Maryland Baking Co. of Georgia, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1970

185 N.L.R.B. 776 (N.L.R.B. 1970)

776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maryland Baking Company of Georgia , Inc. and R.
W. D. S. U. Council of Georgia , AFL-CIO affili-
ated with Retail , Wholesale & Department Store
Union, AFL-CIO. Case 10-CA-8251
September 28, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a charge filed by the R.W.D.S.U. Council
of Georgia, AFL-CIO a/w Retail, Wholesale &
Department Store Union, AFL-CIO, herein called
the Union, the General Counsel for the National
Labor Relations Board, by the Regional Director
for Region 10, issued a complaint dated April 16,
1970, against Maryland Baking Company of Georgia,
Inc., herein called the Respondent, alleging that the
Respondent was engaging in unfair labor practices
within the meaning of Sections 8(a)(5) and (1) and
2(6) and (7) of the National Labor Relations Act,
as amended. Copies of the charge, complaint, and
notice of hearing were duly served upon the Respond-
ent.
With respect to the unfair labor practices, the facts
show that on March 20, 1969, a majority of the
employees in a unit stipulated by the parties as
appropriate, in a secret-ballot election conducted
under the supervision of the Regional Director for
Region 10 of the National Labor Relations Board,
designated and selected the Union as their representa-
tive for the purposes of collective bargaining. The
complaint alleges that on March 5, 1970, the Board
certified the Union as the exclusive collective-bargain-
ing representative of the employees in said unit.'
The complaint further alleges that since on or about
March 20, 1970, and at all times thereafter, the
Respondent did refuse, and continues to refuse, to
bargain collectively with the Union as the exclusive
collective-bargaining representative of its employees.
On April 24, 1970, the Respondent filed its answer,
admitting in part, and denying in part, the allegations
of the complaint, presenting an affirmative defense,
and requesting a hearing or the alternative that the
complaint be dismissed.
On May 20, 1970, the General Counsel filed with
the Board a motion for summary judgment alleging
that there were no factual issues which would warrant
a hearing. Thereafter on May 28, 1970, the Board
' Decision and Certification of Representative issued March 5, 1970,
in Case 10-RC-7641 (not published in NLRB volumes)
issued an order transferring the proceeding to the
board and giving notice to show cause. On June
12, 1970, the Respondent filed its answer as a state-
ment in opposition to general counsel's motion for
summary judgment.
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.
Upon the entire record in this case, the Board
makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the notice to show cause, the
Respondent noted that its answer to the complaint
denied the essential allegations contained in para-
graphs 7 through 13 and also incorporated its argu-
ments contained in its objections dated March 27,
1969; its exceptions dated June 25, 1969, to the
Regional Director's report on objections; its exceptions
dated November 10, 1969, to the Hearing Officer's
report and recommendation on objections and sup-
porting brief. The Respondent denies in substance
that a valid election was conducted or that a valid
certification for an appropriate unit was issued, or
that a valid request for bargaining was made. The
Respondent refused to bargain and furnish the request-
ed information.
On March 20, 1969, pursuant to a stipulation for
certification upon consent election entered into by
the parties hereto, an election was conducted under
the direction of the Regional Director for Region
10. The tally of ballots showed that of approximately
57 eligible voters, 30 cast valid votes for the Petitioner,
and 22 cast valid votes against the Petitioner, I cast
a challenged ballot, and none case void ballots. On
March 27, 1969, the Employer filed timely objections
to conduct alleged to have affected the results of
the election.
After an investigation, the Regional Director, on
June 17, 1969, issued and served upon the parties
his report on objections, order directing hearing and
notice of hearing. In his report, the Regional Director
found objections 2 and 3 to be without merit and
recommended to the Board that they be overruled.
He further found that objection 1 raised credibility
issues which materially and substantially affected the
results of the election and which might best be resolved
by record testimony at a hearing.
Thereafter, on June 25, 1969, the Employer filed
timely exceptions to the Regional Director's report.
On July 28, 1969, the Board, having duly considered
the matter, was of the opinion that issues raised
185 NLRB No. 107
MARYLAND BAKING CO. OF GEORGIA
by objection 1 could best be resolved by a hearing,
and the Employer's exceptions respecting objections
2 and 3 raised no substantial issues of law or fact
which warranted reversal of the Regional Director's
recommendations. The Board ordered that a hearing
be held for the purpose of taking testimony in the
issues raised with respect to objection 1 and further
ordered that a Hearing Officer appointed by the
Regional Director conduct such hearing. Pursuant
to that order a hearing was conducted on July 29
and 30, 1969, at Atlanta, Georgia. The Employer,
Petitioner, and the Regional Office were represented
by counsel and participated fully in the hearing. All
parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues.
On October 3, 1969, the Hearing Officer issued
and duly served upon the parties his report, in which
he recommended that objection 1 be overruled and
that certification of representative issue. Thereafter,
the Employer filed exceptions to the Hearing Officer's
report and a supporting brief.
On March 5, 1970, the Board overruled the
Respondent's exceptions and issued its decision and
certification of representative in which it certified
the Union as the exclusive bargaining representative
of the employees in the appropriate unit.
In its answer to the complaint the Respondent
denies that a valid election was conducted or that
a valid certification was issued. The answer also denies
that a valid request for bargaining was made by
the Union for the reason stated above, that is, there
was no valid election and no valid certification.
Respondent does not contend that it has any newly
discovered or previously unavailable evidence to pres-
ent. Instead, it seeks to relitigate contentions made
prior to and rejected in the Board's Decision in
Case 10-RC-7641. Inasmuch as Respondent has
already litigated such contentions, and the Board
has considered them, no issue has been raised which
is properly triable in this proceeding.'
As all material issues have been previously decided
by the Board, there are no matters requiring a hearing
before the Trial Examiner. Accordingly, the General
Counsel's motion for summary judgment is granted.
On the basis of the record before us, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Maryland corporation engaged
in the manufacture and sale of ice cream cones,
' E-Z Davies Chevrolet, 161 NLRB 1380 , G K Turner Associates,
183 NLRB No 81
777
with its principal office and place of business located
at Atlanta, Georgia. Respondent, in the course and
conduct of its business operations, annually sold and
shipped finished products valued in excess of $50,000
directly to customers located outside the State of
Georgia.
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.
R.W.D.S.U. Council of Georgia, AFL-CIO affiliat-
ed with Retail , Wholesale & Department Store Union,
AFL-CIO, 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 constitute a unit
appropriate for collective-bargaining purposes within
the meaning of Section 9(b) of the Act.
All production and maintenance employees,
including truck drivers and assistant shift leaders,
but excluding office clerical employees, profes-
sional employees , guards and supervisors as
defined in the Act.
2. The certification
On March 20, 1969, a majority of the employees
of Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 10, designated the Union as
their representative for the purpose of collective bar-
gaining with Respondent, and on March 5, 1970
the Union was certified as the collective-bargaining
representative of the employees in said unit and contin-
ues to be such representative.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about March 10, 1970, and
continuing to date, the Union has requested and
is requesting Respondent to bargain collectively with
the Union as the exclusive collective-bargaining repre-
sentative of the employees in the above-described
unit. Since March 20, 1970, and continuing to date,
Respondent has refused and continues to refuse to
bargain collectively with the Union as the exclusive
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 the Respondent
in the appropriate unit described above and that
the Union at all times since March 5, 1970, 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 March 20, 1970, ref-
used to bargain collectively with the Union as the
exclusive bargaining representative of its employees
in the appropriate unit. 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 PRACTICES
UPON COMMERCE
The acts of 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.
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 representa-
tive of all employees in the appropriate unit and,
if an understanding is reached, embody such under-
standing 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 recog-
nized 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, 228, enfd. 328 F.2d 600 (C.A.5), cert. denied
379 U.S. 817; and Burnett Construction Company,
149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A.
10).
CONCLUSIONS OF LAW
1. Maryland Baking Company of Georgia, Inc.,
is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. R.W.D.S.U. Council of Georgia, AFL-CIO affili-
ated with Retail, Wholesale & Department Store
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following unit is an appropriate unit for
the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act:
All production and maintenance employees
including truck drivers and assistant shift leaders
but excluding office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
4. Since March 5, 1970, the Union has been the
exclusive representative of all the 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 March 20, 1970, and
at all times thereafter, to bargain collectively with
the Union as the exclusive bargaining representative
of all the employees in the appropriate unit, Respond-
ent 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 Rela-
tions Board hereby orders that Respondent , Maryland
Baking Company of Georgia, Inc., Atlanta , Georgia,
its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning wag-
es, hours, and other terms and conditions of employ-
ment , with R.W.D.S.U. Council of Georgia, AFL-
CIO, affiliated with Retail , Wholesale & Department
Store Union, AFL-CIO , as the exclusive bargaining
representative of its employees in the following
appropriate unit.
All production and maintenance employees of
the Respondent 's Atlanta , Georgia , plant , includ-
ing truck drivers and assistant shift leaders, but
excluding office clerical employees , professional
MARYLAND BAKING CO OF GEORGIA 779
employees, guards and supervisors 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 to 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
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 understand-
ing is reached, embody such understanding in a signed
agreement.
(b) Post at its place of business copies of the
attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director
for Region 10, shall, after being duly signed by
Respondent's representative, 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. Reason-
able steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify said Regional Director for Region 10,
in writing, within 10 days from the date of this
Decision, what steps Respondent has taken to comply
herewith.
' In the event this Order is enforced by a Judgment of the United
States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to
read "Posted Pursuant to a Judgment of the United States Court of
Appeals Enforcing an Order of the National Labor Relations Board "
with Retail Wholesale & Department Store Union,
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described below.
WE WILL NOT in any like or related manner inter-
fere 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 representative of all
our employees in the bargaining unit described below
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. The bargaining unit is:
All production and maintenance employees of
the Respondent's Atlanta, Georgia, plant, includ-
ing truck drivers and assistant shift leaders, but
excluding office clerical employees, professional
employees, guards and supervisors as defined
in the Act.
MARYLAND BAKING
COMPANY OF GEORGIA,
INC.
(Employer)
Dated By
(Representative)
(Title)
This is an official notice and must not be defaced
by anyone.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
R.W.D.S.U. Council of Georgia, AFL-CIO, affiliated
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.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, Room 701, Peachtree Street, N.E., Atlanta,
Georgia 30308, Telephone 404-526-5760.