Squibb-Beechnut, Inc.

DOBBS HOUSES , INC. 535 Dobbs Houses, Inc., a Division of Squibb -Beechnut, Inc. and Highway and Local Motor Freight Em- ployees Local Union No. 667, Affiliated with the International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America. Case 26-CA-3598 June 17, 1970 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND JENKINS summary judgment alleging that there are no fac- tual issues which would warrant a hearing. Thereafter, on March 30, 1970, the Board issued an order transferring proceeding to the Board and notice to show cause. On April 10, 1970, the Respondent filed its answer to an Order to Show Cause. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connec- tion with this case to a three-member panel. Upon the entire record in this case, the Board makes the following: Upon a charge filed by the Highway and Local Motor Freight Employees Local Union No. 667, af- filiated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, the General Counsel for the National Labor Relations Board, by the Regional Director for Region 26, issued a com- plaint dated March 4, 1970, against Dobbs Houses, Inc., a Division of Squibb-Beechnut, Inc., herein called the Respondent, alleging that the Respon- dent has engaged in,and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing were duly served on the Respon- dent. With respect to the unfair labor practices, the complaint alleges, in substance, that on November 18, 1969, a majority of the employees, in a unit found appropriate by the Regional Drector for Re- gion 26 of the Board,' in a secret ballot election conducted under the supervision of the Regional Director for Region 26 of the National Labor Rela- tions Board, designated and selected the Union as their representative for the purposes of collective- bargaining, and on November 26, 1969, said Re- gional Director certified the Union as the exclusive collective-bargaining representative of the em- ployees in said unit. The complaint further alleges that since on or about January 22, 1970, and at all times thereafter, the Respondent did refuse, and has continued to refuse, to bargain collectively with the Union as the exclusive collective-bargaining representative of its employees. On March 11, 1970, the Respondent filed its answer, admitting in part, and denying in part, the allegations of the complaint, presenting an affirmative defense, and requesting that the complaint be dismissed. On March 25, 1970, the General Counsel filed with the Board a motion by General Counsel for ' Decision and Direction of Election issued October 20, 1969, in Case 26-RC-3579 (not printed in NLRB volumes) Two separate units were found appropriate, only one of µhich is under consideration here Rulings on the Motion for Summary Judgment Pursuant to a petition filed on August 25, 1969, by the Union, seeking to represent certain em- ployees of the Respondent, a hearing was held and on October 20, 1969, the Regional Director for Re- gion 26 issued a Decision and Direction of Election finding the following unit of employees appropriate and directing an election: Unit 1: All production and maintenance em- ployees including driver-loaders, helpers, dispatchers, floor leaders, dish room, snacks, silver, cream, salad, hot and cold food em- ployees, at Dobbs Houses, Inc., a Division of Squibb-Beechnut, Inc.'s Memphis, Tennessee, catering division, excluding all office clerical employees, watchmen, guards, and supervisors as defined in the Act. The Respondent's request for review of this deci- sion was denied by telegraphic order of the Board on November 13, 1969. On November 18, 1969, pursuant to the Decision and Direction of Election, an election was held among the employees in the unit described above, to determine whether or not they desired to be represented for collective-bargaining purposes by Highway and Local Motor Freight Employees Local Union No. 667, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. The tally of ballots showed that 57 votes were cast for the Union, I against the Union, and 4 were challenged. Thereafter, a certification of representative was is- sued to the Union on November 26, 1969. On January 20, 1970, the Union requested the Respondent to bargain collectively. The Respon- dent, on January 22, 1970, refused, and continues to refuse, this request. On February 19, 1970, the Union filed the charge on which the complaint herein was predicated. 183 NLRB No. 63 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In its answer to an Order To Show Cause, the Respondent agrees that its contention asserting that Respondent is not an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act was raised in Case 26-RC-3579, but contends that this issue was not decided by the Board. The Respondent further contends that it and its employees are jointly covered by the provisions of the Railway Labor Act and are not subject to the jurisdiction of the National Labor Relations Act. Respondent's contentions seek to relitigate con- tentions made prior to and rejected in the Regional Director's decision in Case 26-RC-35792 and in the Board's denial of Respondent's request for review of that decision. Inasmuch as Respondent has already litigated such contentions, it has not raised any issue which is properly triable in this proceeding.' As all material issues have been previously de- cided by the Board, or admitted by Respondent's answer to the complaint, there are no matters requiring a hearing to which the National Media- tion Board could be made a party. Accordingly, the motion by General Counsel for summary judgment is granted. On the basis of the record before it, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent is, and at all times material herein has been, a Tennessee corporation with a place of business located at Memphis, Tennessee, where it is engaged in the restaurant and airline catering business. During the past year, a represen- tative period, Respondent, in the course and con- duct of its business operations, had gross revenues in excess of $500,000 and during the same period Respondent purchased and received at its Mem- phis, Tennessee, location goods valued in excess of $50,000 directly from points located outside the State of Tennessee. For the reasons set forth above, we find that the 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 the Act. II. THE LABOR ORGANIZATION INVOLVED Highway and Local Motor Freight Employees Local Union No. 667, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, 'We hale again examined the Decision and Direction of Election in Case 26-RC-3579 and made an independent review of the record of the hearing in the representation case and conclude that the Regional Warehousemen and Helpers of America, is, and at all times material herein has been, a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees constitute a unit ap- propriate for collective bargaining within the mean- ing of Section 9(b) of the Act. Unit 1: All production and maintenance em- ployees including driver-loaders, helpers, dispatchers, floor leaders, dish room, snacks, silver, cream, salad, hot and cold food em- ployees, at Dobbs Houses, Inc., a Division of Squibb-Beechnut, Inc.'s Memphis, Tennessee, catering division, excluding all office clerical employees, watchmen, guards and supervisors as defined in the Act. 2. The certification On November 18, 1969, a majority of the em- ployees of the Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 26, designated the Union as their representative for the purposes of collective bargaining with the Respondent, and on November 26, 1969, the Regional Director cer- tified 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 Respondent's Refusal Commencing on or about January 20, 1970, and continuing to date, the Union has requested and is requesting the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of the employees in the above- described unit. Since January 22, 1970, and con- tinuing to date, the Respondent has refused and continues to refuse to bargain collectively with the Union as exclusive collective-bargaining represen- tative 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 ap- propriate unit described above and that the Union Director 's findings were correct , and that the issue of jurisdiction was cor- rectl% decided ' E-Z Daises Cheirolet , 161 NLRB 1380 , enfd 395 F 2d 191 (C A 9) DOBBS HOUSES , INC. 537 at all times since November 26, 1969 , 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 22, 1970, refused to bargain collectively with the Union as the exclusive bargaining representative of its em- ployees in the appropriate unit . By such refusal the Respondent has engaged in, and is engaging in, un- fair 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 sec- tion III , above, occurring in connection with the 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 Sec- tion 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 representative of all employees in the appropriate unit and , if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial year of certifica- tion as beginning on the date the Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit . See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Con- struction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). CONCLUSIONS OF LAW 1. Dobbs Houses, Inc., a Division of Squibb- Beechnut, Inc., in an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Highway and Local Motor Freight Employees Local Union No. 667, affiliated with the Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit is an appropirate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act: Unit 1: All production and maintenance em- ployees including driver-loaders, helpers, dispatchers, flood leaders, dish room , snacks, silver, cream , salad, hot and cold food em- ployees, at Dobbs Houses, Inc., a Division of Squibb-Beechnut, Inc.'s Memphis, Tennessee, catering division, excluding all office clerical employees , watchmen, guards and supervisors as defined in the Act. 4. Since November 26, 1969, the Union has been the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 5. By refusing on or about January 22, 1970, and at all times thereafter, to bargain collectively with the Union as the exclusive bargaining representa- tive of all the employees in the appropriate unit, the Respondent has engaged in, and is engaging in, un- fair labor practices within the meaning of Section 8(a)(5) 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 them in Section 7 of the Act , and has thereby engaged in, and is engaging in, unfair prac- tices 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 hereby orders that the Respon- dent, Dobbs Houses, Inc., A Division of Squibb- Beechnut, Inc., Memphis, Tennessee , 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 the Highway and Local Motor Freight Employees Local Union No. 667, af- filiated with the International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Help- ers of America, as the exclusive bargaining rep- 183 NLRB No. 63 538 DECISIONS OF NATIONAL resentative of its employees in the following ap- propriate unit: All production and maintenance employees in- cluding driver-loaders, helpers, dispatchers, floor leaders, dish room, snacks, silver, cream, salad, hot and cold food employees, at Dobbs Houses, Inc., a Division of Squibb-Beechnut, Inc.'s Memphis, Tennessee, catering division, excluding all office clerical employees, watchmen, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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, if an un- derstanding is reached, embody such understanding in a signed agreement. (b) Post at its place of business in Memphis, Tennessee, copies of the attached notice marked "Appendix."'Copies of said notice, on forms pro- vided by the Regional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees 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 26, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with the Highway and Local Motor Freight LABOR RELATIONS BOARD Employees Local Union No. 667, Affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, 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 em- ployees 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 represent- ative of all our 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 understanding in a signed agreement. The bargaining unit is: All production and maintenance em- ployees including driver-loaders, helpers, dispatchers, floor leaders, dish room, snacks, silver, cream, salad, hot and cold food employees, at Dobbs Houses, Inc., a Division of Squibb-Beechnut, Inc.'s Mem- phis, Tennessee, catering division, exclud- ing all office clerical employees, watchmen, guards and supervisors as defined in the Act. DOBBS HOUSES, INC., A DIVISION OF SQUIBB- BEECHNUT, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161.