S. Prayer & Co.

S. PRAWER & COMPANY S. Prawer & Company and Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO. Case l-CA-12871 September 28, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on March 14, 1977, by Industrial Union of Marine and Shipbuilding Work- ers of America, AFL-CIO, herein called the Union, and duly served on S. Prawer & Company, herein called 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 April 12, 1977, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 record shows that on September 17, 1976, following a Board election in Case 1-RC-14287, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;l and that, commencing on or about October 5, 1976, 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 April 25, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On May 25, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on June 9, 1977, 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, entitled "Opposition of Respondent to Motion for Summary Judgment and for Transfer to Board for Decision." Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the I Official notice is taken of the record in the representation proceeding, Case I-RC-14287, 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 Electrosvsrems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 232 NLRB No. 78 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 denies the validity of the certification based on its election objections, seeking a hearing thereon (1) to present an employee affidavit and investigatory statement which the Board previously refused to consider in the underlying representation case because untimely filed and (2) to present evidence showing a 70- percent turnover in the bargaining unit since the election. In the Motion for Summary Judgment, counsel for the General Counsel contends that Respondent has raised no litigable issue in this proceeding and that summary judgment is warrant- ed. We agree. Review of the record herein, including that in the underlying representation proceeding, Case l-RC- 14287, shows that, pursuant to a Stipulation for Certification Upon Consent Election, an election was held on March 19, 1976, which the Union won eight to six with no challenged ballots. Respondent filed timely objections to the election alleging material misrepresentations by the Union, including (1) a last- minute rumor that Respondent was moving its business, (2) an allegation that Respondent had discharged an employee for union activities, and (3) statements in a newsletter to employees regarding increased wages and benefits negotiated by the Union with another employer. After an investigation, the Regional Director issued his Report on Objec- tions on June 7, 1976, finding that (1) the rumor of Respondent's moving was initiated and discussed at an informal employee meeting and none of the employees interviewed indicated that the rumor controlled their votes; (2) the evidence did not support Respondent's contention that the Union had made misrepresentations as to the discharge of an employee for union activity, which discharge was the subject of an unfair labor practice charge, filed 2 days before the election and subsequently dismissed; and (3) Respondent had sufficient time to respond to the statements in the newsletter circulated 9 days before the election and, in any event, the statements were not material misrepresentations, if misrepresen- tations at all. Based on the foregoing, the Regional Director recommended that the objections be over- ruled and a certification be issued. 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, as amended. 495 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent filed exceptions and a brief in support contending that (1) the rumor that Respondent was going to move was tantamount to a prediction of discharge and had destroyed laboratory conditions and influenced votes; (2) employees could not evaluate union statements regarding the alleged discharge and filing the unfair labor practice charge 2 days before the election was a campaign "gim- mick"; and (3) Respondent did not have time to respond to the material misrepresentations contained in the newsletter. Respondent also contended that a hearing was warranted on its objections to resolve credibility issues relating to its first and second objections, particularly with respect to the Regional Director's finding that no employee interviewed had indicated that the rumor of the move had controlled his vote. Subsequently, by letters dated July 6 and 16 and August 20, 1976,2 Respondent sought to file with the Board (1) an employee affidavit allegedly controverting the Regional Director's finding that no votes were controlled by the rumor that Respondent would move and (2) a copy of an unsigned statement to the same effect taken from the same employee by a Board agent during the investigation of Respon- dent's objections. By letters dated July 13 and 21 and August 25, 1976, the Assistant Executive Secretary rejected these submissions on the grounds that such material, being supplemental, supportive, or redun- dant, was untimely submitted.3 On September 17, 1976, the Board issued its Decision and Certification of Representative, adopting the Regional Director's findings and recommendations and specifically finding that Respondent's exceptions raised no material or substantial issues of fact or law warrant- ing reversal of the Regional Director's findings or requiring a hearing. Accordingly, the Union was certified. It thus appears that Respondent is raising issues, including that of a hearing to present its objections and the untimely filed documents submit- ted in support thereof, which had been raised and determined in the underlying 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 2 These letters and the replies thereto from the Board are attached to Respondent's response as Exhs. I through 7. 3 In its letter dated July 16, 1976, Respondent acknowledged that the affidavit was postmarked after June 30, 1976, the date its exceptions were due, but requested that it be made a part of the record because it "adds no new evidence nor raises any new issue beyond those reflected in said exceptions and brief." In any event, we note that, with respect to this affidavit and to the unsigned investigatory statement, it is welt established that the "record" in the representation case or in this related unfair labor practice case as defined in Sees. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended, does not include either such affidavit or statement. Prestolile Wire Division, Eltra Corporation, 226 NLRB 327 (1976). to relitigate issues which were or could have been litigated in a prior representation proceeding.4 Except as follows, all issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and Respon- dent 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.5 We also reject Respondent's contention that it is entitled to a hearing to present previously unavail- able evidence of employee turnover which allegedly would establish that 70 percent of the employees currently employed in the bargaining unit did not participate in the election. It is well established that Respondent's obligation to bargain extends for 1 year from the date of the certification and that, contrary to Respondent, employee turnover does not constitute "unusual circumstances" within the mean- ing of Ray Brooks v. N.LR.B., 348 U.S. 96 (1954),6 and therefore a hearing on employee turnover is not warranted. Further, it is presumed that new employ- ees desire representation in the same proportions as other employees. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judg- ment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Maine corporation with its principal place of business in Bath, Maine, is now and continously has been engaged at said location in the wholesaling, sale, and distribution of food products. Respondent in the course and conduct of its business causes, and continously has caused at all times herein mentioned, large quantities of foodstuffs and food products used by it in the wholesaling, sale, and distribution of food products to be purchased and transported in interstate commerce from and through various States of the United States other than the 4 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 5 In its answer Respondent admits that the Union had requested bargaining on September 29, 1976, and that it had refused on October 5, 1976, and continues to do so. Its affirmative contention that the Union failed to renew its initial request prior to the filing of the charge herein is without merit. It is obvious that after Respondent's initial refusal any further requests for bargaining would have been futile and are therefore unnecessary. Williams Energy Company, 218 NLRB 1080 (1975). 6 Diamond Crystal Salt Company, 222 NLRB 714 (1976); Nichols- Homeshield. Inc., 214 NLRB 682 (1974). 496 S. PRAWER & COMPANY State of Maine. Respondent in the course and conduct of its business annually receives goods valued in excess of $50,000 directly from points outside Maine. 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 Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. I11. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding I. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All truckdrivers and warehousemen employed by Respondent at its 120 Commercial Street, Bath, Maine location, but excluding office clerical employees, professional employees, salesmen, student summer employees, guards and supervi- sors as defined in the Act. 2. The certification On March 19, 1976, 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 1, 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 September 17, 1976, 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 September 29, 1976, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about October 5, 1976, and continu- ing at all times thereafter to date, 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 October 5, 1976, 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 (I) 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 com- mences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate 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. S. Prawer & Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 497 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. All truckdrivers and warehousemen employed by Respondent at its 120 Commercial Street, Bath, Maine location, but excluding office clerical employ- ees, professional employees, salesmen, student sum- mer 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 September 17, 1976, 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 October 5, 1976, 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(aX5) 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(a)(l) 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 the Respondent, S. Prawer & Company, Bath, Maine, 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 Industrial Union of Marine and Shipbuilding Workers of America, AFL- CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All truckdrivers and warehousemen employed by Respondent at its 120 Commercial Street, Bath, Maine location, but excluding office clerical employees, professional employees, salesmen, student summer employees, guards and supervi- sors 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 Bath, Maine, location copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous 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 i, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 7 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 Indus- trial Union of Marine and Shipbuilding Workers of America, AFL-CIO, as the exclusive represen- tative 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: 498 S. PRAWER & COMPANY All truckdrivers and warehousemen em- ployed by Respondent at its 120 Commercial Street, Bath, Maine location, but excluding office clerical employees, professional em- ployees, salesmen, student summer employ- ees, guards and supervisors as defined in the Act. S. PRAWER & COMPANY 499