Foremost Dairies of the South

S DECISIONS OF NATIONAL LABOR RELATIONS BOARD Home Town Foods, Inc., d/b/a Foremost Dairies of the South and Retail, Wholesale and Department Store Union , AFL-CIO. Case 10-CA-444. July 1, 1966 DECISION AND ORDER On May 23, 1966, Trial Examiner Harry R. Hinkes issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's De- cision. Thereafter, Respondent filed exceptions to the Decision and 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 Zagoria]. 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 Ex- aminer's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Pursuant to a charge filed by the Retail , Wholesale and Department Store Union, AFL-CIO, herein called the Union , on January 25, 1966, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 10 (Atlanta, Georgia ), issued the complaint in this proceeding dated February 21, 1966. The complaint alleges that Home Town Foods, Inc., d /b/a Foremost Dairies of the South, herein referred to as Respondent or Employer , has engaged in unfair labor practices proscribed by Section 8(a)(1) and (5) of the National Labor Relations Act in refusing to bargain collectively with the Union . By answer duly filed the Respondent admitted refusing to meet with the Union for the purpose of bargaining but denied the unfair labor practices alleged in that the Union had never been validly certified. Pursuant to notice a hearing was held before Trial Examiner Harry R. Hinkes in Sylacauga , Alabama, on March 29, 1966. All parties were present and afforded full opportunity to participate , examine witnesses, and adduce relevant evidence. Many of the facts of the case were stipulated by the parties . Briefs have been filed by all parties and given careful consideration by me. Upon the entire record in the case and after due consideration of the briefs sub- mitted, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is, and has been at all times material herein , a Delaware corporation maintaining a plant and place of business at Sylacauga , Alabama, where it is engaged 160 NLRB No. 4. HOME TOWN FOODS, INC. 9 in the manufacture, sale, and distribution of dairy products. During the past calendar year, which period is representative of all times material herein, Respondent sold and shipped products valued in excess of $50,000 to customers located outside the State of Alabama. Respondent is, and has been at all times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The Union is, and at all times material herein has been, a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES On April 8, 1965, the Union filed a petition in Case 10-RC-6306 seeking a unit of "all production, shipping, driver-salesmen and transport drivers, excluding all clerical, executives, watchman and/or guards and supervisors as defined in the Act." Thereafter, pursuant to the Decision and Direction of Election of the Regional Director for Region 10 issued on July 1, 1965, an election was held on July 29, 1965. The tally of ballots showed that of approximately 106 eligible voters, 52 cast valid votes for, and 45 cast valid votes against, the petitioners and 9 cast challenged ballots. The challenges were sufficient in number to affect the results of the election. On August 4, 1965, Respondent filed with the Regional Director, by mail, Em- ployer's Objections to Conduct Affecting the Results of the Election. The Regional Director found the said Employer's objections untimely and issued a Supplemental Decision and Certification of Representative. Upon review, the Board, on Septem- ber 31, 1965, vacated the Certification of Representative and remanded the case for investigation of the issues raised by the Employer's objections. On October 5, 1965, Respondent wrote to the Regional Director requesting a hearing on its objections pursuant to Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, alleging that "substantial and material factual issues exist which can be resolved only after a hearing." On October 15, 1965, the Regional Director, without hearing, issued a Second Supplemental Decision and Certification of Representative, finding that the objections did not raise "material or substantial issues affecting the results of the election" and overruling them. In the same document the Union was certified as the representa- tive of the Respondent's employees in the unit described as "all full time and regular part time employees of the Employer at its Sylacauga, Alabama, plant, including the engineering department, truck drivers, laboratory employees, and plant clerical em- ployees, but excluding driver salesmen, office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act." On November 5, 1965, Respondent timely filed a request for review of the Second Supplemental Decision and Certification of Representative in which it renewed its request for a hearing pursuant to Section 102.69(c) of the Board's Rules and Regula- tions, Series 8, as amended. Without hearing, the request for review was denied by the Board on December 3, 1965, "as it raised no substantial issues warranting review." Respondent timely filed a motion for reconsideration and renewed its request for a hearing on December 13, 1965. The Board, without a hearing, denied the request on December 17, 1965, "as it contains nothing not previously considered by the Board." On November 18, 1965, following the Regional Director's Second Supplemental Decision and Certification of Representative, the Union wrote counsel for the Re- spondent requesting a meeting to open negotiations. On November 30, 1965, Re- spondent's counsel answered, declining to meet. On January 12, 1966, following the Board's denial of Respondent's motion for reconsideration, the Union again wrote to counsel for the Respondent naming a bargaining committee and requesting a negotiat- ing meeting on January 19. On January 17, however, counsel for the Respondent advised the Union by telephone that it still contested the validity of the Union's certification. The parties have stipulated and I find that the Respondent has refused to enter into such negotiations and bargain collectively with the Union inasmuch as it con- tests the validity of the certification. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Analysis and Conclusions The Respondent seeks to relitigate here the correctness of the Board 's action in denying its request for a review of the Regional Director's Second Supplemental Decision and Certification of Representative. The Board has, however, already ruled: It is the policy of the Board not to allow a party to relitigate in a complaint proceeding . the legal effect of matters which the party has already litigated and the Board has decided in a prior' representation proceeding (Producers, Inc., 133 NLRB 701, 704). There is no contention by the Respondent that the evidence which it would seek to adduce at a hearing in the unfair labor practice proceeding is newly discovered or previously unavailable. On the contrary, it would appear that the evidence is simi- lar, if not identical, to that which was cited to the Board by the Respondent in its request for review on November 5, 1965. Whether such evidence was sufficient to warrant a hearing on the conduct affecting the election was obviously decided by the Board when it denied the Respondent's request for review as well as its subsequent Motion for Reconsideration. As the Trial Examiner held in Acme Industrial Prod- ucts, Incorporated, 158 NLRB 180, adopted by the Board: The Trial Examiner has no authority to examine the accuracy of the Board's determination or to question its conclusions. The Board's disposition con- stitutes, at this stage of the proceedings, the law of the case. As was said by Trial Examiner Nachman in a similar situation in Schapiro & Whitehouse, Inc., 148 NLRB 959, 960: "If, as the Respondent contends, these findings of the Board are in error, then only the Board or some court of competent jurisdiction, can correct such error." Accordingly, I conclude that I have no authority to pass upon the Board's decision in this matter. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations set forth in section I, above, have a close, intimate, and substan- tial 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. CONCLUSIONS OF LAW By refusing to bargain collectively with the Union on or about November 30, 1965, and at all times since, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions , I recommend that the Board issue the following: ORDER Respondent, Home Town Foods, Inc., d/b/a Foremost Dairies of the South, Sylacauga, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain collectively with the Retail, Whole- sale and Department Store Union, AFL-CIO, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full time and regular part time employees at our Sylacauga, Alabama, plant including the engineering department, truck drivers, laboratory employees and plant clerical employees but excluding driver-salesmen, office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Upon request bargain collectively with Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive representative of all the employees in the said appropriate unit with respect to rate of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. WAYCROSS SPORTSWEAR, INC. 11 (b) Post at its plant in Sylacauga, Alabama, copies of the attached notice marked "Appendix." I Copies of said notice to be furnished by the Regional Director for Region 10, after being duly signed by an authorized representative of the Respond- ent, shall be posted by it 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. 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 10, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith? I In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "a 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." 'In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent 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, upon request, bargain with Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive bargaining representative of the employees in the unit described below with respect to rates of pay, wages, hours of em- ployment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate unit is: All full time and regular part time employees at our Sylacauga, Alabama, plant including the engineering department, truck drivers, laboratory em- ployees and plant clerical employees but excluding driver-salesmen, office clerical employees, professional employees, guards and supervisors as de- fined in the Act. HOME TOWN FOODS, INC., D/B/A FOREMOST DAIRIES OF THE SOUTH, 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 provisions, they may communicate directly with the Board 's Regional Office, 528 Peachtree-Seventh Building, 50 Seventh Street NE ., Atlanta, Georgia 30323, Tele- phone 526-5741. Waycross Sportswear, Inc. and Amalgamated Clothing Workers of America, AFL-CIO. Case 10-CA-6370. July 1, 1966 DECISION AND ORDER On May 16, 1966, Trial Examiner George Christensen issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and 160 NLRB No. 10.