Gardner Baking Co.

684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gardner Baking Company and Bakery and Confection- ery Workers' International Union of America, Local # 180, AFL-CIO. Case 30-CA-1410 January 5, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS Upon a charge filed on October 12, 1970, by Bakery and Confectionery Workers' International Union of America, Local # 180, AFL-CIO, herein called the Union, and duly served on Gardner Baking Compa- ny, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 30, issued a complaint on October 19, 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 parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on or about September 30, 1970, following a Board election in Case 30-RC-1266 the Union was duly certified as the exclusive collective-bargaining representative of Res- pondent's employees in the unit found appropriate; i and that, commencing on or about October 4, 1970, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represent- ative, although the Union has requested and is requesting it to do so. On October 28, 1970, Respon- dent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. The Respondent admits all of the allega- tions of the complaint, except the conclusionary paragraph which alleges that the Respondent refused to bargain in violation of Section 8(a)(5) and (1) of the Act. As an affirmative defense, the Respondent in its answer contends that the Union's certification is invalid, basing this contention on the same matters that it raised in the underlying representation case. On November 6, 1970, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment in which he contends that the Respondent's answer to the complaint raises no issues i Official notice is taken of the record in the representation proceeding, Case 30-RC-1266 as the term "record" is defined in Sees 10268 and 102,69(f) of the Board's Rules and Regulations, Serves 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (CA 4, 1968), Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello, of fact to warrant a hearing, and prays the Board to grant the Motion for Summary Judgment. Subse- quently, on November 10, 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 Cross-Motion for Summary Judgment, which we shall also consider herein as its response to the 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 As reflected above, the Respondent admits all of the factual allegations of the complaint, but affirmatively alleges that it is not obligated to bargain with the Union because of the invalidity of the certification. In its response, the Respondent also admits all of the averments in the General Counsel's Motion for Summary Judgment, including the admission that it is attempting in this unfair labor practice case to relitigate the identical issues that it raised in the representation matter in Case 30-RC-1266, and which the Board considered and decided in its review of the Respondent's exceptions to the Regional Director's Report and Recommendation on the Objections to the Election. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a Respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.2 All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We, therefore, find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment, and deny the Respondent's Cross-Motion. 269 F Supp 573 (D.C va., 1967), Follett Corp, 164 NLRB 378, enfd 397 F 2d 91 (C A. 7, 1968), Sec 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 , Sees 102 67(f) and 102 69(c) 187 NLRB No. 97 GARDNER BAKING COMPANY 685 On the basis of the entire record, the Board makes the following: such exclusive representative within the meaning of Section 9(a) of the Act. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Wisconsin corporation, is engaged in manufacturing, wholesaling, and distrib- uting bakery goods in Madison, Wisconsin, where it maintains its principal plant and corporate offices. During the past calendar year, a representative period of time, the Respondent purchased and received goods and materials, in interstate commerce, from outside the State of Wisconsin, valued in excess of $50,000. 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 Bakery and Confectionery Workers' International Union of America, Local # 180, AFL-CIO, 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 production and maintenance employees at the Employer's Madison, Wisconsin, location, includ- ing thrift store employees, vehicle mechanics, ship- ping department employees, working foremen; but excluding salesmen, driver salesmen, semi-drivers, office clerical employees, professional employees, guards and supervisors, as defined in the Act. 2. The certification On June 3, 1970, a majority of the employees of Respondent in said unit, in a secret ballot election conducted, pursuant to a Stipulation for Certification Upon Consent Election, under the supervision of the Regional Director for Region 30 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 September 30, 1970, and the Union continues to be B. The Request To Bargain and Respondent's Refusal Commencing on or about October 4, 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 October 4, 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 Respondent has, since October 4, 1970, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, 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 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging 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 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 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 379 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U.S. 817; Burnett Construction Company, 149 NLRB 1419,142 1, 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. Gardner Baking Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Bakery and Confectionery Workers' Interna- tional Union of America, Local # 180, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Employer's Madison, Wisconsin, location, includ- ing thrift store employees, vehicle mechanics, ship- ping department employees, working foremen, but excluding salesmen, driver salesmen, semidrivers, office clerical employees, 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. Since September 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 October 4, 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 has 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, Gardner Baking Company, its officers, agents, succes- sors, 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 Bakery and Confectionery Workers' International Union of America, Local # 180, AFL-CIO, as the exclusive bargaining represent- ative of its employees in the following appropriate unit: All production and maintenance employees at the Employer's Madison, Wisconsin, location, includ- ing thrift store employees, vehicle mechanics, ship- ping department employees, working foremen, but excluding salesmen, driver salesmen, semidrivers, office clerical employees, professional 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. 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 Madison, Wisconsin, location copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 30, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 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 concerning rates of pay, wages, hours , and other terms and conditions of employment with Bakery and Confectionery Workers' International Union of America, Local # 180, AFL-CIO, as the GARDNER BAKING COMPANY 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 rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement . The bargaining unit is: All production and maintenance employ- ees at the Employer's Madison, Wisconsin, loca- tion, including thrift store employees, vehicle mechanics, shipping department employees, work- ing foremen, but excluding salesmen, driver salesmen , semidrivers, office clerical employees, 687 professional employees, guards and supervisors as defined in the Act. GARDNER BAKING COMPANY (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, Commerce Building, Second Floor, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Tele- phone 414-272-8600, Ext. 3861.