Friendly Ice Cream Corp.

FRIENDLY ICE CREAM CORP. Friendly Ice Cream Corporation and General Team- sters, Chauffeurs, Warehousemen and Helpers, Building Materials, Heavy & Highway Construction Employees Local Union No. 404, affiliated with In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America . Case 1- CA-8870 August 3, 1973 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on February 12, 1973, by Gen- eral Teamsters, Chauffeurs, Warehousemen and Helpers, Building Materials, Heavy & Highway Con- struction Employees Local Union No. 404, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Friendly Ice Cream Corporation, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint and notice of hearing on March 16, 1973, 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 Nation- al Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the re- cord reflects, in substance, that on August 24, 1972, following a Board election in Case 1-RC-11810, 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 October 26, 1972, and at all times thereaf- ter, 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 28, 1973, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, submitting affirmative defenses, and requesting that the complaint be dis- ' Official notice is taken of the record in the representation proceeding, Case I-RC-11810, 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 (CA 4, 1968), Golden Age Beverage Co, 167 NLRB 151, enfd 415 F 2d 26 (C.A. 5, 1969), 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 211 missed. On March 30, 1973, counsel for the General Coun- sel filed directly with the Board a Motion for Summa- ry Judgment, with exhibits attached, submitting, in effect, that the Respondent in its answer raises no material issues of fact not admitted or previously de- termined in the underlying representation proceeding, Case 1-RC-11810. Subsequently, on April 6, 1973, the Board issued 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, including therein opposition to motion of General Counsel for summa- ry judgment; motion for reconsideration in the repre- sentation case; and motion to dismiss the complaint. 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. 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, the Respondent raises the same matters that it raised in the underlying representation case and the affirmative defenses contained in its answer to the complaint. Thus, the Respondent raises defenses relating to the appropriateness and scope of the unit, and to the Re- gional Director's and the Board's rulings concerning the Respondent's objections to the election. Upon the record before us, including the record in Case 1-RC-11810, we find no merit in the Respondent's position. On December 28, 1971, the Regional Director issued his Decision and Direction of Election in which he found that all delivery men employed by the Respondent at its Wilbraham, Mas- sachusetts, location, constituted a unit appropriate for the purposes of collective bargaining. On January 18, 1972, the Respondent filed a Request for Review of the Regional Director's Decision and Direction of Election which the Board, by telegraphic order, de- nied on January 26, 1972, as it raised no substantial issues warranting review. Thereafter, on February 4, 1972, an election was conducted in which a majority of the employees selected the Union as the exclusive collective-bargaining agent. Subsequently, the Re- spondent filed with the Regional Director timely Ob- jections to Conduct Affecting the Results of the Election. Thereafter, the Regional Director conduct- ed an investigation on the objections and referred the entire matter for hearing. On July 12, 1972, the Hear- ing Officer issued his Report on Objections, wherein 205 NLRB No. 31 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he recommended that all of the Respondent's objec- tions be overruled as lacking in merit and that the objections be dismissed in their entirety. The Respon- dent filed timely exceptions and a supporting brief to the Hearing Officer's Report. On August 24, 1972, the Regional Director issued a Second Supplemental De- cision on Objections to Election and Certification of Representative in which he overruled the Respondent's Exceptions to the Hearing Officer's Re- port, and certified the Union as the collective-bar- gaining representative of all the employees in the appropriate unit. Thereafter, the Respondent filed a request for review of the Regional Director's Decision which the Board, by telegraphic order, denied on Sep- tember 28, 1972, as it raised no substantial issues war- ranting review. On October 3, 1972, the Respondent filed a Motion for Reconsideration and brief in sup- port thereof which the Board on October 30, 1972, by telegraphic order, denied as it contained nothing not previously considered. Clearly, by its answer to the complaint, and more specifically by its denials, in whole or in part, of the allegations of the complaint, the affirmative defenses alleged in its answer and the arguments propounded in its response to the Notice To Show Cause, the Respondent is attempting to relitigate the same issues which it raised in the representation proceeding, Case l-RC-11810. 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.2 All issues raised by the Respondent in this proceed- ing 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 any special circumstances herein which would require the Board to reexamine the decision made in the rep- resentation 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 General Counsel's Mo- tion for Summary Judgment, and deny the Respondent's Motion for Reconsideration and Mo- tion to Dismiss the complaint. 2 See Pittsburgh Plate Glass Co v NLRB , 313 U S 146, 162 ( 1941), Rules and Regulations of the Board , Secs 102 67(1) and 102 69(c) On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is and has been at all times material herein a corporation duly organized under and ex- isting by virtue of the laws of the Commonwealth of Massachusetts. At all times herein mentioned, Re- spondent has maintained its principal office and place of business (herein called plant) at 1855 Boston Road in the Town of Wilbraham, County of Hampden, and Commonwealth of Massachusetts and is now and continuously has been engaged at said plant in the manufacture, sale, and distribution of foodstuffs and related products. Respondent, in the course and conduct of its busi- ness, causes, and continuously has caused at all times herein mentioned, large quantities of beef used by it in the manufacture of hamburg to be purchased and transported in interstate commerce from and through various States of the United States other than the Commonwealth of Massachusetts, and causes, and continuously has caused at all times herein men- tioned, substantial quantities of hamburg to be sold and transported from said plant in interstate com- merce to States of the United States other than the Commonwealth of Massachusetts. Respondent, in the course and conduct of its busi- ness, annually receives directly from points outside of Massachusetts at its Wilbraham, Massachusetts, plant beef valued in excess of $50,000 and annually ships directly to points outside of Massachusetts hamburg valued in excess of $50,000. 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 General Teamsters, Chauffeurs, Warehousemen and Helpers, Building Materials, Heavy & Highway Construction Employees Local Union No. 404, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, FRIENDLY ICE CREAM CORP. 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 consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All delivery men employed by the Employer at its Wilbraham, Massachusetts, location, but ex- cluding all other employees, office clerical em- ployees, professional employees, guards and supervisors as defined in the Act. 2. The certification On February 4, 1972, 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 1, 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 August 24, 1972, and the Union contin- ues 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 October 12, 1972, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about October 26, 1972, 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 October 26, 1972, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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 the Respondent set forth in section 213 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 mean- ing 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 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 NLRB 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. Friendly Ice Cream Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Teamsters, Chauffeurs, Warehousemen and Helpers, Building Materials, Heavy & Highway Construction Employees Local Union No. 404, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All delivery men employed by the Employer at its Wilbraham, Massachusetts, location, but exclud- ing all other employees office clerical employees, pro- fessional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. Since August 24, 1972, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about October 26, 1972, 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 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 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 mean- ing of Section 8(a)(1) 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 Rela- tions Board hereby orders that Respondent, Friendly Ice Cream Corporation, its officers, agents, succes- sors, and assigns, 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 General Teamsters, Chauf- feurs, Warehousemen and Helpers, Building Materials, Heavy & Highway Construction Employ- ees Local Union No. 404, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive bar- gaining representative of its employees in the following appropriate unit: All delivery men employed by the Employer at its Wilbraham, Massachusetts, location, but ex- cluding all other employees, office clerical em- ployees, 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 Wilbraham, Massachusetts, location copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Re- gional Director for Region 1, 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 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 In the event that this Order is enforced by any Judgment of United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall 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 WE WILL NOT refuse to bargain collectively con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Gener- al Teamsters, Chauffeurs, Warehousemen and Helpers, Building Materials, Heavy & Highway Construction Employees Local Union No. 404, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representa- tive of the employees in the bargaining unit de- scribed below. 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 representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, em- body such understanding in a signed agreement. The bargaining unit is: All delivery men employed by the Employer at its Wilbraham, Massachusetts, location, but FRIENDLY ICE CREAM CORP. 215 excluding all other employees, office clerical This is an official notice and must not be defaced employees, professional employees, guards by anyone. and supervisors as defined in the Act. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, FRIENDLY ICE CREAM COR- defaced, or covered by any other material. PORATION Any questions concerning this notice or compli- (Employer) ance with its provisions may be directed to the Board's Office, Seventh Floor, Bulfinch Building, 15 Dated By New Chardon Street, Boston, Massachusetts 02114, (Representative) (Title) Telephone 617-223-3330.