Tobacco Processors, Inc.

TOBACCO PROCESSORS, INC. 519 Tobacco Processors, Incorporated and Tobacco Work- ers International Union, AFL-CIO. Case I1-CA-4297 December 29, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On September 21, 1970, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. 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. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Tobacco Processors, Incorporated, Wil- son, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.' I Substitute "20" for "10" in fn 8 of the Trial Examiner's Decision TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The Issue CHARLES W. SCHNEIDER, Trial Examiner: The case arises on a Motion for Summary Judgment filed by counsel for the General Counsel upon an admitted refusal by the Respondent to bargain with the certified charging Union, I Administrative or official notice is taken of the record in the representation proceeding, Case lI-RC-2983, as the term "record" is defined in Section 102 68 and 102 69(f) of the Board' s Rules (Rules and Regulations and Statements of Procedure, National Labor Relations Board, Series 8, as amended) See LTV Electrosystems, Inc, 166 NLRB the Respondent contending that it was improperly denied a hearing on its objections to the election in the related representation case and that the certification of the Union is invalid. The Representation Proceeding i Pursuant to a Stipulation for Certification Upon Consent Election executed by Tobacco Processors, Incorporated, the Respondent, and Tobacco Workers International Union, AFL-CIO, the Union, and approved by the Regional Director for Region 11 of the Board on October 2, 1969, an election by secret ballot was conducted in a stipulated unit in the above-entitled proceeding on October 23, 1969, under the direction and supervision of the Regional Director. At the conclusion of the election, the parties were furnished a tally of ballots which showed that of approximately 587 eligible voters, 223 cast valid ballots for the Union, 217 cast valid ballots against, and 15 ballots were challenged; 12 ballots were found void. On October 28, 1969, the Respondent filed timely objections to the election, on the ground, in sum, that the Board agent in charge of the election had conducted it improperly and had additionally incorrectly ruled on challenged ballots. On January 22, 1970, the Regional Director issued his Report on Challenges and Objections in which he recommended that some of the challenges be sustained and that others be overruled. As to the remainder of the challenges and objections, the Regional Director deferred a recommendation for the reason that counting of the ballots to be opened might determine the outcome of the election. On January 30, 1970, the Respondent filed with the Board in Washington, D.C., its exceptions to part of the Regional Director's Report on Challenges and Objections. On March 13, 1970, the Board adopted the Regional Director's recommendations and ordered that the ballots found valid by the Regional Director be opened and that a Revised Tally of Ballots be issued. On March 20, 1970, the valid challenged ballots were opened and a Revised Tally issued revealing the final tally to be 226 votes for the Union and 223 against. On April 13, 1970, the Regional Director issued his Supplemental Report on Objections recommending to the Board that the Respondent's objections to the conduct of the election be overruled and a certification of representa- tive issue. On April 17, 1970, the Regional Director filed an Addendum to Supplemental Report on Objections, correct- ing the Supplemental Report, but adhering to the recommendation made therein. On April 22 and 27, respectively, the Respondent filed timely Exceptions to the Regional Director's Supplemental Report and Addendum. The Respondent urged the Board, in sum, to set aside the election on the basis of its objections to the election and its contentions as to the challenges, or, 938, enfd 388 F 2d 683 (C.A 4), cert denied 393 U S 843, Golden Age Beverage Co, 167 NLRB 151, enfd 415 F 2d 26 (C A 5), Intertype Co v Penello, 269 F Supp 573 (D C Va ), Intertype Co v N L R B, 401 F 2d 41 (C A 4), cert denied 393 U S. 1049, Follett Corp, et a!, 164 NLRB 378, enfd 397 F 2d 91 (C A 7), Section 9(d) of the National Labor Relations Act 187 NLRB No. 80 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the alternative, that a hearing be held on the Respondent's objections and exceptions. On June 10, 1970, the Board issued a Decision and Certification of Representative in which the Board adopted the Regional Director's findings, conclusions, and recom- mendations, and certified the Union as the bargaining representative.2 The Unfair Labor Practice Case On June 25, 1970, the Union filed the instant charge alleging, inter alia, that since the certification the Respon- dent had refused to bargain with the Union. On June 30, 1970, the General Counsel issued a complaint and notice of hearing alleging that the Respon- dent had committed unfair labor practices in violation of Section 8(a)(1) and (5) of the Act by by refusing to meet and to negotiate with the Union with respect to the employees in the appropriate unit. On July 9, 1970, the Respondent filed its answer to the complaint in which it admitted most of the material allegations of the complaint, but denied the commission of unfair labor practices. The answer admitted that on or about June 18, 1970, the Respondent had refused to meet with and negotiate with the Union, though requested by the Union to do so. Affirmatively the Respondent alleged that the certification was invalid on the grounds, in sum, previously urged in the representation proceeding. On July 13, 1970, counsel for the General Counsel filed a Motion for Summary Judgment and supporting Memoran- dum Brief, on the ground, in sum, that the Respondent's answer admitted all material facts, and that the Respon- dent's affirmative defenses raised matter previously decided in the representation case. On July 15, 1970, I issued an Order to Show Cause on the Motion for Summary Judgment returnable on or before July 28, 1970. On July 20, 1970, Respondent filed its Response to General Counsel's Motion for Summary Judgment, and on July 27, 1970, its Response to the Order to Show Cause. No other responses to the order to show cause have been received. Ruling on Motion for Summary Judgment The Respondent opposes the Motion for Summary Judgment on grounds raised, or which could have been raised, in the representation proceeding It is established-Board policy, in the absence of newly discovered or previously unavailable evidence or special 2 With respect to the Respondent's objections to the election the Board said The Board, having duly considered the Regional Director's Supplemental Report and Addendum , the Employer's exceptions, and the entire record in this case, hereby adopts the Regional Director's recommendations that the objections be overruled We further find that the Employer's exceptions do not raise material and substantial issues of fact warranting that a hearing be held , and, accordingly, deny the Employer's request for a hearing As the tally of ballots shows that the Petitioner has received a majority of the valid ballots cast in the election , we shall certify it as the exclusive bargaining representative of the employees in the appropriate unit 3 Krieger-Ragsdale & Co, Inc, 159 NLRB 490, enfd 379 F 2d 517 (C A 7), cert denied 389 U S 1041 , N L R B v Macomb Pottery, 376 F 2d 450 (C A 7), Howard Johnson Company, 164 NLRB No 121, Metropolitan Life Insurance Company, 163 NLRB 579 See Pittsburgh Plate Glass Co v N L R B, 313 U S 146, 162, NLRB Rules and Regulations , Sections circumstances not to permit litigation before a trial examiner in an unfair labor practice case of issues which were or could have been litigated in a prior related representation proceeding.3 This policy is applicable even though no formal hearing on objections has been provided by the Board Such a hearing is not a matter of right unless substantial and material issues are raised.4 Respondent does not claim to present any newly discovered or previously unavailable evidence. In these circumstances summaryjudgment is appropriate and is hereby entered.5 Upon the basis of the record before me, I make the following further: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a Virginia corporation engaged in the processing of leaf tobacco at a plant at Wilson, North Carolina, which is the only plant involved in this proceeding. During the past 12 months, which period is representative of all times material herein, Respondent received raw materials valued in excess of $50,000 at its Wilson, North Carolina, plant, from points directly outside the State of North Carolina. During the same period of time, Respon- dent finished, sold, and shipped from its plant in Wilson, North Carolina, finished products valued in excess of $50,000 directly to points outside the State of North Carolina. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES The following employees of Respondent constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, includ- ing truckdrivers, at the Respondent's Wilson, North Carolina, plant, excluding salaried employees, assistant 102 67(f) and 102 69(c) 4 O K Van and Storage, Inc, 127 NLRB 1537, enfd 297 F 2d 74 (C A 5) See Air Control Window Products, Inc, 335 F 2d 245, 249 (C A 5) "If there is nothing to hear, then a hearing is a senseless and useless formality " See also N L R B v Bata Shoe Co, 377 F 2d 821, 826 (C A 4), cert denied 389 U S 917 " there is no requirement, constitutional or otherwise, that there be a hearing in the absence of substantial and material issues crucial to determination of whether NLRB election results are to be accepted for purposes of certification " 5 On July 9, 1970, the Respondent filed motions requesting, inter also, advice with respect to the scope of the hearing on the complaint, then scheduled for August 4, 1970, but since indefinitely postponed By order of the Trial Examiner dated July 15, 1970, ruling on that request was held in abeyance pending disposition of the General Counsel's motion for summary judgment The General Counsel' s motion now having been granted, the Respondent's request for advice as to the scope of the hearing on the complaint is moot TOBACCO PROCESSORS, INC. foremen, foremen, office clericals, supervisors and guards as defined in the Act. On June 10, 1970, the Board certified the Union as the exclusive collective-bargaining representative of the em- ployees in the appropriate unit. On June 15, 1970, the Union requested the Respondent to bargain in the appropriate unit and on June 18, 1970, the Respondent refused to do so. By such refusal to bargain Respondent engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(l),(5) and 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER A. For the purpose of determining the duration of the certification , the initial year of certification shall be deemed to begin on the date the Respondent commences to bargain in good faith with the Union as the recognized exclusive bargaining representative in the appropriate unit.6 B. Tobacco Processors, Incorporated, its officers, agents, successors , and assigns shall: I Cease and desist from: (a) Refusing to bargain collectively with Tobacco Workers International Union, AFL-CIO, as the exclusive collective-bargaining representative of the employees in the following appropriate unit* All production and maintenance employees , including truckdrivers , at the Respondent's Wilson, North Carolina, plant , excluding salaried employees, assistant foremen, foremen, office clericals, supervisors and guards as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent employees as exclusive collective bargain- ing representative. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request bargain collectively with Tobacco Workers International Union, AFL-CIO, as the exclusive representative of all the employees in the appropriate unit with respect to rates of pay, wages , hours of employment, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Post at its place of business in Wilson, North Carolina, copies of the attached notice marked "Appendix." 7 Copies of said notice on forms provided by the Regional Director for Region 11, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by the Respondent for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 11, in writing, within 20 days from receipt of this recommended 521 Order what steps the Respondent has taken to comply herewith.8 6 The purpose of this provision is 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 See MarJac Poultry Co, 136 NLRB 785, Commerce Co, d/b/a Lamar Hotel, 140 NLRB 226, 229, 328 F 2d 600 (C A 5), cert denied 379 U S 817, Burnett Construction Co, 149 NLRB 1419, 1421, 350 F 2d 57 (C A 10) I In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions , recommendations and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes 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 " 8 In the event these recommendations are adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 11 , in writing, within 10 days from receipt of this Order, what steps the Respondent has taken to comply herewith " 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 Tobacco Workers International Union, AFL-CIO, as the exclusive collective -bargaining representative of all our following employees: All production and maintenance employees, including truckdrivers, employed at our Wilson, North Caroli- na, plant, excluding salaried employees, assistant foremen, foremen, office clericals, supervisors and guards as defined in the Act. WE WILL NOT interfere with the efforts of the Union to negotiate for or represent employees as exclusive collective-bargaining representative. WE WILL bargain collectively with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit, and, if an under- standing is reached, we will sign a contract with the Union. TOBACCO PROCESSORS, INCORPORATED (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, 1624 Wachovia Building, 301 North Main Street, Winston- Salem , North Carolina 27101, Telephone 919-723-2300.