Borden, Inc.

144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Borden, Inc., Dairy & Services Division and Truck Drivers and Helpers Local Union No. 728, Affiliat- ed With the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 10-CA-8493 December 11, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on July 30, 1970, and an amended charge filed on August 18, 1970, by Truck Drivers and Helpers Local Union No. 728, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Borden, Inc., Dairy & Services Division, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 10, issued a complaint on August 20, 1970, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce 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 before a Trial Examiner were duly served on the Respondent and the Charging Party. With respect to the unfair labor practices, the complaint alleges that on or about June 30, 1970, following a Board election conducted under the supervision of the Regional Director for Region 10, the Board certified the Union in Case 1 O-RC-7883 as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencing on or about July 22, 1970, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargain- ing representative, although the Union has requested and is requesting it to do so. On August 31, 1970, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint and submitting an affirmative defense. For its affirmative defense Respondent alleges that the election conducted by the Board on September 19, 1969, was not conducted in accordance with the laboratory conditions required for a fair election and that therefore the election is not valid and the Union i Official notice is taken of the record in the representation proceeding, Case 10-RC-7883 reported at 184 NLRB No 43, as the term "record" is defined in Section 102 68 and 102 69(f) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co, does not represent an uncoerced majority of employ- ees under the Act. On September 15, 1970, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, asserting that the Respondent, by its answer, is attempting to relitigate the issues which were litigated and determined in the represen- tation proceeding and that there are no issues of fact or law requiring a hearing in the instant proceeding. Subsequently, on September 22, 1970, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice to Show Cause. 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 proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its response, Respondent contends that the issues raised by the complaint in this case should be determined only after a full hearing is conducted affording Respondent an appropriate opportunity to present its evidence through development of a proper record in an adversary proceeding and to present its position on the law from the testimony adduced. By this assertion, and more specifically by Respondent's denial of each and every allegation of paragraphs 7, 9, and 12 of the complaint, and by a separate paragraph designated "Affirmative Defenses," Respondent is attempting to relitigate the issues which it raised in the representation proceeding, Case 10-RC-7883, and which, following a hearing before a Hearing Officer of the Board, were determined in the Board's Decision and Certification of Representative, reported at 184 NLRB No. 43. It is established Board policy, in the absence of newly discovered or previously unavailable evidence or special circumstances, not to permit litigation in an unfair labor practice case of issues which were or could have been litigated in a prior representation proceeding.2 Inasmuch as the Respondent has had in the representation case the opportunity to litigate the issues raised in its response to Notice to Show Cause and as the Respondent does not offer to adduce at a hearing any newly discovered or previously unavaila- 167 NLRB 151, Intertype Co v Penello, 269 F Supp. 573 (D.C. Va., 1967), Follett Corp, et al, 164 NLRB 378, enfd . 397 F 2d 91 (CA 7, 1968), Section 9(d) of the NLRA 2 See Pittsburgh Plate Glass Co v N L R B, 313 U.S 146, 162, (1941); Rules and Regulations of the Board, Section 102.67 (f) and 102 69(c). 187 NLRB No. 18 BORDEN, INC. ble evidence, or allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding, we find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding . We shall, therefore, grant the Motion for Summary Judgment. On the basis of the entire record , the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, a New Jersey corporation, with plants located at Savannah , Statesboro, Vidalia, Glennville, and Claxton, Georgia, is engaged in the processing and sale of milk, milk products, and ice cream. Respondent , during the past calendar year, which period is representative of all times material herein, sold and shipped products valued in excess of $50,000 directly to customers located outside the State of Georgia. We find, on the basis of the foregoing, 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 and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Truck Drivers and Helpers Local Union No. 728, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. III. UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9 (b) of the Act: All employees of the Respondent working in the truck, plant, shipping department, and cabinet maintenance employed at the Savannah, Georgia plant, and all ice cream salesmen, milk-retail salesmen and milk wholesale route salesmen, utility relief employees located at Savannah, Statesboro, Vidalia, Glennville and Claxton, Georgia, EXCLUDING all other employees located at Savannah , Statesboro, Vidalia, Glenn- ville and Claxton, Georgia, including territory 145 salesmen, wholesale superintendent, wholesale ice cream supervisors, wholesale milk supervisors, retain milk supervisors , head shipping department clerk, office employees, clerical employees, profes- sional employees , technical employees , guards, and supervisors as defined in the Act. 2. The certification On September 19, 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 bargaining with the Respondent . The Union was certified as the collective-bargaining representative of the employees in said unit on June 30, 1970, and the Union continues to be such representative. B. The Request to Bargain and Respondent's Refusal Commencing on or about July 7, 1970, and at all times thereafter, the Union has requested the Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about July 22, 1970, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining 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 Respondent in the appropriate unit described above in the Board's certification, and that the Union at all times since June 30, 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 July 22, 1970, refused to bargain collectively in the appropriate unit, and that , by such refusal, Respon- dent 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 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 com- merce and the free flow of commerce. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 represent- ative 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 period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recogniz- ed 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, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1421, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Borden, Inc., Dairy & Services Division, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Truck Drivers and Helpers Local Union No. 728, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of the Respondent working in the truck, plant, shipping department, and cabinet main- tenance employed at the Savannah, Georgia plant, and all ice cream salesmen, milk-retail salesmen and milk wholesale route salesmen, utility relief employees located at Savannah, Statesboro, Vidalia, Glennville and Claxton, Georgia, EXCLUDING all other employees located at Savannah, Statesboro, Vidalia, Glennville and Claxton, Georgia, including territory salesmen, wholesale superintendent, wholesale ice cream supervisors, wholesale milk supervisors, retail milk supervisors, head shipping department clerk, office employees, clerical employees, professional employees, technical employees, guards, and supervi- sors as defined in the Act, constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since June 30, 1970, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about July 22, 1970, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent had 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 to them in Section 7 of the Act and 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 mean- ing 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 Respondent, Borden, Inc., Dairy & Services Division, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment, with Truck Drivers and Helpers Local Union No. 728, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All employees of the Respondent working in the truck, plant, shipping department, and cabinet maintenance employed at the Savannah, Georgia plant, and all ice cream salesmen, milk-retail salesmen and milk wholesale route salesmen, utility relief employees located at Savannah, Statesboro, Vidalia, Glennville and Claxton, Georgia, EXCLUDING all other employees located at Savannah, Statesboro, Vidalia, Glenn- ville and Claxton, Georgia, including territory salesmen, wholesale superintendent, wholesale ice cream supervisors, wholesale milk supervisors, retail milk supervisors, head shipping department clerk, office employees, clerical employees, profes- sional employees, technical employees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaranteed them in Section 7 of the Act. BORDEN, INC. 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 Savannah, Statesboro, Vidalia, Glennville, and Claxton, Georgia, plants 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 Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous 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 10, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 3 In the event that the Board's 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 Truck Drivers and Helpers Local Union No. 728, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, as the exclusive representative of the employees in the bargaining unit described below. 147 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, if an understand- ing is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees of the Respondent working in the truck, plant, shipping department, and cabinet maintenance employed at the Savan- nah, Georgia plant, and all ice cream sales- men, milk-retail salesmen and milk wholesale route salesmen, utility relief employees locat- ed at Savannah, Statesboro, Vidalia, Glenn- ville and Claxton, Georgia, EXCLUDING all other employees located at Savannah, Statesboro, Vidalia, Glennville and Claxton, Georgia, including territory salesmen, whole- sale superintendent, wholesale ice cream supervisors, wholesale milk supervisors, retail milk supervisors, head shipping department clerk, office employees, technical employees, guards, and supervisors as defined in the Act. BORDEN, INC., DAIRY & SERVICES DIVISION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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, Peachtree Building, Room 701, 730 Peachtree Street, NE., Atlanta, Georgia 30308, Telephone 404-526-5760.