Stouffer Foods Corp.

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Management Food Systems Division of Stouffer Foods Corporation and Local 138, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America . Case 2- CA-12112 February 12, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS Upon a charge filed on July 13, 1970, by Local 138, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Management Food Systems Division of Stouffer Foods Corpora- tion, herein called the Respondent, the General Coun- sel of the National Labor Relations Board, by the Regional Director for Region 2, issued a complaint on July 31, 1970, against Respondent, alleging that Re- spondent 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 com- plaint alleges in substance that on May 7, 1970,' fol- lowing a Board election in Case 2-RC-15301, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;2 and that, commencing on or about June 11, 1970, and at all times thereafter, Respondent has refused, and continues to date to re- fuse, to bargain collectively with the Union as the ex- clusive bargaining representative, although the Union has requested and is requesting it to do so. On August 17, 1970, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. The Respondent contends that Re- gional Director's Decision and Direction of Election, and his Supplemental Decision on Objections to the Election and Certification of Representative were ar- bitrary, capricious, unreasonable, and contrary to law and that they, therefore, cannot serve as the basis for ' The date of May 7, 1970, admitted to by the Respondent conforms to the date of the Regional Director's Supplemental Decision of which we take official notice 2 Official notice is taken of the record in the representation proceeding, Case 2-RC-15301, as the term "record" is defined in Secs. 102 68 and 102 69(f) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968), Golden Age Beverage Co, 167 NLRB 151; Intertype Co v Penello, 269 F Supp 573 (D.C Va., 1967), Follett Corp, 164 NLRB 378, enfd 397 F 2d 91 (C.A. 7, 1978); Sec 9(d) of the NLRA a finding that the Respondent violated the Act. The Respondent further alleges that the Board failed and refused to review the record in Case 2-RC-15301 and that the Regional Director and the Board failed and refused to grant the Respondent an evidentiary hear- ing on its objections. On September 4, 1970, counsel for the General Counsel filed a Motion for Summary Judgment with the Board supported by a brief, in which he contends that the Respondent's answer to the complaint raises no factual issues warranting a hearing and prays the Board to grant the Motion for Summary Judgment. Subsequently, on September 22, 1970, the Board is- sued 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 response to Notice to Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 In its response to the Notice to Show Cause, as in its answer to the complaint, the Respondent contends that it is not obligated to bargain with the Union because the certification issued to the Union on May 7, 1970, is invalid. More particularly, the Respondent argues that the unit in which the election was conduct- ed is inappropriate, that the Regional Director and the Board erred by including two alleged supervisors in the unit, and that the Regional Director and the Board additionally erred by overruling the Respondent's objections to the election conducted on February 26, 1970. Alternatively, the Respondent ar- gues that it is entitled to an evidentiary hearing on all the issues previously raised in the underlying repre- sentation case. Upon the entire record before us, in- cluding the record in Case 2-RC-15301, we find no merit in the Respondent's contentions.' On January 28, 1970, following a hearing before a duly designated hearing officer, the Regional Director issued his Decision and Direction of Election in which, contrary to the assertions of the Respondent, he found that all vending servicemen and vending mechanics employed by the Respondent in its New York, New York, operations constituted a unit appro- Additionally, the Respondent argues that , pursuant to the Board's Rules and Regulations, the Regional Director erred in transferring this case on the Motion for Summary Judgment directly to the Board for decision. We find that the Respondent's argument is frivolous and lacking in merit See Sec 102 50, National Labor Relations Board Rules and Regulations , Series 8, as amended 188 NLRB No. 79 MANAGEMENT FOOD SYSTEMS DIVISION priate for the purposes of collective bargaining. In his decision the Regional Director also found that em- ployees George Roehrig and George Seldon were not supervisors as contended by the Respondent, and he included the two employees in the unit. Thereafter, the Respondent filed with the Board a Request for Review, with supporting argument advancing the same contentions as it now proffers in its answer to the complaint and its response to the Notice to Show Cause. On February 25, 1970, the Board denied the Respondent's Request for Review. Following the election conducted on February 26, 1970, the Respondent filed timely objections to con- duct affecting the results of the election. After an investigation, in which the Respondent was afforded opportunity to present evidence in support of its ob- jections, the Regional Director issued a Supplemental Decision and Report on Objections in which he found that the Respondent's objections raised no substantial or material issues affecting the election, overruled the objections in their entirety, and, accordingly, certified the Union. Again, the Respondent filed with the Board a Request for Review, with a supporting argu- ment relying on the same contentions as it now asserts in this unfair labor practice proceeding. On June 2, 1970, the Board denied the Request for Review. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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.4 All issues raised by the Respondent in this proceed- ing were or could have been raised and litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly dis- covered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the deci- sion made in the representation proceeding. We there- fore 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. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Employer, an Ohio corporation, operates food service facilities for hospitals, schools, and corpora- 4 See Pittsburgh Plate Glass Co v N L.R B, 313 U 5.146,162 ( 1941). Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c) 531 tion such as General Motors Corporation, J. C. Pen- ney Company, and other similar companies. During the past year, in the course of its normal business operations in New York City, New York, the Employ- er received gross revenues in excess of $500,000 and it purchased and received goods valued in excess of $50,000 directly from firms located outside the State. We find, on the basis of the foregoing, that Respon- dent 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 effectu- ate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATION INVOLVED Local 138, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, 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 pur- poses within the meaning of Section 9(b) of the Act: All vending servicemen and vending repairman employed by the Employer in its New York, New York, operations, excluding vending cashiers, all other employees, guards, watchmen and supervi- sors as defined in the Act. 2. The certification On February 26, 1970, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 2, 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 May 7, 1970, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about June 11, 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 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about June 11, 1970, and continuing at all times there- after to date, the Respondent has refused, and contin- ues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargain- ing of all employees in said unit. Accordingly, we find that the Respondent has, since June 11, 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 en- gaged 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 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 com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce 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 appro- priate unit and, if an understanding is reached, em- body such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their select- ed bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bar- gain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRE 785; Com- merce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, 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. Management Food Systems Division of Stouffer Foods Corporation is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local 138, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All vending servicemen and vending repairmen employed by the Employer in its New York, New York, operations, excluding vending cashiers, all oth- er employees, guards, watchmen 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 May 7, 1970, the above-named labor or- ganization has been and now is the certified and ex- clusive 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 June 11, 1970, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respon- dent 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 meaning 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 Rela- tions Board hereby orders that Respondent, Manage- ment Food Systems Division of Stouffer Foods Corporation, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and condi- tions of employment, with Local 138, International Brotherhood of Teamsters, Chauffeurs, Warehouse- MANAGEMENT FOOD SYSTEMS DIVISION 533 men and Helpers of America, as the exclusive bar- gaining representative of its employees in the following appropriate unit: All vending servicemen and vending repairmen employed by the Employer in its New York, New York, operations, excluding vending cashiers, all other employees, guards, watchmen and supervi- sors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guar- anteed 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 New York, New York, operations copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Re- gional Director for Region 2, 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 2, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. WE WILL NOT refuse to bargain collectively con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Local 138, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the bargaining unit described be- low. WE WILL NOT in any like or related manner in- terfere 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 understanding in a signed agreement. The bargaining unit is: All vending servicemen and vending repair- men employed by the Employer in its New York, New York, operations, excluding vending cashiers, all other employees, guards, watchmen and supervisors as de- fined in the Act. MANAGEMENT FOOD SYSTEMS Di- VISION OF STOUFFER FOODS COR- PORATION (Employer) Dated By (Representative) (Title) 5 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 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 compli- ance with its provisions may be directed to the Board's Office, 36th Floor, Federal Building, 26 Fed- eral Plaza, New York, New York 10007, Telephone 212-264-0300. 6