Winchell Processing Corp.

National Labor Relations Board - Board Decisions

Jun 29, 1970

183 N.L.R.B. 1317 (N.L.R.B. 1970)

WINCHELL PROCESSING CORP.
Winchell Processing Corporation and Winchell
Donut House , Inc. and Bakery and Confectionery
Workers' International Union of America; and
Bakery Drivers' Local 276, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America . Case 21-CA-9025
June 29, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On April 22, 1970, Trial Examiner Herman
Corenman issued his Decision in the above-entitled
proceeding, granting General Counsel's Motion for
Summary Judgment, finding no merit in various
contentions urged by Respondents in their
Response to the Trial Examiner's Order To Show
Cause why the Motion for Summary Judgment
should not be granted, and finding on the pleadings
that Respondents had engaged in and were engag-
ing in certain unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended. The Trial Ex-
aminer recommended that Respondents cease and
desist from such unfair labor practice and take cer-
tain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, Respondents
filed exceptions to the Trial Examiner's Decision,
and a supporting brief.
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
powers in connection with this proceeding to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Deci-
sion, the 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 Recom-
mended Order of the Trial Examiner and hereby
orders that Respondents, Winchell Processing Cor-
poration and Winchell Donut House, Inc., El
Monte, California, their officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
' We have again examined the Regional Director's Supplemental Deci-
sion and Certification of Representative in Case 21-RC-11284 and made
1317
an independent review of the record and conclude that the Regional
Director's findings were correct
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding'
HERMAN CORENMAN, Trial Examiner: On May
15, 1969, Bakery and Confectionery Workers' In-
ternational Union of America; and Bakery Drivers'
Local 276, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
hereinafter called the Unions, filed a representation
petition in Case 21-RC-11284, seeking to be cer-
tified as the joint collective-bargaining representa-
tive of Respondents' employees in an appropriate
unit . On July 25, 1969, pursuant to a Decision and
Direction of Election issued by the Regional
Director for Region 21, an election by secret ballot
was conducted among the employees of Winchell
Processing Corporation and Winchell Donut
House, Inc., herein called Respondents, in the unit
found appropriate. In that election a majority of the
Respondents' employees in the appropriate unit
designated and selected the Unions as their joint
representative for the purpose of collective bargain-
ing with the Respondents.
Pursuant to timely objections to the conduct of
the election and conduct affecting the results of the
election in Case 21-RC-11284, an investigation
was conducted in accordance with Section 102.69
of the Board's Rules and Regulations, Series 8, as
amended. As a result of such investigation, the Re-
gional Director on September 12, 1969, issued his
Supplemental Decision and Certification of
Representatives, overruling the Respondents' ob-
jections and certifying the Unions as the joint ex-
clusive representative of the employees in the unit
found appropriate for the purposes of collective
bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of em-
ployment.
On October 17, 1969, the Respondents filed with
the Board timely exceptions to the Regional
Director's Supplemental Decision and Certification
of Representatives, and request for review thereof
and a brief in support of the exceptions. On
November 10, 1969, the Board, by telegram, de-
nied the Respondents' aforesaid request for review,
concluding that the request for review raised no
substantial issues warranting review.
The Complaint Case
On February 19 and 26, 1970, the Unions filed a
charge and a first amended charge in this proceed-
ing alleging that the Respondents were refusing to
bargain with the Unions in violation of Section
' Official notice is taken of the record in the representation proceeding,
Case 21-RC-l 1284 See Section 9(d) of the National Labor Relations Act
183 NLRB No. 135
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(1) and (5) of the Act.
On February 26, 1970, the General Counsel, by
the Regional Director for Region 21, issued a com-
plaint alleging that since on or about February 19,
1970, Respondents had committed unfair labor
practices in violation of Sections 8(a)(1) and (5)
and 2(6) and (7) of the Act by refusing to bargain
with the Unions upon request. In due course, the
Respondents filed their answer to the complaint in
which certain allegations of the complaint were ad-
mitted and others denied.
In its answer, Respondents , inter alia , admitted
the following allegations of the complaint: (1) Ju-
risdictional; (2) the Respondents are employers en-
gaged in commerce and constitute a single in-
tegrated enterprise; (3) the unit involved is ap-
propriate; (4) on or about July 25, 1969, a majority
of the employees of Respondents in the appropriate
unit involved by secret ballot conducted under su-
pervision of the Regional Director for Region 21
designated and selected the Unions as their joint
representative, and that on or about September 12,
1969, the Regional Director certified the Unions as
the exclusive joint collective- bargaining representa-
tive of the employees in said unit; and (5) Respon-
dents, though requested to bargain, have refused
since on or about February 19, 1970, to bargain
with the Unions. The Respondents denied the fol-
lowing allegations of the complaint: (1) the Unions
are the exclusive joint bargaining representative of
the employees in the appropriate unit involved; and
(2) the Respondents had violated Sections 8(a)(1)
and (5) and 2(6) and (7) of the Act in refusing to
bargain with the Unions. The Respondents' answer
by way of affirmative defense alleges that: (1) the
conduct of the election and conduct affecting the
results of the election required that the election be
set aside; (2) the overruling of the Respondents'
objections aforesaid by the Regional Director was
improper and invalid, as was the action by the Na-
tional Labor Relations Board in denying the
Respondents' request for review in Case
2 1-RC- 11284; and (3) the Regional Director failed
to hold a hearing on Respondents' objections.
Thereafter, on March 19, 1970, counsel for the
General Counsel filed a Motion for Summary
Judgment, contending , inter alia, that: (1) under
the pleadings, there are no factual issues which
would warrant a hearing; (2) there is no claim to
any "newly discovered or previously unavailable
evidence ; and (3) the Respondents are precluded
from seeking to relitigate in the instant case the
merits of their objections to election and conduct
affecting results of election which were considered
Electra Manufacturing Company, 169 NLRB 24
Paymaster Oil Mill Co, 181 NLRB 396, Macomb Pottery Company, 376
F 2d 450 (CA 7, 1967), Howard Johnson Company, 164 NLRB 801,
Metropolitan Life Insurance Company, 163 NLRB 579 See Pittsburgh Plate
Glass Company v NLRB , 313 U S 146, 162 (1941) Rules and Regula-
tions, Section 102 67(f), which provides in part as follows "Denial of a
request for review shall constitute an affirmance of the Regional Director's
action which shall also preclude relitigating any such issues in any related
subsequent unfair labor practice proceeding.
' Paymaster Oil Mill Co, 181 NLRB 396, Electra Manufacturing Com-
in the representation matter and which were found
by the Regional Director insufficient to set aside
the election, and from whose decision the Board
denied the Respondents' request for review as
"raising no substantial issues warranting review." In
his Motion for Summary Judgment, counsel for the
General Counsel requests that the Trial Examiner,
without taking oral testimony, make findings of fact
and conclusions of law, finding that Respondents'
conduct violated Section 8(a)(1) and (5) of the
Act as alleged in the complaint, and that an ap-
propriate order issue remedying the unfair labor
practices found.
On March 27, 1970, pursuant to the General
Counsel's Motion for Summary Judgment, I issued
an order to the Respondents to show cause on or
before April 13, 1970, why the aforesaid motion
should not be granted. On April 13, 1970, the
Respondents filed with the Trial Examiner a
Response to the Order To Show Cause expressing
no opposition to the Trial Examiner's entertaining
and considering the Motion for Summary Judgment
provided all exhibits, documents, and written mat-
ters in Case 21-RC-11284 are considered, so as to
provide a full and complete record. Based on the
full record in the representation matter, the
Respondents contended that the Motion for Sum-
mary Judgment should be denied and the election
set aside.
Ruling on Motion for Summary Judgment
The questions as to the validity of the election,
the merit of Respondents' objections with respect
to it, and whether the Unions should be jointly cer-
tified, were raised by the Respondents in their Ob-
jections to Election and to Conduct Affecting the
Results of Election, and in their exceptions to, and
request for review of, the Regional Director's Sup-
plemental Decision and Certification of Represen-
tatives; and were decided by the Board in the
representation proceeding. It is thus clear that
Respondents seek to relitigate those issues here.
This the Respondents may not do before the Trial
Examiner.2 It is established Board policy, in the
absence of newly discovered or previously unavaila-
ble evidence, not to permit litigation before a Trial
Examiner, in a complaint case, of issues which were
or could have been litigated in a prior representa-
tion proceeding.' 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 is-
sues are raised which cannot be decided without a
formal hearing;' and that there are not such issues
pony, 169 NLRB 24, O K Van and Storage, Inc, 127 NLRB 1537, enfd
297 F 2d (C A 5, 1961) See Air Control Products of St. Petersburg, Inc ,
335 F 2d 245, 249 (C A 5, 1964) "If there is nothing to hear, then a hear-
ing is a senseless and useless formality " See also N L R B v Bata Shoe
Company, Inc , 377 F 2d 821, 826 (C A 4, 1967), cert denied 389 U S
917 " there is no requirement , constitutional or otherwise , that there be
a hearing in the absence of substantial and material issues crucial to deter-
mination of whether NLRB election results are to be accepted for purposes
of certification "
WINCHELL PROCESSING CORP.
here has been effectively decided by the Board.
Although the circuit courts are empowered under
Section 9(d) of the Act to review the Board's deter-
mination in representation cases , the Trial Ex-
aminer , however, has no such authority. He may
not review the Board's final disposition of the
representation issues or question its conclusions
based on the existing record. The Respondents are
free, in exceptions to this Trial Examiner's Deci-
sion , to request the Board to reconsider the deter-
mination on the representation case, and, in the
event of an unfavorable final order of the Board,
Respondents may request review of those deter-
minations in an appropriate court of appeals. At
this stage of the proceeding, however, absent newly
discovered or previously unavailable evidence or
special circumstances, the Board's disposition of
the representation matters is the law of the case
and binding on the Trial Examiner. No newly
discovered or previously unavailable evidence is of-
fered by the Respondents, or special circumstances
alleged.
The refusal to bargain being conceded, there are
no issues litigable before a Trial Examiner, and
therefore no matters requiring hearing. Ac-
cordingly, counsel for the General Counsel's Mo-
tion for Summary Judgment is granted, and I make
the following further:
FINDINGS
1. THE BUSINESS OF THE RESPONDENTS
The original charge was filed by the Unions on
February 19, 1970, and a copy thereof was served
on Respondents by registered mail on the same
date. The first amended charge was filed by the
Unions on February 26, 1970, and a copy thereof
was served on Respondents by registered mail on
the same date.
Respondent Winchell Processing Corporation, a
California corporation with its principal office and
warehouse located at 2034 North Peck Road, El
Monte, California, is engaged in the manufacturing
and wholesale selling of doughnut mixes . Respon-
dent Winchell Donut House, Inc., a corporation
with its headquarters also located at 2034 North
Peck Road, El Monte, California, is engaged in
operating, through franchises, a chain of retail
doughnut shops in the State of California.
Respondent Winchell Processing Corporation, in
the course and conduct of its business operations,
annually purchases goods, materials, and supplies
valued in excess of $50,000 directly from suppliers
outside the State of California. Respondent
Winchell Donut House, Inc., in the course and con-
duct of its business operations, annually purchases
in excess of $50,000 in doughnut mixes from
Respondent Winchell Processing Corporation.
Respondent Winchell Processing Corporation and
Respondent Winchell Donut House, Inc., are, and
at all times material herein have been, commonly
1319
owned and operated, having common offices and
common labor relations policies, and are and have
been a single integrated business enterprise for the
purposes of the Act.
Respondents are now, and at all times material
herein have been, employers engaged in commerce
and in businesses affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Unions are now , and at all times material
herein have been , labor organizations within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
All production employees, warehousemen, and
truckdrivers employed by Respondents at their El
Monte, California, facility; excluding office clerical
employees, maintenance employees, inspectors, in-
spector-trainees, professional employees, guards,
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
On or about July 25, 1969, a majority of the em-
ployees of Respondents in the unit described above,
by a secret ballot election conducted under the su-
pervision of the Regional Director for Region 21 of
the National Labor Relations Board, designated
and selected the Unions as their joint representative
for the purposes of collective bargaining with
Respondents and on or about September 12, 1969,
said Regional Director certified the Unions as the
exclusive joint collective-bargaining representative
of the employees in said unit.
At all times since July 25, 1969, and continuing
to date, the Unions have been the joint representa-
tive for the purposes of collective bargaining of the
employees in the unit described above, and, by vir-
tue of Section 9(a) of the Act, have been, and are
now, the exclusive joint representative of all the
employees in said unit for the purposes of collective
bargaining with respect to rates. of pay, wages,
hours of employment, and other terms and condi-
tions of employment.
Commencing on or about February 19, 1970,
and at all times thereafter, Respondents did refuse,
and continue to refuse, to bargain collectively with
the Unions as the exclusive joint collective-bargain-
ing representative of all the employees in the unit
described above.
By such action the Respondents have refused to
bargain collectively in violation of Section 8(a)(5)
of the Act and have interfered with, restrained, and
coerced its employees in violation of Section
8(a)(1) of the Act.
The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7)
of the Act.
Upon the foregoing findings and conclusions and
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the entire record in the case and pursuant to Sec-
tion 10(c) of the Act, I recommend that the Board
issue the following:
RECOMMENDED ORDER
A. For the purpose of determining the duration
of the certification, the initial year of certification
shall be deemed to begin on the date the Respon-
dents commence to bargain in good faith with the
Unions as the recognized exclusive joint representa-
tive in the appropriate unit.5
B. Winchell Processing Corporation and
Winchell Donut House, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Bakery
and Confectionery Workers' International Union of
America; and Bakery Drivers' Local 276, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the ex-
clusive joint collective-bargaining representative of
the employees in the following appropriate bargain-
ing unit:
All production employees, warehousemen,
and truckdrivers employed by Respondents at
their El Monte, California, facility; excluding
office clerical employees, maintenance em-
ployees, inspectors, inspector-trainees, profes
sional employees, guards, and supervisors as
defined in the Act.
(b) Interfering with the efforts of said Unions to
negotiate for or represent employees as such exclu-
sive joint collective-bargaining representatives.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with
Bakery and Confectionery Workers' International
Union of America; and Bakery Drivers' Local 276,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, as the
exclusive joint representative of all employees in
the appropriate unit with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment, and embody in a signed
agreement any understanding reached.
(b) Post at its places of business in El Monte,
California, copies of the attached notice marked
"Appendix."' Copies of said notice, on forms pro-
vided by the Regional Director for Region 21, after
being duly signed by an authorized representative
of the Respondents, shall be posted by the Re-
spondents immediately upon receipt thereof, and be
maintained by the Respondents 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
Respondents to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 21,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.'
s The purpose of this provision is to insure that the employees in the ap-
propriate unit will be accorded the services of their selected bargaining
agent for the period provided by law See Mar-Jac Poultry Company, inc ,
136 NLRB 785, Burnett Construction Company, 149 NLRB 1419, 1421,
enfd 350 F 2d 57 (C A 10, 1965), Paymaster Oil Mill Co, 181 NLRB 396
' In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional 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 "
' 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 21, in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
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 Bakery and Confectionery Workers ' Inter-
national Union of America; and Bakery
Drivers ' Local 276, International Brotherhood
of Teamsters, Chauffeurs , Warehousemen &
Helpers of America, as the exclusive joint col-
lective -bargaining representative of all the fol-
lowing employees:
All production employees , warehousemen,
and truckdrivers employed by Respon-
dents at their El Monte, California , facili-
ty; excluding office clerical employees,
maintenance employees, inspectors, in-
spector-trainees , professional employees,
guards , and supervisors as defined in the
Act.
WE WILL NOT interfere with the efforts of the
Unions to negotiate for or represent employees
as the exclusive collective-bargaining represen-
tative.
WE WILL bargain collectively with the
Unions as the exclusive collective -bargaining
representative of the employees in the ap-
propriate unit , and if an understanding is
reached we will sign a contract with the Union.
WINCHELL PROCESSING
CORPORATION AND
WINCHELL DONUT
HOUSE, INC.
(Employer)
WINCHELL PROCESSING CORP. 1321
Dated By tive days from the date of posting and must not be
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5229.