Campbell Soup Co.

CAMPBELL SOUP COMPANY 13 Campbell Soup Company and Chauffeurs, Ware- housemen and Helpers, Local Union No. 876, Inter- national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America. Case 5- CA-7761 May 24, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO Upon a charge filed on February 5, 1976, by Chauffeurs, Warehousemen and Helpers, Local Union No 876, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Campbell Soup Company, herein called Respon- dent, the General Counsel of the National Labor Re- lations Board, by the Regional Director for Region 5, issued a complaint and notice of hearing on Febru- ary 13, 1976, against Respondent, alleging that Re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing 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 hear- ing before an Administrative 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 November 28, 1975, following a Board election in Case 5-RC-9419, the Union was duly certified as the exclusive collec- tive-bargaining representative of Respondent's em- ployees in the unit found appropriate,' and that, commencing on or about January 29, 1976, and at all times thereafter, Respondent has refused, and con- tinues 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 February 25, 1976, Respondent filed its answer to the complaint admitting in part, and deny- ing in part, the allegations in the complaint On March 2, 1976, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- ' Official notice is taken of the record in the representation proceeding Case 5-RC-9419, as the term `record" is defined in Sees 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 Company, 167 NLRB 151 (1967), enfd 415 F 2d 26 (C A 5 1969), Intertype Company a Division of Harris Intertype Corp v Penello, 269 F Supp 573 (D C Va, 1967), Follett Corporation 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA mary Judgment Subsequently, on March 11, 1976, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judg- ment should not be granted Respondent thereafter failed to 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 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, Respondent denies the validity of the Union's certification as the exclu- sive bargaining representative of its professional em- ployees who, Respondent asserted, were supervisors and not employees On the other hand, the General Counsel contends that Respondent is seeking to relit- igate issues raised and decided by the Board in the underlying representation case and this it may not do We agree with the General Counsel Review of the record herein, including that of rep- resentation Case 5-RC-9419, establishes that after a hearing, the Regional Director, on October 22, 1975, issued a Decision and Direction of Election in which he ordered elections in two voting groups, with the employees in the professional group being asked whether they desire to be included in the unit of non- professional employees or desire to be separately rep- resented by the Union in an appropriate professional employees unit In the professional unit, there were only two employees, the chemist and the bacteriolo- gist who, the Regional Director concluded contrary to Respondent, were not supervisors but employees Thereafter, Respondent filed with the Board a timely request for review in which it argued that the Region- al Director had erroneously found that the chemist and bacteriologist were employees rather than super- visors On November 19, 1975, the Board denied the request for review as raising no substantial issues warranting review On the same date, the election was conducted The tally of ballots showed that the two professional employees in the unit voted for rep- resentation by the Union in a separate appropriate professional employees unit Thereafter, in the ab- sence of any objections to the tally or conduct of the election, the Union was certified on November 28, 1975 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- 224 NLRB No 2 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gate issues which were or could have been litigated in a prior representation proceeding 2 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or pre- viously 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 Respondent has not raised any issue which is proper- ly litigable in this unfair labor practice proceeding We shall, accordingly, grant the Motion for Summa- ry Judgment On this basis of the entire record, the Board makes the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent, a New Jersey corporation, with its principal office in Camden, New Jersey, is engaged at Salisbury, Maryland, in the production of frozen food products During the preceding 12 months, a representative period, Respondent sold and shipped products, in interstate commerce, valued in excess of $50,000 to points located outside the State of Mary- land 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 polices of the Act to assert juris- diction herein II THE LABOR ORGANIZATION INVOLVED Chauffeurs, Warehousemen and Helpers, Local Union No 876, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and 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 con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act 2 See Pittsburgh Plate Glass Co v NLRB 313 U S 146 162 (1941) Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) All professional employees, including the chemist and bacteriologist employed at the Employer's Salisbury, Maryland, plant, but ex- cluding all other employees, guards, and super- visors as defined in the Act 2 The certification On November 19, 1975, a majority of the employ- ees of Respondent in said unit, in a secret ballot elec- tion conducted under the supervision of the Regional Director for Region 5, designated the Union as their representative for the purpose of collective bargain- ing with Respondent The Union was certified as the collective-bargaining representative of the employees in said unit on November 28, 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 January 12, 1976, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit Commencing on or about January 29, 1976, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collec- tive bargaining of all employees in said unit Accordingly, we find that Respondent has, since January 29, 1976, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appropri- ate 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 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- CAMPBELL SOUP COMPANY mg 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 Campbell Soup Company is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Chauffeurs, Warehousemen and Helpers, Local Union No 876, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act 3 All professional employees, including the chem- ist and bacteriologist employed at the Employer's Salisbury, Maryland, plant, but excluding all other 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 November 28, 1975, the above-named la- bor 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 January 29, 1976, 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 15 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 Re- lations Board hereby orders that the Respondent, Campbell Soup Company, Salisbury, Maryland, 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 Chauffeurs, Ware- housemen and Helpers, Local Union No 876, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the ex- clusive bargaining representative of its employees in the following appropriate unit All professional employees, including the chemist and bacteriologist employed at the Employer's Salisbury, Maryland, plant, but ex- cluding all other employees, guards, and super- visors 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 Salisbury, Maryland, plant copies of the attached notice marked "Appendix " 3 Copies of said notice, on forms provided by the Regional Di- rector for Region 5, 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- 3 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 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 5, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with 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 Chauffeurs, Warehousemen and Helpers, Local Union No 876, 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 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, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement The bargaining unit is All professional employees, including the chemist and bacteriologist employed at the Employer's Salisbury, Maryland, plant, but excluding all other employees, guards, and su- pervisors as defined in the Act CAMPBELL SOUP COMPANY