Sam Andy Foods

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sam Andy Foods, a Division of United Commodities International and International Brotherhood of Pottery & Allied Workers, AFL-CIO. Case 31- CA-5062 July 29, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO, MURPHY, AND WALTHER Upon a charge and a first amended charge filed on February 7 and 28, 1975, respectively, by Interna- tional Brotherhood of Pottery & Allied Workers, AFL-CIO, herein called the Union, and duly served on Sam Andy Foods, a Division of United Commod- ities International, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 31, issued a complaint on February 28, 1975, 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 January 15, 1975, following a Board election in Case 31-RC 2578 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; and that, commencing on or about January 28, 1975, 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 March 5, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On March 24, 1975, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 11, 1975, 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. Respon- dent thereafter filed a response to Notice To Show Cause. C Olficial notice is taken of the record in the representation proceeding, Case 31 RC 2578, as the term "record" is defined in Secs 102.68 and 102. 6 9(g) of the Board's Rules and Regulations, Series 8, as amended. See /. 71' Electrossrterns, Inc., 166 NL.RB 938 (1967), enfd. 388 F.2d 683 (C.A. 4. 1968). Goldenr 4ge Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 ((C.A. 5. 1969): Ilterrpe Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967): 231 NLRB No. 12 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 its opposition to the Motion for Summary Judgment, Respondent attacks the Union's representative status and certifi- cation based on its objections to the election and its exceptions to the Hearing Officer's report in the underlying representation proceeding and denies that the Union is a labor organization within the meaning of the Act. Additionally, Respondent affirmatively alleges that the certification is invalid because the Union engages in discrimination based on race or sex or both. The General Counsel contends that all these matters either were or should have been raised in the underlying representation matter. We find it unnec- essary to pass on the timeliness of Respondent's affirmative defense concerning discrimination since, in any case, we would not consider the merits of such defense in this proceeding for the reasons stated in our recent decisions in Handy Andy, Inc., 2 and Bell & Howell Company. 3 With respect to Respondent's other contentions we agree with the General Coun- sel. Review of the record herein, including that in the representation proceeding (Case 31-RC-2578), 4 es- tablishes that in the election conducted on December 7 and 8, 1973, pursuant to a Stipulation for Certification Upon Consent Election, there were 45 votes cast for, and 37 votes cast against, the Union, with 10 determinative challenged ballots. Respon- dent filed timely objections to the election. After investigation, the Regional Director issued, on January 28, 1974, a Report on Challenges and Objections in which he recommended that the challenges to seven ballots be sustained and conclud- ed it was unnecessary to resolve the challenges to the three remaining ballots as they are insufficient in number to affect the outcome of the election. He also recommended that Objection I be overruled and that a hearing be held on Objections 2, 3, and 4 as they raise substantial and material factual issues best resolved by a hearing. On February 20, 1974, Respondent filed timely exceptions to the Regional Director's Report on Challenges and Objections, contending that the election be set aside, or in the alternative that the hearing should be expanded to include Objection 1. Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968): Sec. 9(d) of the NLRA, as amended. 2 228 NLRB447(1977). :I 230 NLRB No. 57(1977). 4 216 NLRB 167(1975). 46 SAM ANDY FOODS On April 25, 1974, the Board issued a Decision and Order Directing Hearing5 which ordered that a hearing be held with respect to Objections 1(b), 2, 3, and 4. After the hearing, the Hearing Officer issued, on August 14, 1974, his Report and Recommendations in which he recommended that all the objections be overruled. Thereafter, Respondent filed timely ex- ceptions to the Report and Recommendations and a supporting brief, and the Union filed an answering brief. On January 15, 1975. the Board issued a Supplemental Decision and Certification of Repre- sentative 6 in which it adopted the Hearing Officer's recommendation that the objections be overruled and ordered that the Union be certified. 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. 7 All issues, except for the above-dismissed affirma- tive defense, 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 an), 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 issue which is properly litigable in this unfair 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. THIE BUSINESS OF TIllE RESPONDENI Respondent, a California corporation, has an office and place of business located in Colton, California, where it is engaged in packing and distributing dehydrated foods. During the past calendar year, a representative period, Respondent sold and shipped goods valued in excess of $50.000 to customers located outside the State of California. 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. ' Not reported ill hound .olumes ot Board Decisions. ' See fn. 5upra 11. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Pottery & Allied Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111. 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 full-time and regular part-time production and maintenance employees, including ware- housemen and truckdrivers: excluding all office clerical employees, sales and technical employees, guards and supervisors as defined in the Act. 2. The certification On December 7 and 8, 1973, 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 31, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on January 15, 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 20, 1975, and at all times thereafter, the Union has requested the 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 January 28, 1975, and continu- ing 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 January 28, 1975, 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- 7 See Pittsburgh Plate Glass Co. v. .NL.R.B, 313 U.S. 146. 162 (1941). Rules and Regulations of the Board. Secs 102.67(0 and 102. 69 tLc) 47 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 111. 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 commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jlac 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. Sam Andy Foods, a Division of United Commodities International, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Pottery & Allied Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees, including warehouse- men and truckdrivers; excluding all office clerical employees, sales and technical 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 January 15, 1975, 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 January 28, 1975, 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(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 Respondent, Sam Andy Foods, a Division of United Commodities International, Colton, California, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Broth- erhood of Pottery & Allied Workers, AFL-CIO, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All full-time and regular part-time production and maintenance employees, including ware- housemen and truckdrivers; excluding all office clerical employees, sales and technical 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 48 SAM ANDY FOODS and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Colton, California, plant copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 31, 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. (c) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. x 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 Inter- national Brotherhood of Pottery & Allied Work- ers, AFL-CIO, as the exclusive representative 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 full-time and regular part-time produc- tion and maintenance employees, including warehousemen and truckdrivers; excluding all office clerical employees, sales and technical employees, guards and supervisors as defined in the Act. SAM ANDY FOODS, A DIVISION OF UNITED COMMODITIES INTERNATIONAL 49