Walls, Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1976

223 N.L.R.B. 1111 (N.L.R.B. 1976)

WALLS, INC. 1111
Walls, Inc . and Bakery and Confectionery Workers
International Union Local 245. Case 17-CA-6712
April 28, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
Upon a charge, amended charge, and second
amended charge filed on August 13, September 8,
and October 2, 1975, respectively, by Bakery and
Confectionery Workers International Union Local
245, herein called the Union, and duly served on
Walls, Inc., herein called the Respondent, the Acting
General Counsel of the National Labor Relations
Board, herein called General Counsel, by the Re-
gional Director for Region 17, issued a complaint
and amendment to complaint on October 8 and No-
vember 20, 1975, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair 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 no-
tice 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 June 11, 1975, fol-
lowing a Board election in Case 17-RC-7695, 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 August 4, 1975, 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 October 17 and November 28, 1975, Respondent
filed its answers to the complaint and to the amend-
ed complaint admitting in part, and denying in part,
the allegations in the complaint.
On December 22, 1975, counsel for the General
Counsel filed directly with the Board a motion to
transfer proceedings to the Board, a motion for sum-
mary judgment, and a motion to strike portions of
Respondent's answer on the grounds that those deni-
Official notice is taken of the record in the representation proceeding,
Case 17-RC-7695, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board 's Rules and Regulations, Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938 (1967 ), enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), 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 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA.
als are frivolous and constitute sham pleading. Sub-
sequently, on January 12, 1976, 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 grant-
ed. Respondent thereafter filed a response to Notice
To Show Cause entitled "Respondent's Objections to
Motion To Transfer Proceedings to Board, To Strike
Part of Respondent's Answer, and 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
In its answers to the complaint and amendment to
the complaint and response to the Notice to Show
Cause, Respondent in substance contends that the
certification is invalid for the reasons stated in its
election objections and that due process entitles it to
a hearing thereon. The General Counsel contends
that Respondent seeks to raise herein the same issues
and contentions considered and passed on in the un-
derlying representation proceedings and that it is not
entitled to relitigate those issues.
Review of the record, including that in Case 17-
RC-7965, reveals that an election directed by the Re-
gional Director was held on March 28, 1975, and
won by the Union. Respondent filed timely objec-
tions to the election and requested a hearing on its
objections which, in substance, alleged (1) employee
coercion by a supervisor's participation in union or-
ganizational efforts, and (2) that confidential infor-
mation given employees by that supervisor was a ma-
terial misrepresentation. After an investigation, the
Regional Director issued his Supplemental Decision
on June 11, 1975, overruling Respondent's objections
and certifying the Union. The Regional Director
found (1) that Respondent's strong antiunion views
were known and that removal of the supervisor's au-
thority to handle employee problems had effectively
dissipated employee fear of retaliation, and (2) that
the Respondent had had time to respond to the al-
leged misrepresentation and in fact had done so. Re-
spondent requested review of the Regional Director's
overruling of its employee coercion objection and of
his failure to grant a hearing on its objections. By
telegram dated July 10, 1975, the Board denied the
request for review on the grounds that it raised no
substantial issues warranting review.
In this proceeding Respondent contends that it is
223 NLRB No. 167
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entitled, as a matter of due process, to a hearing on
its election objections alleging employee coercion.
We find no merit in this contention. In the represen-
tation case the Regional Director denied Re-
spondent's request for a hearing on its objections
and the Respondent sought review of the failure to
grant a hearing . Review was denied by the Board on
the grounds that it raised no substantial issues war-
ranting review. By such denial the Board necessarily
found that Respondent had not raised issues war-
ranting a hearing and , absent such substantial issues,
a hearing is not required.2
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.3
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding , and the Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does it
allege that any special circumstances exist herein
which would require the Board to reexamine the de-
cision 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.4 We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
from firms or enterprises located outside the State of
Kansas. In the course of its business operations the
Respondent receives gross annual revenues in excess
of $500,000.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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.
11. THE LABOR ORGANIZATION INVOLVED
Bakery and Confectionery Workers International
Union Local 245 is a labor organization within the
meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9 (b) of the
Act:
All full-time and regular part-time production
and maintenance employees employed in the
bakery of Walls, Inc., at 1425 North Pershing,
Wichita, Kansas, including wrappers, but ex-
cluding office clerical employees, professional
employees, drivers, and guards and supervisors
within the meaning of the Act, and all retail em-
ployees.
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation, is engaged in the
retail grocery business and operates a bakery at its
facilities located in Wichita, Kansas, for the purpose
of providing bakery goods to its retail operations in
the State of Kansas. In the course and conduct of its
business , Respondent annually purchases and re-
ceives goods and services valued in excess of $50,000
2 Williams Energy Company, 218 NLRB 1080 (1975).
'See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board , Secs. 102.67(f) and 102 .69(c).
4In its answer , Respondent denied certain allegations of the complaint
which the General Counsel moved to strike as frivolous and sham . As to the
denial concerning the conduct of the election and its results , we strike the
denial in view of our representation case findings with respect thereto which
are not relitigable . The Respondent also denied the allegations that it
continued to refuse to recognize and bargain in order to test the validity of
the Union 's certification . In view of the representation determinations as to
the Union 's certification and of the Respondent 's admissions in its answer
that the Union had requested bargaining and that the Respondent refused
negotiations because of its objections to the election, we strike these denials.
2. The certification
On March 28, 1975, 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 17, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on June 11, 1975, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about July 25, 1975, and at all
times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
WALLS, INC. 1113
employees in the above -described unit . Commencing
on or about August 4, 1975, 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 August 4 , 1975, 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 prac-
tices 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 opera-
tions described in section I, above , have a close, inti-
mate , and substantial relationship 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 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 Poultry Company, Inc., 136
NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), 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. Walls, Inc., is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Bakery and Confectionery Workers Interna-
tional Union Local 245 is a labor organization within
the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time production
and maintenance employees employed in the bakery
of Walls, Inc., at 1425 North Pershing, Wichita, Kan-
sas, including wrappers, but excluding office clerical
employees, professional employees, drivers, and
guards and supervisors within the meaning of the
Act, and all retail employees, constitute a unit appro-
priate for the purposes of collective bargaining with-
in the meaning of Section 9(b) of the Act.
4. Since June 11, 1975, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 August 4, 1975, 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 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 Re-
lations Board hereby orders that Respondent, Walls,
Inc., Wichita, Kansas, its officers, agents, successors,
and assigns , 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 Bakery and Confection-
ery Workers International Union Local 245 as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All full-time and regular part-time production
and maintenance employees employed in the
bakery of Walls, Inc., at 1425 North Pershing,
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wichita, Kansas, including wrappers, but ex-
cluding office clerical employees, professional
employees, drivers, and guards and supervisors
within the meaning of the Act, and all retail em-
ployees.
(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 bakery in Wichita, Kansas, copies of
the attached notice marked "Appendix." I Copies of
said notice , on forms provided by the Regional Di-
rector for Region 17, 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 17, 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
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Bak-
ery and Confectionery Workers International
Union Local 245 as the exclusive representative
of the employees in the bargaining unit de-
scribed 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 full-time and regular part-time produc-
tion and maintenance employees employed in
the bakery of Walls, Inc., at 1425 North
Pershing, Wichita, Kansas, including wrap-
pers, but excluding office clerical employees,
professional employees, drivers, and guards
and supervisors within the meaning of the
Act, and all retail employees.
WALLS, INC.