Interstate & Brands Corp.

National Labor Relations Board - Board DecisionsOct 15, 1973

206 N.L.R.B. 418 (N.L.R.B. 1973)

418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Baker Canning Company , A Subsidiary of Interstate Brands Corporation and Drivers , Salesmen, Ware- housemen, Milk Processors , Cannery, Dairy Em- ployees and Helpers Union Local No. 695, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 30-CA-2356 October 15, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a charge filed on June 1, 1973, by Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers Union Local No. 695, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Baker Canning Company, a subsidiary of Inter- state Brands Corporation, herein called the Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 30, issued a complaint and amendment thereto on June 13 and 15, 1973, respectively, against Respon- dent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. Copies of the charge, com- plaint, and notice of hearing before an Administrative 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 January 12, 1973, following a Board election in Case 30-RC-1660 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about March 19, 1973, and at all times thereaf- ter, 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 June 22, 1973, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the alle- gations in the complaint. On July 2, 1973, counsel for the General Counsel 1 Official notice is taken of the record in the representation proceeding, Case 30-RC-1660, as the term "record" is defined in Secs . 102 68 and 102 69(f) of the Board's Rules and Regulations, Series 8 , as amended See LTV Electrosystems, Inc., 166 NLRB 938, enfd 388 F 2d 683 (C.A. 4, 1968), Golden Age Beverage Co, 167 NLRB 151, enfd . 415 F.2d 26 (C.A. 5, 1969), 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), Sec 9(d) of the NLRA. filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 11, 1973, 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. Respondent thereafter filed a response to Notice To Show Cause, entitled "Respondent's An- swer to Order To Show Cause why Summary Judg- ment Should not be Granted." 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 Respondent's answer to the complaint and re-- sponse to the Notice To Show Cause attack determi- nations made in the underlying representation case. Thus, Respondent contends that certain union pre- election conduct, more fully described below, vitiates the validity of the Union's certification, or at the very least , warrants the holding of a hearing. Our review of the record in Case 30-RC-1660 indi- cates that pursuant to a Stipulation for Certification Upon Consent Election an election was conducted on September 15, 1972, in the appropriate unit. The Union won the election. Thereafter, Respondent filed a timely objection to the election which alleged that a leaflet issued by the Union shortly before the elec- tion contained false and misleading statements and omissions concerning contracts between the Union and the Respondent's competitors, that the leaflet should have been written also in Spanish, and that it had no opportunity for refutation. After investigation, on November 3, 1972, the Regional Director issued his Report and Recommendation on Objection to Conduct Affecting the Results of the Election in which he found that the information in the Union's leaflet was correct and that the omissions therefrom constituted an insufficient basis to warrant setting aside the election. He, therefore, recommended that the objection be overruled and the Union certified. Thereafter, the Respondent filed with the Board ex- ceptions to the report. Subsequently, on January 12, 1973, the Board issued its Decision and Certification of Representative, in which it concluded that the leaf- let contained no statements that the employees were unable to evaluate, and that the Respondent's excep- tions raised no material or substantial issues of fact that would warrant reversal of the Regional Director's findings and recommendations. Accordingly, it adopted those findings and recommendations in their 206 NLRB No. 97 BAKER CANNING COMPANY 419 entirety and certified the Union. In its answer to the complaint and response to the Notice To Show Cause, the Respondent, for the first time, contends that the Regional Director erred in denying a hearing on its objection, and without specif- icity, argues that a hearing is necessary to provide a basis for an in-depth analysis of the facts and to re- solve disputed and genuine issues of material fact. It is well established that the parties do not have an absolute right to a hearing on objections to an elec- tion. It is only when the moving party presents a prima facie showing of "substantial and material" issues which would warrant setting aside the election that it is entitled to an evidentiary hearing.2 Here, not only does the Respondent not present us with such a show- ing, but also, as indicated above, the Board has decid- ed that the Respondent's objection raised no material or substantial issues of fact warranting reversal of the Regional Director and necessarily, by implication, has found that no hearing is required or warranted.' It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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 proceed- ing 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. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation, is, and has been at all times material herein, engaged in the pro- cessing and canning of fresh vegetables at its Theresa, Wisconsin, facility. During the past calendar year, a representative pe- riod, Respondent sold and shipped goods valued in excess of $50,000 from its Theresa, Wisconsin, facility to interstate commerce directly to points outside the State of Wisconsin. We find, on the basis of the foregoing, that Respon- dent 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 effectu- ate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Drivers, Salesmen, Warehousemen, Milk Pro- cessors, Cannery, Dairy Employees and Helpers Union Local No. 695, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, 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 consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All production and maintenance employees at the Respondent's Theresa, Wisconsin, plant, in- cluding plant seasonal employees, but excluding office clerical employees, managerial employees, professional employees, casual employees, agri- cultural employees, field men, guards and super- visors as defined in the Act. 2. The certification On September 15, 1972, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 30 designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on January 12, 1973, and the Union con- tinues to be such exclusive representative within the meaning of Section 9(a) of the Act. 2 Farah Manufacturing Company, Inc., 203 NLRB No. 78, and cases cited therein , Modine Manufacturing Company, 203 NLRB No 77. 3 See, e.g., Southern Health Corp. dlbla Corydon Nursing Home, 205 NLRB No. 13; Matlock Truck Body and Trailer Corp., 203 NLRB No. 14. 4 See Pittsburgh Plate Glass Co v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs . 102.67(f) and 102.69(c). B. The Request To Bargain and Respondent's Refusal Commencing on or about March 15, 1973, and at all times thereafter, the Union has requested the Re- 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about March 19, 1973, 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 March 19, 1973, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the Employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practic- es within the meaning of Section 8(a)(5) and (1) of the Act. 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 operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic and com- merce among the several` States and tend to lead to labor disputes burdening and obstructing commerce and phe free flow of commerce. V THE REMEDY 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 appropriate 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 select- ed bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bar- gain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785; Com- merce Company 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 Company, 149 NLRB 14'19, 1421, 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. Baker Canning Company, a Subsidiary of Inter- state Brands Corporation, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Drivers, Salesmen, Warehousemen, Milk Pro- cessors, Cannery, Dairy Employees and Helpers Union Local No. 695, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Respondent's Theresa, Wisconsin, plant, includ- ing plant seasonal employees, but excluding office clerical employees, managerial employees, profes- sional employees, casual employees, agricultural em- ployees, field men, guards and supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since January 12, 1973, 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 March 19, 1973, 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 Respon- dent 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 to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing 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 Rela- tions Board hereby orders that Respondent, Baker Canning Company, a Subsidiary of Interstate Brands Corporation, Theresa, Wisconsin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning, BAKER CANNING COMPANY rates of pay, wages, hours, and other terms ,and condi- tions of employment with Drivers, Salesmen, Ware- housemen, Milk Processors, Cannery, Dairy Employees and Helpers Union Local No. 695, affiliat- ed with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All production and maintenance employees at the Respondent's Theresa, Wisconsin, plant in- cluding plant seasonal employees, but excluding office clerical employees, managerial employees, professional employees, casual employees, agri- cultural employees, field men, guards and super- visors 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. (b) Post at its Theresa, Wisconsin, plant copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Direc- tor for Region 30 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 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 30, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5 In the event that this 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 421 WE WILL NOT refuse to bargain collectively con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Driv- ers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers Union Local No. 695, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the exclu- sive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner in- terfere 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 de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, em- body such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees at the Respondent's Theresa, Wisconsin, plant, including plant seasonal employees, but ex- cluding office clerical employees, managerial employees, professional employees, casual em- ployees, agricultural employees, field men, guards and supervisors as defined in the Act. BAKER CANNING COMPANY, A SUBSIDIARY OF INTER- STATE BRANDS CORPORA- TION (Employer) Dated By (Representative) (Title) 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is an official notice and must not be defaced Any questions concerning this notice or compli- by anyone. ance with its provisions may be directed to the This notice must remain posted for 60 consecutive Board's Office, Commerce Building, Second Floor, days from the date of posting and must not be altered, 744 North Fourth Street, Milwaukee, Wisconsin defaced, or covered by any other material. 53203, Telephone 414-224-3861.