Lynden Frosted Foods, Inc.

508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lynden Frosted Foods, Inc. and General Teamsters Union Local No. 231, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inde- pendent. Case 19-CA-7307 February 7, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a charge filed on September 12, 1974, by General Teamsters Union Local No. 231, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, herein called the Union, and duly served on Lynden Frosted Foods, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a complaint on October 8, 1974, 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 an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on May 29, 1974, following a Board election in Case 19-RC-6624, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about May 29, 1974, 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 October 18, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and asserting affirmative defenses thereto. On November 11, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 20, 1974, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for i Official notice is taken of the record in the representation proceeding, Case 19-RC-6624, 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 (1967), enfd. 388 F.2d 683 (C A 4, 1968). Golden Age Beverage Co, 167 NLRB 151 (1967). enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co v Penello, 269 F.Supp 573 (D.C Va., 1957); Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C.A. 7, 1968); Sec. Summary Judgment should not be granted. Respon- dent thereafter filed an answer to Notice To Show Cause, and a request for oral argument.2 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 and response to the Notice To Show Cause, Respondent asserts that it is not obligated to bargain with the Union as the certification thereof is invalid because the Board erred in overruling its objections to the election in the underlying representation proceeding, and denied it due process by not conducting an evidentiary hearing thereon. The General Counsel argues that the issues raised by Respondent in this unfair labor practice proceeding were raised and litigated in the underlying representation proceeding and thus may not be relitigated herein, including the necessity of a hearing on Respondent's objections. We have reviewed the record herein, including that of the representation proceeding, Case 19-RC-6624, to the extent necessary to rule on this motion. It reveals that following the October 16, 1973, election ordered by the Regional Director, which the Union won, Respondent filed with the Regional Director 10 objections to the election. Summarized, Respon- dent's objections alleged preelection misrepresenta- tions, promises of benefit and an offer to lower initiation fees by the Union, defaced election notices, and misconduct by a Board agent in the course of the voting. Following investigation, the Regional Di- rector issued a Supplemental Decision and Certifica- tion of Representative on January 31, 1974, in which he discussed at length the evidence regarding the objections and concluded that they should be overruled and the Union certified. Respondent filed some 99 exceptions to this report, together with a brief and affidavits in support thereof, in which it assigned error to the Regional Director's findings and conclusions and reasserted most of its objections before the Board and requested a hearing thereon. On March 19, 1974, the Board granted review of Respondent's Objection 4, dealing with the Union's offer to reduce its initiation fees, ordered a hearing 9(d) of the NLRA. 2 We find the issues raised in this proceeding are adequately set forth in the Motion for Summary Judgment and answer to the Notice To Show Cause, as well as the record of this and the representation proceeding incorporated by the parties . Accordingly, Respondent's request for oral argument is denied. 216 NLRB No. 87 LYNDEN FROSTED FOODS, INC. thereon, and denied review of the remainder of the objections . Respondent then requested reconsidera- tion by the Regional Director of his supplemental decision on the objections, which was denied on March 29, 1974, as raising no issue not previously considered. After a hearing on Respondent's Objec- tion 4, the Hearing Officer issued his report on May 9, 1974, in which he found the Union 's offer to lower its initiation fee to be unconditional, thus unobjec- tionable, under the Supreme Court ruling in N. L. R. B. v. Savair Mfg. Co., 414 U.S. 270 (1973), and accordingly recommended that the objection be overruled and the Union certified . Respondent filed with the Regional Director exceptions to this report, basically attacking the findings and conclusions of the Hearing Officer and his refusal to admit evidence pertaining to objections other than Objection 4. On May 29, 1974, the Regional Director issued his Second Supplemental Decision on Objections to the Election and Certification of Representative, adopt- ing the recommendations of the Hearing Officer and certifying the Union . On June 7, 1974, Respondent filed a request for review of this decision, essentially reasserting before the Board the contentions it had previously raised before the Regional Director concerning the Hearing Officer's report, and again arguing that due process necessitated a hearing on all of its objections. On June 27, 1974, the Board denied this request for review as it raised no substantial issues warranting review. It thus appears from the foregoing review that we have previously considered Respondent's present contentions, including the necessity of a hearing to satisfy due process, in the preceding representation case. 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 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 issue4 which is properly litigable in this unfair s See Pittsburgh Plate Ghw Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 4 Although not alleged in the complaint, Respondent in its answer thereto admits the Union's requests to bargain on June 3 and August 14, 509 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 is a Washington corporation engaged in the business of processing, packaging, warehous- ing, and shipping frozen vegetables, with its office and place of business located at Lynden, Washing- ton. During the past 12 months, a representative period for all times material herein, Respondent sold and shipped from its' Lynden, Washington, facility finished products valued in excess of $50,000 to points outside the State of Washington. 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 General Teamsters Union Local No. 231, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, 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 production and maintenance employees, including busy-season employees, employed by the Employer at its plant at Lynden, Washington, but excluding office clerical employees, guards and supervisors as defined in the Act. 2. The certification On October 16, 1973, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional 1974, and its refusals to bargain on June 12 and August 28, 1974, which dates are supported by correspondence attached as exhibits to its answer. In view of these admissions, we shall find the request and refusal to bargain to have occurred on the dates set forth herein. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director for Region 19 designated the Union as their 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 May 29, 1974, 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 June 3 and again on August 14, 1974, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bar- gaining representative of all the employees in the above-described unit. Commencing on or about June 12 and again on August 28, 1974, 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 representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since June 12, 1974, 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(aX5) 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 commenc- es 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 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Lynden Frosted Foods, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Teamsters Union Local No. 231, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Independent, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including busy-season employees, employed by the Employer at its plant at Lynden, Washington, but excluding office clerical 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 May 29, 1974, 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 June 12 and August 28, 1974, 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(ax 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. LYNDEN FROSTED FOODS, INC. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Lynden Frosted Foods, Inc., Lynden, Washington, 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 General Teamsters Union Local No. 231, affiliated with the Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Independent, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All production and maintenance employees, including busy-season employees, employed by the Employer at its plant at Lynden, Washington, but excluding office clerical 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 Lynden, Washington, facility copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 19, 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 thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 511 (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5 In the event that 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 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 concerning rates of pay, wages, hours, and other terms and conditions of employment with Gener- al Teamsters Union Local No. 231, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, as the exclusive represent- ative 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 production and maintenance employees, including busy-season employees, employed by the Employer at its plant at Lynden, Washington, but excluding office clerical employees, guards and supervisors as de- fined in the Act. LYNDEN FROSTED FOODS, INC.