Goldspot Dairy, Inc.

National Labor Relations Board - Board Decisions

Nov 26, 1968

173 N.L.R.B. 988 (N.L.R.B. 1968)

988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Goldspot Dairy , Inc. and International Association of
Machinists and Aerospace Workers , AFL-CIO.
Case 16-CA-3363
November 26, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On September 20, 1968, Trial Examiner Charles W.
Schneider issued his Decision in the above-proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mended that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respon-
dent filed exceptions to the Trial Examiner's Decision
and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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, exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner, and hereby orders
that the Respondent, Goldspot Dairy, Inc., Enid,
Oklahoma, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
THE REPRESENTATION PROCEEDING'
Upon petition for certification as collective bargaining
representative filed on March 28, 1967, by the International
Association of Machinists and Aerospace Workers, AFL-CIO,
I Administrative or official notice is taken of the record in the
representation proceeding , Case 16-RC-4589, as the term "record" is
defined in Sections 102 68 and 102.69(£) of the Board's Rules (Rules
and Regulations and Statements of Procedure, National Labor Relations
Board, Series 8 as revised January 1, 1965) See LTV Electrosystems,
Inc, 166 NLRB No 81, enfd. 338 F 2d 683 (C.A. 4, 1968), Golden
Age Beverage Co, 167 NLRB No. 24, Intertype Co v Penello, 269
F Supp. 573 (D.C Va , 1967), Follett Corp, 164 NLRB 378, enfd. 397
F 2d 91 (C.A 7, 1968), 68 LRRM 2474, Section 9(d) of the NLRA
herein called the Union, a hearing was held before a hearing
officer of the Board. On May 17, 1967, the Regional Director
of Region 16 issued a Decision and Direction of Election in an
appropriate bargaining unit, described hereinafter, of the
employees of Goldspot Dairy, Inc., herein called the Respon-
dent.
On May 29, 1967, the Respondent requested the Board to
review the Regional Director's Decision and Direction of
Election. The Board denied the request on June 12, 1967, on
the ground that it raised no substantial issues warranting
review.
Pursuant to the Decision and Direction of Election an
election by secret ballot was conducted on June 15, 1967,
under the supervision and direction of the Regional Director
The tally of ballots disclosed that of approximately 112
eligible voters, 104 cast ballots, of which 38 were for and 41
were against the Union. There were 25 challenged ballots. On
June 20, 1967, the Respondent filed timely Objections to
Election and Conduct Affecting Results of the Election.
However, on October 17, 1967, the Respondent requested
withdrawal of its objections and the Regional Director
approved withdrawal on October 20, 1967.
On June 21, 1967, the Union filed timely Objections to the
Election and to Conduct Affecting Results of the Election
alleging . (1)that the Employer interfered with the election by
insisting that excluded employees vote, (2)that the Employer
kept the election under surveillance, (3)that the Respondent
told the employees that selecting the Union would be futile
because the Respondent would never sign a contract, (4)that
the employees were led to believe that negotiations would have
to be with the producers, (5)that the Employer threatened
employees with loss of jobs and benefits if they supported the
Union, (6)that the employees were coerced while in line to
vote, and (7) that noneligible voters made threatening remarks
to the Board agent conducting the election, causing fear and
confusion among the eligible voters.
The Regional Director for Region 16 conducted an investi-
gation of the challenges and objections and on November 14,
1967, issued a Supplemental Decision and Order in which he
sustained the challenges to 17 ballots, overruled the challenges
to 8 ballots, overruled the Union's objections 4, 5, and 6,
sustained objections 1, 2, 3, and 7, and ordered the 8 ballots
on which the challenges had been overruled to be counted. The
Regional Director further ordered that if the revised tally
indicated that the Union had received a majority of the votes
cast the Union would be certified, but in the event that the
revised tally showed that the Union had not achieved a
majority then a second election would be held. Thereafter
under date of November 22, 1967, Respondent filed with the
Board in Washington, D.C., a timely Request for Review of the
Regional Director's Supplemental Decision and Order, with an
accompanying request that the Board delay the opening of the
ballots in the interim. On November 28, 1967, the Board
denied the request for stay of the opening of the ballots.
On December 6, 1967, the Board issued an order in which it
denied the Respondent's Request for Review with respect to
Objections 1, 2, and 7 on the ground that it raised no
substantial issues warranting review. With respect to Objection
3 the Board said that it "need not be and is not ruled upon."
Subsequent opening of the ballots ruled valid by the Regional
Director disclosed that the Union lost the election-39 votes to
48.
Pursuant to the Supplemental Decision and Order of the
173 NLRB No. 151
GOLDSPOT DAIRY 989
Regional Director of November 14, 1967, a second election
was conducted in the appropriate unit on February 20, 1968,
under the supervision and direction of the Acting Regional
Director. The tally of ballots disclosed that of approximately
90 eligible voters, 85 cast ballots, of which 45 were for, and 37
were against the Union There were 3 challenged ballots On
February 26, 1968, the Respondent filed timely Objections to
Conduct Affecting the Results of the Election alleging (1)that
the Union had inhibited the free choice of the employees by
deliberately misstating and exaggerating information, and
(2)that the Board agent had erred in not permitting 35
employees, who had been declared ineligible to vote in the
Decision and Direction of Election, to vote challenged ballots
in the election.
The Acting Regional Director for Region 16 conducted an
investigation of the Respondent's objections and on May 9,
1968, issued a Second Supplemental Decision and Certification
of Representative in which he found the objections without
merit and certified the Union as the collective bargaining
representative of the appropriate unit. Thereafter on May 20,
1968, Respondent filed with the Board a Request for Review
of the Acting Regional Director's Second Supplemental Deci-
sion and Certification of Representative.
On June 4, 1968, the Board issued an order in which it
denied the Respondent's Request for Review on the ground
that it raised no substantial issues warranting review.
THE UNFAIR LABOR PRACTICE CASE
On July 1, 1968, the Union filed the unfair labor practice
charge involved in the instant case, in which it alleged, inter
alga, that since on or about June 18, 1968, and at all times
since, the Respondent refused to bargain with the Union.
On July 16, 1968, the General Counsel, by the Regional
Director of Region 16, issued a Complaint and Notice of
Hearing alleging that the Respondent had committed unfair
labor practices in violation of Section 8(a)(1) and (5) and
Section 2(6) and (7) of the Act by refusing to bargain with the
Union upon request In due course the Respondent filed its
Answer to Complaint in which certain allegations of the
complaint were admitted and others denied.
In its answer the Respondent admitted the following
allegations of the complaint. (I)jurisdictional, (2)that the
Union is a labor organization within the meaning of Section
2(6) and (7) of the Act, (3)the sequence of the proceedings in
the representation case, (4)that the Union made a request to
bargain, and (5)that the Respondent has refused and continues
to refuse to bargain. Respondent denied the paragraphs of the
complaint alleging: (1)that the unit is appropriate, (2)that the
order directing a second election was valid, and (3)that it has
engaged or is engaging in any unfair labor practice affecting
commerce within the meaning of the Act.
Under date of July 31, 1968, received August 2, counsel for
the General Counsel filed a Motion to Strike Portions of
Respondent's Answer to Complaint and Motion for Judgment
on the Pleadings in which he contends that the pleadings
considered together with the official Board record in the
underlying representation proceeding, Case 16-RC-4589,
raise no issues requiring a hearing, that Respondent's defenses
set forth in its answer raise no litigable questions of fact; and
that, as a matter of law, Respondent has no valid defense to
the complaint.
On August 2, 1968, I issued an order directing the parties to
show cause as to whether or not General Counsel's motions
should be granted. On August 21, 1968, counsel for the
Respondent filed a Response and a Revised Response opposing
the General Counsel's motions and on August 28, 1968, filed a
Memorandum Brief in support thereof.
RULING ON MOTION TO STRIKE AND FOR
JUDGMENT ON THE PLEADINGS
In its answer and in its opposition to the General Counsel's
motions the Respondent urges denial of the motions for a
number of reasons, which in summary are as follows. (1)There
is newly discovered evidence concerning the wishes of certain
drivers and other employees which was not available at the
hearing at which the original bargaining unit was determined,
(2)the first election was improperly set aside, (3)the Respon-
dent should be granted a hearing in order to produce any
relevant evidence bearing on the critical issues in the represen-
tation proceeding, because it has never been afforded a hearing
on the critical issues in the representation proceeding, because
it has never been afforded a hearing, though it has requested
one at all stages of the proceeding, (4)in the campaign prior to
the February 20, 1967, election the Union made many
assertions which were untrue and which affected the results of
the election, (5)that Section 9(c)(3) of the Act precluded
another election within 12 months of the first election, and
(6)that the Union's objections to the first election were
untimely filed. None of these propositions is found to be
supported.
The merit of the objections to the first election and the
alleged misconduct by the Union prior to the second election,
were adjudicated in the representation proceeding. Those
issues are therefore not relitigable here. It is established Board
policy, in the absence of newly discovered or previously
unavailable evidence or special circumstances, not to permit
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.2
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 and material issues are
raised by the objections.3
Concerning the appropriateness of certain drivers and other
employees being in the bargaining unit, the Respondent
contends that at the original representation hearing testimony
was not available as to the wishes of certain drivers who were
excluded from the unit and that this evidence is newly
discovered. Therefore, Respondent contends, a hearing is
necessary to present this evidence. The issue as to whether
these employees should be in the unit was specifically litigated
in the representation proceeding.'
2 Howard Johnson Co., 164 NLRB 801 , Metropolitan Life Insurance
Co, 163 NLRB 579. See Pittsburgh Plate Glass Co. v NLR.B., 313
U.S. 146, 162 (1941 ), Rules and Regulations of the Board , Section
102.67(f) and 102.69(c).
3 O K. Van and Storage, Inc., 127 NLRB 1537, enfd. 297 F 2d 74
(C.A. 5, 1961). And see Air Control Window Products, Inc., 335 F 2d
245, 249 (C.A. 5, 1964)• "If there is nothing to hear, then a hearing is a
senseless and useless formality " See also N. L.R B v. Bata Shoe Co.,
377 F.2d 821 (C A. 4, 1967).
4 See for example , the Regional Director's Decision and Direction of
Election and fn. 2 thereof
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No testimony by employees as to their wishes concerning
inclusion in the unit was offered at the representation hearing
although the issue as to their inclusion was vigorously
contested . No reason is given for the failure to proffer such
testimony at that time . No showing is made that the testimony
was not then available, or is newly discovered , or that it could
not have been obtained and adduced with the exercise of
reasonable diligence . Under these circumstances reopening of
the representation hearing at this stage of the proceeding, over
a year later , is not warranted . Cf. Ideal Laundry and
Drycleaning Co, 330 F.2d 712 (C.A. 10, 1964).
The Respondent 's contention that Section 9(c)(3) of the
Act precluded the holding of the second election within 12
months of the first election is not supported . Section 9 (c)(3) is
applicable only where the first election is a valid election.'
Here, as we have seen , the first election has been determined
not to have been valid.
The Respondent 's contention that the Union 's objections to
the first election were untimely filed is itself untimely, being
now raised for the first time. Having failed to raise this issue in
timely fashion , the Respondent is precluded from raising it
now. Rules and Regulations , Section 102.67(f), 102.69(c).
The General Counsel's motion to strike various portions of
the answer is denied . Since the Respondent 's answer raises no
litigable issues , summary judgment is appropriate However,
the controverting averments of the answer are proper as
pleadings which the Respondent may press before the Board
or, in the event of adverse decision there, before the court if it
chooses. Without a denial of the Union's representative status
and of the allegation of unfair labor practices the Respondent
would have no issue to contest before the court N.L R.B v.
South Bridge Sheet Metal Works, Inc., 380 F.2d 851 (C.A 1,
1967).
Upon the basis of the record , I hereby make the following
further
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
Goldspot Dairy, Inc., the Respondent, is, and has been at all
times material herein, a corporation duly organized under and
existing by virtue of the laws of the State of Oklahoma. It
maintains its principal office and place of business at Enid,
Oklahoma, where it is engaged in the retailing and wholesaling
of milk-related products.
In the course and conduct of .its business operation,
Respondent , during the past year , manufactured and sold
products valued in excess of $100,000 , of which products
valued in excess of $50,000 were shipped from said plant
directly to States of the United States other than the State of
Oklahoma.
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
The Union is 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
The following employees of the Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
All production and maintenance employees, including
transport drivers, tank truck drivers, laboratory employees,
fountain employees, and gargage employees, employed by
the Respondent at its Enid, Oklahoma, location, but
excluding retail and wholesale driver-salesmen, freldmen,
office clerical employees, guards, professional employees,
and supervisors as defined in the Act.
On February 20, 1968, a majority of Respondent's em-
ployees in the said unit designated and selected the Union as
their collective-bargaining representative in a secret ballot
election conducted under the supervision of the Acting
Regional Director of Region 16 of the National Labor
Relations Board.
On May 9, 1968, the Acting Regional Director, after
consideration of Respondent's objections to conduct affecting
the results of the above described election, certified the Union
as the exclusive bargaining representative of the employees in
the appropriate unit. Respondent's request that the Board
review the Acting Regional Director's certification was denied
on June 4, 1968.
At all material times, the Union has been the representative
for the purposes of collective bargaining of the employees of
the said unit, and by virtue of Section 9(a) of the Act, has
been, and is now, the exclusive representative of all the
employees in said unit for the purpose of collective bargaining
with respect to rates of pay, wages, hours of employment, or
other terms and conditions of employment.
It is admitted and found that on or about June 18, 1968,
the Union requested the Respondent to meet with it for the
purpose of collective bargaining with respect to the employees
in the appropriate unit, and that on or about June 25, 1968,
Respondent refused and continues to refuse to do so
By thus refusing to bargain collectively, the Respondent has
engaged in unfair labor practices in violation of Section 8(a)(5)
of the Act and has interfered with, restrained, and coerced its
employees in violation of Section 8(a)(1) of the Act.
The aforesaid unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions and the entire
record in this case, I recommend that the Board issue the
following
ORDER
5 Section 9 (c)(3) states , in relevant part* "No election shall be
directed in any bargaining unit or any subdivision within which, in the
preceding twelve month period, a valid election shall have been held
(Emphasis supplied.)
A. For the purpose of determining the duration of the
certification the initial year of the certification shall be
deemed to begin on the day Respondent commences to
bargain in good faith with the Union as the recognized
GOLDSPOT DAIRY
exclusive bargaining representative in the appropriate unit .6
B. Goldspot Dairy, Inc., its officers, agents, successors, and
assigns, shall
1. Cease and desist from.
(a) Refusing to bargain collectively with International
Association of Machinists and Aerospace Workers, AFL-CIO,
as the exclusive collective bargaining representative of the
employees in the following appropriate unit
All production and maintenance employees, including
transport drivers, tank truck drivers, laboratory employees,
fountain employees, and garage employees, employed by
the Respondent at its Enid, Oklahoma, location, but
excluding retail and wholesale driver-salesmen, fieldmen,
office clerical employees, guards, professional employees,
and supervisors as defined in the Act.
(b) Interfering with the efforts of said Union to negotiate
for or represent the employees as exclusive collective bargain-
ing representative.
2 Take the following action which is necessary to effectu-
ate the policies of the Act.
(a) Upon request bargain collectively with International
Association of Machinists and Aerospace Workers, AFL-CIO,
as the exclusive representative of the employees in the
appropriate unit with respect to the rates of pay, wages, hours
of employment, and other terms and conditions of employ-
ment, and embody in a signed agreement any understanding
reached.
(b) Post at its office and place of business in Enid,
Oklahoma, copies of the attached notice marked "Appen-
dix "7 Copies of said notice, on forms to be furnished by the
Regional Director for Region 16, after being duly signed by an
authorized representative of Respondent, 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
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
991
(c) Notify the Regional Director for Region 16, in writing,
within 20 days from receipt of this Decision, what steps the
Respondent has taken to comply herewith.'
8 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify the Regional
Director for Region 16, 'n writing , within 10 days from receipt 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 National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Inter-
national Association of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive collective bargaining representa-
tive of all of our following employees.
All production and maintenance employees, including
transport drivers, tank truck drivers, laboratory em-
ployees, fountain employees, and garages employees,
employed at our Enid, Oklahoma, location, but ex-
cluding retail and wholesale driver-salesmen, fieldmen,
office clerical employees, guards, professional em-
ployees, and supervisors as defined in the Act.
WE WILL NOT interfere with the efforts of the Union
to negotiate for or represent the employees as exclusive
collective bargaining representative.
WE WILL bargain collectively with the Union as exclu-
sive collective bargaining representative of the employees in
the appropriate unit and if an understanding is reached we
will sign a contract with the Union.
GOLDSPOT
DAIRY, INC
(Employer)
6 The purpose of this provision is 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 . See Mar-Jac Poultry
Co, Inc., 136 NLRB 785, Commerce Co, d/b/a LaMar Hotel, 140
NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379
U.S. 817 ( 1964 ), Burnett Construction Co., 149 NLRB 1419, 1421,
enfd. 350 F 2d 57 (C.A. 10, 1965).
7 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order " shall be substituted for the
words " Recommended Order of a Trial Examiner " in the notice In the
further event that the Board 's Order is 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 Decision and Order."
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.
If employees have any question concerning this Notice or
compliance with its provisions, they may communicate direct-
ly with the Board's Regional Office, Room 8A24, Federal
Office Bldg , 819 Taylor Street, Fort Worth, Texas 76102, Tel.
334-3921.