Milgram Food Stores, Inc.

454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meyer Dairy, Inc., a subsidiary of Milgram Food Stores, Inc. and Meyer Dairy Distributors Association . Case 17-CA-3946 September 17, 1969 DECISION AND ORDER BY CHAIRMAN MCCUL. LOCH AND MEMBERS BROWN AND ZAGORIA Upon a charge filed by Meyer Dairy Distributors Association, herein called the' he Union, the General Counsel of the National Labor Relations Board by the Regional Director for Region 17, issued a complaint. dated June 25. 1969,' against Meyer Dairy. Inc., a subsidiary of Milgram Food Stores, inc., herein called the Respondent. alleging that the Respondent had engaged in and was engaging in unfair labor practices 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 upon the Respondent. With respect to the unfair labor practices, the complaint alleges. in substance, that on or about April 4, the Union was duly certified by the Acting Regional Director for Region 17 as the exclusive bargaining representative of the Respondent's employees in the unit found appropriate' and that since on or about June 10. the Respondent has refused and is refusing to recognize or bargain with the Union as such exclusive bargaining representative, although the Union had requested and is requesting it to do so. On July 7, the Respondent filed its answer, admitting in part, and denying in part, the allegations of the complaint and asserting that the unit found by the Regional Director to he appropriate was inappropriate because the retail distributors were not and are not employees of Respondent within the meaning of the Act and because no petition was ever filed requesting that the retail employee route drivers be part o1' any unit. On J ulv 11. the General Counsel filed with the Board a motion for summary judgment and motion to transfer proceeding to the Board, contending that the pleadings, considered together with the official Board record in the underlying representation proceeding, Case 17-RC-5887, raised no issues requiring a hearing, that Respondent's defense set forth in its answer raised no litigable questions of fact. and that as a matter of law, the Respondent has no valid defense to the complaint. Thereafter, on .July 15, the Board issued an order transferring proceeding to the Board and notice to show cause. On July 28. the Respondent filed a Response to 'Unless otherwise stated, all dates herein are in 1969 'Decision and Certification of Representative in Case 17-RC-5887 (not published in NLRB volumes) notice to show cause, contending that, the Regional Director had improperly found that the appropriate unit was all retail distributors and retail employee route drivers on a petition which sought a unit of only retail distributors excluding all other employees, and that under these circumstances, neither the employee route drivers nor the Employer had an opportunity to present evidence as to whether there was a sufficient similarity of interest to warrant their inclusion in the appropriate unit. In addition, Respondent denies that the retail distributors are employees of Respondent within the meaning of the Act. It maintains, therefore, that substantial and material issues of fact are raised on which the Board should order a hearing. 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. RULINGS ON THE MOTION FOR SUMMARY JUDGMENT The Respondent's contention that it is entitled at this time to an evidentiary hearing on the inclusion of Respondent's retail employee route drivers in the appropriate unit is without merit for the following reasons, On November 6, 1968, the Union filed a petition in Case 17-RC-5887 seeking an election in a unit of retail distributors of the Respondent at its Basehor. Kansas, facility. A hearing was conducted on December 4, 1968, by a Hearing Officer of the Board on the issues raised by the Union's petition in which Respondent participated. At this hearing evidence was taken relating to Respondent's other employees. and the Petitioner in the alternative indicated a willingness to represent a unit which included retail employee route drivers. Thereafter, on February 28, 1969, the Regional Director for Region 17 issued his Decision and Direction of Election, in which he found that all retail distributors and retail employee route drivers of the Respondent at its Basehor, Kansas, facility, constituted an appropriate unit for purposes of collective bargaining. Respondent subsequently requested review by the Board of the Regional Director's Decision and Direction of Election on substantially the same grounds urged in Respondent's response to notice to show cause By telegraphic communication on March 21. the Board denied the Respondents request for review on the ground that it raised no substantial issues warranting review. 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' 178 NLRB No 74 MEYER DAIRY, INC. litigated in a prior related representation proceeding.' Inasmuch as the Respondent has had in the representation case the opportunity to litigate the issues raised in its Response to Notice to Show Cause and as the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding, we find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. All material issues having been either decided by the Board or admitted in the answer to the complaint, there are no matters requiring a hearing before a Trial Examiner. Accordingly, the General Counsel's motion for summary judgment is granted. On the basis of the record before it, the Board makes the following: FINDINGS OF FACT 1. THE BUSINI-SS OF THE RESPONDENT The Respondent is, and at all times material herein has been, a Kansas corporation having a place of business at Basehor, Kansas, the facility involved herein, where it is engaged in the processing and distribution of fluid milk products and related items. In the course and conduct of its business operations, the Respondent annually sells and distributes products valued in excess of $50,000 outside the State of Kansas, and its annual gross sales exceed $00,000 in value. The Respondent admits, and we find, that it 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. 11. THE LABOR ORGANIZATION INVOLVED Meyer Dairy Distributors Association is a labor organization w ithin the meaning of Section 2(6) and (7) of the Act. III. THE UNFAIR LABOR PRACTICES 1. The unit A The Representation Proceeding At all times material herein the following employees have constituted and now constitute a unit appropriate for purposes of collective bargaining within the meaning of the Act: All retail distributors and retail employee route drivers working out of the Basehor, Kansas. 'See Pittsburgh Plate Glaes Co v A L R B, 313 U S 146, 162, Rules and Regulations of the Board , Sec 102 67(I) and 102 69(c) 455 facility of Meyer Dairy, Inc., a subsidiary of Milgram Food Stores, inc., EXCLUDING office-clerical employees: plant employees; wholesale route drivers; automotive maintenance employees: retail distributors working out of the Independence, Missouri, distributing center; the Atchison, Kansas, retail distributor, professional employees, guards. and supervisors within the meaning of the Act; and, all other employees. 2. The certification On or about March 26, a majority of employees of the Respondent in said unit, voting in a secret election conducted under the supervision of the Regional Director for Region 17, designated the Union as their representative for the purpose of collective bargaining with the Respondent. and on or about April 4, the Acting Regional Director certified the Union as the exclusive collective-bargaining representative of the employees in said unit , and the Union continues to be such representative. B. The Request To Bargain and the Respondent's Refusal Following the Certification of Representative described above, the Union has requested, and is continuing to request, the Respondent to recognise and bargain with the Union as the representative of the employees in the aforesaid unit . By letter, dated June 10, the Respondent acknowledged the Union's request for recognition and bargaining and informed the Union that it did not wish to meet for the purpose of discussing a collective-bargaining agreement for the reason that it did not believe the distributors were employees within the meaning of the National Labor Relations Act, as amended. C. Conclusions Accordingly, we find that the Union was duly certified as the collective-bargaining representative of the employees of the Respondent in the appropriate unit described above; that the Union at all times since April 4. has been and now is the exclusive bargaining representative of all the employees in the aforesaid unit within the meaning of Section 9(a) of the Act: and that the Respondent has since June 10, refused to bargain collectively with the Union as the exclusive bargaining representative of its employees in the appropriate unit. By such refusal, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCI' The acts of the Respondent set forth in section III, above, occurring in connection with its operations as described in section 1, above, have a 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the 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 appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. CONCLUSIONS OF Low 1. Meyer Dairy, Inc., a subsidiary of Milgram Food Stores, inc., is an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. Meyer Dairy Distributors Association is a labor organization within the meaning of Section 2(5) of the Act. 3. All retail distributors and retail employee route drivers working out of the Baschor, Kansas, facility of Meyer Dairy. Inc.. a subsidiary of Milgram Food Stores, inc , excluding office-clerical employees; plant employees; wholesale route drivers; automotive maintenance employees, retail distributors working out of independence, Missouri, distributing center; the Atchison, Kansas. retail distributor: professional employees, guards. and supervisors within the meaning of the Act, and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since April 4, 1969. the above-named labor organization has been the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 10, 1969, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all its employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By the aforesaid refusal to bargain, the Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employee-, in the exercise of the rights guaranteed to them in Section 7 of the Act, and has thereby 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 Relations Board hereby orders that: A. For the purpose of determining the duration of' the certification , the initial year of the certification shall be deemed to begin on the day that Respondent commences to bargain in good faith with the Union as the recognized exclusive bargaining representative in the appropriate unit.' B. Meyer Dairy. Inc.. a subsidiary of Milgram Food Stores, Inc., its officers, agents, successors, and assigns, shall. 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay. wages, hours, and other terms and conditions of employment with Meyer Dairy Distributors Association, as the exclusive and duly certified bargaining representative of its employees in the following appropriate unit. All retail distributors and retail employee route drivers working out of the Basehor, Kansas, facility of Meyer Dairy, Inc.. a subsidiary of Milgram Food Stores, Inc., EXCLUDING office-clerical employees: plant employees; wholesale route drivers; automotive maintenance employees, retail distributors working out of Independence, Missouri, distributing center: the Atchison, Kansas, retail distributor: professional employees, guards, and supervisors within the meaning of the Act, and all other employees. (h) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them by 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 understanding is reached, embody such understanding in a signed agreement. (b) Post at its Basehor, Kansas. facility, copies of the attached notice marked -Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 17, shall, after being duly signed by the Respondent's representative, be posted 'The purpose of this provision is to insure 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 N 2d 600 (C A 5), sett denied 379 U S 817, Burnett Construction Co , 149 Ni RB 1419, 1421, enfd 350 N 2d 57 (C A 10). 'in the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Derision and Order" the words "a Deuce of the United States Court of Appeals Enforcing an Order" MEYER DAIRY, INC. 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 to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director for Region 17, in writing, within 10 days from the date of this Decision and Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE 10 ALL EMPLOYEES Pursuant to the Decision and Order 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 Meyer Dairy Distributors Association, as the exclusive representative of the employees in the bargaining unit described below. WE Wli I NOT in any like or related manner interfere 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 457 with respect to 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 retail distributors and retail employee route drivers working out of the Basehor, Kansas, facility of Meyer Dairy, Inc.. a subsidiary of Milgram Food Stores, Inc., excluding office-clerical employees, plant employee,,; wholesale route drivers; automotive maintenance employees , retail distributors working out of Independence , Missouri , distributing center, the Atchison. Kansas, retail distributor ; professional employees , guards, and supervisors within the meaning of the Act ; and all other employees. MEYER DAIRY , INC., A SUBSIDIARY OF MiI.GRAM FOOD STORES, INC. (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 provision,. they may communicate directly with the Board's Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374-5181