Maryland Baking Co. of Georgia, Inc.

776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Maryland Baking Company of Georgia , Inc. and R. W. D. S. U. Council of Georgia, AFL-CIO affili- ated with Retail, Wholesale & Department Store Union, AFL-CIO. Case 10-CA-8251 September 28, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS Upon a charge filed by the R.W.D.S.U. Council of Georgia, AFL-CIO a/w Retail, Wholesale & Department Store 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 dated April 16, 1970, against Maryland Baking Company of Georgia, Inc., herein called the Respondent, alleging that the Respondent was engaging in unfair labor practices within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing were duly served upon the Respond- ent. With respect to the unfair labor practices, the facts show that on March 20, 1969, a majority of the employees in a unit stipulated by the parties as appropriate, in a secret-ballot election conducted under the supervision of the Regional Director for Region 10 of the National Labor Relations Board, designated and selected the Union as their representa- tive for the purposes of collective bargaining. The complaint alleges that on March 5, 1970, the Board certified the Union as the exclusive collective-bargain- ing representative of the employees in said unit.' The complaint further alleges that since on or about March 20, 1970, and at all times thereafter, the Respondent did refuse, and continues to refuse, to bargain collectively with the Union as the exclusive collective-bargaining representative of its employees. On April 24, 1970, the Respondent filed its answer, admitting in part, and denying in part, the allegations of the complaint, presenting an affirmative defense, and requesting a hearing or the alternative that the complaint be dismissed. On May 20, 1970, the General Counsel filed with the Board a motion for summary judgment alleging that there were no factual issues which would warrant a hearing. Thereafter on May 28, 1970, the Board ' Decision and Certification of Representative issued March 5, 1970, in Case 10-RC-7641 (not published in NLRB volumes) issued an order transferring the proceeding to the board and giving notice to show cause. On June 12, 1970, the Respondent filed its answer as a state- ment in opposition to general counsel's motion for summary judgment. 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. Upon the entire record in this case, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the notice to show cause, the Respondent noted that its answer to the complaint denied the essential allegations contained in para- graphs 7 through 13 and also incorporated its argu- ments contained in its objections dated March 27, 1969; its exceptions dated June 25, 1969, to the Regional Director's report on objections; its exceptions dated November 10, 1969, to the Hearing Officer's report and recommendation on objections and sup- porting brief. The Respondent denies in substance that a valid election was conducted or that a valid certification for an appropriate unit was issued, or that a valid request for bargaining was made. The Respondent refused to bargain and furnish the request- ed information. On March 20, 1969, pursuant to a stipulation for certification upon consent election entered into by the parties hereto, an election was conducted under the direction of the Regional Director for Region 10. The tally of ballots showed that of approximately 57 eligible voters, 30 cast valid votes for the Petitioner, and 22 cast valid votes against the Petitioner, I cast a challenged ballot, and none case void ballots. On March 27, 1969, the Employer filed timely objections to conduct alleged to have affected the results of the election. After an investigation, the Regional Director, on June 17, 1969, issued and served upon the parties his report on objections, order directing hearing and notice of hearing. In his report, the Regional Director found objections 2 and 3 to be without merit and recommended to the Board that they be overruled. He further found that objection 1 raised credibility issues which materially and substantially affected the results of the election and which might best be resolved by record testimony at a hearing. Thereafter, on June 25, 1969, the Employer filed timely exceptions to the Regional Director's report. On July 28, 1969, the Board, having duly considered the matter, was of the opinion that issues raised 185 NLRB No. 107 MARYLAND BAKING CO. OF GEORGIA by objection 1 could best be resolved by a hearing, and the Employer's exceptions respecting objections 2 and 3 raised no substantial issues of law or fact which warranted reversal of the Regional Director's recommendations. The Board ordered that a hearing be held for the purpose of taking testimony in the issues raised with respect to objection 1 and further ordered that a Hearing Officer appointed by the Regional Director conduct such hearing. Pursuant to that order a hearing was conducted on July 29 and 30, 1969, at Atlanta, Georgia. The Employer, Petitioner, and the Regional Office were represented by counsel and participated fully in the hearing. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues. On October 3, 1969, the Hearing Officer issued and duly served upon the parties his report, in which he recommended that objection 1 be overruled and that certification of representative issue. Thereafter, the Employer filed exceptions to the Hearing Officer's report and a supporting brief. On March 5, 1970, the Board overruled the Respondent's exceptions and issued its decision and certification of representative in which it certified the Union as the exclusive bargaining representative of the employees in the appropriate unit. In its answer to the complaint the Respondent denies that a valid election was conducted or that a valid certification was issued. The answer also denies that a valid request for bargaining was made by the Union for the reason stated above, that is, there was no valid election and no valid certification. Respondent does not contend that it has any newly discovered or previously unavailable evidence to pres- ent. Instead, it seeks to relitigate contentions made prior to and rejected in the Board's Decision in Case 10-RC-7641. Inasmuch as Respondent has already litigated such contentions, and the Board has considered them, no issue has been raised which is properly triable in this proceeding.' As all material issues have been previously decided by the Board, there are no matters requiring a hearing before the Trial Examiner. Accordingly, the General Counsel's motion for summary judgment is granted. On the basis of the record before us, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Maryland corporation engaged in the manufacture and sale of ice cream cones, ' E-Z Davies Chevrolet, 161 NLRB 1380, G K Turner Associates, 183 NLRB No 81 777 with its principal office and place of business located at Atlanta, Georgia. Respondent, in the course and conduct of its business operations, annually sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Georgia. 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 the Act. II. THE LABOR ORGANIZATION INVOLVED. R.W.D.S.U. Council of Georgia, AFL-CIO affiliat- ed with Retail , Wholesale & Department Store 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 The following employees constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act. All production and maintenance employees, including truck drivers and assistant shift leaders, but excluding office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. 2. The certification On March 20, 1969, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 10, designated the Union as their representative for the purpose of collective bar- gaining with Respondent, and on March 5, 1970 the Union was certified as the collective-bargaining representative of the employees in said unit and contin- ues to be such representative. B. The Request To Bargain and Respondent's Refusal Commencing on or about March 10, 1970, and continuing to date, the Union has requested and is requesting Respondent to bargain collectively with the Union as the exclusive collective-bargaining repre- sentative of the employees in the above-described unit. Since March 20, 1970, and continuing to date, Respondent has refused and continues to refuse to bargain collectively with the Union as the exclusive 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective-bargaining representative of all employees in said unit. Accordingly, we find that the Union was duly certified by the Board 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 March 5, 1970, 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 Respondent has since March 20, 1970, ref- used to bargain collectively with the Union as the exclusive bargaining representative of its employees in the appropriate unit. By such refusal 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 acts of Respondent set forth in section III, above, occurring in connection with its operations as 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 of commerce. V. THE REMEDY Having found that 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 representa- tive of all employees in the appropriate unit and, if an understanding is reached, embody such under- standing in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial year of certification as beginning on the date the Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 228, enfd. 328 F.2d 600 (C.A.5), cert. denied 379 U.S. 817; and Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). CONCLUSIONS OF LAW 1. Maryland Baking Company of Georgia, Inc., is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. R.W.D.S.U. Council of Georgia, AFL-CIO affili- ated with Retail, Wholesale & Department Store Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit is an appropriate unit for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act: All production and maintenance employees including truck drivers and assistant shift leaders but excluding office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. 4. Since March 5, 1970, the Union has been the exclusive representative of all the 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 March 20, 1970, and at all times thereafter, to bargain collectively with the Union as the exclusive bargaining representative of all the employees in the appropriate unit, Respond- ent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, 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 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 Rela- tions Board hereby orders that Respondent, Maryland Baking Company of Georgia, Inc., Atlanta, Georgia, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wag- es, hours, and other terms and conditions of employ- ment, with R.W.D.S.U. Council of Georgia, AFL- CIO, affiliated with Retail, Wholesale & Department Store Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit. All production and maintenance employees of the Respondent's Atlanta, Georgia, plant, includ- ing truck drivers and assistant shift leaders, but excluding office clerical employees , professional MARYLAND BAKING CO OF GEORGIA 779 employees, guards and supervisors as defined in the Act. (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, if an understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its place of business copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 10, shall, after being duly signed by Respondent's representative, 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 employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director for Region 10, in writing, within 10 days from the date of this Decision, what steps Respondent has taken to comply herewith. ' In the event this Order is enforced by a Judgment of the 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 " with Retail Wholesale & Department Store 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 inter- fere 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 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 under- standing is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees of the Respondent's Atlanta, Georgia, plant, includ- ing truck drivers and assistant shift leaders, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. MARYLAND BAKING COMPANY OF GEORGIA, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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 R.W.D.S.U. Council of Georgia, AFL-CIO, affiliated 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, Room 701, Peachtree Street, N.E., Atlanta, Georgia 30308, Telephone 404-526-5760.