Frozen Rite Foods, Inc.

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Frozen Rite Foods, Inc. and Bakery and Confectionery Workers of America, Local 111, AFL-CIO. Case 16-CA-4505 February 1, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on September 24, 1971, by Bak- ery and Confectionery Workers of America, Local 111, AFL-CIO, herein called the Union, and duly served on Frozen Rite Foods, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 16, issued a complaint on October 29, 1971, against Respondent, alleging that Respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Sec- tion 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and no- tice 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 July 12, 1971, follow- ing a Board election in Case 16-RC-5474, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about August 10, 1971, and at all times thereafter, Respond- ent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has re- quested and is requesting it to do so. On November 4, 1971, Respondent filed its answer to the complaint ad- mitting in part, and denying in part, the allegations in the complaint. On November 15, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 18, 1971, the Board issued an order transferring the pro- ceeding 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 au- thority in this proceeding to a three-member panel. ' Official notice is taken of the record in the representation proceeding, Case 16-RC-5474, 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. 338 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, 1968), Sec 9(d) of the NLRA 195 NLRB No. 51 Upon the entire record in this proceeding, the Board makes the following: RULING ON THE MOTION FOR SUMMARY JUDGMENT Counsel for the General Counsel contends that all issues in dispute herein were decided by the Board in the representation case, 16-RC-5474, and that he is therefore entitled to summary judgment as a matter of law. The basic position of the Respondent in its response to the Notice To Show Cause is that the Union is not the lawful representative of the unit employees in that the employees were coerced, restrained, and interfered with in their designation and selection of the bargaining representative by the conduct of one of the Respond- ent's supervisors. In the representation proceeding, the Respondent urged, in its Objection 1 to the conduct of the election, that the union campaign was initiated, prosecuted, and dominated by one of its supervisors, without its knowledge or concurrence. In its Objection 2 Respondent contended that the Union made substan- tial misrepresentations to employees about the Re- spondent's business in order to induce the employees to support and vote for the Union. In his Supplemental Decision and Notice of Hearing of September 16, 1970, the Acting Regional Director considered and overruled the Respondent's Objection 2, finding that the remarks made by the Union were vague and inconclusive and raised no substantial or material issues which would warrant setting aside the election. The Acting Regional Director further ordered a hearing on the conflicting factual issues raised by Respondent's Objection 1. Following the hearing, the Trial Examiner, on Feb- ruary 18, 1971, in his Decision and Recommendation on Objection to Election, found that the Respondent had knowledge of its supervisor's prounion activities after the withdrawal of the first petition and the filing of the instant petition and that it failed to take any steps to neutralize such activities, and, therefore, was barred from using such activities as a ground for setting aside the election. In his Second Supplemental Decision and Certification of Representative, the Regional Director considered the Respondent's exceptions to the Trial Examiner's Decision and found that the Respondent's exceptions raised no substantial and material issues with respect to the conduct of the election. Accord- ingly, he certified the Union. The Respondent renewed its contentions in its Re- quest for Review to the Board. After full consideration, the Board, on August 2, 1971, denied the request as raising no substantial issues warranting review.' ' The Respondent's alternative request for oral argument or a hearing to permit it to "re-litigate " issues raised in defense of its refusal to bargain is denied, as in our opinion the record in this case, including the representation (Cont) FROZEN RITE FOODS, INC. 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.' All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior repre- sentation proceeding, and 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 therefore find that the Respondent has not raised any issue which is prop- erly 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 1. THE BUSINESS OF THE RESPONDENT Respondent, a corporation duly organized under and existing by virtue of the laws of the State of Delaware, maintains an office and place of business in Dallas, Texas, at 1601 South Good-Latimer Expressway, and is, and has been at all times material herein, engaged in the manufacture and distribution of frozen bakery products and related products. In the course and con- duct of its business operations during the past 12 months, a representative period, Respondent received goods valued in excess of $50,000 directly from points outside the State of Texas. We find, on the basis of the foregoing, that Respond- ent 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 Bakery and Confectionery Workers of America, Lo- cal 111, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. proceeding, the exceptions , and briefs, adequately presents the issues and positions of the parties. ' See Pittsburgh Plate Glass Co. v N.L.R B., 313 U S 146, 162 (1941); Rules and Regulations of the Board, Secs. 102 67(f) and 102 69(c) III THE UNFAIR LABOR PRACTICES A. The Respresentation Proceeding 1. The unit 295 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 production and maintenance employees in- cluding sanitation employees, shipping employees and plant clericals at the Respondent's Dallas, Texas bakery, and excluding office clerical em- ployees, guards and supervisors as defined in the Act. 2. The certification On July 10, 1970, a majority of the employees of Respondent in said unit, in a secret ballot election con- ducted under the supervision of the Regional Director for Region 16, designated the Union as their represent- ative 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 July 12, 1971, 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 August 4, 1971, and at all times thereafter, the Union has requested the Respond- ent to bargain collectively with it as the exclusive col- lective-bargaining representative of all the employees in the above-described unit. Commencing on or about August 10, 1971, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since August 10, 1971, 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 engaged 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 de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, bar- gain collectively with the Union as the exclusive repre- sentative of all employees in the appropriate unit, and, if an understanding is reached, embody such under- standing in a signed agreement. In order to insure that the employees in the appropri- ate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as begin- ning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce 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. Frozen Rite Foods, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Bakery and Confectionery Workers of America, Local 111, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees in- cluding sanitation employees, shipping employees and plant clericals at the Respondent's Dallas, Texas, bak- ery, and excluding office clerical employees, guards and supervisors as defined in the Act constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since July 12, 1971, the above-named labor orga- nization has been and now is the certified and exclusive representative of all employees in the aforesaid appro- priate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 10, 1971, 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 Respond- ent in the appropriate unit, Respondent has 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 in- terfering 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 engag- ing 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 Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent , Frozen Rite Foods, 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 Bakery and Confectionery Work- ers of America, Local 111, AFL-CIO, as the exclusive bargaining representative of its employees in the fol- lowing appropriate unit: All production and maintenance employees in- cluding sanitation employees, shipping employees and plant clericals at the Respondent 's Dallas, Texas bakery, and excluding office clerical em- ployees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed 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 la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect 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 agree- ment. (b) Post at its Dallas, Texas , bakery copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are In the event 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." FROZEN RITE FOODS, INC 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 16, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Bakery and Confectionery Workers of America, Local 111, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- 297 scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance em- ployees including sanitation employees, ship- ping employees and plant clericals at the Re- spondent's Dallas, Texas bakery, and excluding office clerical employees, guards and supervisors as defined in the Act. FROZEN RITE FOODS, INC (Employer) Dated By (Representative) (Title) 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 compliance with its provisions may be directed to the Board's Office, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921.