Beech-Nut Life Savers, Inc.

National Labor Relations Board - Board Decisions

Aug 28, 1968

172 N.L.R.B. 1781 (N.L.R.B. 1968)

DOBBS HOUSES, INC.
Dobbs Houses, Inc., a Division of Beech -Nut Life
Savers, Inc. and Independent Workers Union of
Florida . Case 12-CA-4179
August 28, 1968
DECISION AND ORDER
By MEMBERS BROWN, JENKINS, AND ZAGORIA
On July 3, 1968, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and also filed a brief in support of its ex-
ceptions.
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
powers in connection with this case to a three-
member panel.
The Board has considered the Trial Examiner's
Decision, the exceptions and brief, and the entire
record in the case, and hereby adopts the Trial Ex-
aminer's findings, conclusions, and recommenda-
tions.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent , Dobbs Houses, Inc., a
Division of Beech-Nut Life Savers, Inc., Jackson-
ville, Florida, its officers, agents, successors , and as-
signs , shall take the action set forth in the Trial Ex-
aminer 's recommended Order.
' Milchent, bu , 170 NLRB 362, on which the Employer relies, is inap-
posite That case was concerned with enforcement of the ham against elec-
tioneering to polling areas There is no evidence that such conduct oc-
curred here
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
CHARLES W. SCHNEIDER, Trial Examiner: Upon
a charge filed by Independent Workers Union of
Florida, herein called the Union, on March 26,
1968, the General Counsel of the National Labor
Relations Board, by the Regional Director for Re-
gion 12, issued a complaint dated May 17, 1968,
1781
and amended on May 29, 1968, alleging that Dobbs
Houses, Inc., a Division of Beech-Nut Life Savers,
Inc., herein called Respondent, had engaged in and
was engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(5)
and (1) and 2(6) and (7) of the National Labor
Relations Act. Copies of the charge and complaint
and notice of hearing before a Trial Examiner were
duly served upon the Respondent.
With respect to the unfair labor practices, the
complaint alleged in substance, as follows: In para-
graph 5, that on October 12, 1967, a majority of
the employees of Respondent, in an appropriate
bargaining unit described hereinafter, by secret bal-
lot election conducted pursuant to a Stipulation for
Certification Upon Consent Election, and under the
supervision of the Regional Director, selected the
Union as their representative for the purposes of
collective bargaining; that on October 18, 1967,
and on October 3 1, 1967, respectively, the Respon-
dent filed timely objections and supplemental ob-
jections to the election; that on December 29,
1967, the Regional Director, after investigation, is-
sued his Report on Objections in which he recom-
mended to the Board that the objections be over-
ruled; and that on March 11, 1968, upon timely ex-
ceptions filed by the Respondent, the Board issued
a Decision and Certification of Representative
adopting the Regional Director's findings, conclu-
sions, and recommendations, and certifying the
Union as the exclusive collective-bargaining
representative of the employees in the appropriate
unit.
In paragraph 6, the complaint alleged that since
March 11, 1968, the Union has been and is the cer-
tified representative of the employees; in paragraph
7 that since on or about March 11, 1968, and con-
tinuing to date the Union has requested the
Respondent to bargain collectively in the ap-
propriate unit; in paragraph 8 that on April 25,
1968, the Board denied the Respondent's request
for review and reconsideration of the Board's
March 11, 1968, decision; and in paragraph 9 that
commencing on or about March 14, 1968, and
more particularly by letter dated May 6, 1968,
Respondent refused to meet and bargain collective-
ly with the Union.'
On May 23, 1968, Respondent duly filed its
answer to the complaint and on June 3, 1968, its
amended answer to the amended complaint.
In its answer the Respondent admitted the allega-
tions of the complaint respecting the appropriate-
ness of the unit, the election, the objections, the
Regional Director's report and recommendations,
' Official notice is taken of the record to the representation proceeding
Case I2-RC-2875 as the term "record' is defined to Sections 102 68 and
102 69(f) of the Board's Rules (Rules and Regulations and Statements of
Procedure , National Labor Relations Board, Series 8, as amended, January
I, 1965) See LTV Elmtiuuitann, In, , 166 NLRB 938, Golden 4,ge
Beverage Co, 167 NLRB 151, inu'iope Cu s Pene/lu, 269 FSupp 573
(U S D C W D Va 1967), Follett (nip, et it/ , 164 NLRB 378, entd 397
F 2d 91 (C A 7, 1968), Section 9(d) of the NLRA
172 NLRB No. 206
1782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board Decision and Certification of Represen-
tative, the Union's request to bargain and the
Respondent's refusal to do so, as set out in para-
graphs 4, 5, 7, and 9 of the complaint. However,
the Respondent denied the commission of unfair
labor practices on the ground that the certification
is invalid for the reason that the determinations of
fact and law made by the Regional Director and the
Board in the representation proceeding were er-
roneous. Additionally the Respondent asserted that
failure of the Board to afford the Respondent hear-
ing on the issues raised by it in the representation
case deprived the Respondent of due process of
law
On June 6, 1968, the Regional Director filed with
the Division of Trial Examiners a Motion for Sum-
mary Judgment by counsel for the General Counsel
in which counsel asserted that the Respondent's an-
swers raised no issue requiring hearing
On June 7, 1968, I issued an Order to Show
Cause on the General Counsel's Motion for Sum-
mary Judgment directing all parties to show cause
before me, if cause they had, on or before June 21,
1968, as to whether or not the Motion for Summary
Judgment should be granted. On June 19, 1968,
counsel for the Respondent filed a response to the
Order to Show Cause. No other responses have
been received.
Ruling on the Motion for Summary Judgment
The record establishes, and the Respondent ad-
mits, the essential facts litigable here that the bar-
gaining unit is appropriate, that in the election the
employees selected the Union, that the Respon-
dent's objections to the election were investigated
by the Regional Director and overruled by the
Board, that the Union was duly certified, that the
Union requested the Respondent to bargain, and
that the Respondent refused to do so. As we have
seen the Respondent contends that the Board's
determination was erroneous and that the Respon-
dent is entitled to a hearing on the subject matter of
its objections. The Respondent specifically dis-
claims any purpose to submit newly discovered or
previously unavailable evidence
I find that Respondent's answers, and its conten-
tions stated there and in its response to the Order
to Show Cause raise no issue requiring hearing. It is
clear that all material issues of fact and law have
either been decided by the Board or admitted in the
answers and the response. The question of the
validity of the election, the merit of the Respon-
dent's objections to it, and whether the Union
should have been certified as the collective-bar-
gaining representative in the appropriate unit were
decided by the Board in the representation
proceeding. It is established Board policy, in the
absence of newly discovered or previously unavaila-
ble evidence or special circumstances, not to per-
mit litigation before a Trial Examiner in an unfair
labor practice case of issues which were or could
have been litigated in a prior related representation
proceeding.' This policy is applicable even though
no formal hearing on objections has been provided
by the Board Such a hearing is not a matter of
right unless substantial or material issues are raised
by the objections.' That there are no such issues
here has been decided by the Board. That disposi-
tion is, at this stage of the proceeding, the law of
the case.
The refusal to bargain being conceded there is no
issue litigable before a Trial Examiner and there-
fore no matter requiring hearing. In such circum-
stances summary judgment is appropriate and is en-
tered.
Upon the entire record I make the following
further
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is now, and has been at all times
material herein, a corporation duly organized under
and existing by virtue of the laws of the State of
Tennessee. Respondent is engaged in the operation
of restaurants and catering services in several
States, including Florida. During the last 12 months
Respondent has had gross revenues in excess of
$500,000 and has received shipments of supplies
and materials directly across state lines valued in
excess of $50,000. Respondent is now, and has
been at all times material herein, an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
11. THL LABOR ORGANIZATION INVOLVED
Independent Workers Union of Florida is now,
and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of
the Act
III. THE UNFAIR LABOR PRACTICES
All production and maintenance employees, in-
cluding cooks, bakers, waiters, loaders, dish-
washers, utility employees, truckdrivers,
dispatchers, leadmen, stockroom keepers and plant
clericals employed at the Respondent's airline
catering operation at Jacksonville, Florida, but ex-
-, //,-w(/ John son (uni/xun , 164 NLRB NO I. Metrolwhia i Life /mot ant t
(o 163 NLRB 579 Sec Pnt,buuQh Plate ohm Co % Ni L R B . 111 US
146, 161-162 (1941), Rules .und Regul,rtums and St.uements of Procedure,
National Labor Relations Board, Series 8, as revised Janu.u} I. 1965, See.
tions 102 67(f) and 102 69(L)
'0 A Van & Stant4e, hu . 127 NLRB 1537. enfd 297 F 2d 74 (C A 5,
1961) And see 411 (antial Ptadut t,, /nt , 315 F 2d 245, 249 (C A 5.
1964). it there is nothing to hear. then a hearing is a senseless and useless
torntahty - See also lentustee Pat lots. ha , 379 F 2d 172, 179 (C A 6,
1967)
DOBBS HOUSES , INC. 1783
cluding office clericals, 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.
At all times since March 11, 1968, pursuant to
certification by the Board, the Union has been and
is now the certified representative for the purposes
of collective bargaining of the employees in the ap-
propriate unit and by virtue of Section 9(a) of the
Act has been and is now, the exclusive representa-
tive of all the employees in said unit for the purpose
of collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment.
Commencing on or about March 14, 1968,
Respondent refused and continues to refuse to bar-
gain collectively with the Union as the exclusive
collective-bargaining representative of all the em-
ployees in the appropriate unit, although requested
to do so by the Union. By such action the Respon-
dent has refused to bargain collectively in violation
of Section 8(a)(5) of the Act, thereby interfering
with, restraining, and coercing employees in viola-
tion of Section 8(a)(1) of the Act.
The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7)
of the Act.
Upon the foregoing findings and conclusions and
the entire record in the case I recommend that the
Board issue the following:
ORDER
A. For the purpose of determining the effective
period of the certification, the initial year of certifi-
cation shall be deemed to begin on the date the
Respondent commences to bargain in good faith
with the Union as the recognized bargaining
representative in the appropriate unit I
B. Dobbs Houses, Inc., a Division of Beech-Nut
Life Savers, Inc., Jacksonville, Florida, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from
(a) Refusing to bargain collectively with Inde-
pendent Workers Union of Florida as the exclusive
collective-bargaining representative of the em-
ployees in the following appropriate unit.
All production and maintenance employees,
including cooks, bakers, waiters, loaders, dish-
washers, utility employees, truckdrivers,
dispatchers, leadmen, stockroom keepers and
plant clericals employed at the Respondent's
airline catering operation at Jacksonville,
Florida, but excluding office clericals, guards
and supervisors as defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent the employees in said ap-
propriate unit as the exclusive collective-bargaining
representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Inde-
pendent Workers Union of Florida as the exclusive
representative of the employees in the appropriate
unit with respect to rates of pay, wages, hours of
work, and other terms and conditions of employ-
ment, and embody in a signed agreement any un-
derstanding reached.
(b) Post at its Jacksonville, Florida, facility co-
pies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the Re-
gional Director for Region 12, after being duly
signed by Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 12,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.'
4 The purpose of this provision is to ensure that the employees in the ap-
propriate unit will he accorded the services of their Selected bargaining
agent for the period provided by law See Mut-Jac Poult,v Co, bu . 136
NLRB 785, Con,,ie,ce Co d/h/a Lama, Hotel, 140 NLRB 226, 229, cnfd
328 F 2d 600 (C A 5, 1964), Burnett Conuruction Co , 149 NLRB 1419,
1421,cnfd 350F2d57(CA 10, 1965)
' In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall he 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 word,, "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall he substituted for the words "a Decision
and Order -
" In the event that this Recommended Order is adopted by the Board,
this provision shall he modified to read "Notify the Regional Director for
Region 12, in writing, within 10 days from the date of this Order, what steps
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 Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT refuse to bargain collectively
with Independent Workers Union of Florida, as
the exclusive collective-bargaining representa-
tive of all the following employees:
All production and maintenance em-
ployees, including cooks, bakers, waiters,
loaders, dishwashers, utility employees,
truckdrivers, dispatchers, leadmen,
stockroom keepers and plant clericals em-
ployed at our airline catering operation at
Jacksonville, Florida, but excluding office
clericals, guards and supervisors as
defined in the Act.
1784 DECISIONS OF NATIONAL
WE WILL NOT interfere with the efforts of
said Union to negotiate for or represent the
employees in the appropriate bargaining unit
as exclusive collective-bargaining representa-
tive.
WE WILL bargain collectively with the Union
as exclusive bargaining representative of the
employees in the appropriate unit and if an un-
derstanding is reached we will sign a contract
with the Union.
DOBBS HOUSES , INC., A
DIVISION OF BEECH-NUT
LIFE SAVERS, INC.
(Employer)
LABOR RELATIONS BOARD
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive 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 provisions, they may
communicate directly with the Board 's Regional
Office, 400 West Bay Street , Federal Building,
Jacksonville , Florida 32202, Telephone
904-791-2168.