Maine Sugar Industries, Inc.

65 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Maine Sugar Industries, Inc. and American Bakery and Confectionery Workers International Union, Local 264, AFL-CIO, Petitioner. Cases 1-CA-6359 and 1-RC-9697' February 19, 1969 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On August 7, 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 alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. On August 28, 1968, Employer-Respondent filed exceptions and a supporting brief to the Trial Examiner's Decision in the unfair labor practice proceeding herein. On September 16, 1968, Employer-Respondent filed a Request for Reconsideration in the representation proceeding in which it seeks to reopen the record to introduce new evidence. We therefore shall treat the Request for Reconsideration as a motion to reopen the record. 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 briefs, and the entire record in the complaint proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. In addition, we also deny the Respondent's Request for Reconsideration. 2 'These cases are consolidated for purposes of this Decision only 'By its Request for Reconsideration, Respondent seeks to reopen the underlying representation proceeding for the purpose of offering evidence to establish that seasonal employees should be included in the unit. Respondent argues that if it is able to prove the propriety of the inclusion of seasonals, the Board must then reverse the Trial Examiner's finding of a violation of Section 8(a)(5), since the unit found in the complaint case would be inappropriate for bargaining. Aside from the proper reasons assigned by the Trial Examiner for concluding that no further evidentiary hearing is warranted in this case, which analysis is equally applicable to the representation proceeding , it is also clear that Respondent's unit contention lacks merit . While seasonal employees may appropriately be included in a production unit, it may also be appropriate to exclude them . The evidence before the Board at the time of its review of the representation case indicated that the force of year-round employees constituted an appropriate bargaining unit, in all of the circumstances of the case Since the unit as found is appropriate, no substantial argument may be based upon the possibility that, in other circumstances , an appropriate unit might include seasonals. ORDER Pursuant to Section 10(c) of the . National Labor Relations Act, as amended , the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent , Maine Sugar Industries, Inc., Easton , Maine, its officers , agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that the Employer-Respondent' s Request for Reconsideration be, and it hereby is, denied. TRIAL-EXAMINER'S DECISION STATEMENT OF THE CASE The Representation Proceeding' Upon the petition filed on August 4, 1967, by American Bakery and Confectionery Workers, International Union, Local 264, AFL-CIO, herein called the Union, concerning employees of Maine Sugar Industries , Inc., Easton, Maine , herein called the Respondent, a hearing was held on August 24, 1967, before a Hearing Officer of the National Labor Relations Board. On January 16, 1968, the Board issued a Decision and Direction of Election among the employees of the Respondent in an appropriate unit hereinafter described.' Pursuant to the Decision and Direction of Election, an election by secret ballot was conducted under the direction and supervision of the Regional Director on February 21, 1968. Of approximately 102 eligible voters, 97 cast valid ballots; 65 of these were cast for the Union, 32 were cast against it. There were no void or challenged ballots. On February 28, 1968, the Respondent filed timely objections to the election alleging ( 1) that shortly before the election, at a time when the Respondent could not reply, the Union distributed to the employees certain false and misleading information or otherwise engaged in campaign trickery as to substantial and material issues germane to the election interfering with the laboratory atmosphere required of Board elections, and (2 ) that by these and other acts the Union interfered with the free choice of the employees eligible to vote in the election. On March 18, 1968, the Regional Director issued a Supplemental Decision and Certification of Representative in which he stated that he had conducted an investigation of the Respondent 's objections' and found no merit in 'Administrative or official notice is taken of the record in the representation proceeding, Case J-RC-9697, 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 revised January 1, 1965) In addition, the material attached - to the Respondent's Response to the Order to Show Cause on the General Counsel's Motion for Summary Judgment (consisting of copies of evidence submitted by the Respondent to the Regional Director in the course of investigation of the objections to the election, and referred to by the Respondent as exhibits A, B, and C) is admitted into evidence and made a part of the record in the instant proceeding. The Respondent's request to present oral argument is denied, inasmuch as, in my opinion, the record and the Respondent's Response to the Order to Show Cause adequately present the issues and the Respondent's position. 'Mane Sugar Industries, Inc, 169 NLRB No 31. 'The Respondent did not assert any additional matters under the general allegation numbered paragraph 2 of the Objections 174 NLRB No. 96 MAINE C5-tom., IN0USTRJ9 , INC. 653 them. Accordingly, the Regional Director ovtuled lha objections and certified the Union as the bargaining representative of the employees in the appropriate unit. On March 28, 1968, Respondent filed with the Board in Washington, D.C., a Request for Review of the Supplemental Decision and Certification of Representative, and a brief in support of said Request in which it contended that the election should be set aside and a new election conducted. The sole issue, raised by Respondent's Request for Review relates to a: letter mailed by the Union to the Respondent's employees prior to the election, constituting evidence in support of the Respondent's objections to the election referred to above. Respondent contended that when evaluated in the context of other union campaign material and upon the record considered as a whole, said letter constituted interference with the laboratory atmosphere required of Board elections, necessitating setting the election aside . On April 3, 1968, the Board issued an Order denying Respondent's Request for Review, in which the Board said that Respondent's Request raised no substantial issue warranting review. The Unfair Labor Practice Case On June 6, 1968, the Union filed a charge of violation of Section 8(a)(1) and (5) of the Act alleging that the Respondent had refused to bargain with the Union. On June 17, 1968, the General Counsel issued a complaint and notice of hearing in which he alleged that on or about April 18, 1968, the Union requested the Respondent to bargain collectively with the Union, and that on or about May 1, 1968, the Respondent refused to bargain collectively. On June 28, 1968, Respondent filed its answer to the complaint in which it admitted certain allegations of the complaint and denied others. The Respondent admitted the allegations respecting jurisdiction, its engagement in commerce, the Union as a labor organization, the Board's denial of the Respondent's Request for Review, the Union's request to bargain collectively, and the Respondent's refusal. Respondent further admitted the fact of the election and certification, but denied the validity of the election and certification, asserting that the unit is not appropriate for the purpose of collective bargaining in that it improperly excludes seasonal employees, and that the refusal to bargain is for the purpose of securing judicial review of the Regional Director's Supplemental Decision and Certification _ of Representative and of any continued adherence to the Board's unit finding Respondent consequentlydenies the appropriateness of the unit, the Union's representative status, and the commission of unfair labor practices affecting commerce. The Respondent's answer also asserts that previously unavailable or newly discovered evidence establishes the validity of its contention respecting seasonal employees. Under date of July 16, 1968, counsel for the General Counsel filed a Motion for Summary Judgment, stating in effect that there is no genuine issue of material fact and opposing, on the ground of untimeliness, Respondent's contention in its Answer that Respondent has new evidence supporting its opposition to the Board's unit determination. On July 17, 1968, 1 issued an Order to Show Cause directing all parties to show cause on or before July 29, 496$, at to,wbetler the` Motion for Summary Judgment should be granted. On July 26, 1968, Respondent filed a Response to the Order to Show Cause stating contentions more specifically referred to hereinafter. No other responses have been received. RULING of MOTION FQa SUMMARY JUDGMENT Tice Respondent's basac contention, as stated in its Answer and in its Response to the ,Order to Show Cause on Motion for Summary Judgment, is that the unit is unappropriate, the election and certification are invalid, and it is therefore under no obligation to bargain with the Union. The questions as to the appropriateness of the unit, the validity of the election, the merit of Respondent's objections to the ele do-n, and whether the Union should have been certified as., the collective-bargaining representative, were deckled by the Board in the representation proceeding. It is established Board policy in the absence of newly discovers 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.' 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 or material issues are raised by the objections.' The authorities cited by the Respondent do not refute this proposition. They merely hold ,that where there arr substantial and material issues a hearing is required. In its Answer to the complaint and in its Response to the Order to Show -Cause, the Respondent also asserts that previously unavailable or newly discovered evidence clearly establishes -that the seasonal employees have a reasonable expectation of future employment and that as such, and on the basis of their overall community of interest with the year-round employees, must be included in the appropriate bargaining unit. This evidence relates to the experience of the Respondent in fulfilling its employee requirements for the 1967 beet processing season, which commenced on October 27, 1967, and ran through the week ending December 16, 1967. Specifically, the Respondent states in its Response to the Order to Show Cause that 80 percent ar more of the seasonal employees employed during the 1967 beet processing season had been employed by the Respondent in the 1966 season and had been recalled for the 1967 asgn, and, further, that 90 percent of the peak ',work 'force in the 1967 season consisted of such recalled employees. This evidence was not, of employees. available at the time of the August 24, 1967 hearing on the Union's representation petition. If it is in fact newly discovered or previously unavailable as of this time, its nature is such as to require opportunity to produce it for consideration upon the unit issue. However, I am of the view, and find, that the evidence is not newly discovered or previously unavailable as of this time. It seems clear from the facts that it must have been available in substantial part prior to the Board's Decision and Direction of Election on '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 (1941 Board Rules, Sections 102.67(f) and 102.69(c). 'O,K. Van & Storage, Inc., 127 NLRB 1537, 297 F.2d 74 (C.A 5, .1961). See also N.L.R R.. v. 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." 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD January 19, 1968, and the whole of it available before March 18, 1968, the date of the Regional Director's Supplemental Decision and Certification of Representative. The Respondent's request for review of the Supplemental Decision and Certification contains no reference to the matter. The first intimation from the Respondent revealed by the record that such evidence existed is in the Respondent's answer dated June 28, 1968. Though the Respondent states in its Response to the Order to Show Cause that "a number" of the seasonal employees remained on the payroll for a period of time beyond the actual end of the processing season in the week ending December 16, 1968, and that it was not until "at least February" that an "accurate analysis" of the recall history could be determined (Response p. 6), the trend must have been evident before January 1968. Surely the Respondent maintained payroll records of day to day employment and kept them on a current basis. Moreover, the Respondent's brief to the Board after the representation hearing stated that the peak of employment in the 1967 beet processing season would be in mid-November. (Brief of Employer, p. 6). Since the Respondent asserts that 90 percent of the 1967 peak beet processing work force consisted of recalled employees, it must have known that fact before December 1967. Nor could the significance of the evidence have been overlooked. The Respondent contended throughout the representation proceeding that the temporary seasonal employees should be included in the appropriate unit on the ground that they had a substantial expectation of recall, and the Respondent in the representation hearing submitted the evidence available at that time supporting its contention - evidence which the Board deemed inadequate to establish the Respondent's point. The 1967 beet processing season was completed before the issuance of the Decision and Direction of Election. The Respondent could not have been unaware of the importance of any significant evidence of reemployment during the 1967 season. In these circumstances not only would due diligence have required, but self-interest would have impelled, the Respondent to submit that evidence to the Board without delay - unless the Respondent consciously chose to await a possible favorable determination by the Board on the existing record. If so, the Respondent cannot now claim prejudice because of its own tactical decision. In any event, whatever the reason, the Respondent did not use due diligence in presenting the experience of the 1967 season to the Board, the evidence is thus no longer newly discovered or previously unavailable, and its proffer at this time is untimely.' There thus being no newly discovered or previously unavailable evidence proffered, or special circumstances alleged, the findings and disposition made by the Board in the representation proceeding are final, constitute the law of the case, and are binding on the trial examiner. This is not to say that the Respondent is precluded from testing the validity of the Board's conclusions. That it may do in an enforcement or review action before the Circuit Court of Appeals in the event the Board issues an order in this complaint proceeding requiring the Respondent to bargain with the Union. The record made before the Board here and in the representation proceeding will be before the Court for evaluation. See Section 9(d) of the Act. The IN L.R.B. v Sagamore Shirt Co., 401 F .2d 925 (C.A.D.C. 1968); Red-Mor Corp , d/b/a Disco Fair, 164 NLRB No. 93; Westinghouse Electric Corp., 171 NLRB No. 164. Respondent may also request the Board to reconsider and review its determination in the representation case - either independently or in connection with any exceptions which may be filed to this Decision. There are thus no issues litigable before a Trial Examiner, and therefore no matter requiring an evidential hearing. Accordingly the General Counsel's Motion for Summary Judgment is granted, and I hereby make the following further: F INDINGS L THE BUSINESS OF THE RESPONDENT The Respondent, Maine Sugar Industries, Inc., is now and has been at all times material herein, a Maine corporation, with its principal office and place of business located at Easton, Maine, where it is engaged in the manufacture, sale and distribution of sugar and related products. Respondent annually ships directly from its principal place of business in Easton, Maine, to points outside the State of Maine products valued in excess of $50,000. 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 constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees at the Respondent's plant at Easton, Maine, including laboratory, shipping, and , receiving employees, but excluding powerhouse, seasonal, part time (students), and office clerical employees, farm laborers, guards and supervisors as defined in the Act. On February 21, 1968, a majority of Respondent's employees in the appropriate unit selected the Union as their collective-bargaining representative in a secret-ballot election conducted under the supervision of the Regional Director for Region 1 of the National Labor Relations Board, and on March 18, 1968, the Union was certified as such representative by the Regional Director. At all times since on or about February 21, 1968, continuously to the present, the Union, by virtue of Section 9(a) of the Act, has been and is now the exclusive representative of all the employees in the appropriate unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. On or-"about April 18, 1968, the Union requested Respondent to bargain collectively with respect to rates of pay, wages, hours of employment and other terms and conditions of employment of employees in the appropriate unit. On or about May 1, 1968, and at all times thereafter Respondent refused to bargain collectively with the Union concerning such employees, thereby engaging in unfair labor practices in violation of Section 8(a)(5) of the Act and interfering with, restraining and coercing 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. MAINE SUGAR INDUSTRIES, INC. 655 Upon the foregoing findings and conclusions and the entire record in the case, I recommend that the Board issue the following: ORDER A. For the purpose of determining the effective period 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 bargaining representative in the appropriate unit.' B. Maine Sugar Industries, Inc., Easton , Maine, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with American Bakery and Confectionery Workers International Union, Local 264, AFL-CIO, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All production and maintenance employees at the Respondent' s plant at Easton, Maine, including laboratory, shipping, and receiving employees, but excluding power-house, seasonal , part time (students), and office clerical employees, farm laborers, guards and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent the employees in said appropriate unit as the exclusive collective-bargaining representative. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request bargain collectively with American Bakery and Confectionery Workers International Union, Local 264, AFL-CIO, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of work , and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Post at its Easton , Maine, plant copies of the attached notice marked "Appendix."8 Copies of said notice, on forms to be furnished by the Regional Director for Region 1, after being duly signed by an authorized representative of the Respondent , shall be posted by the 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from receipt of this recommended Order, what steps if has taken to comply herewith.' 'In the event that this recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 1, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." 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 American Bakery and Confectionery Workers International Union, Local 264, AFL-CIO, as the exclusive collective-bargaining representative of all the following employees. All production and maintenance employees at our plant at Easton, Maine, including laboratory, shipping, and receiving employees, but excluding power-house, seasonal, part time (students), and office clerical employees, farm laborers, guards and supervisors as defined in the Act. WE WILL NOT interfere with the efforts of said Union to negotiate for or represent the employees in the appropriate bargaining unit as exclusive collective-bargaining representative. WE WILL bargain collectively with the Union as exclusive bargaining representative of the employees in the appropriate unit and if an understanding is reached we will sign a contract with the Union. '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, 328 F.2d 600 (C.A. 5, 1964), Burnett Construction Co, 149 NLRB 1419, 1421, 350 F. 2d 57 (C. A. 10, 1965). - 'In the event that this recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the 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" Dated By MAINE SUGAR INDUSTRIES, INC. (Employer) (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 directly with the Board's Regional Office, John F. Kennedy Federal Building, Cambridge & New Sudbury Streets, Boston, Massachusetts, Telephone 223-3300.