El Fenix Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1979

240 N.L.R.B. 1009 (N.L.R.B. 1979)

EL FENIX CORPORATION 1009
El Fenix Corporation and Amalgamated Meat Cutters
& Butcher Workmen of North America, Local 540,
AFL-CIO. Case 16 CA-8181
February 28, 1979
DECISION AND ORDER
BY CIAIRMAN FANNING AND MINMB[RS JENKINS
AND MI:RPHY
Upon a charge filed on October 31, 1978, by Am-
algamated Meat Cutters & Butcher Workmen of
North America, Local 540, AFL CIO herein called
the Union, and duly served on El Fenix Corporation,
herein called Respondent. the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 16, issued a complaint and no-
tice of hearing on November 20, 1978, against Re-
spondent, alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the National Labor
Relations Act. as amended. Copies of the charge.
complaint, and notice of hearing before an Adminis-
trative Law Judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on October 13, 1978.
following a Board election in Case 16-RC 7560, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate:' and that, commenc-
ing on or about October 19, 1978, and at all times
thereafter. Respondent has refused, and continues to
date to refuse, to bargain collectively with the Union
as the exclusive bargaining representative, although
the Union has requested and is requesting it to do so.
On November 28, 1978, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint.
On December 11, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December 26,
1978, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted.
Official notice is taken of the record n the representation proceeding.
Case 16 RC 7560, as the term "record" is defined in Secs. 1)2.68 and
102.6
9
(g) of the Board's Rules and Regulations Series 8. as amended See
.ITV Eleroirmernm. Inc., 116 NLRB 938 (19671, enfd. 388 F2d 683 (4th
Cir. 1968); (Golden Age Beverage (, 167 NlRB 151 (1967). enfd. 415 F 2d
26 (5th ('ir. 1969); Interpe (o. v Penelli, 269 F.Supp. 573 (D.C.Va. 1967)
Follett Corp 164 N.RB 37 (1967). enfd 397 F2d 91 (7th (ir 1968). Sec
9(d) of the Nl.RA. as amended
240 NLRB No. 152
Respondent thereafter filed an opposition to the
Motion for Summary Judgment and a Cross-Motion
for Summary Judgment.
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 au-
thority 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
On March 7, 1978, the Board issued a Decision 2 in
which it considered Respondent's objections to an
election held on September 14, 1977, and the Region-
al Director's report and recommendations. The
Board, after having reviewed the record in light of
the exceptions and brief, adopted the Regional
Director's findings and recommendations that
Respondent's objections be overruled. However, the
Board did not adopt the Regional Director's Report
on Challenges and remanded the case to the Region-
al Director. Subsequently, on March 1, 1978, the Re-
gional Director issued a supplemental report on chal-
lenged ballots, order consolidating cases, and notice
of hearing ordering, inter alia, that a hearing be held
for the purpose of taking testimony to resolve the
challenged ballots. Thereafter, the Union requested
withdrawal of its 8(a)(3) charges in the related unfair
labor practice case. The Regional Director approved
the withdrawal of the charges and on May 18, 1978.
issued a second supplemental report on challenged
ballots. In that report the Regional Director conclud-
ed that by withdrawing the 8(a)(3) charges of the al-
leged discriminatees their eligibility was resolved and
that the remaining challenged ballots were not deter-
minative.
On October 13, 1978, the Board issued a Supple-
mental Decision and certification of representative 3
in which it considered Respondent's exception to the
Regional Director's report and recommendation.
The Board, after having reviewed the record in light
of the exception and brief, adopted the Regional
Director's findings and recommendation and certi-
fied the Union, necessarily finding that Respondent
did not raise substantial or material issues warrant-
ing a hearing.
In its answer to the complaint and its response to
the Motion for Summary Judgment Respondent ad-
mits substantially all the factual allegations of the
complaint, including its refusal to recognize and bar-
gain with the Union, which has been certified as col-
lective-bargaining representative of the employees in
El enis Corporatiun 234 NLRB 1212 (1978).
No, reported in bound volumes of Board )Decision.
EL FENIX CORPORATION
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the appropriate unit described in the complaint.
However, Respondent denies that the Union is the
certified representative and it claims it should have
been granted a hearing because of the Union's pre-
election conduct as delineated in Respondent's ob-
jections to the election and that a hearing should be
held to determine the expectancy of recall of voters
who cast challenged ballots, notwithstanding the fact
that it was Respondent itself which challenged seven
voters and it is its own challenges which have been
resolved in its favor.
By its assertion, and more specifically by its deni-
als, in whole or in part, of the allegations of the com-
plaint and the arguments propounded in the re-
sponse, Respondent is attempting to relitigate the
same issues which it raised in the representation pro-
ceeding, Case 16 RC 7560.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.4
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or pre-
viously unavailable evidence, nor do any special cir-
cumstances exist herein which would require the
Board to reexamine the decision made in the repre-
sentation proceeding. We therefore find that Respon-
dent has not raised any issue which is properly litiga-
ble in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FA('I
I. 'THE BUSINESS OF RESPONDENT
Respondent is a Texas corporation with a place of
business in Dallas, Texas. It is engaged in the prepa-
ration of food and restaurant products. During the
preceding 12 months, a representative period, Re-
spondent purchased goods valued in excess of
$50,000 from points directly outside the State of Tex-
as and had a gross volume of business in excess of
$500,000.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
4See Pittshurgh Pllen Glass (Co. v. NI..R B.. 313 U.S. 146. 162 1941):
Rules and Regulations of the Board, Secs. 102.67(f) and 10 2.6 9(c.
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 juris-
diction herein.
II [Il I.ABOR ()R(iA\NIA\ I)N INV()I Ii)
Amalgamated Meat Cutters & Butcher Workmen
of North America, Local 540, AFI.CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
Ill. 1iL UNIAIR ABOR PRA('I('ES
A. Thie Represenlaion Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production and maintenance employees, in-
cluding truckdrivers of the Employer at its com-
missary located at 11075 Harry Hines Boule-
vard. Dallas, Texas, excluding office clerical
employees, guards, watchmen, and supervisors
as defined in the Act.
2. The certification
On September 14, 1977, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Regional
Director for Region 16, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on October 13, 1978, and the Union con-
tinues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
B. he Request To Bargain and Respondents Refusal
Commencing on or about October 16, 1978, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about October 19., 1978, and continuing at all
times thereafter to date, Respondent has refused, and
continues to refuse, to recognize and bargain with
the Union as the exclusive representative for collec-
tive bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
October 19, 1978, and at all times thereafter, refused
EL FENIX CORPORATION I011
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate 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 ( ) of the
Act.
IV I 1E F'FEC1 (OF I I. l Ni AIR l.ABOR PRA( II( S I P()N
COMMEFR(CI
The activities of El Fenix Corporation set forth in
section III, above, occurring in connection with its
operations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. I 1t Ri.MEI)
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poulhrv Compan', Inc., 136
NLRB 785 (1962): Commerce Compan dh a Lamar
Hotel. 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(5th Cir. 1964), cert. denied 379 U.S. 817: Burnett
Construction Company. 149 NLRB 1419, 1421 (1964},
enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CON(I. SIONS OF LAW
1. El Fenix Corporation is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Amalgamated Meat Cutters & Butcher Work-
men of North America, Local 540, AFI. CIO. is a
labor organization within the meaning of Section
2(5) of the Act.
3. All production and maintenance employees, in-
cluding truckdrivers of the Employer at its commis-
sary located at 11075 Harry Hines Boulevard, Dallas.
Texas, excluding office clerical employees, guards.
watchmen, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(h)
of the Act.
4. Since October 13, 1978, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about October 19, 1978, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit. Respondent has en-
gaged 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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(I) 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 Re-
lations Board hereby orders that the Respondent, El
Fenix Corporation. 11075 Harry Hines Boulevard.
Dallas, Texas. 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 con-
ditions of employment with Amalgamated Meat Cut-
ters & Butcher Workmen of North America. Local
540. AFL CIO, as the exclusive bargaining represen-
tative of its employees in the following appropriate
unit:
All production and maintenance employees, in-
cluding truckdrivers of the Employer at its com-
missary located at 11075 Harry Hines Boule-
vard, Dallas, Texas. excluding office clerical
employees, guards, watchmen and supervisors as
defined in the Act.
(b) In any like or related manner interfering with.
restraining. or coercing employees in the exercise of
EL FENX CORPORATION lOll
.
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its commissary located at 11075 Harry
Hines Boulevard, Dallas, Texas, copies of the at-
tached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional Director
for Region 16, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able 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 16, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
In the event that this Order is enforced by a Judgment of a Utnited
States Court of Appeals, the words in the notice reading "Posted hb 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
NAIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOI refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Amal-
gamated Meat Cutters & Butcher Workmen of
North America, Local 540, AFL-CIO, as the ex-
clusive 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 represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es. hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All production and maintenance employees,
including truckdrivers of the Employer at its
commissary located at 11075 Harry Hines
Boulevard, Dallas, Texas, excluding office
clerical employees, guards, watchmen, and
supervisors as defined in the Act.
EL FENIX CORPORATION