Ozuna Food Products, Inc.

264 NLRB No. 45 9300 Santa Clara, CA UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD OZUNA FOOD PRODUCTS, INC. and UNITED FOOD & COMMERCIAL WORKERS UNION, LOCAL 428, UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION, AFL--CIO Case 32--CA--4577 DECISION AND ORDER Upon a charge filed on June 8, 1982, by United Food & Commercial Workers Union, Local 428, United Food & Commercial Workers International Union, AFL--CIO, herein called the Union, and duly served on Ozuna Food Products, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 32, issued a complaint on June 10, 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. 45 D--9300 With respect to the unfair labor practices, the complaint alleges in substance that on April 27, 1982, following a Board election in Case 32--RC--1457, 1 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 June 1, 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 June 22, 1982, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 2, 1982, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 12, 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 32--RC--1457, 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--9300 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 response to the Notice To Show Cause, Respondent attacks the validity of the Union's certification because of the alleged erroneous resolution of its objections to the conduct affecting the election in Case 32--RC-- 1457. Review of the record herein, as well as that in Case 32--RC--1457, reveals that, on November 6, 1981, an election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tally of ballots showed that six votes were cast for, and four votes were cast against, the Union. There were two challenged ballots. Thereafter, Respondent filed timely objections to the conduct affecting the results of the election, and to the conduct of the election as well. On January 26, 1982, the Regional Director for Region 32 issued a report and recommendation on objections and challenged ballots in which he sustained one of the two determinative challenges, overruled Respondent's objections, and recommended that the Union be certified. Thereafter, Respondent filed timely exceptions to the Regional Director's report, contending that the Regional Director erred in overruling, without a hearing, certain of its objections which alleged that the Board's Spanish/English election notice confused voters; that the Union had engaged in a material D-9300 misrepresentation of fact which it lacked the time to rebut; that an absent voter was improperly disenfranchised; and that union agents harassed and intimidated voters during the election. On April 27, 1982, the Board issued a Decision and Certification of Representative 2 in which it adopted the findings and recommendations of the Regional Director. As reflected in its answer to the complaint and its response to the Notice To Show Cause, Respondent's defense to the alleged violations of Section 8 (a) (5) and (1) is that the Board erred in overruling its objections to the election, or failing to order a hearing thereon. However, these matters were raised and fully considered by the Board in the underlying representation proceeding and were resolved adversely to Respondent. 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. 3 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 3 2 Not reported in volumes of Board Decisions. 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). D--9300 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 Respondent, a California corporation with an office and place of business in Santa Clara, California, is engaged in the wholesale distribution of food products. During the past 12 months, Respondent, in the course and conduct of its business operations, purchased and received goods or services valued in excess of $50,000 directly from suppliers 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. II. The Labor Organization Involved United Food & Commercial Workers Union, Local 428, United Food & Commercial Workers International Union, AFL--CIO, is a labor organization within the meaning of Section 2(5) of the Act. D--9300 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 driver-salespersons and shipping and receiving clerks employed by the employer at its facility located at 510 Martin Avenue, Santa Clara, California; excluding food production employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On November 6, 1981, 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 32, 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 April 27, 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 3, 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 June 1, 1982, and continuing at all times thereafter to date, Respondent has refused, and continues to D--9300 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 June 1, 1982, 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 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 D-9300 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 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. Ozuna Food Products, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Food & Commercial Workers Union, Local 428, United Food & Commercial Workers International Union, AFL--CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. All driver-salespersons and shipping and receiving clerks employed by the employer at its facility located at 510 Martin Avenue, Santa Clara, California; excluding food production employees, office clerical employees, 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 April 27, 1982, the above-named labor organization has been and now is the certified and exclusive representative of D-9300 all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on or about June 1, 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, Ozuna Food Products, Inc., Santa Clara, California, 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 United Food & Commercial Workers Union, Local 428, United D--9300 Food & Commercial Workers International Union, AFL--CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All driver-salespersons and shipping and receiving clerks employed by the employer at its facility located at 510 Martin Avenue, Santa Clara, California; excluding food production employees, office clerical employees, 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 Santa Clara, California, facility copies of the attached notice marked ''Appendix. Copies of said notice, on forms provided by the Regional Director for Region 32, after 4 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. D 9300 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 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 32, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Dated, Washington, D.C. September 29, 1982 John R. Van de Water, Chairman John H. Fanning, Member Don A. Zimmerman, Member NATIONAL LABOR RELATIONS BOARD (SEAL) D--9300 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 United Food & Commercial Workers Union, Local 428, United Food & Commercial Workers International Union, 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 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: All driver-salespersons and shipping and receiving clerks employed by the employer at its facility located at 510 Martin Avenue, Santa Clara, California; excluding food production employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. OZUNA FOOD PRODUCTS, INC. (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, Breuner Building, Second Floor, 2201 Broadway, P.O. Box 12983, Oakland, California 94604, Telephone 415--273--6122.