Salerno-Megowen Biscuit Co.

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Salerno-Megowen Biscuit Company and Local Union 1, American Bakery and Confectionery Workers International Union, AFL- CIO. Case No. 13-CA-6783. May 14,1965 DECISION AND ORDER On December 29, 1964, Trial Examiner Ivar H. Peterson issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in his attached Decision. Thereafter, the Respondent and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs. The Respondent also filed an answering brief to the Charging Party's exceptions. 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 [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its -Order the Order recommended by the Trial Examiner, and orders that the Respondent, Salerno-Megowen Biscuit Company, Niles, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 'The Respondent has moved to have the Board set aside the Decision and Certification in the underlying representation proceeding (Case No. 13-RC-10106 ), and to remand the case for a full hearing on its objections . As the Board has previously decided that such objections raised no material issues that warranted a hearing, the motion is hereby denied The Union has also requested the Board to require the Respondent to apply retroactively wage and pension benefits and grievance and arbitration provisions reached in any sub- sequent agreement . We do not find such a remedy warranted here. Accordingly, the Union's motion in this respect is denied. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on November 6, 1964, by Local Union 1, American Bakery and Confectionery Workers International Union , AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board , by the Regional Director for Region 13, issued a complaint on November 10, 1964 , against Salerno-Megowen 152 NLRB No. 65. SALERNO-MEGOWEN BISCUIT COMPANY 605 Biscuit Company, herein called the Respondent, alleging that the Respondent had unlawfully refused to bargain with the Union, the certified representative of an appro- priate unit of the Respondent's employees, thereby violating Section 8(a)(5) and (1) of the Act. In its answer, the Respondent admitted that it refused and continues to refuse to bargain with the Union, but denied the commission of any unfair labor practices and affirmatively alleged that the election on the basis of which the Board had certified the Union was invalid because of conduct in which the Union had engaged prior to the election, and that therefore, the Union had not been properly and legally certified as the exclusive representative of the employees in the appro- priate unit. More particularly, the Respondent alleged, in paragraphs XIV through XVIII of its answer, that prior to the election the Union distributed leaflets and made statements to employees "which contained false and fraudulent representations and promises relating to pension benefits and other benefits for the purpose of misleading and bribing employees to vote for the Union" (paragraph XIV) ; that by these "false and fraudulent misstatements, the Union effectively destroyed the proper laboratory atmosphere for said election and effectively restrained and coerced Respondent's employees" (paragraph XV); that for the reasons expressed in the exceptions and supporting brief filed with the Board to the report on objections made by the Regional Director in the underlying representation case, 13-RC-10106, that report "was an arbitrary and capricious abuse of his discretion, and the Director denied Respondent due process of law by refusing to conduct a hearing prior to issuing" said report (paragraph XVI); that by "failing to state or to consider the substance of Respondent's exceptions and contentions, and by refusing to direct a hearing con- cerning any of them, the Board abused its discretion arbitrarily and capriciously and denied Respondent due process of law by issuing its decision and certification of representative in Case No. 13-RC-10106 which is cryptic in form and empty of content"; and that by issuing complaints against Respondent, and by refusing to issue complaint against the Union in Case No. 13-CB-1708, upon charges based upon the Union's restraint and coercion above noted, the General Counsel of the Board has abused his discretion arbitrarily and capriciously." Pursuant to notice, a hearing was held in Chicago, Illinois, on November 23 and 24, 1964, before Trial Examiner Ivar H. Peterson.' All parties were represented and participated in the hearing. No witnesses were heard; after the formal documents herein and certain documents relating to the representation case were admitted in evidence, counsel for the General Counsel moved to strike paragraphs XIV through XVIII of the Respondent's answer and for summary judgment. After hearing argu- ment on this motion, I took it under advisement. The Respondent made various offers of proof, which I rejected as not constituting newly discovered or previously unavailable evidence, or as not material. Ruling was reserved on the Respondent's motion to dismiss the complaint and on the Union's motion to grant certain relief. Pursuant to leave granted, counsel for the General Counsel filed proposed findings, conclusions, and recommendations in lieu of a brief, and the Respondent filed a brief, which have been considered. In harmony with the findings and recommendations made below, the General Counsel's motion to strike paragraphs XIV through XVIII of the Respondent's answer and for summary judgment is granted; the Respondent's motion to dismiss and the Union's motion that I recommend granting certain relief are denied. Upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Illinois corporation, maintains its principal office and place of business at Niles, Illinois, where it is engaged in the manufacture, sale, and distribu- tion of cookies, crackers, and other related products. During the past year, the Respondent manufactured, sold, and shipped from its Niles plant products valued in excess of $50,000 directly to points outside the State of Illinois. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ' Prior to the hearing , a complaint In another case against the Respondent , Case No. 13-CA-6489, which had been consolidated with the instant case, was dismissed by the Regional Director upon the request of the Union to withdraw the charge in that case, which the Regional Director granted. 2 The separate unopposed motions of counsel for the Respondent and counsel for the General Counsel are hereby granted. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED The Union, Local Union 1, American Bakery and Confectionery Workers Inter- national Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Pursuant to a stipulation for certification upon consent election in Case No. 13-RC-10106, approved by the Regional Director on May 8, 1964, an election was held on May 27, 1964, among employees of the Respondent in the following agreed- upon appropriate unit: All production, maintenance , and sanitation employees at the Respondent's Niles, Illinois, plant, excluding shipping and receiving employees, office clerical employees, confidential employees, professional employees, guards, outside truckdrivers, and all supervisors as defined in the Act. The results of the election were as follows: Approximate number of eligible voters ------------------------- 390 Void ballots ------------------------------------------------ 0 Votes cast for the Union ------------------------------------- 206 Votes cast against the Union ---------------------------------- 157 Challenged ballots ------------------------------------------- 22 On June 3, 1964, the Respondent filed timely objections to conduct affecting the results of the election. After an investigation of the objections, but without conduct- ing a hearing, the Regional Director, on August 14, 1964, issued his report on objec- tions. Therein he discussed the objections in some detail and recommended that the objections in their entirety be overruled and that the Union be certified. The Respondent thereafter filed timely exceptions with the Board, dated Septem- ber 4, 1964, supported by argument and a series of documents attached, in which it asserted that the Regional Director's conclusion with respect to each objection "(1) was unsupported by the evidence in the case, (2) was contrary to the evidence in the case, and (3) was inconsistent with the National Labor Relations Board's officially reported position on such matters." On October 29, 1964, the Board issued its Deci- sion and Certification of Representative, in which it adopted the findings and recom- mendations made by the Regional Director in his report on objections and addition- ally stated that the Respondent's exceptions "raise no material or substantial issues of fact or law which would warrant reversal of the Regional Director's findings and recommendations or a hearing " I find, as alleged in the complaint and admitted in the answer, that the Union, on October 30, 1964, by telegram, requested the Respondent to bargain collectively. Under the date of November 4, 1964, the Respondent wrote the Union acknowledg- ing receipt of the telegram "concerning collective bargaining between our Company and Local No. 1," and stating. In our opinion, Local No. 1 is not properly certified for the reasons set forth in our exceptions to the Regional Director's report. In order that these reasons be examined judicially after appropriate proceedings, we decline to meet with you for the purposes of collective bargaining at this time. In its answer, the Respondent admitted "that it has refused and still does continue to refuse to bargain collectively with the Union as the exclusive bargaining repre- sentative of all the employees in the unit described" in paragraph VI of the com- plaint, and which is set forth above, although admitting that such unit was appro- priate within the meaning of Section 9(b) of the Act. Although afforded opportunity to do so, the Respondent, in the hearing before me, did not proffer any newly discovered or previously unavailable evidence material to the issues before me. It did offer the exceptions filed with the Board and all the supporting exhibits attached thereto; these were rejected, as containing nothing that was newly discovered or previously unavailable, and as, in fact, being a part of the record heretofore made in the representation case.3 Contrary to the Respondent's 3As provided in Section 9(d) of the Act, the record in an Investigation made in a Section 9(c) proceeding becomes a part of the record upon petition for enforcement or review of any order issued by the Board pursuant to Section 10(c) based in whole or in part upon facts certified following an investigation pursuant to Section 9(c). The Board's Rules and Regulations , Series 8, as amended , provide that in a consent election conducted pursuant to Section 102.62(b), as here, the record in such case shall include, inter alia, "the objections to the conduct of the election or conduct affecting the results of the election, any report on such objections . . . exceptions to any such report, any briefs or other documents submitted by the parties, .. (Section 10269(c) and (f)). SALERNO-MEGOWEN BISCUIT COMPANY 607 contention, it is not entitled, as a matter of right, to a formal hearing on its objections to the election. O.K. Van and Storage, Inc., 127 NLRB 1537, 1539, enfd. 297 F. 2d 74 (C.A. 5); J. R. Simplot Company, 138 NLRB 172, enfd. 322 F. 2d 170 (C.A. 9). In any event, the Board's finding in the underlying representation case herein that the Respondent's objections and exceptions raised no material issues of fact or law war- ranting reversal of the Regional Director's findings and recommendations, which the Board adopted, or a hearing, effectively precluded me from going into the merits of the Respondent's objections and permitting relitigation of matters heretofore con- sidered and determined adversely to the Respondent. Pittsburgh Plate Glass Com- pany v. N.L.R.B., 313 U.S. 146, 157-158; N.L R.B. v. American Steel Buck Corp., 227 F. 2d 927, 929 (C.A. 2); Allis-Chalmers Manufacturing Company v. N.L.R.B., 162 F. 2d 435, 440-441 (C.A. 7). In short, no showing has been made in this com- plaint proceeding which, despite the assertion that the Board's action on the Respond- ent's exceptions is "cryptic in form and empty of content," lessens the conclusiveness upon me of the decision and certification made in the representation hearing. Accordingly, I find that the Union was duly designated as the collective-bargaining representative by a majority of the employees of the Respondent in the appropriate unit described above and in the Board's certification, and that the Union at all times since October 29, 1964, has been the exclusive bargaining representative of all the ,employees in the aforesaid unit, within the meaning of Section 9(a) of the Act. I further find that the Respondent has, since November 4, 1964, refused to bargain collectively with the Union as the exclusive representative of its employees in the unit, and that, by such refusal, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and, derivatively, also Section 8 (a) (1) of the Act. IV. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. The Union, in its motion for certain relief, requested that it be recommended that the Respondent be required to make whole employees, retroactive to October 29, 1964, for benefits that might be provided in any future contract between the parties. Since the circumstances here do not warrant such a remedy, the motion has been denied. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Salerno-Megowen Biscuit Company is an employer within the meaning of Sec- tion 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union 1, American Bakery and Confectionery Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production, maintenance, and sanitation employees of the Respondent at its Niles, Illinois, plant, excluding shipping and receiving employees, office clerical employees, confidential employees, professional employees, guards, outside truck- drivers, and all supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since October 29, 1964, the Union has been and continues to be the exclusive bargaining representative of all the employees in the aforementioned unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing, on and after November 4, 1964, to bargain collectively with the Union as the exclusive representative of all the employees in the aforesaid unit, the 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. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case and pursuant to Section 10(c) of the National Labor 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as amended, it is hereby ordered that the Respondent, Salerno- Megowen Biscuit Company, Niles, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith concerning wages, rates of pay, hours, and other terms and conditions of employment, with Local Union 1, American Bakery and Confectionery Workers International Union, AFL-CIO, as the exclusive representative of all employees in the following appropriate unit: All production, maintenance, and sanitation employees of the Respondent at its Niles, Illinois, plant, excluding shipping and receiving employees, office clerical employees, confidential employees, professional employees, guards, outside truck- drivers, and all supervisors as defined in the Act. (b) Interfering with the efforts of the Union to negotiate for, or represent, the employees in the said appropriate unit as the exclusive bargaining agent. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Upon request, bargain collectively with the said union as the exclusive repre- sentative of the employees in the appropriate unit described above and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its plant in Niles, Illinois, copies of the attached notice marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for Region 13, shall, after being duly signed by a representative of the Respondent, be posted by it immediately upon receipt thereof, and maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 13, in writing, within 20 days from the date of receipt of this Decision and Recommended Order, what steps it has taken to comply herewith.5 'In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a 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." 5In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read, "Notify the Regional Director for Region 13, in writing, within 10 days from the date of this Order, what steps it 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 Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Local Union 1, American Bakery and Confectionery Workers International Union, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described below. WE WILL, upon request, bargain with Local Union 1, American Bakery and Confectionery Workers International Union, AFL-CIO, as the exclusive repre- sentative of all the 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 understanding is reached, embody such an understanding in a signed agreement. The bargaining unit is: All production, maintenance , and sanitation employees at our Niles, Illinois, plant, excluding shipping and receiving employees, office clerical employees, confidential employees, professional employees, guards, outside truckdrivers, and all supervisors as defined in the Act. SHAKESPEARE COMPANY, ETC. 609 WE WILL NOT interfere with the efforts of Local Union 1, American Bakery and Confectionery Workers International Union , AFL-CIO, to negotiate for, or represent as exclusive bargaining agent, the employees in the bargaining unit described above. SALERNO-MEGOWEN BISCUIT COMPANY, Employer. 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. Employees may communicate directly with the Board's Regional Office, United States Courthouse and Federal Office Building, Room 881 , 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828 -7572, if they have any question con- cerning this notice or compliance with its provisions. Shakespeare Company; Shakespeare Products Company and Darrell P. Grimm. Case No. 7-CA-4662. May 14, 1965 DECISION AND ORDER On October 19, 1964, Trial Examiner James V. Constantine issued his Decision in the above-entitled proceeding, finding that the Respond- ents had engaged in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondents had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the General Counsel and the Charging Party filed exceptions to the Decision, together with sup- porting briefs, and the Respondents filed cross-exceptions together with a supporting brief. 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 [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.'. The Board has considered the Trial 'The Trial Examiner refused the General Counsel's motion to enlarge the complaint to allege a violation on the basis of a purported no-solicitation rule which appears presumptively unlawful . In view of the Trial Examiner's ruling, however, the matter was not litigated and Members Fanning and Brown make no findings in this connection. Member Jenkins disagrees , and would find, that the Trial Examiner erred in not permit- ting the complaint to be amended, as the Respondents were apprised of the General Counsel's intention to do so well in advance of the hearing , and as a result Respondent could not have been prejudiced ; he would remand to the Trial Examiner the issue whether the rule, plainly invalid on its face, may be supported. 152 NLRB No. 63. 789-730-66-vol. 15 2-4 0