Farmers Union Co-Operative Business Association

336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Farmers Union Co-operative Business Association and American Federation of Grain Millers, AFL-CIO. Cases 17-CA-3836-1 and I7-CA-3836-2 September 5, 1969 DECISION AND ORDER BY CHAIRMAN 1MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On July 9. 1969, Trial Examiner Charles NV. 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 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-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 Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order, the Recommended Order of the Trial Examiner and hereby orders that Respondent. Farmers Union Co-operative Business Association, Holton, Kansas, its officers, agents. successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The Representation Proceedings' CHARLES W. SCHNETDERTrial Examiner: Upon petitions filed under Section 9(c) of the National Labor Relations Act (29 U.S.C.A. 159(c)) on October 1, 1968, in Case 17-RC-585I and on October 25, 1968, in Case 17-RC-5874, by the American Federation of Grain 'Administrative or official notice is taken of the record in the representation proceedings, Cases 17-RC-5851 and 17-RC-5874, as the term "record," is defined in Sec 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 amended ) See LTV Electrosystems, Inc , 166 NLRB No. 81, cnfd 388 F 2d 683 (C A 4), Golden Age Beverage Co, 178 NLRB No. 56 Millers, AFL-CIO, herein called the Union, a hearing was held on the question of representation presented in the two cases, pursuant to a notice of representation hearing and order consolidating cases, on November 1, 1968, before a Hearing Officer of the National Labor Relations Board Thereafter on November 26, 1968. the Regional Director for Region 17 pursuant to Section 102.72(a)(4) and (c) of the Board's Rules, severed Case 17-RC-5851 from Case 17-RC-5874 and issued, on the same day. (1) a Decision and Direction of Election in Case 17-RC-5851 in an appropriate unit of Respondent's employees described hereinafter and (2) a Decision and Direction of Election in Case l7-RC-5874 in an appropriate unit of Respondent's employees described hereinafter On December 9, 1968, Respondent filed with the Board in Washington, D C , a petition for review of the Regional Director's Decision and Direction of Election in Case 17-RC-5851. On December 23, 1968, the Board denied Respondent's petition for review No request for review of the Decision and Direction of Election was filed in Case 17-RC-5874. Pursuant to the respective directions of election, elections by secret ballot were conducted on December 31, 1968, among the employees in the appropriate units to determine the question concerning representation Upon conclusion of the balloting, tallies of the ballots in both elections were prepared In Case 17-RC-5851, of a total of approximately 17 eligible voters, 13 cast ballots for the Union, 3 cast ballots against the Union, no ballots were challenged and no ballots were void. In Case 17-RC-5874, of a total of approximately 4 eligible voters. 2 cast ballots for the Union, one ballot was cast against the Union. one ballot was challenged, and no ballots were void. The challenged ballot in Case 17-RC-5874 was sufficient to affect the results of the election. No objections to conduct affecting the results of election were filed in Case 17-RC-5851, and, accordingly. on January 15. 1969, the Regional Director issued and duly served on the Respondent and the Union a Certification of Representative, certifying the Union as the representative for the purposes of collective bargaining for the employees in the appropriate unit. No objections to conduct affecting the results of the election were filed in Case 17-RC-5874. The challenged ballot was then investigated pursuant to Section 102.69 of the Board's Rules and on February 13, 1969, the challenge to said ballot was sustained. and the Regional Director issued a Supplemental Decision and Certification of Representative, in Case 17-RC-5874 certifying the Union as the representative for the purposes of collective bargaining for Respondent's employees in the appropriate unit. On February 26, 1969, Respondent filed a request for review of the Regional Director's Supplemental Decision and Certification of Representative in Case 17-RC-5874 The Regional Director for Region 17 declined to consider the Respondent's request for review as a motion for reconsideration, and on March 7, 1969, the Board denied the Respondent's request for review. The Complaint Case On March 18, 1969, the Union filed a charge in Case 17-CA-3836-1 alleging that since on or about February 5, 167 NLRB No. 24, Intertype Co. v Penello , 269 F. Supp. 573 (D.C Va), Intertype Co v. N L.R.B, 401 F 2d 41 (C A 4), Follett Corp, et al. 164 NLRB No. 47, enfd 397 F.2d 91 (C.A 7), See 9 (d) of the National Labor Relations Act FARMERS UNION CO-OPERATIVE 337 1969, the Respondent had refused to bargain with the Union as the duly designated representative of a majority of the employees in the unit found appropriate in Case 17-RC-5851. and thus had violated Section 8(a)(1) and (5) of the Act. Also on March 18, 1969. the Union filed another charge. in Case 17-CA-3836-2, alleging that since on or about February 26, 1969. the Respondent had refused to bargain with the Union as the duly designated representative of a majority of the employees in the unit found appropriate in Case 17-RC-5874 in contravention of the Regional Director's Decision in Case 17-RC-5874 and thus had violated Section 8(a)(1) and (5) of the Act. On April 11. 1969, the General Counsel, by the Regional Director for Region 17, issued an Order Consolidating Cases, Consolidated Complaint and Notice of Hearing in these cases alleging that the Respondent had committed unfair labor 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 the two units. In due course. on April 24. 1969, the Respondent filed its Answer to the Complaint in which it admitted certain allegations of the complaint and denied others In its answer, the Respondent admitted the following allegations of the complaint. (1) filings and service of the charges, (2) certain jurisdictional facts, (3) that the Union is a labor organization within the meaning of Section 2(5) of the Act, (4) the facts of the representation proceedings cited above including the appropriateness of each unit, (5) the Union's requests to bargain collectively and the Respondent's refusal. Respondent further admitted that it has continued to refuse to recognize and bargain with the Union and admitted that its sole objective in so doing is to test the validity of the Regional Director's respective certifications of representative in Cases 17-RC-5851 and 17-RC-5874, by means of Board review and court decision. Respondent admitted the fact of the election and certification, but denied the validity of the election and certification, asserting with regard to the unit in Case 17-RC-5851 that the employer's operation is seasonal and that the election was conducted at a time when the work complement was approximately only 50 percent of the peak season complement, and further asserting with regard to the election in Case l7-RC-5874, that the challenge to the ballot which affected the results of the election, was improperly sustained. Respondent, in sum, denied that it is engaging in any unfair labor practices affecting commerce Under date of May 2, 1969, received May 5, 1969, counsel for General Counsel filed a motion for summary judgment, in which he contends that the pleadings. considered together with the official Board record in the underlying representation proceedings in Cases 17-RC-5851 and 17-RC-5874, raise no factual issues requiring a hearing, that Respondent's Answer alleges no newly discovered evidence or evidence not available at the time of the representation proceedings, and that, as a matter of law, Respondent has no valid defense to the complaint. On May 6, 1969, 1 issued an order on the General Counsel's motion for summary judgment, returnable May 23, 1969, directing the parties to show cause as to whether or not General Counsel's motion should be granted. The order stated inter alia that "if no response disclosing material unresolved issues litigable before and requiring hearing by a Trial Examiner is filed by May 23, 1969, the motion for summary judgment may be granted forthwith." No responses were received to the Order. Ruling on Motion for Summary Judgment in its Answer, Respondent contends that its refusals to bargain collectively are fully justified because the Union has been illegally certified as the bargaining representative for the units involved herein Respondent asserts that the election in the unit involved in Case 17-RC-5851 was conducted at a time of the year when the work complement was approximately 50 percent of the peak season's complement, and that the employer's operation in said unit is seasonal in nature Further, Respondent asserts that the challenge to the ballot, affecting the results of the election in the unit involved in Case 17-RC-5874, was improperly sustained. With regard to Case 17-RC-5851, the question of the size of the appropriate unit was ruled on by the Regional Director in his Decision and Direction of Election, dated November 26, 1968, at page three thereof, and at that time Respondent's contention that since its operation is seasonal in nature no election should be held until the spring of 1969 when it was to add additional employees, in keeping with its practice. was rejected With regard to Case 17-RC-5874, the issue of the challenged ballot was decided by the Regional Director in the Supplemental Decision and Certification of Representative, dated February 13, 1969. Respondent's request for review in Case 17-RC-5874 was denied by the Board on March 7. 1969. Respondent's contentions were thus fully litigated and decided in the prior representation proceedings and Respondent has offered no new or previously unavailable evidence to support its present assertions. 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.' 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;' and that there are not such issues here has been effectively decided by the Board In the representation proceedings. the Respondent presented, or had opportunity to present, all its present contentions concerning the validity of the election and the certification. The Respondent is thus seeking to relitigate the Board's determinations in the representation proceedings. There being no unresolved matters requiring an evidential hearing, the motion of the General Counsel for summary judgment is granted, and I hereby make the following further: Findings and Conclusions L 1HE BUSINESS 01 THE RESPONDENT Farmers Union Co-operative Business Association is, and has been at all times material herein, a Kansas 'Howard Johnson Company. 164 NLRB No 121, Metropolitan Life Insurance Company. 163 NLRB No 71, Krieger-Ragsdale & Co, Inc. 159 NLRB 490, enfd 379 F 2d 517 (C.A. 7), cert denied 389 U S. 1041. N L R B v Afacomb Pottery, 376 F 2d 450 (C A 7) See Pittsburgh Plate Glass Co v. N L R B , 313 U S 146, 162, NLRB Rules and Regulations, Sec. 102 67(f) and 102.69(c) 10 K Van and Storage, Inc, 127 NLRB 1537, enfd 297 F.2d 74 (C A. 5). See N L R B. v. Air Control Window Products , Inc, 335 F.2d 245, 249 (C A 5). "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). 338 DECISIONS OF N NTiONAL LABOR RELATIONS BOARD corporation with its principal place of business at Holton. Kansas. It operates grain elevators at Holton, Valley Falls, and Mavetta, and a feed mill at Denison. also in Kansas. It also operates petroleum service stations at Holton and Denison, a lertilizer department and store at Holton, and a petroleum bulk plant at Denison. in the course and conduct of its business, the Respondent annually sells and distributes products, the gross value of which exceeds $500,000. The Respondent annually receives goods valued in excess of $50,000 transported to its place of business in interstate commerce directly from states of the United States other than the State of Kansas Respondent is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE I ABOR ORGANIZATION INVOLVED The Union is. and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. iii. TiIE UNFAIR LABOR PRAC1ICES With regard to Case 17-RC-5851, 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 production and maintenance employees of Farmers Union Co-operative Business Association at its Holton, Denison, Mayetta, and Valley Falls, Kansas locations, including service station employees, tankmen, truck drivers, mechanics, regular part-time employees, and regular seasonal employees, but EXCLUDING office clerical employees, temporary employees, and professional employees, guards, and supervisors within the meaning of the Net. With regard to Case 17-RC-5874, 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 full-time and regular part-time office clerical employees of Farmer-, Union Co-operative Business Association, EXCLUDING all other employees and professional employees, guards. and supervisors within the meaning of the Act. On December 31. 1968, a majority of Respondent's employees in each unit designated and selected the Union as their collective-bargaining representative in secret-ballot elections conducted under the supervision of the Regional Director of Region 17 of the National Labor Relations Board On January 15, 1969, the Regional Director certified the Union as the collective-bargaining representative for the unit of employees designated in Case 17-RC-5851 and on February 13. 1969, the Regional Director certified the Union as the collective-bargaining representative for the unit of employees designated in Case 17-RC-5874. From January 15, 1969 in Case 17-RC-5851 and from February 13. 1969 in Case 17-RC-5874, and at all times since, the Union has been the collective-bargaining representative of a majority of the employees in the above-mentioned units and by virtue of Section 9(a) of the Act, has been, and is now, the exclusive representative of all the employees in said units for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. On or about January 22. 1969, the Union requested the Respondent to bargain collectively with respect to rates of pay, wages, hours of employment and other terms and conditions of employment of the employees in the unit found appropriate in 17-RC-585I On or about February 5, 1969, and at all times since, Respondent has refused to bargain collectively with the Union On or about February 26, 1969, 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 the employees in the unit found appropriate in Case 17-RC-5874 On or about February 27. 1969, and at all times since the Respondent refused to bargain collectively with the Union By these refusals to bargain with the Union. the duly designated representative of the employees in each unit. Respondent engaged in, and is engaging in. unfair labor practices in violation of' Section 8(a)(5) of the Act and is 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. 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(s) the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate units B. Farmers Union Co-operative Business Association, Dolton, Kansas, its officers, agents, successors. and assigns. shall: 1. Cease and desist from- (a) Refusing to bargain collectively with American Federation of Grain Millers, AFL-CIO, as the exclusive collective-bargaining representative of the employees in the following appropriate units. All production and maintenance employees of Farmers Union Co-operative Business Association at its Holton, Denison, Mayetta, and Valley Falls, Kansas locations, including service station employees, tankmen, truck drivers, mechanics, regular part-time employees. and regular seasonal employees, but LXCLUDING office clerical employees. temporary employees. and professional employees, guards, and supervisors within the meaning of the Act All full-time and regular part-time office clerical employees of Farmers Union Co-operative Business Association, EXCLUDING all other employees and professional employees, guards and supervisors within the meaning of the Act. (b) Interfering with the efforts of said Union to negotiate for or represent the employees in the said 'The purpose of this provision is to ensure that the employees in the appropriate units 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 382 F 2d 600 (C A 5 ), Burnett Consirucuon Co. 149 NLRB 1419, 1421, enfd 350 P 2d 57 (C.A 10), ccrt denied 379 C S 817 FARMERS UNION CO-OPERATIVE appropriate units 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 Federation of Grain Millers, AFL-CIO, as the exclusive representative of the employees in the appropriate units 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 all its locations in Holton, Denison, Mayetta, and Valley Falls, Kansas, copies of the attached notice marked "Appendix."' Copies of said notice, on forms to be furnished by the Regional Director for Region 17, alter being duly signed by an authorized representative of the Respondent. shall he 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 17, in writing, within 20 days from receipt of this Recommended Order, what steps it has taken to comply herewith.' '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 Exmamer" 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 " 'in the esent that this 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 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 339 WE WILL NOT refuse to bargain collectively with the American Federation of Grain Millers, AFL-CIO, as the exclusive collective-bargaining representative of all our following employees: All production and maintenance employees at our Holton. Denison, Mayetta, and Valley Palls, Kansas locations, including service station employees, tankinen, truck drivers, mechanics, regular part-time employees, and regular seasonal employees, but EXCLUDING office clerical employees, temporary employees, and professional employees, guards, and supervisors within the meaning of the Act. All full-time and regular part-time office clerical employees EXCLUDING all other employees, and professional employees, guards, and supervisors within the meaning of the Act. WF WIT I NOT interfere with the efforts of the Union to negotiate for or represent employees as exclusive collective-bargaining representative. WE WILL bargain collectively with the Union as exclusive collective-bargaining representative of the employees in the appropriate units and if an understanding is reached we will sign a contract with the Union. Dated By FARMERS UNION CO-OPERATIVE BUSINESS AssociATiON (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. Any questions concerning this notice may be directed to the Board's Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City. Missouri 64106, Telephone 374-5181