Kane-Miller Corp.

248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sunnyland Refining Company, a wholly owned subsid- iary of Kane-Miller Corporation and Teamsters Local Union 612, Affiliated With International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America. Case 10-CA-9424 May 31, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on February 15, 1972, by Teamsters Local Union 612, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, herein called the Union, and duly served on Sunnyland Refining Company, a wholly owned subsidiary of Kane-Miller Corporation, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 10, issued a complaint on February 24, 1972, against Respondent, alleging that Respondent 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 complaint alleges in substance that on January 18, 1972, following a Board election the Union was duly certified as the exclusive collective-bargaining repre- sentative of Respondent's employees in the unit found appropriate; i and that, commencing on or about February 8, 1972, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On March 2, 1972, Respondent filed -its answer to the complaint denying in part the allegations in the complaint. On March 13, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 22, 1972, the Board issued an order transferring the i Official notice is taken of the record in the representation proceeding, Case 10-RC-8928, 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, 1968), Sec. 9(d) of the NLRA 2 Respondent's answer does not treat with the other allegations of the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent did not file a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding 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 answer to the complaint Respondent denies the appropriateness of the unit and, consequently, the Union's status as exclusive bargaining represent- ative of the employees in the unit. In the hearing in the underlying representation case, Respondent argued that only an overall unit of employees was appropriate. After hearing the Regional Director found that the unit requested by the Petitioner, which comprised over-the-road truckdrivers, me- chanics, and a tireman, to be an appropriate unit for bargaining. Respondent thereupon filed a Request for Review of the Regional Director's Decision in which it reiterated the arguments made at the hearing. The Board, in a telegram dated January 7, 1972, denied Respondent's request on the ground that it raised no substantial issues warranting review. In its answer Respondent simply denied the two averments of the complaint which relate, respective- ly, to the composition of the bargaining unit and the conclusion that Respondent's refusal to bargain violated Section 8(a)(5) and (1) of the Act.2 It thus appears that Respondent is attempting to relitigate matters raised and determined in the previous representation proceeding. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances 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.3 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation 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 complaint As Respondent has not denied , explained, or stated that it was without knowledge as to these allegations , and absent any showing of good cause to the contrary, they are deemed to be admitted to be true, and are so found Jerry C Wilson, Curtis Wilson and Rodney V Wilson d/b/a Wilson & Sons, 193 NLRB No. 51, and cases cited therein 3 See Pittsburgh Plate G l a s s C o v NLRB, 3I3 U S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) 197 NLRB No. 37 SUNNYLAND REFINING COMPANY 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 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 1. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation, has an office and place of business in Birmingham, Alabama, where it is engaged in the manufacture, sale, and distribution of oleomargarine and related products. During the past calendar year, Respondent sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Alabama. We find, on the basis of the foregoing, that Respondent 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 effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Teamsters Local Union 612, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All shipper-drivers at Respondent's Birmingham, Alabama, plant including the mechanic, the mechan- ic's helper, and the tireman, but excluding all other employees, office clerical employees, professional employees, guards, and supervisors as defined in the Act. 2. The certification On January 10, 1972, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 10, designated the Union as their 249 representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on January 18, 1972, 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 February 8, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-descnbed unit. Com- mencing on or about February 8, 1972, and continu- ing at all times thereafter to date , the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since February 8, 1972, 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, Respon- dent 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 opera- tions described 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 disputes burdening and obstructing commerce and the free flow of com- merce. 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 appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order 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, we shall construe the initial period of certifica- tion as beginning on the date Respondent commen- 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ces to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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. Sunnyland Refining Company, a wholly owned subsidiary of Kane-Miller Corporation, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local Union 612, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. All shipper-drivers at Respondent's Birming- ham, Alabama, plant including the mechanic, the mechanic's helper, and the tireman, but excluding all other employees, office clerical employees, profes- sional employees, guards, 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 January 18, 1972, the above-named labor organization has been and now is the certified and exclusive 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 February 8, 1972, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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(axl) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing 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 Respondent, Sunnyland Refining Company, a wholly owned subsidiary of Kane-Miller Corporation , 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 Teamsters Local Union 612, affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Help- ers of America, as the exclusive bargaining represent- ative of its employees in the following appropriate unit: All shipper-drivers at Respondent's Birmingham, Alabama, plant including the mechanic, the mechan- ic's helper, and the tireman , but excluding all other employers, office clerical employees , professional employees, 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 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its plant in Birmingham, Alabama, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 10 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 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 " SUNNYLAND REFINING COMPANY 251 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 Team- sters Local Union 612, affiliated with Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, 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 Section 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 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 agree- ment. The bargaining unit is: All shipper-drivers at Respondent's Bir- mingham, Alabama, plant including the mechanic, the mechanic's helper, and the tireman, but excluding all other employees, office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. Dated By SUNNYLAND REFINING COMPANY, A WHOLLY OWNED SUBSIDIARY OF KANE-MILLER CORPORATION (Employer) (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 compli- ance with its provisions may be directed to the Board's Office, Peachtree Building, Room 701, 730 Peachtree Street, NE., Atlanta, Georgia 30308, Telephone 404-526-5760.