J. H. Filbert, Inc.

648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. H. Filbert , Inc. and Local 434, American Bakery & Confectionery Workers' International Union , AFL-CIO. Case 10-CA-6898. June 19,1967 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND ZAGORIA Upon a charge filed by Local 434, American Bakery & Confectionery Workers' International Union, AFL-CIO, herein called the Union, the General Counsel for the National Labor Relations Board , by the Regional Director for Region 10, issued a complaint and notice of hearing dated April 6, 1967, against J. H. Filbert, Inc., herein called the Respondent , alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint , and notice of hearing were duly served on the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges, in substance, that on January 11, 1967 , the Union was duly certified by the Regional Director for Region 101 as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate by the Board , and that, since on or about January 12, 1967, Respondent has refused to recognize or bargain with the Union as such exclusive bargaining representative, although the Union has requested it to do so. On April 21, 1967, the General Counsel filed with the Board a Motion for Summary Judgment requesting, in view of the admissions contained in the Respondent's answer, that the allegations of the complaint be found to be true, and that the Board make findings of fact and conclusions of law in conformity with the allegations of the complaint. On April 25, 1967, Respondent filed with the Board a Response to General Counsel's Motion for Summary Judgment. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel. Upon the entire record in this case , the Board makes the following: RULING ON THE MOTION FOR SUMMARY JUDGMENT In its Response to General Counsel's Motion for Summary Judgment, Respondent contends that the unit found to be appropriate in Case 10-RC-6858 is in fact inappropriate. This contention is without ' Supplemental Decision and Certification of Representative issued January 11, 1967, in Case 10-RC-6858 (not published in NLRB volumes). merit. The Respondent's answer to the complaint and its Response to General Counsel's Motion for Summary Judgment establish that the Respondent is seeking to relitigate matters decided by the Board in the prior representation proceeding. The record before us establishes , that on October 20, 1966, following a hearing, the Regional Director for Region 10 of the National Labor Relations Board issued a Decision and Direction of Election in Case 10-RC-6858. The Respondent thereafter filed a request for review with the Board, in which it challenged the Regional Director's finding of the appropriateness of the unit. On November 14, 1966, the Board issued an order denying Respondent's request for review on the ground that it raised no substantial issue warranting review. On November 18,1966, in a secret ballot election conducted under the direction of the Regional Director for Region 10, a majority of the employees of the Respondent designated and selected the Union as their representative for the purposes of collective bargaining with the Respondent. The Respondent thereafter filed timely objections to the election, relating solely to matters not here in issue. On January 11, 1967, the Regional Director issued a Supplemental Decision and Certification of Representative which overruled the objections and certified the Union as the exclusive collective- bargaining representative of the employees in the unit found to be appropriate. Respondent admits in its answer to the complaint that the Petitioner has requested it to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. While Respondent does not deny that it has failed and refused to bargain with the Petitioner upon request as alleged in the complaint, it does allege in its answer that it has no legal obligation to do so. In its answer to the complaint, the Respondent alleged as affirmative defenses that the unit was not appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act in that the unit includes over-the-road truckdrivers; that their inclusion was erroneous because they lack a community of interest with the production and maintenance employees, have different functional and operational duties, and because the said drivers are a homogeneous, identifiable, nonintegrated group of personnel with entirely different working conditions and locations from the production and maintenance personnel. In the absence of newly discovered or previously unavailable evidence, issues which were or could have been raised in the representation proceeding may not be relitigated in the related unfair labor practice proceeding.' Admittedly, the issues which i Pittsburgh Plate Glass Co. v. N L R B , 313 U.S 146, Collins & Aikman Corporation, 160 NLRB 1750, and United States Rubber Company, 155 NLRB 1298 165 NLRB No. 57 J. H. FILBERT, INC. Respondent seeks to raise in -the instant proceeding relate to the correctness of the Regional Director's findings as to the appropriateness of the unit. There is no allegation that special circumstances exist herein which require the Board to reexamine the determination which was made in the representation proceeding. Inasmuch as the Respondent has already litigated these issues, it has not raised any issue which is properly triable in the instant unfair labor practice proceeding. All material issues thus having been decided by the Board or admitted in the answer to the complaint, there are no matters requiring a hearing before a Trial Examiner. Accordingly, the General Counsel's Motion for Summary Judgment is granted. On the basis of the record before it, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein , a corporation duly organized and existing by virtue of the laws of the State of Maryland and is engaged at Macon , Georgia, in the manufacture, distribution , and sale of mayonnaise and salad dressing. During the past year, which period is representative of all material times herein, the Respondent shipped directly to points located outside of the State of Georgia goods valued in excess of $50,000. Respondent admits, and we find , that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of th' Act. H. THE LABOR ORGANIZATION INVOLVED Local 434, American Bakery & Confectionery Workers' International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding, 1. The unit At all times material herein the following employees of the Respondent have constituted a unit appropriate for collective bargaining within the meaning of the Act: All production and maintenance employees at the Employer's Macon, Georgia, plant, including shipping employees, over-the-road truckdrivers, and the laboratory technician- nurse, but excluding office clerical employees, salesmen, professional employees, guards, and supervisors as defined in the Act. 2. The certification 649 On November 18, 1966, a majority of the employees of the Respondent in said unit, in a secret election conducted under the supervision of the Regional Director for Region 10, designated the Union as their representative for the purposes of collective bargaining with the Respondent; and on January 11, 1967, the Regional Director for Region 10 certified the Union as the collective- bargaining representative of the employees in said unit and the Union continues to be such representative. B. The Request to Bargain and the Respondent's Refusal Commencing on or about January 12, 1967, and continuing to date, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about January 18, 1967, and continuing to date, the Respondent did refuse, and continues to refuse, to bargain collectively with the Union as the exclusive collective-bargaining representative of all employees in said unit. Accordingly, we find that the Union was duly certified as the collective-bargaining representative of the employees of the Respondent in the appropriate unit described above, and that the Union, at all times since January 11, 1967, has been and now is the exclusive bargaining representative of all the employees in the aforesaid unit , within the meaning of Section 9(a) of the Act. We further find that the Respondent has, since January 18, 1967, refused to bargain collectively with the Union as the exclusive bargaining representative of its employees in the appropriate 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 (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 connection with its operations described in section I, above, have a close, intimate, and substantial relationship 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. V. 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, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of all employees in the appropriate unit, and embody in a signed agreement any understanding reached. CONCLUSIONS OF LAW 1. J. H. Filbert, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 434, American Bakery & Confectionery Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Respondent's Macon, Georgia, plant, including shipping employees, over-the-road truckdrivers, and the laboratory technician-nurse, but excluding office clerical employees, salesmen, professional 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 January 11, 1967, and at all times thereafter, the above-named labor organization has been and is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about January 18, 1967, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of the Respondent in the appropriate unit, the Respondent has engaged in and is engaing in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By the aforesaid refusal to bargain, the Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. 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 orders that the Respondent, J. H. Filbert, Inc., Macon, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of employment with Local 434, American Bakery & Confectionery Workers' International Union, AFL-CIO, as the exclusive and duly certified bargaining representative of its employees in the above-described appropriate unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Post at its Macon, Georgia, facilities, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, 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 the Company 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 10 days from the date of this Order, what steps have been taken to comply herewith. S 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 " 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 NOT refuse to bargain collectively with Local434 , American Bakery & Confectionery Workers' International Union, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with , restrain , or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union as the exclusive representative of all employees in the bargaining unit described below with respect to wages, hours, and other terms and conditions of employment , and embody in a signed agreement any understanding reached. J. H. FILBERT, INC. The bargaining unit is: All production and maintenance employees at the Employer's Macon, Georgia, plant, including shipping employees, over-the- road truckdrivers, and the laboratory technician-nurse, but excluding office clerical employees, salesmen, professional employees, guards, and supervisors as defined in the Act. J. H. FILBERT, INC. (Employer) Dated By 651 (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, 730 Peachtree St., N.E., Room 701, Atlanta, Georgia 30308, Telephone 526-5741.