Producers Cooperative Association

PRODUCERS COOPERATIVE ASSN. Producers Cooperative Association and Laborers' In- ternational Union of North America, Local 319, AFL-CIO. Case 17-CA-3560 TRIAL EXAMINER'S DECISION THE REPRESENTATION PROCEEDING' September 27, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On July 17, 1968, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Deci- sion 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 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 Exam- iner with the following modification.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that Respondent, Producers Cooperative Asso- ciation, Girard, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 1 We agree with the Trial Examiner that Respondent's objections to the election in Case 17-RC-5501 and its offer of proof in the present 8(a)(5) proceeding do not raise material issues which would warrant a hearing However, in doing so, we rely solely upon the ratior • - of the Regional Director in overruling the Employer's objections in the underlying representation proceeding Thus, the Regional Director in that proceeding found it unnecessary to determ, ie whether the Union informed Respondent's employees that agreement on a wage increase for employees of Farmers Cooperative Association had been obtained, as Respondent contends, or whether, as the Union argues, Respondent's employees were merely told that Farmers Cooperative had agreed to submit the Union's wage proposal to that Association's governing body For the Regional Director concluded that, under either version, the Union's statement , considered with the substantial success it was then having in obtaining the wage increase, constituted puffing of a type insufficient to warrant setting aside the election As we agree with the Regional Director , and since Respondent 's offer of proof creates no material factual issue as to the validity of his reasoning , we adopt the Trial Examiner's finding that no hearing is warranted herein 1 CHARLES W. SCHNEIDER, Trial Examiner. Upon petition filed on August 22, 1967, by Laborers' International Union of North America, Local 319, AFL-CIO, herein called the Union, the Regional Director for Region 17 of the Board approved a Stipulation for Certification Upon Consent Elec- tion executed by the Producers Cooperative Association, Girard, Kansas, herein called the Respondent, and by the Union on September 19, 1967. The appropriate bargaining unit was stipulated to be the unit set out hereinafter. Pursuant to the stipulation, an election by secret ballot was conducted on October 23, 1967, under the direction and supervision of said Regional Director There were approxi- mately 24 eligible voters, 14 cast ballots for, and 10 cast ballots against the Union. There was 1 challenged ballot and no void ballots. The challenged ballot was not sufficient to affect the results of the election Thereafter, on October 25, 1967, the Respondent filed timely objections to conduct affecting the results of the election based upon the fact that the Union had made material misrepresentations of fact immediately preceding the election. On January 25, 1968, the Regional Director issued a Report on Objections and Recommendation in which he stated that after reasonable notice to all parties to present relevant evidence he had conducted an investigation of the Respondent's objections and found that no material misrepresentations of fact were involved The Regional Direc- tor consequently recommended that the Board find the Respondent's objections to be without merit and certify the Union as the exclusive collective-bargaining representative of all the employees in the unit herein involved. Thereafter, the Respondent filed timely exceptions with the Board to the Regional Director's Report on Objections and Recommendation and a supporting brief. In its exceptions the Respondent requested a hearing on its objections On April 10, 1968, the Board issued its Decision and Certification of Representative in which it adopted the Regional Director's findings and recommendations and certified the Union as the exclusive bargaining representative of the employees in the appropriate unit With respect to the Respondent's exceptions the Board said that they " . . . raise no material issues of fact or credibility which would warrant rejection of the Regional Director's findings and recommendations." The Board thus necessarily rejected the Respondent's request for a hearing on its objections to the election. THE UNFAIR LABOR PRACTICE PROCEEDING On May 6, 1968, the Union filed the unfair labor practice charge involved in the instant case alleging that the Respon- dent refused to bargain in good faith with the Union for the stated reason that the Respondent considers the certification to be invalid I Administrative or official notice is taken of the record in the representation proceeding , Case 17-RC-5501 , 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 , Golden Age Beverage Co, 167 NLRB No. 24, Intertype Co. v Penello, 269 F Supp 573 (D.C. Va , 1967), Follett Corp , et al, 164 NLRB No 47, enfd . 397 F.2d 91 (C.A. 7, 1968), 68 LRRM 2474, Section 9(d) of the NLRA. 173 NLRB No. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 29, 1968, the Acting Regional Director for Region 17 issued a complaint on the unfair labor practice charge The complaint alleged that the Respondent had violated Section 8(a)(1) and (5) of the Act by refusing the Union's request to bargain On June 12, 1968, the Respondent filed its answer to the complaint in which it admitted most material allegations of the complaint but denied others In its answer, the Respondent admitted the filing and service of the unfair labor practice charge, the jurisdictional allegations of the complaint, the fact of the election and certification, the appropriateness of the bargaining unit, that a request to bargain was made, and that the Respondent had refused to negotiate with the Union with regard to wages, hours, and working conditions, maintaining that the election and certification are invalid. Consequently the Respondent denied the commission of unfair labor practices On June 17, 1968, Counsel for the General Counsel filed a Motion for Summary Judgment, subsequently submitted to me for disposition, asserting that there are no litigable issues of fact requiring a hearing. On June 17, 1968, I issued an Order to Show Cause on the Motion of General Counsel for Summary Judgment in which the parties were directed to show cause in writing on or before July 1, 1968, as to whether or not the Motion for Summary Judgment should be granted. On July 1, 1968, Respondent filed a Response to the Order to Show Cause on Motion of General Counsel for Summary Judgment wherein the Respon- dent urged that a hearing on objections be directed. No other responses to the Order to Show Cause have been received RULING ON MOTION FOR SUMMARY JUDGMENT The Respondent contends that the election and certifica- tion are invalid for the reason that the Respondent's objections to the election were meritorious, that since the issues raised by the objections were material, precedents require that a hearing be held for their resolution The Respondent also contends that, in view of the precedents, the Trial Examiner is without jurisdiction to grant summary judgment in the absence of provision in the Board's rules for such a procedure, and further, that in a summary judgment proceeding the burden being on the moving party to demonstrate that there is no genuine issue of fact, the facts of record must be construed in a light most favorable to the Respondent Finally, the Respondent asserts that it is prepared to produce new and previously unavailable evidence Accordingly it urges that a hearing be directed on its objections forthwith. However, the questions of the validity of the election, the merit of Respondent's objections to it, and whether or not the Union should have been certified as the collective-bargaining representative, were decided by the Board in the representa- tion proceeding. 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 This policy may be applicable even though no formal hearing on objections has been provided by the Board in the representation proceeding Such a hearing is not a matter of right unless substantial and material issues are raised.3 The cases cited by the Respondent (Pittsburgh Plate Glass Co v. NL R B., 313 U S. 146, N.L.R.B. v Ideal Laundry and Dry Cleaning Co, 330 F.2d 712 (C A 10, 1964), United States Rubber Co. v N.L R.B., 373 F.2d 602 (C A 5, 1967), and N.L R B. v Lord Baltimore Press, Inc., 300 F.2d 671 (C A 4, 1962)) are distinguishable for the reason that they involved substantial and material issues. The Board has found that there are no such issues here and that the objections do not warrant hearing At this stage of the proceeding those findings are the law of the case, unless the Respondent presents newly discovered or previously unavailable evidence or special cir- cumstances requiring re-evaluation of the matter. The new evidence which the Respondent states it is prepared to offer consists of a copy of the collective-bargaining agreement assertedly entered into by the Union and Farmers Cooperative Association, which is said to show that the actual wage increase achieved by the Union was substantially less than that represented to the Respondent's employees. No copy of the agreement is submitted. The gist of the Respondent's objections to the election are that on the evening preceding the election and on the morning of the election, the employees were informed by Union representatives that the Union had recently obtained a $ 30 per hour wage increase for the employees of Farmers Coopera- tive Association of Baxter Springs and Columbia, Kansas, whereas in fact at that time no collective-bargaining agreement had been signed, this conduct constituting substantial misrep- resentation of material facts within the Union's special knowledge and without opportunity for effective reply by the Respondent In his Report on Objections the Regional Director found, in substance, that the employees were told by Union representa- tives that an agreement or understanding based on the Union's contract proposals to Farmers Cooperative Association calling for a $ 29 or $ 30 per hour increase had been reached with the Farmers Association negotiators for submission to the govern- mg body of the Association, either for consideration or with a recommendation for approval The Regional Director further found that at the Union meeting of the Respondent's employees the Union representatives specifically stated that they could not promise or guarantee Respondent's employees anything, but would do their best in representing the em- ployees. The Regional Director concluded that the evidence did not establish substantial or material misrepresentations The Respondent's present offer of evidence does not disclose what actual wage was achieved at Farmers Cooperative Association, but merely asserts that the subsequently executed 2 Howard Johnson Company, 164 NLRB No. 121, Metropolitan Life Insurance Company, 163 NLRB No 71, see Pittsburgh Plate Glass Co v NL R.B., 313 U.S. 146, 162 (1941), Rules and Regulations, National Labor Relations Board, Series 8, as revised January 1, 1965, Sec 102 67(f), 102 69(c) In the case of NL.R B. v Tennessee Packers, Inc, 379 F 2d 172, 179 (C.A 6, 1967) the court said . it is a well established principle of law that the Board is bound by its own prior determinations in representation proceedings, and is not required to grant a hearing on representational issues ancillary to an unfair labor practice charge , unless the party requesting such a hearing has some newly discovered evidence. See cases cited herein See also Baumntter Corporation et al v N.L R B., 386 F 2d 117 (C A. 1, 1967). 3 O K Van and Storage, Inc , 127 NLRB 1537, enfd 297 F 2d 74 (C.A 5, 1961). N.L.R.B. v. Air Control 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." PRODUCERS COOPERATIVE ASSN. contract "conclusively shows" that the increase was "substan- tially less than represented to the Respondent's employees." Since the facts of record do not disclose that the Union had represented that any wage increase had been achieved at Farmers Cooperative Association, the terms of the contract thereafter executed do not appear to be material to any issue presented by the objections to the election The Respondent's offer thus not constituting material evidence no hearing is required in that regard The Respondent's contention that the Trial Examiner is without jurisdiction to enter summary judgment, on the ground that there is no Board rule providing for such a procedure, has been rejected by the Board in previous decisions 4 Board orders based on summary judgments have been enforced by a number of United States Courts of Appeals.5 I am cited to no case in which a court has refused enforcement of a Board ordei on the ground that the Board lacks authority to use summary judgment procedures The General Counsel has demonstrated that there are no genuine unresolved issues requiring an evidential hearing. The motion for summary judgment is therefore granted, and I hereby make the following further findings and conclusions I JURISDICTION AND LABOR ORGANIZATION It is admitted in the answer and therefore found (1) that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and (2) that the Union is a labor organization within the meaning of the Act. II. THE APPROPRIATE BARGAINING UNIT It is alleged in the complaint and admitted in the answer, and therefore found, that all production and maintenance employees employed by the Respondent at its Girard, Kansas, facility excluding office clerical employees, service station employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act III THE UNION 'S REPRESENTATIVE STATUS On October 23, 1967, a majority of the employees of Respondent in the appropriate unit, by secret ballot election conducted under the supervision of the Regional Director of Region 17 of the Board, designated and selected the Union as their representative for the purpose of collective bargaining with the Respondent, and on April 10, 1968, the Board certified the Union as the exclusive bargaining representative of the employees in the appropriate unit 4 See, for example, Liquid Carbonic Corporan, n, 116 NLRB 795, Union Brothers, Inc, 162 NLRB No 140,Reno's Riverside Hotel, Inc., d/b/a Riverside Hotel, 163 NLRB No 37, Metropolitan Life Insurance Company, 163 NLRB No 71, Harry T Campbell Sons ' Corporation, 164 NLRB No 36, and cases there cited , Red-More Corp, d/b/a Disco Fair, 164 NLRB No 93, Ore-Ida Foods, 164 NLRB No 64, Clement-Blythe Companies, 168 NLRB No 24, State Farm Mutual Automobile Insurance Company, 169 NLRB No 122 5 See, for example, the following recent cases 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, IV. THE REQUEST TO BARGAIN AND THE REFUSAL 3 In further accord with allegations of the complaint admit- ted in the answer it is found that (1) on or about April 17, -1968, the Union requested the Respondent to commence negotiations and (2) on or about April 30, 1968, the Respondent refused, and continues to fail and refuse, to bargain collectively with the Union as the exclusive representa- tive of the employees in the appropriate unit. By thus refusing to bargain the Respondent has interfered with, restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (5) and 2(6) and (7) of the Act. Upon the basis of the foregoing findings and conclusions I recommend that the Board issue the following ORDER Producers Cooperative Association, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain collectively with Laborers' Inter- national Union of North America, Local 319, AFL-CIO, as the exclusive bargaining representative of the employees in the following appropriate bargaining unit All production and maintenance employees employed by the Respondent at its Girard, Kansas, facility excluding office clerical employees, service station employees, profes- sional employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restrain- ing or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2 Take the following affirmative action which is necessary to effectuate the policies of the Act (a) Bargain collectively with Laborers' International Union of North America, Local 319, AFL-CIO, as the exclusive representative of the employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Girard, Kansas, facility copies of the notice attached hereto as appendix.6 Copies of said notice, to be furnished by the Regional Director for Region 17, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof and maintained by it for at least 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. 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). 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 "Recommendations 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 " DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for Region 17, in writing, within 20 days from the date of receipt of this Decision of the steps the Respondent has taken to comply herewith.? 7 In the event that the Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 17 in writing within 10 days from the date of re- ceipt of this Order what steps the Respondent has taken to comply herewith." 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. WE WILL bargain collectively with the Union as the exclusive collective bargaining representative of the em- ployees in the appropriate unit and if an understanding is reached we will sign a contract with the Union. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Labor- ers' International Union of North America, Local 319, AFL-CIO as the exclusive collective-bargaining represen- tative of all our following employees All production and maintenance employees employed at our Girard, Kansas, facility excluding office clerical employees, service station employees, professional em- ployees, guards and supervisors as defined in the Act. PRODUCERS COOPERATIVE ASSOCIATION (Employer) Dated By (Representative) (Title) 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, 610 Federal Building, 110 South 4th Street, Minneapolis, Minnesota. (Tel. No. 334-2611).