Diamond Crystal Salt Co.

714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Diamond Crystal Salt Company and General Drivers, Chauffeurs and Helpers, Local Union 886, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 16-CA-6176 February 4, 1976 DECISION AND ORDER By MEMBERS JENKINS , PENELLO, AND WALTHER Upon a charge filed on August 15, 1975, by Gener- al Drivers, Chauffeurs and Helpers, Local Union 886, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Diamond Crystal Salt Company, herein called the Respondent, the Acting General Counsel, herein General Counsel, of the National Labor Relations Board, by the Regional Director for Region 16, is- sued a complaint on September 17, 1975, against Re- spondent, 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 Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on May 12, 1975, fol- lowing a Board election in Case 16-RC-6550 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 August 4, 1975, 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 September 26, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On October 20, 1975, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. On October 29, 1975, Respon- dent filed its memorandum in opposition to motion i Official notice is taken of the record in the representation proceeding, Case 16-RC-6550, and the term "record" is defined in Secs 102 68 and 102 69(g) 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 , 1967), Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA to transfer case to and continue proceeding before the Board and for summary judgment. Subsequently, on November 4, 1975, the Board issued an order transferring the proceeding to the Board and a No- tice To Show Cause why the General Counsel's Mo- tion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause, entitled "Memorandum in Opposition to Motion for Summary Judgment." 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 answer to the complaint and memoranda in opposition to the Motion for Summary Judgment, Respondent in substance denies the representative status of the Union because of its objections to the election in the underlying representation case. Coun- sel for the General Counsel contends that Respon- dent is attempting in this unfair labor practice pro- ceeding to relitigate issues decided in the prior related representation case and that those issues may not be relitigated here. We agree. In addition, Re- spondent argues that it was not accorded due process in the representation proceedings because the Board's Supplemental Decision. and Certification of Representative was a mere rubberstamping of the Hearing Officer's report, and asserts that unresolved issues of material fact concerning employee turnover preclude granting the Motion for Summary Judg- ment. The record, including that in representation Case 16-RC-6550, establishes, that on May 23, 1974, pur- suant to a Stipulation for Certification, Upon Con- sent Election, an election was held. The revised tally of ballots showed 35 votes for the Union, 31 against? Respondent filed timely objections alleging in sub- stance union interrogation, threats, promises to waive or reduce initiation fees, and various misrepre- sentations, including statements that the Federal Government supported the Union in the election. These statements were made at a meeting to which the Union invited employees. After the investigation, the Acting Regional Direc- tor on August 12, 1974, issued his Report on Objec- t The results of the election as set forth in the tally of ballots served on the parties at the conclusion of the election were 29 votes cast for the Union, 26 against, and 11 challenged ballots On June 24, 1974, the Regional Director approved a stipulation entered into by the parties, agreeing that all who cast challenged ballots were eligible voters and that the ballots should be opened and counted The revised tally was issued on June 14, 1974 222 NLRB No. 113 DIAMOND CRYSTAL SALT CO. 715 tions and Notice of Hearing recommending that most of Respondent's objections be overruled but that an evidentiary hearing be conducted on the ob- jections with respect to the statements made at the employee meeting. As no exceptions were filed, the Board on October 23, 1974, issued its Decision and Order directing hearing adopting the Acting Region- al Director's findings and recommendations. A hearing was held before a Hearing Officer and Respondent thereafter filed its brief to the Hearing Officer? On February 27, 1,975, the Hearing Officer issued-his,Report on Objections in which he conclud- ed that the Union was not responsible for the meet- ing which was held at an employee's home and at which the alleged statements were made and that there was no substantial misrepresentation concern- ing Federal Government support for the Union. Re- spondent then filed with the Board exceptions to the Hearing Officer's Report on Objections and a brief in support which basically reiterated the position pre- viously set forth in its brief to the Hearing Officer. On May 12, 1975, a Supplemental Decision and Certification of Representative issued in which the Board, after considering the objections, the Hearing Officer's report, the exceptions and brief, adopted the Hearing Officer's findings and recommendations and certified the Union as the exclusive bargaining representative of the employees in the appropriate unit. The Board specifically found that the excep- tions to the Hearing Officer's report raised no mate- rial issues of fact or law which would warrant rever- sal of the Hearing Officer's findings and recommendations. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent-in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding .4 All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege ' that any special circumstances exist herein which would require the Board to reexamine the de- cision 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. As to the due-process argument made by Respon- dent in this proceeding asserting that the Board failed to consider, examine, or analyze the various arguments, positions, and - exceptions Respondent raised to the Hearing Officer's report, we note that the Hearing Officer submitted a report with a de- tailed analysis of the evidence presented at the hear- ing on Respondent's objections and a lengthy presen- tation of his recommendations and findings. The Hearing Officer's analysis and articulation of his ra- tionale, which the Board adopted as its own, was ad- equate to satisfy the requirements of due process.' Respondent's final contention, that a hearing is re- quired on its allegation that employee turnover-since the election renders the election results unrepresenta- tive of present employee sentiment, is likewise with- out merit. It is well settled that Respondent's obliga- tion to bargain extends for 1 year from the date of the certification and employee turnover does not constitute "unusual circumstances" within the Su- preme Court's decision in Ray Brooks v. N.L.R.B., 348 U.S. 96 (1954), and therefore a hearing-on em- ployee turnover is not warranted.6 We shall, 'accord- ingly, 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 Michigan corporation engaged in the manufacture, packaging„and sale of condiments and related products at its place of business at 216 North East 12th Street,- Moore, Oklahoma. During the past 12 months, a representative period, Respon- dent, in the course and conduct of its business opera- tion, manufactured and shipped from its plant in Ok- lahoma products valued in excess of $50,000 directly to customers located- outside the State, of Oklahoma. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. 3 At the close of the hearing, the Hearing Officer had denied Respondent's motion for time to file briefs Respondent appealed the ruling to the Board and on Janua ry 10, 1975, the Board ordered the Hearing Officer to set a date for the parties to file briefs 4 See Pittsburgh Plate Glass Co v N L.R B, 313 U S 146, 162 (1941), Rules and Regulations of the Board, Sees 102 67(f) and 102 69(c). 5-Ranco Incorporated, 211 NLRB 1006 (1974), Lake Odessa Machine Prod- ucts, Inc, a Wholly-Owned Subsidiary of Spartan Corporation, 210 NLRB 90 (1974). Chayes Virginia Corporation, A Wholly Owned Subsidiary of BCC Industries, Inc, 206 NLRB 959 (1973). 6 Georgetown Dress Corporation, 217 NLRB No. S (1975), Nichols- Homeshield, Inc, 214 NLRB No. 85 (1974) 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED General Drivers, Chauffeurs and Helpers, Local Union 886, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers 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 con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production, converting, inspectors, main- tenance, custodial and warehouse employees of the Respondent at its Moore, Oklahoma, opera- tion exclusive of office clerical employees, casu- al employees, guards, watchmen and supervisors as defined in the Act. 2. The certification On May 23, 1974, 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 16, 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 12, 1975, 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 July 22, 1975, 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 employees in the above-described unit. Commencing on or about August 4, 1975, 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 4, 1975, and at all times thereafter, re- fused 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 Respondent, set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, inti- mate, 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 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 ap- propriate 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 se- lected 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); Bur- nett 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. Diamond Crystal Salt Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Drivers, Chauffeurs and Helpers, Lo- cal Union 886, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production, converting, inspectors, mainte- nance, custodial and warehouse employees of the Respondent at its Moore, Oklahoma, operation ex- clusive of office clerical employees, casual employ- DIAMOND CRYSTAL SALT CO. ees, guards, watchmen and supervisors as defined in the Act, constitute a unit appropriate for the purpos- es of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Since May 12, 1975, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 4, 1975, 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 Re- spondent in the appropriate unit, Respondent has en- gaged 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. 717 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 Moore, Oklahoma, plant copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Di- rector for Region 16, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices 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. (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. 7In 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" ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Di- amond Crystal Salt Company, Moore, Oklahoma, 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 con- ditions of employment with General Drivers, Chauf- feurs and Helpers, Local Union 886, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All production, converting, inspectors, main- tenance, custodial and warehouse employees of the Respondent at its Moore, Oklahoma, opera- tion exclusive of office clerical employees, casu- al employees, guards, watchmen 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 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 Gen- eral Drivers, Chauffeurs and Helpers, Local Union 886, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive repre- sentative 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reached, embody such understanding in a signed ployees of the Respondent at its Moore, Okla- agreement. The bargaining unit is: homa, operation exclusive of office clerical employees, casual employees, guards, watch- All production, converting, inspectors, men and supervisors as defined in the Act. maintenance, custodial and warehouse em- DIAMOND CRYSTAL SALT COMPANY