Cumberland Farms, Inc.

712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cumberland Farms, Inc. and Local 653, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 1-CA-4811. January 11, 1966 DECISION AND ORDER On October 27, 1965, Trial Examiner Thomas N. Kessel 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 the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Decision 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 considered the Trial Examiner's Decision, the excep- tions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. [The Board adopted the Trial Examiner's Recommended Order.] TRIAL EXAMINER'S DECISION ON MOTION FOR JUDGMENT ON THE PLEADINGS STATEMENT OF THE CASE Upon a charge filed December 10, 1964, by Local 653, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, against Cumberland Farms, Inc., herein called the Respondent, the Gen- eral Counsel of the National Labor Relations Board, herein called the Board, by the acting Regional Director for Region 1, issued his complaint dated January 5, 1965, alleging the Respondent's violation of Section 8(a)(5) and (1) of the Act The complaint alleged the Union's selection as exclusive collective-bargaining represent- ative of the Respondent's employees in an appropriate unit in a secret-ballot election conducted by the Regional Director, the Union's subsequent request to the Respond- ent to bargain collectively for these employees, and the Respondent's refusal to honor the request. The Respondent's answer admitted the foregoing complaint allegations except those pertaining to the appropriateness of the unit in which the election was held and the Union's designation as representative by the employees in an appropriate unit. Following the filing of the Respondent's answer the General Counsel, on Janu- ary 26, 1965, filed a motion for judgment on the pleadings contending, in effect, that no litigable issue was raised by the answer requning a hearing for the purpose of taking evidence and that the Respondent's liability in the case was established by the admis- sions contained in the answer. That motion was referred for ruling to Trial Exam- iner Reeves R. Hilton On February 23, 1965, Trial Examiner Hilton issued and caused to be served on the Respondent an order to show cause why the General Counsel's motion should not he granted. The order apprised the Respondent of its admissions in the answer and pointed to the fact that the defense raised therein related only to the denial of the "appropriateness of the bargaining unit and the Union's majority status." The order, moreover, noted the absence in the answer of a contention that the Respondent had not been afforded an opportunity in the repre- sentation proceeding adverted to in the complaint (Case No. 1-RC-7836) to litigate these matters and that "the pleadings and motion show that these issues were litigated 156 NLRB No. 75. CUMBERLAND FARMS, INC. 713 and determined in that case " Accordingly, the order expressly directed the Respond- ent to state in its response whether theie are any "genuine issues of fact open for deci- sion" which would require a trial for their resolution By telegram dated March 11, 1965, Trial Examinee Hilton informed all parties thereto of the Respondent's failure to respond to his order to show cause He declared therein that from the pleadings in the case there appeared to be no genuine issue of fact requiring a hearing as a basis for the issuance of a Trial Examiner's decision and ordered the hearing date scheduled foe the case vacated He further ordered that the proceeding be deemed submitted foi decision on the pleadings and afforded the parties opportunity to file briefs A memoi andum was thereafter received from the Respondent. Trial Examiner Hilton died before issuance of his decision in the case There- after, the Board, pursuant to the provisions of the Administration Procedures Act and its own Rules and Regulation, Series 8, as amended, requested the Chief Trial Examiner to designate another Trial Examiner in the proceeding in place of Tnal Examiner Hilton. On October 13, 1965, Trial Examiner Thomas N Kessel received such designation. On the basis of the record before me, including the rulings heretofore made by Trial Examiner Hilton and the Board's official records in Case No. 1-RC-7836, I make the following. FINDINGS OF FACT 1. COMMERCE FACTS The complaint alleges and the answer admits that the Respondent is a Massachu- setts corporation maintaining a plant at Canton, Massachusetts, for the processing, sale, and distribution of milk and dairy products, that in the course of its operations the Respondent continuously purchases large quantities of milk and other dairy prod- ucts used in the processing of milk and dairy products and receives said products at its plant from points outside the State; that the Respondent also sells and ships sub- stantial quantities of milk and dairy products from its plant to points outside the State; that the Respondent annually receives products from points outside the State valued in excess of $50,000 and that its gioss volume of business exceeds $500,000 annually. The Respondent concedes and I find that it is engaged in interstate com- merce within the meaning of the Act. I further find that the purposes of the Act will be effectuated by the assertion of the Board's jurisdiction over the Respondent's oper- ations in this case. II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to membership the Respondent's employees. III. THE UNFAIR LABOR PRACTICES On May 1, 1964, the Regional Director issued his Decision and Direction of Elec- tion in Case No. 1-RC-7836 pioviding for an election in an appiopuate unit of the Respondent's employees to determine whether they desired to be represented by the Union for purposes of collective bargaining The unit found appropriate consisted of: All production and maintenance employees at the Respondent's Canton, Massachu- setts, plant, including truckdrivers, mechanics and loadeis, but excluding all office clerical employees, laboratory technicians, farm laborers, constiuction workers, pro- fessional employees, guards, and supervisors as defined in the Act Upon the Respondent's request foi review of the foregoing decision, the Board stayed the election and granted review "solely with respect to unit placement and/or eligibility of Woonsocket plant employees." The Board expressly denied the Respond- ent's request for review of the decision "in all other respects " The Respondent had also challenged the Regional Director's inclusion in the unit of truckdrivers, mechan- ics, and loaders. On September 11, 1964, the Board issued its decision on review affirming the Regional Director's unit determination and remanded the case to the Regional Director to hold an election Such election was conducted by the Regional Director on October 8, 1964 The tally of ballots show that of approximately 101 eligible voters 42 cast ballots for the Union, 37 against and 7 ballots were challenged. The Respondent and the Board agent having challenged certain ballots in the election the Regional Director thereafter reviewed the eligibility of these ballots and on November 5, 1964, issued his Supplemental Decision and revised tally of ballots. Upon consideration of the challenges, the Regional Director issued a revised tally showing that of 101 eligible voters, 42 cast votes for the Union, 37 against, 3 chal- lenged ballots remained unopened, 1 remained undetermined, and 3 challenges to ballots were sustained. As the revised tally showed that the Union had won the elec- 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, the Regional Director, on November 5, 1964, issued his Certification of Repre- sentative to the Union indicating its selection by a majority of the Respondent's employees in the aforedescribed appropriate unit as their exclusive representative for purposes of collective bargaining. The complaint alleges and the answer admits that on or about November 9, 1964, the Union requested the Respondent to bargain collectively with it with respect to terms and conditions of employment of the employees in the foregoing appropriate unit. The answer further admits the Respondent's refusal on or about December 7, 1964, and thereafter, to comply with the Union's bargaining request. The Respond- ent's memorandum defends the refusal to bargain with the Union on the ground that the unit for which the Union was certified as representative is inappropriate for col- lective bargaining. Specifically, the Respondent contends that the Regional Director and the Board erred by their inclusion in the unit of the Respondent's truckdrivers, mechanics and loaders. This is the Respondent's only basis in this case for attacking the validity of the Union's certificate. It is perfectly clear that the Respondent is in the unfair labor practice proceeding seeking merely to test the propriety of the Regional Director's and Board's unit determinations in the representation proceeding by attempting to relitigate these very same determinations before a Trial Examiner. This may not be done. The Board's decision in a representation proceeding are binding upon the Trial Examiner conduct- ing an unfair labor practice case involving the Respondent's refusal to honor the certificate issued in the representation proceeding See Belber Manufacturing Cor- poration, 146 NLRB 358, 362. The only evidence which would be relevant to the unit issue at a hearing in this case would be evidence newly discovered or previously unavailable. Pittsburgh Plate Glass Company v. N.L.R B., 313 U.S. 146; Pepsi-Cola Bottlers of Miami, Inc., 153 NLRB 1342. No showing has been made that the Respondent has such evidence to present at a hearing and it is obvious that the Respondent desires merely to reintroduce evidence already considered by the Regional Director and the Board in passing on the Respondent's unit contentions. In the cir- cumstances, there is no triable factual issue in the case requiring a hearing for the taking of evidence. Trial Examiner Hilton therefore correctly granted the General Counsel's motion for judgment on the pleadings. The Board's prior determination of the unit issue now sought to be raised is dispositive of the Respondent's present contentions. Accordingly, I find that the Respondent has no valid defense to its admitted refusal to bargain collectively with the Union pursuant to its request. By such refusal the Respondent violated Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with its operations 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 thereof. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has refused and still refuses to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit herein. It will therefore be recommended that the Respondent bargain collectively upon request with the Union as the exclusive representative of these employees and, if an understanding is reached, embody such understanding in a signed agreement Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Cumberland Farms, Inc. is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 653, 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. CUMBERLAND FARMS, INC. 715 3. All production and maintenance employees at the Respondent's Canton, Mas- sachusetts, plant including truckdrivers, mechanics and loaders, but excluding office clerical employees, laboratory technicians, farm laborers, construction workers, pro- fessional employees, guards, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On October 8, 1964, and at all times thereafter the Union was and now is the representative of a majority of the Respondent's employees in the appropriate unit described above for the purposes of collective bargaining within the meaning of Sec- tion 9(a) of the Act. 5. By refusing on and after December 7, 1964, to bargain collectively with the Union as the exclusive representative of all its employees in the above-described appropriate unit the Respondent has engaged in and is engaging unfair labor prac- tices within the meaning 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 this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that Cumberland Farms, Inc, Can- ton, Massachusetts, its officers, agents, successors, and assigns shall: 1. Cease and desist from refusing to bargain collectively with Local 653, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) On request, bargain collectively with Local 653, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive representative of the employees in the appropriate unit and embody any understand- ing reached in a signed contract (b) Post at its plant at Canton, Massachusetts, the attached notice marked "Appen- dix." 1 Copies of said notice to be furnished by the Regional Director for Region 1, shall, after being duly signed by an authorized representative of the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to 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 1, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.2 1In the event that this Recommended Order shall be adopted by the Boaid, the words "a Decision and Order" shall be substituted for the words 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" 2 In the event that this Recommended Order is adopted by the 'oard, this provision shall be modified to read: "Notify the Regional Director for Region 1, in writing, within 10 days from the date of receipt of this Order, what steps the Company 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 bargain collectively upon request with Local 653, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of all our employees in the appropri- 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ate unit described below with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment and, if any agreement is reached, embody such understanding in a signed contract. The appropriate unit is: All production and maintenance employees at our Canton, Massachusetts, plant including truckdrivers, mechanics, and loaders, but exclusive office clerical employees, laboratory technicians, farm laborers, construction workers, professional employees, guards, and supervisors as defined in the Act. CUMBERLAND FARMS, INC., 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. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Telephone No. 223-3358. Hermann Equipment Manufacturing Company, Inc. and District No. 9, International Association of Machinists, AFL-CIO. Cases Nos. 14-CA-3470 and 14-CA-3491. January 11, 1966 DECISION AND ORDER On July 14, 1965, Trial Examiner George A. Downing issued his Decision in the above-entitled consolidated case, finding that the Respondent had not engaged in certain unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. The General Counsel filed exceptions to the Trial Exam- iner's Decision and a brief in support thereof. The Respondent filed an answering brief in support of the Trial Examiner's Decision. 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 Examiner's Decision, the exceptions and briefs of the parties, and the entire record in this case, and finds merit in certain exceptions of the General Counsel. Accordingly, the Board hereby adopts the find- ings, conclusions, and recommendations of the Trial Examiner only to the extent they are consistent herewith. On September 29, 1964, a charge alleging violations of Section 8 (a) (1) and (3) was filed by the Union in Case No. 14-CA-3470. 156 NLRB No. 60.