Frito-Lay, Inc.

950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its plant in Houston , Texas, the attached notice marked "Appendix." 24 Copies of said notice to be furnished by the Regional Director for Region 23, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent 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 Respondent to insure that said notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director for Region 23, in writing , within 20 days from the receipt of this Decision ,25 what steps it has taken to comply herewith. 91 In the event that this Recommended Order is 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 Is 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 Is 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, if requested by United Steelworkers of America , AFL-CIO, sign the written contract incorporating the terms of the agreement reached with that Union, said contract to be retroactive to December 31, 1965 . If no such request is made, WE WILL, upon request, bargain collectively with that Union for the unit described herein with respect to rates of pay, wages , hours of work, 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 production and maintenance employees employed by us at our Houston, Texas, warehouse establishment, including truckdrivers and plant clericals, excluding office clerical employees , professional employ- ees, guards, watchmen, and supervisors as defined in the Act. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of rights guaranteed them in Section 7 of the Act. SCHILL STEEL PRODUCTS, 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 provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-4722. Frito-Lay, Inc. and International Union of District 50, United Mine Workers of America. Case 3-CA-2957. November 14, 1966 DECISION AND ORDER Upon a charge filed by International Union of District 50, United Mine Workers of America (hereinafter referred to as the Charging 161 NLRB No. 90. FRITO-LAYI , INC. 951 Party), the General Counsel of-the National Labor Relations Board, by the Regional Director for Region 3, issued his complaint, dated June 23, 1966, against Frito-Lay, Inc. (hereinafter referred to as the Respondent), alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a) (5) and (1) and 2(6) and (7) of the Na- tional Labor Relations Act, as amended. Copies of the charge, com- plaint, and notice of hearing before a Trial Examiner were duly served upon the Respondent and the Charging Party. On July 5, 1966, the Respondent filed its answer admitting every allegation of the com- plaint but that which alleged that its single truck distributors are employees within the meaning of the Act. On July 22, 1966, the General Counsel moved to have this proceed- ing transferred to the Board for issuance of a Decision and Order on the basis of the pleadings without a hearing on the ground that no material issue of law or fact was in dispute since the employee status of the single truck distributors had been determined in a representa- tion proceeding and reviewed by the Board. On July 26, 1966, the National Labor Relations Board, having duly considered the matter, ordered that the proceeding be transferred to and continued before it, and that cause be shown why the General Counsel's motion for sum- mary judgment should not be granted. On August 30, 1966, Respond- ent filed its response to the Board's Order, contending that the motion for summary judgment was inappropriate since the Board had never considered the record of the representation hearing nor made its own findings of fact. For the reasons set forth below, the Board 1 finds no merit in the Respondent's position, and grants the motion for sum- mary judgment. Upon the basis of the aforementioned pleadings and the entire rec- ord in this case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Delaware corporation engaged in the manufacture, sale, and distribution of food products with its principal office and place of business in Dallas, Texas, and with various other places of business in the, State of New York. The Respondent's Buffalo, New York, facility is the only place of business involved in this proceed- ing. In the operation of its business, Respondent, during the year end- ing December 31, 1965, transferred and delivered to its Buffalo, New York, facility, food products and other goods and materials valued in '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 [Chairman McCulloch and Members Jenkins and Zagoria]. 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excess of $50,000 of which goods and material valued in excess of $50,000 were transported to the said place of business directly from States of the United States other than the State of New York. We find as the Respondent concedes, that it is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. The Charging Party is a labor organization within the meaning of Section 2 (5) of the Act, admitting to membership the Respondent's employees. III. THE UNFAIR LABOR PRACTICES On December 21, 1965, the Charging Party-filed a petition for an election in a unit of all single truck distributors employed by the Respondent at its Buffalo, New York, operation. On January 19, 1966, a hearing was conducted in this matter before a duly designated Hear- ing Officer, and the parties were afforded full opportunity to intro- cluce evidence bearing on the disputed issue of whether these dis= tributors were employees or independent contractors. On February 16, 1966, the Regional Director issued a Decision and Direction of Elec- tion 2 finding, contrary to Respondent's contention, that the single truck distributors were employees within the meaning of the Act, and not independent contractors. On March 14, 1966, after a 2-week exten- sion of time, the Respondent filed with the Board a request for review of the Regional Director's decision on the issue of the status of the truck distributors, contending that his finding was clearly erroneous on the record. The Board, however, after due consideration of the evi- dence noted by the Respondent as sustaining its contention, denied the request for review. Thereafter, on April 20, 1966, the election was conducted in which a majority of the single truck distributors in the appropriate unit S designated the Charging Party as their representative for the pur- poses of collective bargaining, and, the Charging Party was so certi- fied by the Regional Director on April 28, 1966. On May 26, 1966, the Charging Party requested that the Respondent meet and bargain with it with respect to the wages,' hours, and working conditions of the employees in the appropriate unit. The Respondent admittedly de- clined, and has continued to decline, to bargain with the Charging Party since that, time. It is well settled that, in the absence of any evidence unavailable at the time of the representation proceeding or any newly discovered evidence, the Board will not reconsider in a subsequent, refusal-to- 2 3-RC-3826 , not published in printed volumes of Board decisions. 2 The Respondent conceded that if its single truck distributors were found to be em- ployees, they would constitute a unit appropriate for collective bargaining within the meaning of Section 9 (a) of the Act. FRITO-LAY, INC. 953 bargain proceeding matters which have been disposed of in a prior, related representation case 4 This is equally true where the representa- tion proceeding was processed under Section 3(b) of the Act, espe- cially where the Board has denied a request for review of the Regional Director's decision.5 The Regional Director's finding in this case that the truck distributors were employees was reached after full litigation by the parties, and review was thereafter denied by the Board. The Respondent has admitted in its response to the Order to Show Cause that it does not seek to adduce any newly discovered or previously unavailable evidence. It is therefore clear that, under established rules, the status of the disputed employees cannot be relit- igated in the instant proceeding. Accordingly, we find, on the basis of the Regional Director's decision, that all the single truck distribu- tors are employees within the meaning of the Act. Since it is thus apparent that Respondent was obligated to meet and bargain with the Charging Party, upon request, we find that the Respondent's refusal on or about May 26, 1966, to bargain collectively with the Charging Party as the exclusive bargaining representative of the employees in the appropriate unit was and is violative of 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, supra, occurring in connection with the operations of the Respondent de- scribed in section I, supra, have a close, intimate, and substantial rela- tion 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. CONCLUSIONS OF LAW 1. Frito-Lay, 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. International Union of District 50, United Mine Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All single truck distributors employed by the Respondent at its facility located in Buffalo, New York, and vicinity, excluding all office clerical employees, guards, professional employees, and super- " See, e.g., Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146, 158-162 ; Wilson & Co., Inc., 159 NLRB 485; Texas Pipeline Company, 129 NLRB 705, 707-708; Clark Shoe Co., 88 NLRB 989, footnote 1. See also N.L .R.B. v. Air Control Products, 335 F.2d 245, 249-250 (C.A. 5). 5 Capital Bakers, Inc., 148 NLRB 438, 441-442. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. 4. At all times since April 28, 1966, the Charging Party has been the representative for the purpose of collective bargaining of a majority of the Respondent's employees in the appropriate unit. 5. By refusing to bargain collectively with the Charging Party as the exclusive representative of the employees in the appropriate unit on and after May 26, 1966, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 9(b) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning 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 Relations Board hereby orders that the Respondent, Frito-Lay, Inc., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International Union of District 50, United Mine Workers of America, as the exclusive bar- gaining representative of the employees in the following appropriate unit : All single truck distributors employed by the Respondent at its operation located in Buffalo, New York, and vicinity, excluding all office clerical employees, guards, professional employees, and super- visors as defined in the Act, as amended. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the right to bargain collectively through said Union. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with International Union of District 50, United Mine Workers of America, as the exclusive representative of the employees in the appropriate unit as found above and, if an understanding is reached, embody such understand- ing in a signed agreement. (b) Post at its Buffalo, New York, operation, copies of the attached notice marked "Appendix." 6 Copies of said notice, to be 6 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order." FRITO-LAY, INC. 955 furnished by the Regional Director for Region 3, after being duly signed by Respondent's representative, shall be posted by it immedi- ately 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 3, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL bargain collectively, upon request, with International Union of District 50, United Mine Workers of America, as the exclusive bargaining unit described below concerning rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody the same in a signed agreement. The bargaining unit consists of : All single truck distributors employed at our operation lo- cated in Buffalo, New York, and vicinity, excluding all office clerical employees, guards, watchmen, and supervisors as de- fined in the National Labor Relations Act. WE WILL NOT refuse to bargain collectively as aforesaid, nor will we, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the right to bargain collectively through said Union. FRITO-LAY, 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 compli- ance with its provisions, they may communicate directly with the Board's Regional Office, Fourth Floor, The 120 Building, 120 Dela- ware Avenue, Buffalo, New York 14202, Telephone 472-2215.