Gulf States Canners

GULF STATES CANNERS Gulf States Canners, Inc. and International Brother- hood of Teamsters, Local No. 891. Case 15-CA- 6497-2 September 29, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on June 10, 1977, by International Brotherhood of Teamsters, Local No. 891, herein called the Union, and duly served on Gulf States Canners, Inc., herein called the Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 15, issued a complaint on July 1, 1977, 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 April 8, 1977, following a Board election in Case 15-RC-6001 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; I and that, commenc- ing on or about May 30, 1977, 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 July 8, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 18, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 26, 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. 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. ' Official notice is taken of the record in the representation proceeding, Case 15-RC-6001, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Senes 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); Inrenrpe Co. v. Penello. 269 F.Supp. 573 (D.C.Va., 1967). 232 NLRB No. 79 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 admits all operative factual averments of the complaint but denies the validity of the Union's certification on the basis of its objections to the election and denial of a hearing in the underlying representation proceeding. The General Counsel contends that Respondent has either admitted the averments of the complaint or raised issues which it had previously presented in its objections to the election, which are not relitigable in this case. We agree with the General Counsel. Our review of the record herein, including the record in Case 15-RC-6001, discloses that in an election conducted on December 9, 1976, pursuant to a Stipulation for Certification Upon Consent Elec- tion, the Union was successful by a vote of 20 to 16, with no ballots challenged. Respondent filed timely objections to the conduct of the election and to conduct affecting the results of the election in which it alleged, in substance, that: the Union made substantial misrepresentations of fact at a time which precluded effective reply; the Union threatened employees with adverse consequences if they failed to support the Union; employees not connected with Respondent or the Union intimidated prospective voters; the Union bestowed special favors upon certain employees to induce their support in the election; and employees were not guaranteed the right to secretly cast their ballots. Thereafter, on January 14, 1977, Respondent filed with the Region- al Director a motion to withhold certification in which it requested dismissal of the Union's represen- tation petition or, alternatively, the direction of a new election.2 After an investigation the Regional Director, on February 4, 1977, issued a Report on Objections in which he recommended that Respondent's objections be overruled in their entirety as they did not raise substantial or material issues affecting the election or its results and that Respondent's motion to withhold certification be denied in view of the recommended disposition of the objections and as the motion was untimely filed and did not raise issues of conduct warranting setting aside the election. Accordingly, he recommended that the Union be certified. Respon- dent filed timely exceptions to the Regional Direc- Follett Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 2 Attached to the motion was a petition purporting to bear the signatures of 32 of the 36 employees seeking another election on the grounds that they "do not feel that the result of the recent Union Election was representative of the true feelings of the majority of the employees of this company." 601 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tor's Report on Objections and a brief in support in which it substantially reiterated the contentions advanced in its objections and in its motion to withhold certification and again requested a hearing. On April 8, 1977, the Board issued a Decision and Certification of Representative 3 in which, after reviewing the record in the light of the exceptions and brief, it adopted the findings and recommenda- tions of the Regional Director and certified the Union as the exclusive bargaining representative of the employees in the unit stipulated to be appropri- ate. 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.4 Except as discussed hereinafter, all issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previously unavail- able 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 properly litigable in this unfair labor practice proceeding. In its response, Respondent renewed its request for a hearing on its objections contending that the denial of a hearing constituted an abuse of discretion and that the Board's summary judgment procedure violates Section 10(b) of the Act. We find no merit in this position. In the underlying representation pro- ceeding, the Regional Director found that the objections did not raise substantial or material issues affecting the election or its results, and the Board, in adopting the Regional Director's findings and recommendations, implicitly found there were no substantial or material issues warranting a hearing. To be entitled to a hearing, Respondent must raise substantial or material issues which would warrant setting aside the election.5 This qualified right to a hearing satisfies all statutory and constitutional requirements of due process. 6 Where, as here, Respondent failed to raise substantial or material issues in the underlying representation case, it has not been denied due process by the Board's failure to grant a hearing on those issues.7 Furthermore, the courts have uniformly upheld the Board's authority 3 Not reported in bound volumes of Board Decisions. 4 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(0 and 102.69(c). N. L.R.B. v. Modine Manufacturing Co., 500 F.2d 914 (C.A., 1974). to utilize summary judgment procedures where there are no issues requiring an evidentiary hearing.8 We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is a Mississippi corporation with offices and a place of business in Clinton, Mississip- pi, where it is engaged in the wholesale canning of Coca Cola drinks. During the past 12-month period, Respondent sold and shipped goods and materials valued in excess of $50,000 directly to points outside the State of Mississippi. 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 International Brotherhood of Teamsters, Local No. 891, 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 Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees and quality control employees employed by Respon- dent at its Clinton, Mississippi, facility; excluding all office clerical employees, truckdrivers, watch- men and/or guards and supervisors as defined in the Act. 2. The certification On December 9, 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 15, designated the Union as their representative for the purpose of collective bargain- 6 Allied Meat Company, 220 NLRB 27 (1975). 7 Blackman-Uhler Chemical Division--Symallo Corporation, 223 NLRB 827 (1976). 8 Ibid.; CSC Oil Company, 220 NLRB 19(1975). 602 GULF STATES CANNERS ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on April 8, 1977, 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 May 23, 1977, 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 May 30, 1977, 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 collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since May 30, 1977, 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, 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, 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 (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 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. Gulf States Canners, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Local No. 891, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees and quality control employees employed by Respon- dent at its Clinton, Mississippi, facility; excluding all office clerical employees, truckdrivers, watchmen and/or 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 April 8, 1977, 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 May 30, 1977, 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 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)(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 Relations Board hereby orders that the Respondent, Gulf States Canners, Inc., Clinton, Mississippi, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: 603 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Broth- erhood of Teamsters, Local No. 891, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees and quality control employees employed by Respon- dent at its Clinton, Mississippi, facility; excluding all office clerical employees, truckdrivers, watch- men and/or 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 facility in Clinton, Mississippi, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 15, 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. 9 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." (c) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Inter- national Brotherhood of Teamsters, Local No. 891, as the exclusive representative of the employ- ees 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 and quality control employees employed by Respondent at its Clinton, Mississippi, facility; excluding all office clerical employ- ees, truckdrivers, watchmen and/or guards and supervisors as defined in the Act. GULF STATES CANNERS, INC. 604