EI-Ge Potato Chip Co, Inc.

82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD EI-Ge Potato Chip Company , Inc. and Local 430, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America. Case 4-CA-4596 October 7, 1968 DECISION AND ORDER BY MEMBERS FANNING, JENKINS , AND ZAGORIA On July 17, 1968, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled proceeding, granting General Counsel's Motion for Summary Judgment, on the ground that there are no unresolved issues requiring an evidential hearing and finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended The Trial Examiner recommended that the Respondent cease and desist from such unfair labor practices and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's 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-mem- ber panel. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this 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 Rela- tions Board hereby adopts as its Order, the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, El-Ge Potato Chip Company, Inc., York, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION THE REPRESENTATION PROCEEDING' CHARLES W. SCHNEIDER, Trial Examiner. Upon peti- tion for certification as collective-bargaining representative filed on September 28, 1967 by Teamsters Local Union No. 430, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the 173 NLRB No. 19 Union, the Regional Director for Region 4 of the Board on October 25, 1967, approved a Stipulation for Certification Upon Consent Election executed by El-Ge Potato Chip Company, York, Pennsylvania, herein called the Respondent, and by the Union The appropriate bargaining unit was stipulated to be the unit found appropriate hereinafter. Pursuant to the stipulation, an election by secret ballot was conducted on November 17, 1967, under the supervision and direction of said Regional Director. Immediately following the election, the parties were served with copies of the tally of ballots which showed that of approximately 24 eligible voters, 24 cast ballots, of which 12 were for, and 11 were against the Union. There was 1 challenged ballot, sufficient to affect the results of the election On November 24, 1967, the Re- spondent filed timely objections to conduct affecting the results of the election alleging- (1) that the Respondent's employees were coerced and restrained in the exercise of their rights guaranteed under the Act, and were denied the opportunity to make a free, fair and reasoned choice in the election, and (2) that the Union had interfered with the election by certain described conduct The Regional Director for Region 4 conducted an investiga- tion of the challenge and objections On January 18, 1968, the Regional Director issued a Report and Recommendation on Objections and Challenge in which he found and recommended that the challenge to the ballot of Daniel Sharp be sustained and his ballot not be counted. The Directoi further found that the Respondent's objections raised no substantial or material issues with respect to the election, and recommended to the Board that the objections be dismissed Thereafter on Febru- ary 2, 1968, Respondent filed timely exceptions and a supporting brief with the Board relating to the Regional Director's ruling on the Objections to Conduct Affecting the Results of the Election No exception was filed to the Regional Director's recommendation concerning the challenged ballot. On March 7, 1968, the Board issued its Decision and Certification of Representative in which it found that Re- spondent's exceptions raised no material or substantial issues of fact or law warranting reversal of the Regional Director's findings and recommendations Accordingly, the Board adopted the Regional Director's findings, conclusions, and recommendations and certified the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit. THE COMPLAINT CASE On April 22, 1968, the Union filed the unfair labor practice charge involved in the instant case, in which it alleged that since on or about March 26, 1968, and continuously there- after, the Respondent has refused and is refusing to bargain with the Union. On April 30, 1968, the General Counsel, by the Regional Director of Region 4, issued a complaint and notice of hearing alleging that the Respondent had committed unfair labor I Administrative or official notice is taken of the record in the representation proceeding , Case 4-RC-7499, as the term "record" is defined in Sections 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 revised January 1, 1965 ). See LTV Electrosystems, Inc., 166 NLRB No 81 , enfd. 388 F.2d 683 (C.A. 4, 1968), Golden Age Beverage Co., 167 NLRB No. 24, Intertype Co v. Penello, 269 F Supp. 573 (D.C. Va., 1967), Follett Corp, 164 NLRB No. 47, enfd. 397 F 2d 91 (C.A. 7, 1968), Section 9 (d) of the NLRA. EL-GE POTATO CHIP CO. 83 practices in violation of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act by refusing to bargain with the Union upon request In due course the Respondent filed its answer to the complaint in which certain allegations of the complaint were admitted and others denied. In its answer the Respondent admits the following allega- tions of its complaint. (1) jurisdictional, (2) that the Union is a labor organization within the meaning of Section 2(5) of the Act, and (3) that the unit is appropriate. Respondent denies the allegations contained in paragraphs 5, 6, 7, 8, 9, 10, 11, and 12, of the complaint wherein it is alleged (1) a majority of the employees designated and selected the Union in the November 17, 1967, election as their bargaining representative, but admits that an election was held in the unit and that the Board issued a certification on March 7, 1968, (2) that the Union has been and is now the exclusive representative for purposes of collective bargaining of a majority of the em- ployees in the unit, (3) that commencing on or about March 26, 1968, and continuing to date, the Union requested, and is continuing to request Respondent to meet and bargain collectively, (4) that commencing on or about April 17, 1968, and continuing to date, Respondent refused and continues to refuse, to bargain collectively with the Union as the collective- bargaining representative of all the employees, notwithstanding that the Union was, and is, the duly designated exclusive collective-bargaining representative of the employees, and (5) that by the refusal to bargain, in connection with the other allegations described the Respondent did engage in, and is engaging in unfair labor practices affecting commerce within the meaning of the Act Under date of May 17, 1968, received May 20, Counsel for the General Counsel filed a Motion for Summary Judgment on the Pleadings and for Issuance of Trial Examiner's Decision and Recommended Order and a memorandum in support of said motion, in which he contends that the pleadings con- sidered together with the official Board record in the under- lying representation proceeding, Case 4-RC-7499, raise no issues requiring a hearing, that Respondent's defense set forth in its answer raises no litigable question of fact, and, as a matter of law, Respondent has no valid defense to the complaint. On May 20, 1968, I issued an Order directing the parties to show cause as to whether or not General Counsel's Motion should be granted. On June 4, 1968, Counsel for the Respondent filed a Statement in Opposition to the General Counsel's Motion for Summary Judgment. On June 7, 1968, Counsel for the Charging Party, filed a letter dated June 3, 1968, in which he stated that the Charging Party's position was that the motion should be granted. It appearing that the Motion papers provided no basis for resolution of an apparent factual issue as to whether the Respondent refused to bargain with the Union as alleged in paragraph 8 of the complaint, I issued an Order on June 17, 1968, denying the Motion for Summary Judgment, without prejudice to the submission of further material bearing on that issue. On June 24, 1968, Counsel for the Respondent filed a Statement in Support of the Trial Examiner's Order. On the same day counsel for the General Counsel submitted an affidavit, dated June 19, 1968, by William A. Widmer III, attorney for the Union, to establish the refusal to bargain. On June 25, 1968, 1 issued a further older affording the Respondent until July 2, 1968, to file a response to the affidavit On June 27, 1968, 1 received an answer from the Respondent dated June 26, 1968, to the affidavit of Attorney Widmer. No other response has been received As appears more fully infra, I find that the record now establishes that the Respondent refused to meet and bargain with the Union as representative of the employees in the appropriate unit. To the extent that it denied the motion for summary judgment, the order of June 17, 1968, is reconsidered and withdrawn. RULING ON MOTION FOR SUMMARY JUDGMENT ON THE PLEADINGS Respondent contends that General Counsel's Motion for Summary Judgment on the Pleadings should be denied for the reason that (1) Respondent is entitled by law to a hearing, and (2) there are unresolved issues of fact and credibility raised by Respondent's objections in Case 4-RC-7499 which were not resolved in the Regional Director's Report on Objections and which can only be resolved by a hearing. Respondent contends (citing N.L.R.B. v. KVP Sutherland Paper Company, 356 F 2d 671 (C.A. 6), N.L.R.B. v. Bata Shoe Co., 377 F. 2d 821 (C.A. 4); N.L.R B v. Lamar Electric Membership Corp., 362 F 2d 505 (C A 5), N.L.R.B. v. Lord Baltimore Press, Inc., 300 F. 2d 671 (C A 4), N.L.R B. v. Polnsett Lumber & Manufacturing Co., 221 F. 2d 121 (C.A. 4); and the Board's brief to the Supreme Court (p. 12) in the case of American Federation of Labor v N L R B , 308 U.S. 401) that Section 10(b) of the Labor Management Relations Act, as amended, Section 5 of the Administrative Procedure Act, and Section 101.10 of the Board's Statements of Procedure, entitle Respondent to a hearing as a matter of right. The Respondent further contends such right may not be abrogated by the Board by a summary judgment procedure for which there is no provision in the Board's Rules and Regulations, and which would in any event not be in compliance with the notice and hearing requirements of Section 4 of the Administrative Procedure Act I do not find these propositions supported. The Respondent asserts that the election and the request for bargaining by the Union were invalid and that it is therefore under no legal obligation to meet with and to bargain with the Union. The questions as to the validity of the election, and the merit of the Respondent's objections to conduct affecting the results of the election, were raised by the Respondent and were decided by the Regional Director and the Board in the representation proceeding Those issues have thus been adjudicated. It is established Board policy, in the absence of newly discovered or previously unavailable evidence or special 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.2 2 Howard Johnson Company, 164 NLRB No . 121, Metropolitan Life Insurance Company, 163 NLRB No . 71, see Pittsburgh Plate Glass Co. v. N. L.R.B., 313 U.S 146, 162 ( 1941 ), Rules and Regulations and Statements of Procedure, National Labor Relations Board, Series 8 as revised January 1, 1965, Sections 102.67 (f), and 102.69(c) 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 by the objections 3 The cases cited by the Respondent do not negate this proposition, they merely hold that where there are substantial and material issues a heanng is required. The excerpt cited by the Respondent from the Board's brief in the case of American Federation of Labor v. N.L.R.B., 308 U.S. 401, does not state the contrary. That passage is to be interpreted as asserting that an evidential hearing is required by Section 10(b) of the Act where there are material unresolved factual issues. Here the Board has determined that there are none. The Board's findings are not res judicata in the sense that they cannot be reconsidered by the Board upon applica- tion, or reviewed by the courts. They are, however, binding on the trial examiner at this stage of the proceeding, in the absence of newly discovered or previously unavailable evidence or special circumstances, none of which are asserted to be present here There being a refusal to bargain, as is hereinafter found, there is no issue litigable before a trial examiner, and therefore no matter requiring hearing. In such circumstances the Board and the Trial Examiner have authority to enter summary judgment. In the case of Hany T. Campbell Sons' Corporation, 164 NLRB No. 36, fn. 9, the Board said. The Respondent's contention that Section 5 of the Ad- ministrative Procedure Act, Section 10(b) of the Labor Management Relations Act, as amended, and the Board's own Rules and Regulations, all guarantee an absolute right to hearing is without merit. In circumstances such as these, where no litigable issues have been raised the Board may entertain and rule upon Motions for Summary Judgment or Judgment on the Pleadings Moreover, the Board has exercised these powers in numerous cases. See Collins & Aikman Corp, 160 NLRB 1750; Brush Moore Newspapers, Inc., 161 NLRB 1620, E-Z Davies Chevrolet, 161 NLRB 1380, Herbert Harvey, Inc., 162 NLRB 890; Carl Simpson Buick, Inc, 161 NLRB 1389; The Puritan Sportswear Corp., 162 NLRB 13, and Frito-Lay, Inc., 161 NLRB 950 4 The use of summary judgment procedure in such circum- stances has been enforced by a number of courts. See Baumritter Corp., 386 F.2d 117 (C A. 1, 1967), Puritan Sportswear Corp., 385 F.2d 142 (C.A. 3, 1967), LTV Electrosystems, Inc., 388 F 2d 683 (C.A 4, 1968), Aerovox Corp., 390 F.2d 653 (C.A. 4, 1968); Neuhoff Bros Packers, Inc., 362 F.2d 611 (C.A. 5, 1966), Tennessee Packers, Inc., 379 F.2d 172 (C A. 6, 1967), Follett Corp, 397 F.2d 91 (C.A. 7, 1968), Krieger-Ragsdale & Company, Inc, 379 F 2d 517 (C.A. 7, 1967), E-Z Davies Chevrolet, 395 F.2d 191 (C.A. 9, 1968). There being no unresolved issues requiring an evidential hearing the motion of the General Counsel for summary judgment on the pleadings is granted , and I hereby make the following further- 3 O.K Van and Storage, Inc., 127 NLRB 1537, enf'd 297 F.2d 74 (C.A. 5, 1961). And see Air Control Window Products, Inc., 335 F.2d 245, 249 (C.A. 5, 1964)• "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, 1967). FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT El-Ge Potato Chip Company, Inc , the Respondent, is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of Pennsylvania. It maintains its principal office and place of business at York, Pennsylvania where it is engaged in the manufacture, sale, and distribution of potato chips and allied food products. In the course and conduct of its business operations, Respondent during the past year, manufactured and sold products valued in excess of $50,000 of which products valued in excess of $50,000 were shipped directly to States of the United States other than the Commonwealth of Pennsylvania. 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 The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES The following employees of the Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act- All truck drivers, warehousemen, and mechanics, including the warehouse clerk, leader, receiving clerk and extra drivers, but excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act. On November 17, 1967, a majority of Respondent's employees in the said unit designated and selected the Union as their collective-bargaining representative in a secret-ballot election conducted under the supervision of the Regional Director of Region 4 of the National Labor Relations Board. On March 7, 1968, the National Labor Relations Board, after consideration of Respondent's objections to conduct affecting the results in the above-described election, certified the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit. At all times since March 7, 1968, and continuously to the present, the Union has been the representative for the purpose of collective bargaining of the employees in the said unit, and by virtue of Section 9(a) of the Act has been, and is now, the exclusive representative of all the employees in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 4 See also Union Bros., Inc., 162 NLRB 1505, and cases there cited, Metropolitan Life Insurance Co., 163 NLRB No. 71, Red-More Corporation d/b/a Disco Fair, 164 NLRB No . 93, Ore-Ida Foods, Inc., 164 NLRB No. 64; Continental Nut Co., 164 NLRB No . 72, LTV Electrosystems, Inc., 166 NLRB No. 81 (TXD). EL-GE POTATO CHIP CO. 85 The undisputed facts establish that following the certifica- tion the Union requested the Respondent to meet with it for the purposes of collective bargaining and that the Respondent failed and refused to do so. Thus, paragraph 7 of the complaint alleges that on March 26, 1968, the Union requested the Respondent to bargain in the appropriate unit. The answer in this connection denies only that a "valid request" was made, for the reason that no valid election was conducted. Attached to the motion for judgment as exhibit 6 is a copy of a letter dated March 26, 1968 from Union Attorney Widmer to the Respondent requesting that the Respondent meet and confer with the Union respecting the conditions of employment in the appropriate unit, and suggesting a specific time and place for such meeting. The affidavit of Attorney Widmer, referred to supra, establishes that this letter was sent to the Re- spondent. Respondent does not deny receipt, and makes no assertion that it replied. Attorney Widmer's uncontested affidavit further establishes that, on April 17, 1968, having received no reply to the March 26, letter or to a subsequent letter as to the Respondent's intentions (a copy of which is attached to the affidavit), he telephoned Attorney Wescott, then associated with the law firm representing the Respondent who informed Widmer that the Respondent was going to refuse to bargain with the Union in order to test the Union's certification. On these facts it is found, in accordance with the allegations of the complaint, that commencing on April 17, 1968, the Respondent has refused and continues to refuse to bargain collectively with the Union as the representative of the employees in the appropriate unit. By thus refusing to bargain collectively the Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) of the Act and has interfered with, restrained and coerced its employees in violation of Section 8(a)(1) of the Act. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings and conclusions and the entire record in the case, I recommend that the Board issue the following (a) Upon request bargain collectively with Local 430, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the exclusive repre- sentative of 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 office and place of business in York, Pennsylvania, copies of the notice attached hereto marked "Appendix." Copies of said notice, on forms to be furnished by the Regional Director for Region 4, 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 it 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 4, in writing, withm 20 days from receipt of this Recommended Order, what steps the Respondent has taken to comply herewith 7 5 The purpose of this provision is to ensure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law. See Mar-Jac Poultry Co, Inc., 136 NLRB 785, Commerce Co d/b /a Lamar Hotel, 140 NLRB 226, 229, enfd 328 F.2d 600 (CA. 5), cert. denied 379 U S. 817 (1964), Burnett Construction Co., 149 NLRB 1419 , 1421, enfd. 350 F.2d 57 (C.A. 10, 1965). 6 In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order " shall be substituted for the words "Recommended Order of a Trial Examiner" in the notice. In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 7 In the event these recommendations are adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 4, in writing, within 10 days from receipt of this Order what steps the Respondent has taken to comply herewith." 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 umt.5 B. El-Ge Potato Chip Company, Inc., its officers, agents, successors, and assigns, shall 1 Cease and desist from: (a) Refusing to bargain collectively with Local 430, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive collective-bar- gaining representative of the employees in the following appropriate bargaining unit- All truck drivers, warehousemen, and mechanics, including the warehouse clerk, leader, receiving clerk and extra drivers, but excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent employees as an exclusive collective-bargaining representative, or in any like or related manner interfering with employee efforts at self-organization. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that- WE WILL NOT refuse to bargain collectively with Local 430 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive collective bargaining representative of all our following employees. All truck drivers, warehousemen, and mechanics in- cluding the warehouse clerk, leader, receiving clerk and extra drivers, but excluding all other employees, office clerical employees, guards and supervisors as defined in the Act. WE WILL NOT interfere with the efforts of the Union to negotiate for or represent employees as an exclusive collective bargaining representative, or in any like or related manner interfere with employee efforts at self-organization or bargaining. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL bargain collectively with the Union as exclusive collective bargaining representative of the employees in the appropriate unit and if an understanding is reached we will sign a contract with the Union. EL- GE POTATO CHIP COMPANY, INC (Employer) 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 If employees have any question concerning this notice or compliance with its provisions, they may communicate direct- ly with the Board's Regional Office, 1700 Bankers Securities Building, Walnut & Juniper Streets, Philadelphia, Pennsylvania, Telephone 597--7601. Dated By (Representative) (Title)