Frito-Lay, Inc.

National Labor Relations Board - Board Decisions

May 9, 1969

175 N.L.R.B. 923 (N.L.R.B. 1969)

FRITO-LAY, INC.
Frito-Lay, Inc. - and - American Bakery and
Confectionery Workers International Union,
AFL-CIO, Local 103 . Case 12-CA-4459
May 9, 1969
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS, AND ZAGORIA
Upon a charge filed by American Bakery and
Confectionery Workers International Union,
AFL-CIO, Local 103, herein called the Union, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 12,
issued a complaint and notice of hearing dated
March 4, 1969, against Frito-Lay, Inc., herein called
the Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor
practices 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 a Trial
Examiner were duly served upon Respondent.
With respect to the unfair labor practices, the
complaint alleges, in substance , that on January 28,
1969, the Union was duly certified as the exclusive
bargaining representative of Respondent's employees
in an appropriate unit, and that since on or about
January 30, 1969, and thereafter, Respondent has
refused and is refusing to recognize and bargain
with the Union as such exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On March 10, 1969,
Respondent filed its answer, which denied the
commission of the unfair labor practice alleged.
On March 13, 1969, the General Counsel filed
with the Board a Motion for Summary Judgment,
asserting , in view of admissions contained in
Respondent' s answer and its letter to the Union
dated February 13, 1969, that there are no issues of
fact or law requiring a hearing , and praying the
issuance of a Decision and Order finding the
violations as alleged in the complaint. On March 17,
1969, 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. Thereafter,
Respondent filed a Response opposing the General
Counsel's Motion for Summary Judgment.
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.
Upon the entire record in this case, the Board
makes the following:
Ruling on the Motion for Summary Judgment
The record before us establishes that on June 18,
1968,'the Respondent and the Union executed a
Stipulation for Certification upon Consent Election.
923
Pursuant to such stipulation an election was held on
July 12, 1968, among the employees in the following
unit stipulated by the parties to constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All driver-salesmen employed by the Respondent
in its Orlando, Florida area, excluding all other
employees, professional employees, guards, and
supervisors as defined in the Act.
Upon the conclusion of the election, the parties were
furnished a tally of ballots which showed that 20
valid ballots were cast, of which 11 were for, and 9
were against, the Union. Thereafter, Respondent
filed timely Objections to the Election.
On October 10, 1968, after an administrative
investigation, the Regional Director issued a Report
on Objections and Recommendations to the Board,
in which he recommended that the objections be
overruled and that a certification of representatives
be issued to the Union. Thereafter, on November 5,
1968, the Respondent filed exceptions to the
Regional Director's Report, and on November 18,
1968, filed a letter supplement thereto dated
November 14, 1968, requesting that the Board
sustain its objections, set aside the election, and
direct another election, or, in the alternative, that a
hearing be held on the issues raised by the
objections. On January 28, 1969, the Board issued
its Decision and Certification of Representative in
which it adopted the Regional Director's findings
and recommendations.
Since on or about January 30, 1969, and
specifically by letter to the Union dated February
13, 1969, Respondent has refused to bargain
collectively pursuant to requests by the Union. On
February 17, 1969, the Union filed the charge upon
which the complaint was predicated.
In its Response to the Notice to Show 'Cause,
Respondent contends in substance that: (1)
conversations engaged in by union adherents on July
12, 1968, with employees in the appropriate unit
while said employees were walking into the voting
area to vote interfered with the free choice of the
employees involved; (2) a story circulated prior to
the election which the Respondent did not have an
opportunity to answer that unit employees would be
discharged if the Union lost the election could
reasonably be expected to have the effect of
destroying employees freedom of choice and the
secrecy of the ballot; (3) the failure of the Board to
afford the Respondent a hearing on the extent and
the effect of the conduct complained of on the
election results and the responsibility of the Union
for the conduct in question deprived the Respondent
of due process of law; and (4) neither the Act nor
the Board's Rules and Regulations authorize a
summary judgment in this case.
Respondent 's first, second, and third contentions
seek to relitigate contentions made, fully considered,
and rejected in the representation case . Respondent
does not allege nor do we find any new evidence
175 NLRB No. 156
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unavailable at the time of the hearing or special
circumstances which warrant re-examination of the
Board's Decision and Certification of Representative
in Case 12-RC-3100, issued January 28, 1969.
Inasmuch as Respondent has already litigated such
contentions , it has not raises any issue which is
properly triable in this proceeding, or any issue
which would justify a granting of oral argument
before the Board.' Nor do we find merit in
Respondent 's contention that summary judgment in
this case is not authorized by the Act or the Board's
Rules and Regulations.'
As all material issues have been previously
decided by the Board, are admitted by Respondent's
answer to this complaint, or are not proper
questions of fact to be determined at a hearing,
there are no matters requiring a hearing before a
Trial Examiner. Accordingly, the General Counsel's
Motion for Summary Judgment is granted. On the
basis of the record before it, the Board makes the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein , a Delaware corporation engaged in the
manufacture , distribution, and sales of convenience
foods . During the past year , which period is
representative of all material times herein,
Respondent , in the course and conduct of its
business operations , shipped out of the State of
Florida , goods, supplies, and materials valued in
excess of $50,000; and during the same period it
received within the State of Florida , goods, supplies,
and materials valued in excess of $50 ,000, which
were shipped to it directly from points outside the
State of Florida.
Respondent admits, and we find , 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.
II. THE LABOR ORGANIZATION INVOLVED
American Bakery and Confectionery Workers
International Union, AFL-CIO, Local 103, is a
labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
The following employees constitute a unit
appropriate for collective-bargaining purposes within
the meaning of Section 9(b) of the Act:
'Dobbs Houses, Inc., A Division of Beech-Nut Life Savers , Inc, 172
NLRB No. 206.
'Ramada Inns , Inc.. 174 NLRB No. 139.
All driver-salesmen employed by the Respondent
in its Orlando, Florida area, excluding all other
employees, professional employees, guards, and
supervisors as defined in the Act.
B. The Certification
On July 12 , 1968, a majority of the employees of
Respondent in the above-appropriate unit, in a
secret election conducted under the supervision of
the Regional Director for Region 12, designated the
Union as their representative for the purposes of
collective bargaining with Respondent, and on
January 28 , 1969, the Union was certified as the
collective-bargaining representative of the employees
in the above-appropriate unit and continue to be
such representative.
C. The Request To Bargain and the
Respondent 's Refusal
Commencing on or about January 30, 1969, and
continuing to date, the Union has requested and is
requesting Respondent to bargain collectively with
the Union as the exclusive collective -bargaining
representative of all the employees in the
above-described unit. Since February 13, 1969, and
continuing to date, Respondent has refused and
continues to refuse to bargain collectively with the
Union as exclusive collective-bargaining
representative of all employees in said unit.
Accordingly, we find that the Union was duly
certified by the Board as the collective-bargaining
representative of the employees of Respondent in
the appropriate unit described above and that the
Union at all times since January 28, 1969, has been
and now is the exclusive bargaining representative of
all the employees in the aforesaid unit, within the
meaning of Section 9(a) of the Act. We further find
that Respondent has since February 13, 1969,
refused to bargain collectively with the Union as the
exclusive bargaining representative of its employees
in the appropriate 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 PRACTICE
UPON COMMERCE
The acts of the Respondent set forth in section
III, above , occurring in connection with its
operations as 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.
FRITO-LAY, INC. 925
V. THE REMEDY
Having found that Respondent has engaged 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 year of
certification as beginning on the date the
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; Commerce
Company d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd . 328 F.2d 600 (C.A. 5), cert denied 379 U.S.
817; Burnett Construction Company, 149 NLRB
1419, 1421, enfd . 350 F.2d 57 (C.A. 10).
CONCLUSIONS OF LAW
1. Frito-Lay, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. American Bakery and Confectionery Workers
International Union, AFL-CIO, Local 103, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All employees of Respondent normally working
at the Respondent's Orlando, Florida, operation, as
defined in paragraph 3, A, above, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since January 28, 1969, the Union has been the
exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about February 13, 1969, and
at all times thereafter, to bargain collectively with
the Union as the exclusive bargaining representative
of all the employees 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.
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
Section 7 of the Act, and has thereby 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
meaning 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,
Frito-Lay, Inc., Orlando, Florida, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment, with American Bakery and
Confectionery Workers International Union,
AFL-CIO, Local 103, as the certified bargaining
representative of its employees in the following
appropriate unit.
All driver-salesmen employed by the Respondent
in its Orlando, Florida area, excluding all other
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 rights
guaranteed them by 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
certified Union 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
understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its Orlando, Florida operation, copies
of the attached notice marked "Appendix."3 Copies
of said notice, on forms provided by the Regional
Director for Region 12, shall, after being duly
signed by Respondent's representative, 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 Notices are not altered, defaced, or
covered by other material.
(c) Notify said Regional Director for Region 12,
in writing, within 10 days from the date of this
Decision and Order, what steps Respondent has
taken to comply herewith.
'In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with
American Bakery and Confectionery Workers
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union , AFL-CIO, Local 103, as the
certified 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 certified Union , as the exclusive
representative of all employees in the bargaining unit
described below , with respect to wages , 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 driver-salesmen employed by the Respondent in
its Orlando , Florida , area , excluding all other
employees, professional employees, guards, and
supervisors as defined in the Act.
Dated By
FRITO -LAY, INC.
(Employer)
(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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, 706 Federal
Office Bldg., 500 Zack Street, Tampa, Florida 33602,
Telephone 813-228-7227.