Krispy Kreme Doughnut Corporation

264 NLRB No. 131 VFH D--9372 Louisville, KY UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD KRISPY KREME DOUGHNUT CORPORATION and BAKERY, CONFECTIONERY AND TOBACCO WORKERS INTERNATIONAL UNION, LOCAL 213, AFL-CIO--CLC Case 9--CA--18422 DECISION AND ORDER Upon a charge filed on June 10, 1982, by Bakery, Confectionery and Tobacco Workers International Union, Local 213, AFL-CIO--CLC, herein called the Union, and duly served on Krispy Kreme Doughnut Corporation, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9, issued a complaint on July 12, 1982, 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 and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. 264 NLRB No. 131 D--9372 With respect to the unfair labor practices, the complaint alleges in substance that on May 7, 1982, following a Board election in Case 9--RC--13315, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencing on or about May 28, 1982, 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 20, 1982, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 2, 1982, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 6, 1982, 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 the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations 1 Official notice is taken of the record in the representation proceeding, Case 9--RC--13315, as 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 (4th Cir. 1968) Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. V. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. D--9372 Board has delegated its authority in this proceeding to a threemember 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 in its response to the Notice To Show Cause, Respondent admits that it refused the Union's request to bargain. However, for the reasons set forth in its objections to the election, Respondent asserts that the Union was not properly certified and that it properly refused to bargain with the Union as the exclusive bargaining representative of its employees. Respondent further avers that the purpose of its refusal to bargain is to seek judicial review of the Board's certification. A review of the record herein, including that in Case 9--RC--13315, reveals that pursuant to a Stipulation for Certification Upon Consent Election, an election by secret ballot was conducted on May 22 and 23, 1980, and that election resulted in a majority of the valid ballots being cast in favor of representation by the Union. Thereafter, Respondent filed timely objections to conduct affecting the election. Pursuant to the Board's Rules and Regulations, the Regional Director conducted an investigation, and on July 30, 1980, the Regional Director issued his Report on Objections to Election, Order Directing Hearing, Order Consolidating Cases and Notice of Hearing, wherein he consolidated for hearing the objections and the allegations set forth in a complaint and notice of hearing which issued in Case D--9372 9--CB--4595 on July 28, 1980. Following the hearing held on March 19 and 20, April 14, and September 30, 1981, the Administrative Law Judge issued his Decision in which he overruled the objections in Case 9--RC--13315 and dismissed the complaint in Case 9--CB--4595. Subsequently, Respondent filed exceptions limited to the Administrative Law Judge's dismissal of the objections and corresponding complaint allegations that the Union had violated the Act and interfered with the election by impermissibly offering to waive union initiation fees and dues if employees signed union cards prior to the election. 2 On May 7, 1982, the Board affirmed the findings of the Administrative Law Judge, adopted his recommended Order, and issued its Decision, Order, and Certification of Representative certifying the Union as the bargaining representative of Respondent's employees in the appropriate unit described in the complaint. 3 It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a 2 No exceptions were filed to the Administrative Law Judge's dismissal of objections and corresponding complaint allegations that the Union had interfered with the election and had violated Sec. 8(b)(1)(A) by threatening an employee with a loss of pension rights if he did not support the Union's organizing campaign. In view of Respondent's failure to file timely exceptions to the dismissal of these objections, we find no merit to Respondent's attempt to reassert these objections as a defense to its refusal to bargain. See Sec. 102.46 of the Board's Rules and Regulations, Series 8, as amended. Moreover, even if these objections were properly before the Board, Respondent has failed to offer any justification for its assertion that the Administrative Law Judge and Board erred in dismissing these objections. 3 261 NLRB No. 114. 9372 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 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 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 properly litigable in this unfair labor practice proceeding. Accordingly, we 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 Respondent At all times material herein, Respondent, a Delaware corporation, 5 with offices and place of business in Louisville, 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 (f) and 102.69 (c). 5 In the underlying representation case, Respondent did not file exceptions to the Administrative Law Judge's finding that Respondent was a Delaware corporation. In its answer, Respondent denied that it is a Delaware corporation, and affirmatively asserted that it is a North Carolina corporation. Respondent, however, has failed to affirmatively set forth any facts in support of its bare denial that it is not a Delaware corporation. In such circumstances, we find no reason to disturb the findings of the underlying representation case. Moreover, the issue of (continued) D--9372 Kentucky, has been engaged in the manufacture and nonretail and retail sale of baked goods. During the past 12 months, a representative period, Respondent, in the course and conduct of its business operations described above directed gross revenues in excess of $500,000, and, during the same time period described above, Respondent sold and shipped from its Louisville, Kentucky, facility products, goods, and materials valued in excess of $5,000 directly to points outside the State of Kentucky. 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 Bakery, Confectionery and Tobacco Workers International Union, Local 213, AFL--CIO--CLC, 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: 5 Respondent's involvement in interstate commerce is not in dispute, and the question regarding Respondent's corporate home does not affect our ruling on the General Counsel's Motion for Summary Judgment. D--9372 Kentucky, has been engaged in the manufacture and nonretail and retail sale of baked goods. During the past 12 months, a representative period, Respondent, in the course and conduct of its business operations described above directed gross revenues in excess of $500,000, and, during the same time period described above, Respondent sold and shipped from its Louisville, Kentucky, facility products, goods, and materials valued in excess of $5,000 directly to points outside the State of Kentucky. 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 Bakery, Confectionery and Tobacco Workers International Union, Local 213, AFL--CIO--CLC, 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: 5 Respondent's involvement in interstate commerce is not in dispute, and the question regarding Respondent's corporate home does not affect our ruling on the General Counsel's Motion for Summary Judgment. D--9372 All full-time and regular part-time production employees, packing employees, wrapping employees, shipping employees, sanitation workers and in-store sales employees employed by [Respondent] at its 3920 Seventh Street Road and 3000 Bardstown Road, Louisville, Kentucky location, but excluding all truck drivers, office clerical employees and all professional employees, guards and supervisors as defined in the Act. 2. The certification On May 22 and 23, 1980, 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 9, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on May 7, 1982, 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 11, 1982, 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. Commencing on or about May 28, 1982, 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 28, 1982, and at all times thereafter, refused to bargain 9372 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 operations 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 commerce. 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 certification as beginning on the date Respondent commences 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 D--9372 Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: Conclusions of Law 1. Krispy Kreme Doughnut Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Bakery, Confectionery and Tobacco Workers International Union, Local 213, AFL--CIO--CLC, is a labor organization within the meaning of Section (5) of the Act. 3. All full-time and regular part-time production employees, packing employees, wrapping employees, shipping employees, sanitation workers and in-store sales employees employed by Respondent at its 3920 Seventh Street Road and 3000 Bardstown Road, Louisville, Kentucky, location, but excluding all truck drivers, office clerical employees and all professional 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 May 7, 1982, 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 collective bargaining within the meaning of Section 9 (a) of the Act. D--9372 5. By refusing on or about May 28, 1982, 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, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees 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 meaning 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, Krispy Kreme Doughnut Corporation, Louisville, Kentucky, 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 Bakery, Confectionery and Tobacco Workers International Union, Local 213, AFL--CIO--CLC, as the exclusive bargaining 9372 representative of its employees in the following appropriate unit: All full-time and regular part-time production employees, packing employees, wrapping employees, shipping employees, sanitation workers and in-store sales employees employed by [Respondent] at its 3920 Seventh Street Road and 3000 Bardstown Road, Louisville, Kentucky location, but excluding all truck drivers, office clerical employees and all professional 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 and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Louisville, Kentucky, facilities copies of the attached notice marked ''Appendix. ..6 Copies of said notice, 6 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. --9372 on forms provided by the Regional Director for Region 9, 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 thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps 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 9, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Dated, Washington, D.C. September 30, 1982 John R. Van de Water, Chairman John H. Fanning, Member Robert P. Hunter, Member NATIONAL LABOR RELATIONS BOARD (SEAL) 9372 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 Bakery, Confectionery and Tobacco Workers International Union, Local 213, AFL--CIO--CLC, 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 abovenamed Union, as the exclusive representative 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 agreement. The bargaining unit is: D--9372 All full-time and regular part-time production employees, packing employees, wrapping employees, shipping employees, sanitation workers and in-store sales employees employed by us at our 3920 Seventh Street Road and 3000 Bardstown Road, Louisville, Kentucky location, but excluding all truck drivers, office clerical employees and all professional employees, guards and supervisors as defined in the Act. KRISPY KREME DOUGHNUT CORPORATION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Office Building, Room 3003, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513--684--3663.