Bonnie Enterprises, Inc.

National Labor Relations Board - Board Decisions

Feb 11, 1964

145 N.L.R.B. 1669 (N.L.R.B. 1964)

BONNIE ENTERPRISES , INC. 1669
Bonnie Enterprises, Inc. and Local 305, Amalgamated Meat
Cutters & Butcher Workmen of North America, AFL-CIO.
Case No. 5-CA-fd511. February 11, 1964.
DECISION AND ORDER
On November 7, 1963, Trial Examiner Arthur E. Reyman issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. Thereafter,
Respondent filed exceptions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Decision, the exceptions, and the
brief, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the additions and modifications
noted.'
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the modifications noted below :
1. Substitute for the first paragraph therein the following :
Upon the entire record in this case, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the Na-
tional Labor Relations Board hereby orders that Respondent
Bonnie Enterprises, Inc., its officers, agents, successors, and as-
signs, shall :
2. Add the following as paragraph 1(b) :
In any like or related manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed by Sec-
tion 7 of the Act.
'We. agree with the Trial Examiner's conclusion that Respondent violated 8(a) (5)
and (1 ) of the Act , but do so for the following reasons:
On June 18, 1963, following an election , the Regional Director certified the Union as
the collective-bargaining representative of the employees in the appropriate unit. There-
after the Union requested Respondent to bargain , but Respondent admittedly refused. In
defense Respondent contends that the Board erroneously overruled its objections to the
election and to the inclusion of assistant managers in the unit . In the representation
proceeding , the Board considered and rejected these contentions respecting the validity of
the election and the unit finding. Accordingly , we find that by admittedly refusing to
bargain upon request with the Union , the certified representative of its employees , Respond-
ent violated Section 8 ( a) (5) and ( 1) of the Act . Moloney Electric Company, 129 NLRB
1208; The Mountain States Telephone and Telegraph Company, 136 NLRB 1612.
145 NLRB No. 161.
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Immediately below the unit description contained in the notice,
add as the second indented paragraph the following :
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of rights guaranteed
in Section 7 of the Act.
4. Delete the paragraph from the notice which begins with "all of
our employees," etc.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act,
as amended , 29 U.S.C. Sec. 151, et seq., herein called the Act.
Local 305, Amalgamated Meat Cutters & Butcher Workmen of North America,
AFL-CIO, herein sometimes called Local 305 or the Union, filed a charge on July
3, 1963, against Bonnie Enterprises , Inc, hereinafter sometimes called the Company,
the charge asserting violation of Section 8(a)(5) of the Act. Thereafter, the Gen-
eral Counsel of the National Labor Relations Board, on behalf of the Board, by
the Regional Director for the Fifth Region, issued a complaint and notice of hearing
under date of July 18, 1963, alleging contraventions of Section 8(a)(5) of the Act.'
The Respondent Company filed timely answer to the complaint dated July 23.
Pursuant to proper notice, this case came on to be heard before Trial Examiner
Arthur E. Reyman on September 5 and was closed on that day. At the hearing
each party was represented and was afforded opportunity to be heard, to examine
and cross-examine witnesses , to present pertinent evidence, to make oral argument,
and to file briefs or proposed findings and conclusions or both. Short oral argu-
ment was made for each side. The Trial Examiner has not received briefs or
proposed findings of fact and conclusions but has considered certain matters pre-
sented to him before the close of hearing and the issuance of this Decision. No
witness was called by any one of the parties; the case stands on a written record
of this and prior proceedings and the position taken by the Respondent that the
General Counsel, on the case in its entirety, has failed to prove a refusal to bargain
within the meaning of Section 8(a) (5). Consequently this Trial Examiner is called
upon to decide, principally as a matter of law on uncontradicted facts, whether the
Respondent refused to bargain in good faith with a duly designated representative
of the employees, that is, the Union engaged herein.
Upon the entire record in the case, and after full consideration of the docu-
mentary evidence herein which is before me, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The Respondent, Bonnie Enterprises, Inc., is and at all times material herein has
been, a corporation duly organized and existing by virtue of the laws of the Com-
monwealth of Virginia, operating its places of business at various places in the
Commonwealth of Virginia, where it is engaged in the operation of retail food stores.
During a representative period immediately preceding the issuance of the complaint
herein, Respondent, in the course and conduct of its business operations, received
goods and materials valued in excess of $50,000 at its places of business in the
Commonwealth of Virginia, directly from plants located outside the Commonwealth
of Virginia. During the same period of time, the gross sales of the Respondent were
in excess of $500,000.
The Respondent is, and at all times material herein has been engaged in and is
now engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 305, Amalgamated Meat Cutters & Butcher Workmen of North America,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
i Unless otherwise specifically noted, all dates hereinafter mentioned are for the year 1963.
BONNIE ENTERPRISES, INC.
III. THE UNFAIR LABOR PRACTICES
1671
The Pleadings
The complaint alleges that all meat department employees at the retail food stores
of the Respondent located in Virginia, excluding all other 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. The complaint
alleges further that on February 14, a majority of the employees of the Respondent
in the above-described unit, in a secret ballot election conducted in Bonnie Enter-
prises, Inc., Case No. 5-RC-3968, designated the Union as their representative for
the purposes of collective bargaining with Respondent, and by virtue of Section 9(a)
of the Act, at all times since that date has been and is now the exclusive representa-
tive of all the employees of the Respondent in said unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment, or other con-
ditions of employment. The Board, on June 18, formally certified the Union as the
representative of the employees in the unit for the purposes of collective bargaining.
The complaint goes on to allege that on or about June 19, and on various dates
thereafter, the Union requested the Respondent to bargain collectively with respect
to rates of pay, and other terms and conditions of employment, with the Union as
the exclusive representative of the employees in the said unit; and then on or about
July 1, and at all times thereafter, the Respondent "did refuse and continues to
refuse to bargain collectively in good faith with the Union . " The Respondent,
in its answer to the complaint, in addition to denying the substantive charges of
violations of the Act as set forth in the complaint, sets up certain special defenses.
First, it says
That it admits that certain of its employees constitute an appropriate unit for
the purposes of collective bargaining, however, it denies that all of the employees
found by the Board to compose such unit constitute "an appropriate unit" for
the purpose of collective bargaining within the meaning of Section 9, subsection
(b) of the Act.
The Respondent goes on further to say in its answer that notwithstanding the action
taken by the Board, the election should be set aside and any certification of the
Union made by the Board was and is unlawful; that the inclusion of assistant man-
agers within the bargaining unit was and is contrary to law; the answer admits that
pursuant to the certification the Union requested the Respondent to bargain with the
Union as representative in the above-described certified unit; admits that it has
refused to bargain but denies that said refusal is in bad faith; and further
.. . The Respondent says that it believes, and therefore states, that the Board
erred in failing to set aside the election because of the unlawful conduct prior to
said election of the Union through its representatives, agents, employees and
others; and that the Board further erred in including assistant managers within
the unit certified, and for said reasons and in order to obtain judicial review
in the findings of the Board, the Respondent has refused to bargain with the
Union. [Emphasis supplied.]
No question was raised during the course of this hearing concerning the regularity
of the proceedings conducted in Case No. 5-RC-3968, nor is there any suggestion
made that the Regional Director and the Board have not followed the provisions of
Section 9(b) and (c) of the Act, nor has there been any suggestion of deviation or
violation of any of the provisions of the Rules and Regulations of the Board, Series
8, as amended, particularly in regard to the provisions of Section 102.67.
The Supplemental Decision, Direction, and Order of the Regional Director dated
April 12 has been examined as has been the request for review filed on behalf of
the Respondent on April 19. I have gone through each exhibit contained within the
formal file and have examined the collective-bargaining agreements timely furnished
to me subsequent to the close of the hearing.2 The formal file in this case contains the
original petition for representation filed by the Union on September 27, 1962, in Case
No. 5-RC-3968; the Decision and Direction of Election dated January 18, 1963;
the Supplemental Decision, Direction, and Order dated April 12, 1963 (above
referred to); an order denying the request of the Respondent for a review of the
2 These Include (1) a collective agreement between Local 117 of the Union and the
Grand Union Company; (2) an agreement between Local 272 of the Union and the
George H. Meyer Sons, Inc; and (3) a copy of a contract between Local 555 of the Union
and Safeway Stores, Inc
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director's Supplemental Decision, Direction, and Order of April 12, dated June 4,
1963; a copy of the certification of representatives of June 18, 1963; a copy of
the letter of the employer declining to bargain with the Union, dated July 1, 1963.
It has been stipulated between counsel that the Union had written a letter to the
Respondent containing a request to bargain.
It clearly appears, therefore, that the object of the Respondent Company herein is
to gain judicial review in an unfair labor practice proceeding in which it has been
charged with a refusal to bargain under Section 8(a)(5) of the Act, on two sub-
stantial grounds; namely, that the unit found to be appropriate by the Board is not
an appropriate unit because the Board included assistant managers within it; and
second, that the Regional Director, in considering objections to the results of
election, failed to take into consideration that the Union had misrepresented to
employees through handbills and other means of communication that in all of the
contracts held by the Union with all of the several employers with whom they
held such collective-bargaining agreements, had misrepresented the benefits that
the Union had obtained in other establishments. It is too well settled for me to dis-
cuss in detail my function as a Trial Examiner in an unfair labor practice case.
This does not include the right or the duty to go behind a certification of an ap-
propriate unit for collective bargaining purposes duly made under the Act and ac-
cording to the Rules and Regulations of the Board. Accordingly, I shall not pass
upon the merits concerning who belongs within the appropriate unit or whether
the Union used improper methods to influence employees to vote in its favor as their
collective-bargaining representative. For me to attempt to do so would be to usurp
jurisdiction which I do not have. In regard to Section 9 proceedings, the determina-
tions of the Board are not directly reviewable by the courts, and certainly not by
a Trial Examiner in a Section 10 proceeding. Cf. American Federation of Labor,
et al. (Shipowners' Assn. of the Pacific Coast) v. N.L.R.B., 308 U.S. 401, 412, and
Inland Empire District Council, Lumber and Sawmill Workers Union, Lewiston,
Idaho (Potlatch Forests, Inc.) v. Millis, 325 U.S. 697.
CONCLUDING FINDINGS
The Respondent, in the proceeding under Section 9 of the Act, has had full
opportunity to assert its position as to what should constitute an appropriate
bargaining unit. It failed to gain its position in Case No. 5-RC-3968.
It has long been settled that except in case of abuse of process (which so far as
can be found herein did not happen, the Board has a duty and responsibility to
determine what is the appropriate unit; it is also settled that a party feeling ag-
grieved thereby may refuse, it acting in good faith, to not subscribe to such deter-
mination interim, pending a formal order to it from the Board to bargain in good
faith. I have my doubts concerning a good-faith refusal to bargain here. The
grounds for refusal are too shallow, after the exhaustion by the Respondent of all
the protection afforded an employer under the provisions of Section 9 of the Act.
An employer violates Section 8(a)(5) and (I) of the Act by refusing to bargain
with a union selected by a majority of his employees where such refusal is motivated,
not by a good-faith doubt of the union's majority status, but by a desire to gain time
in which to undermine the union. N.L.R.B. v. Larry Faul Oldsmobile Co., Inc.,
316 F. 2d 595 (C.A. 7), enfg. 138 NLRB 697, 701-704; N.L.R.B. v. The Howe
Scale Company, 311 F. 2d 502, 504 (C.A. 7); N.L.R.B. v. Irving Taitel, Ruth Taitel
and Jerome Taitel, d/b/a Taitel and Son, 261 F. 2d 1, 4-5 (C.A. 7), cert. denied
359 U.S. 944. I therefore find that the Respondent, by refusing to bargain in good
faith, has engaged in and is engaging in unfair labor practices within the meaning
Of Section 8(a) (5) and (1) of the Act .3
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation 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 commerce.
V. THE REMEDY
It having been found that the Respondent has violated and is now violating Sec-
tion 8(a) (1) and (5) of the Act, it will be recommended that the Respondent cease
3 See, on "good-faith" bargaining, Insulating Fabricators, Inc., Southern Division,
144 NLRB 1325.
BONNIE ENTERPRISES, INC. 1673
and desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
It has been found that the Respondent refused and continues to refuse to bargain
with the Union, which represents a majority of the employees in an appropriate
certified unit. Accordingly, I shall recommend that the Respondent be ordered to
bargain, upon request, with the Union as the exclusive representative of the em-
ployees in the appropriate unit.
CONCLUSIONS OF LAW
1. All meat department employees employed at the retail food stores of the
Respondent located in the Commonwealth of Virginia, excluding all other em-
ployees, 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.
2. At all times material herein the Union has been and still is the exclusive
representative of the employees of the aforesaid unit for purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
3. By refusing to bargain collectively with the aforesaid labor organization as
the exclusive representative of its employees in an appropriate unit, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (5) and (1) of the Act.
4. By such unfair labor practices , particularly the refusal of the Respondent
to bargain with the Union as the certified representative of its employees, the
Respondent has engaged in activities affecting commerce in violation of Section 2(6)
and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and upon the foregoing findings of fact and
conclusions of law, it is recommended that the Respondent , Bonnie Enterprises,
Inc., its officers , agents, successors , and assigns , shall:
1. Cease and desist from refusing to bargain concerning rates of pay, wages, hours
of employment, and other conditions of employment with Local 305, Amalgamated
Meat Cutters & Butcher Workmen of North America, AFL-CIO, as the exclusive
representative of all its meat department employees at the retail food stores of the
Respondent located in the Commonwealth of Virginia, excluding all other employees,
guards, and supervisors as defined in the Act.
2. Take the following affirmative action which it is found is necessary to effectuate
the policies of the Act.
(a) Upon request, bargain collectively with Local 305, Amalgamated Meat Cut-
ters & Butcher Workmen of North America, AFL-CIO, as the exclusive representa-
tive of all meat department employees as herein described, with respect to rates of
pay, wages, hours of employment, or other conditions of employment, and, if an
understanding is reached, embody such understanding in a signed written agreement.
(b) Post at all of its places of business in the Commonwealth of Virginia, copies
of the attached notice marked "Appendix." 4 Copies of said notice, to be furnished
by the Regional Director for the Fifth Region, shall, after being duly signed by
Respondent's representative, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of at least 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to insure
that such notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Fifth Region, in writing, within 20
days from the date of receipt of this Trial Examiner 's Decision , what steps the Re-
spondent has taken to comply herewith .5
'In the event that this Recommended Order be adopted by the Board , the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board 's Order be enforced
by a decree of the United States Court of Appeals, the words "A Decree of the United
States Court of Appeals , Enforcing an Order" shall be substituted for the words "A Deci-
sion and Order."
5 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL, upon request , bargain with Local 305, Amalgamated Meat Cutters
& Butcher Workmen of North America , AFL-CIO, as the exclusive representa-
tive of all employees in the bargaining unit described below in respect to rates
of pay, wages, hours of employment , or other conditions of employment, and,
if an understanding is reached , embody it in a signed agreement . The bargaining
unit is:
All meat department employees at the retail food stores at Bonnie Enter-
prises, Inc., located in the Commonwealth of Virginia, excluding all other
employees , guards, and supervisors , as defined in the Act.
All of our employees are free to become , remain , or refrain from becoming or
remaining members of the aforesaid Union , or any other labor organization.
BONNIE ENTERPRISES, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Sixth
Floor, 707 North Calvert Street , Baltimore , Maryland, Telephone No. 752-8469,
Extension 2100, if they have any questions concerning this notice or compliance
with its provisions.
Hod Carriers' and Construction Laborers ' Union, Local No. 300,
AFL-CIO [Desert Pipeline Construction Co.] and Dennis R.
Murray. Case No. 21-CB-2096. February 11, 1964
DECISION AND ORDER
On October 11, 1963, Trial Examiner E. Don Wilson issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Decision. There-
after, Respondent filed exceptions to the Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the De-
cision, the exceptions and brief, and the entire record in this case, and
145 NLRB No. 162.