Blevins Popcorn Co.

National Labor Relations Board - Board Decisions

Jun 19, 1975

218 N.L.R.B. 689 (N.L.R.B. 1975)

BLEVINS POPCORN COMPANY 689
Blevins Popcorn Company and American Federation
of Grain Millers, AFL-CIO. Case 14-CA-8237
June 19, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Upon a charge filed on November 7, 1974, by
American Federation of Grain Millers, AFL-CIO,
herein called the Union, and duly served on Blevins
Popcorn Company, herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 14,
issued a complaint on November 20, 1974, 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 and complaint, and notice of hearing
were duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on October 30,
1974, following a Board election in Case 14-RC-
7468 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; f and that,
commencing on or about November 4, 1974, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represent-
ative, although the Union has requested and is
requesting it to do so. On November 26, 1974,
Respondent filed its answer to the complaint and
thereafter a first amended answer to the complaint
on March 18, 1975, admitting the factual allegations
thereof, but asserting that the certification of the
Union in the underlying representation case was
erroneous, essentially for the reasons stated in that
proceeding. Respondent admits refusing to bargain
upon request, and asserts, inter alia, that individuals
involved in the representation case were
"supervisors" within the meaning of the Act and that
they engaged in, supported, and encouraged employ-
ees in a labor dispute involving Respondent, thereby
1 Official notice is taken of the record in the representation proceeding,
Case 14-RC-7468, as the term "record" is defined in Secs. 102.68 and
102.69(g) 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,
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) ofthe NLRA.
2 Respondent raised its contention regarding the Union's alleged
preelection conduct, and, inter alga, issues concerning the alleged superviso-
ry status of three employees , in its objections to the election . The Regional
218 NLRB No. 101
supporting its contentions raised by its objections to
the election in the representation proceeding.
On March 18, 1975, counsel for the General
Counsel filed directly with the Board a:Motion for
Summary Judgment, asserting that by its answer to
the complaint Respondent is attempting to raise
issues which were raised and litigated in. the
representation proceeding, and thus he is entitled to
judgment without hearing in the absence of any
dispute as to factual issues. Subsequently, on March
31, 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 a response and answer to Notice
To Show Cause. The Union has also submitted 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
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 noted above, in its answer and first amended
answer, Respondent admits all the factual allegations
of the complaint, but asserts that the Union's actions
prior to the election prevented a free and fair
expression of choice therein, and thus the certifica-
tion of the Union was improper. By this argument,
which Respondent essentially reiterates in its re-
sponse to the Notice To Show Cause, Respondent is
attempting to raise and relitigate issues which were
raised and extensively litigated2 in the underlying
representation proceeding.
In addition to reasserting its representation case
contentions, Respondent alleges as newly discovered
and previously unavailable evidence that those
individuals alleged to be supervisors in that proceed-
ing engaged in a labor dispute and supported and
encouraged employees in derogation of their rights
under the Act, all of which demonstrates merit in its
objections to the election. We fail to see the
relevance, in this proceeding, of any alleged conduct
subsequent to the election together with their fellow
employees, especially in view of the fact that they
Director issued a report and recommendations thereon on December 17,
1974, recommending that they be overruled in toto. Upon Respondent's
exceptions , in which these issues were presented to the Board , the Board
ordered a hearing on Respondent 's objection dealing with the alleged
supervisory status of certain individuals . After the hearing, the Hearing
Officer issued a report recommending that the objection be overruled, and
finding that the individuals in question were not supervisors. Upon
Respondent's exceptions , the Board issued a Decision and Certification of
Representative on October 30, 1974, adopting his recommendations and
certifying the Union.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were found in that proceeding to be employees
within the meaning of the Act.3,
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 Motion for Summary Judgment.5
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Tennessee corporation which is
duly authorized to do business under the laws of the
State of Illinois. It maintains a facility in Ridgeway,
Illinois, which is the only facility involved herein,
where it is engaged in the manufacture, sale, and
distribution of popcorn and related products. -During
a representative period, Respondent, in the course
and conduct of its business operations, manufac-
tured, sold, and distributed at its Ridgeway, Illinois,
place of business products valued in excess of
$50,000, of which products valued in excess of
$50,000 were shipped from said place of business
directly to points located outside the State of Illinois.
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
American Federation of Grain Millers, 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,
including truckdrivers employed at the Employ-
er's facility in Ridgeway, Illinois, but excluding
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
2. The certification
On November 2, 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 14, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on October 30, 1974, 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 Respondent's
Refusal
Commencing on or about November 1, 1974, 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 November 4, 1974, 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 find that the Respondent has,
since November 4, 1974, 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.
" 3 Fn. 2, supra frivolous," as urged by the Union, and accordingly shall not order that
4 See Pittsburgh Plate Glass Co. v. N.L.RB., 313 U.S. 146, 162 (1941); Respondent reimburse the Union for its costs and fees as requested by it.
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). Heck's, Inc., 215 NLRB No. 142 (1974).
s We do not find Respondent's refusal to bargain herein to be "patently
BLEVINS POPCORN COMPANY 691
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. Blevins Popcorn Company is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. American Federation of Grain Millers, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees,
including truckdrivers employed at the Employer's
facility in Ridgeway, Illinois, but excluding 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 October 30, 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 November 4, 1974,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent 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 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,
Blevins Popcorn Company, Ridgeway, Illinois, 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 American Federation
of Grain Millers, AFL-CIO, as_ the exclusive bar-
gaining representative of its employees in the
following appropriate unit:
All production and maintenance employees,
including truckdrivers employed at the Employ-
er's facility in Ridgeway, Illinois, but excluding
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.
692 DECISIONS OF NATIONAL
(b) Post at its Ridgeway, Illinois, facility copies of
the attached notice marked "Appendix."6 Copies of
said notice , on forms provided by the Regional
Director for Region 14, 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 14, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 In the event that ties 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
LABOR RELATIONS BOARD
terms and conditions of employment with Ameri-
can Federation of Grain Millers, 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,
including truckdrivers employed at the
Employer's facility in Ridgeway, Illinois, but
excluding office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
BLEVINS POPCORN
COMPANY