Relations Board which issued on November 12, 1975. The Court of Appeals for the District of Columbia Circuit had jurisdiction under § 10(f) of the National Labor Relations Act, as amended, (Act) [29 U.S.C. § 151, et. seq.] ll. Background . The Petitioner purchased from Danville a plant located in Danville, Virginia and thereafter began op- erations on or about January 2, 1974. Prior to this transaction, the Board certified the United Textile Workers of America, AFL-CIO, as the exclusive bar- gaining representative of the employees of Danville, and subsequently ordered Dan lle to bargain collec- tively with the Union. This Order was enforced by the United States Court of Appeals for the Fourth Circuit on January 27, 1975. On April 4, 1975, Region Five of the Board wrote to Petitioner requesting that it supply answers to twelve (12) questions concerning the sale of Danville’s plant to the Petitioner. The Petitioner complied with this request by its letter dated May 6, 1975. Thereafter, Petitioner refused to bargain with the Union which had been certified to represent the employees of Dan- ville Industries, Inc., and on June 16, 1975, the Union filed an unfair labor practice charge with the Board’s regional office, alleging a violation of Section 8(a) (1) and (5) of the Act. The Regional Director issued a Complaint and Notice of Hearing alleging that the Petitioner was a suecessor to Danville. On August 6, 1975, after the Petitioner, through its Answer, denied the allegations contained in the Complaint, the Regional Director, on = a — — — oe were transferred to the Board. The Board ordered the Petitioner to show cause, on or before September 22, 1975, why the Motion for Summary Judgment should not be granted. In response to this Order, the Peti- pated in or been a party to any of the proceedings hearing to present evidence which would militate against a finding that the Petitioner was a successor employer to Danville and therefore, (3) the granting of the Motion for Summary Judgment would deny the Petitioner its right to due process under the law. In its Decision and Order dated November 12, 1975, the Board concluded, on the basis of the Petitioner's answers to those questions presented to it in the Board’s letter dated April 4, 1976, that the Petitioner was a successor to Danville and was therefore obli- gated to bargain with the Union. The Board granted the General Counsel’s Motion for Summary Judgment and held that the Petitioner had violated § 8(a)(5) of the Act by refusing to bargain with the Union. The Court of Appeals affirmed the Board’s decision on March 2, 1977. It is that decision for which the Peti- tioner seeks review. The decision of the Court of Appeals for the District of Columbia Circuit is contrary to the decision of the United States Supreme Court in Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973). In the Golden State decision, this Court affirmed those pro- cedural safeguards which the Board itself established in Perma Vinyl Corp. (Perma Vinyl), 164 NLRB 968, 65 '.RRM 1168 (1967), enforced in pertinent part sub. non. United States Pipe d Foundry Company v. NLRB, 398 F.2d 544 (5th Cir. 1968). „The Tie between the offending employer and the bona fide purchaser of the business, supplied by a Board ing of a continuing business enterprise, establishes requisite relationship or depend- — yore — 3 announced in erma Vinyl w ide the necessary pro- cedural safeguards. There will be no adjudication in liability against a bona fide successor ‘without affording [itj a full opportunity at a hearing, after e notice, to present evidence on the question of whether it is a successor which is responsible for remedying a predecessor’s unfair labor practices. The successor [will] also be en- titled, of co to be heard against the enforce- ment of any order issued against it.’ 164 NLRB, at 969 (emphasis added). In this case, All American has no complaint that it was denied Cue notice and a fair hearing. It was made a party to the supplemental backpay speci- fication proceeding, given notice of the 7 and afforded a full opportunity, with the assist- ance of counsel, to contest the question of its suc- 1 purposes of the Act and its knowl- of pendency of the unfair labor practice litigation at the time of purchase.“ Golden State Bottling Co. v. NLRB, supra at 180-181. In this case, the Board is attempting to circumvent those procedural safeguards which it established in the Perma Vinyl Decision. In both its Brief and Oral Argument before the Court of Appeals, the Board has ignored the clear language of the Perma Vinyl Deci- sion. This Court should not allow the Board and the Court of Appeals for the District of Columbia Circuit to ignore those procedures which the Supreme Court has already affirmed. II. Summary Judgment on a Material Factual Issue Denies the Petitioner Its Right to Due Process. In the present case, the question of whether or not the Petitioner is a ‘“‘successor’’ to Danville is a critical factual issue in a determination that the Petitioner has an obligation to bargain with the Union. In de- termining whether or not an employer is a successor, the courts and the Board have taken into consideration the totality of circumstances present in the given case. NLRB v. Boston Needham Industrial Cleaning Co., 526 F.2d 74 (Ist Cir. 1975); Lincoln Private Police, Inc., 189 NLRB 717, 76 LRRM 1727 (1971). Perhaps in no other area of labor relations law are the particu- lar factual circumstances as crucial as with the law of successorship. Due process of law demands that where there is a material issue of fact related to a determination as to “hether an employer has committed an unfair labor 8 practice, a hearing must be conducted at some stage of the administrative proceeding before the objecting par- ty’s rights can be affected by an enforcement order. See United States Rubber Co. v. NLRB, 373 F.2d 602 (5th Cir. 1967); NLRB v. Bata Shoe Co., 377 F.2d 821 (4th Cir. 1967). To grant summary judgment without an evidentiary hearing is to forever bar the Company’s right to judicial review of the crucial factual questions in this unfair labor practice proceeding. NLRB v. Union Brothers, Inc., 403 F.2d 883 (4th Cir. 1968). In the present case the Board has concluded from the admitted facts that the Petitioner is, ipso facto, a suc- cessor to Danville and therefore no hearing is required to satisfy the mandates of due process. Drawing this conclusion without a hearing on the question is without legal support. No case relied upon by the Board states that upon the facts as solicited by the Board an em- ployer is per se a suecessor. Indeed, those decisions relied upon by the Board establish that the question of whether an employer is a successor is to be determined upon a consideration of all the facts in each case. Al- though decisions on the determination of successor em- ployers have accorded weight to various factors in deciding whether an employer is a successor, this de- termination still must be made from the totality of the circumstances and based on the facts in each case. NLRB v. Burns Int’l. Security Services, Inc., 406 U.S. 272 (1972). The issue presented in the unfair labor practice com- plaint is a factual question as to whether or not the Petitioner is a suecessor to Danville. This is the precise function which a hearing serves—to determine the facts. Since summary judgment reaches a determina- 9 tion of this factual issue without the benefit of an ad- versary proceeding where all the facts are developed, its use in this case by the Board and approval by the Court of Appeals was in error. NLRB v. Gebhardt- Vogel Tanning Co., 389 F.2d 71 (7th Cir. 1968) ; NLRB v. KVP Sutherland Paper Co., 356 F.2d 671 (6th Cir. 1966). Every decision relied upon by the Board for its con- tention that summary judgment is appropriate ‘‘arises from“ or “is related to” a prior representation proceed- ing. The Petitioner does not dispute the appropriate- ness of summary judgment in such cases. The Board has used summary judgment in refusal to bargain cases related to representation proceedings and a number of the circuit courts have found summary judgment ap- propriate in such cases. However, the rationale relied upon by the courts in finding summary judgment ap- propriate in refusal to bargain cases related to repre- sentation proceedings does not apply to a case such as this which is in no way related to a prior representation proceeding. Based upon the language of the National Labor Rela- tions Act (Act), 29 U.S.C. § 151 et seq., the Board has been granted broad discretion in conducting and over- seeing representation proceedings. Section 9(b) of the Act states that “[t]he Board shall decide in each case .. the unit appropriate.” Under this authority the Board provides each party to a representation proceed- ing with the opportunity for a hearing. Of course, the parties may stipulate to the unit, but in each case an opportunity for a hearing is given. Thus, in refusal to bargain cases such as those cited here, the Board has developed a policy of using summary judgment and not allowing a party to relitigate questions which it has 10 already had a chance to litigate in a hearing, absent a showing of new or previously unavailable evidence. Here, the Board has cited NJ. RB v. Mar Salle Con- valescent Home, 425 F.2d 566 (D.C. Cir. 1970) in sup- port of its contention that summary judgment is proper. However, in Mar Salle, it was recognized that summary judgment is not proper in a case where the responding party has not had ample opportunity to fully litigate all relevant issues. The Court stated: “While it would not be proper for the Board to grant summary judgment in a case wherein the Re- spondent had not had ample opportunity to litigate fully all relevant issues, it would be irres ible for the Board to waste costly administrative time needlessly when all of the factual issues have previ- —_, oe resolved.“ 425 F.2d at 573 (emphasis Here, Durham has had no opportunity for a hearing at any stage of the proceedings. It purchased a plant, received a demand for recognition, answered a letter from the Board asking twelve (12) questions, most of which concerned conditions at the time of sale, and finally, was presented with a demand to show cause or be judged a successor to Danville Industries. Durham has at no time been a party to or participated in any prior representation proceedings and summarily deter- mining that Durham is a successor to Danville violates Durham’s right to due process of law. III. No Court Has Approved the Use of Summary Judgment in Unfair Labor Practice Cases. The Board has cited no decision wherein a court has approved the use of summary judgment in an unfair labor practice proceeding other than a case which 11 “‘arises from“ or ! is related to“ a prior representation proceeding. This case does not involve judicial review of a Board decision in a prior representation proceed- ing. Indeed, the Board has argued that summary judg. ment is appropriate in this case because it has been used in other instances. To support this, the Board re- lies on NLRB v. Union Carbide Caribe, Inc., 423 F.2d 231, 234-235 (Ist Cir. 1970). However, an examination of that Decision reveals that the First Circuit Court of Appeals did not consider or rule on the question of whether or not the summary judgment procedure in that case violated the Respondent’s right to due process. In Union Carbide, the Court dismissed this issue very briefly : “The company’s second objection to the summary — 25 procedure is that it was denied an oppor- tunity to introduce evidence justifying its unilat- eral wage and benefit increases on grounds that the change was consistent with long-established com- — practice and was occasioned by legitimate siness reasons. We find it unnecessary to con- sider these arguments, :owever, for the company has failed to exhaust its administrative remedies in this regard. A diligent search of the record discloses the fact that company never raised these arguments before the case reached this court. Moreover, there is no suggestion that any extraordinary cireum- stances exist which justify the failure. Accord- ingly, we do not consider these contentions.“ 423 F. 2d at 235. Clearly, Union Carbide does not support the proposi- tion that summary judgment does not violate the Peti- 12 tioner’s right to due process in an unfair labor practice case. IV. — Se Sane 44 Se Proceedings Will Increase the Board’s Administrative Burden. The consequences of the Board’s order in this case will be significant. Here, we are not merely concerned with the posting of a notice or reinstatement of an em- ployee with back pay. Instead, an employer has been summarily saddled with a bargaining obligation that in all probability will continue for the life of the Com- pany. In addition, reflecting upon a concern that Jus- tice Rhenquist voiced in his dissent in NLRB v. Burns Intl. Security Services, Inc., 406 U.S. 272 (1972), this procedure may result in burdening the employees with representation by a union which they do not want or choose. Balanced against these consequences, the Board’s administrative inconvenience is comparatively slight. Since 1971, statistics available to the Petitioner indi- cate that less than one-hundred (100) decisions involv- ing successorship have been published by the Board. The Board has held hearings in those cases and to re- quire it to continue to hold hearings will not increase its administrative duties significantly. On the other hand, if the Board is allowed to use summary judgment in this unfair labor practice case, there is no reason why it could not extend its use to virtually any unfair labor practice case. If the Board’s right to summary judg- ment is upheld in this case, one wonders why an em- ployer would ever cooperate with the Board as Durham did in the investigation of this case! Why should an employer cooperate when in doing so it may be giving 13 the Board information upon which to base a summary judgment motion which will shift the burden to the employer to come forward or risk having the pleadings accepted as true? See, NLRB v. Gebhardt-Vogel Tan- ning Co., supra. Over the past fifteen (15) years, over one-half (14) of all meritorious charges were settled prior to the issuance of a complaint and hearing. A mass refusal by employers to cooperate with the Board could result in a tremendous increase in the number of cases which go to trial and thereby increase the present administrative duties of the Board. CONCLUSION For the reasons set forth above, The Petition for Certiorari should be granted. Dated this the 31st day of May, 1977. Respectfully submitted, James M. Mrs G. THomas HARPER HaynswortH, BALDWIN AND MILES, P.A. Counsel for Petitioner Post Office Box 10005 Greenville, South Carolina 29603 APPENDIX INDEX TO APPENDIX Page Opinions below 1. Opinion of the Court of Appeals for the District Columbia Circuit Issued on March 2, 1977 .... 1a 2. Decision and Order of the National Labor Rela- tions Board Issued on November 12, 1975 ........ 2a la APPENDIX Argued: February 24, 1977 Decided: March 2, 1977 Before Rontxsox, Tamm and Ross, Circuit Judges. James M. Miles, G. Thomas Harper, (Haynsworth, Bald- win and Miles on brief) for Petitioner; John D. Burgoyne, Corina L. Metcalf, Attorneys, National Labor Relations Board (John S. Irving, General Counsel, John E. Higgins, Jr., Deputy General Counsel, Carl L. Taylor, Associate Gen- eral Counsel, Elliott Moore, Deputy Associate General Counsel, National Labor Relations Board on brief) for Respondent. Per Contax: This cause came on for consideration on a petition for review and a cross-application for enforcement of an order of the National Labor Relations Board and was argued by counsel. On consideration of the foregoing, it is Oxperep ad Apsupeep by this Court that the order of the National Labor Relations Board on review herein is ee ne ee clusions of — a a oo vember 12, 1975. Enforcement Granted Decision and Order Upon a charge filed on June 16, 1975, by United Textile Workers of America, AFL-CIO, herein called the and duly served on Durham Hosiery Mills, Ine. herein called the Respondent, the General Counsel of tional Labor Relations Board, by the Regional Director for Region 5, issued a complaint on August 6, 1975, alleg- | | | With respect to the unfair labor practices, the complaint alleges in substance that on November 1, 1972, following a Board election in Case 5—RC—8454 the Union was duly certified as the exclusive collective-bargaining representa- tive of the employees of Danville Industries, Inc., here- after 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 refus- ing to bargain with the Union, and ordering that it com- mence 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.“ The complaint alleges that since January 2, 1974, Re- spondent has been the successor of Danville and had knowl- edge of the Union’s certification and Danville’s obligation to bargain therewith, but since June 24, 1975, Respondent 210 NLRB. 307 (1974). 510 F.2d 968. 3a has refused and continues to refuse to bargain as successor to Danville although the Union is requesting and has re- quested it to do 80. On August 15, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the alle- gations 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 certifica- tion as bargaining representative of all Danville employees in the appropriate unit, that it purchased the assets of Dan- ville at its Danville, Virginia, location and continued the manufacture of products which had previously been manu- factured by Danville at this location, and that it has re- fused 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 Judg- ment, 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 Sep- tember 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. Respondent thereafter filed, in re- sponse to Notice To Show Cause, a statement in opposi- tion to the General Counsel’s Motion for Summary Judg- ment 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 sue- cessorship was not litigated therein, it is not attempting to relitigate an issue litigated in the prior representation ease. Although conceding the accuracy 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 4a hearing in which Respondent may present evidence mili- tating against a finding of successorship herein. Pursuant to the provisions of Section 3(b) of the Na- tional Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this pro- ceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Rute on THe Motion ror Summary J upGMENT 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 para- graph 6 of the complaint, but asserts that these facts are insufficient to establish successorship and that a hearing is required on this issue.’ The facts alleged by the General Counsel, both in his motion and in paragraph 6 of the complaint, in support of the conclusion of suecessorship, are as follows: Respondent has continued the operations of Danville at the same loca- tion, utilizing the same equipment and producing the same job functions under the same supervision.“ From these admitted facts, the conclusion clearly follows that Respondent is the successor to Danville,’ and, in view »The Respondent is not seeking to relitigate the issues in Case 5—RC—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. *In a statement by Respondent which the General Counsel at- taches as an exhibit to his motion, Respondent states, inter alia, 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 employees in the appropriate unit. Respondent does not now controvert this statement. *N.L.R.B. v. Burns Security Services, Inc., 406 U.S. 272, 279 da 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.“ Accordingly, we shall grant the General Counsel’s Mo- tion for Summary Judgment. On the basis of the entire record, the Board makes the following: Fixpinos or Fact I. The Business of the Respondent Respondent Durham Hosiery Mills, Inc., is a North Caro- lina corporation with a facility located in Danville, Vir- ginia, 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 Com- monwealth 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. (1972); Howard Johnson Company, 198 NLRB No. 98 (1972); Ranch- Way, Inc., 203 NLRB 911 (1973). * Howard Johnson Company, supra, fn. 5. 6a 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-bargaining purposes with- in the meaning of Section 9(b) of the Act: All production and maintenance employees employed by the Employer at its Danville, Virginia, location, ex- cluding professional employees, office clerical employ- ees, guards, and supervisors as defined in the Act. 2. The certification On May 3, 1973, a majority of the employees of Respon- dent 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 pur- pose of collective bargaining. 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 con- tinued at the same location where it produced the same products for the same customers as had Danville Indus- 7 tries, 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 bar- gain collectively with it as the exclusive collective-bargain- ing representative of all the employees in the above-de- seribed unit. Commencing on or about June 24, 1975, and continuing at all times thereafter to date, the Respondent has refused, and cor ‘inues to refuse, to recognize and bar- gain with the Union as the exclusive representative for col- lecting 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 representative of the employees in the ap- propriate 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 operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. The Remedy Having found that Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collec- 8a tively 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 agree- ment. In order to insure that the employees i in the appropriate unit will be accorded the services of their selected bargain- ing agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences 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 Construc- tion 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: Conc.vusions or 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, exclud- ing professional employees, office clerical employees, guards, and supervisors as defined in the Act, constitute a unit ap- propriate 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 organi- zation has been and now is the certified exclusive repre- 9a sentative of all employees in the aforesaid appropriate unit for the purpose of collective 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, Ine. 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 representa- tive 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, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees 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 meaning of Section 2(6) and (7) of the Act. Order Pursuant to Section 10(e) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board hereby orders that Respondent, Durham Hosiery Mills, Inc., Danville, Virginia, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of em- ployment with United Texti'e W- of America, AF'L- CTO, as the exclusive barga epresentative of its em- ployees in the following appropriate unit: 10a All production and maintenance employees employed by the Employer at its Danville, Virginia, location, ex- cluding professional employees, office clerical employ- ees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, re- straining, 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 em- ployees 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 understanding in a signed agreement. (b) Post at its Danville, Virginia, facility copies of the attached notice marked Appendix. ’ 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 Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. 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 RELA- TIONS BOARD” shall read ‘‘POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF AP.- PEALS ENFORCING AN ORDER OF THE NATIONAL LA. BOR RELATIONS BOARD.“ lla (e) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Dated, Washington D.C. Betty Southard Murphy, Chairman Howard Jenkins, Jr., Member John A. Penello, Member National Labor Relations Board --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1939%3A1. Public record. Not legal advice.