Sonoma Vineyards, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sonoma Vineyards, Inc. and Winery, Distillery and Allied Workers Union, Local No. 186, AFL- CIO, Petitioner. Case 20-CA-16759 September 30, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Upon a charge filed on November 25, 1981, by Winery, Distillery and Allied Workers Union, Local No. 186, AFL-CIO, herein called the Union, and duly served on Sonoma Vineyards, Inc., herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Acting Re- gional Director for Region 20, issued a complaint on December 8, 1981, 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 pro- ceeding. With respect to the unfair labor practices, the complaint alleges in substance that on July 14, 1981, following a Board election in Case 20-RC- 14690, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about September 18, 1981, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On Decem- ber 21, 1981, Respondent filed with the General Counsel alternative motions that (1) the time to answer the complaint be indefinitely extended, and (2) the complaint be withdrawn. 2 On the same date, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint, and alleging as an affirma- tive defense that the Board's certification of the Union is invalid. On February 11, 1982, counsel for the General Counsel filed directly with the Board a Motion for i Official notice is taken of the record in the representation proceed- ing, Case 20-RC-14690, 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 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. I On January 6, 1982, the General Counsel, by the Acting Regional Director, denied the motions. 264 NLRB No. 85 Summary Judgment. 3 Subsequently, on February 18, 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 Sum- mary Judgment should not be granted. Respondent thereafter filed two responses to the Notice To Show Cause, entitled (1) "Cross-Motion for With- drawal of Order Transferring Proceeding to Board and Notice To Show Cause" and (2) "Response to Motion for Summary Judgment." Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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, Respondent admits its refusal to bargain but, inter alia, it attacks the Union's certification on the basis that the Board erred in certifying the Union as the exclusive bar- gaining representative of Respondent's employees in the appropriate unit. In his Motion for Summary Judgment, counsel for the General Counsel alleges that Respondent seeks to relitigate issues previously considered in the underlying representation case and that there are no factual issues warranting a hearing. A review of the record, including that in Case 20-RC-14690, discloses, inter alia, that, pursuant to a Stipulation for Certification Upon Consent Elec- tion, an election was conducted among the employ- ees in the stipulated unit on December 8, 1978, and that the tally of ballots furnished the parties after the election showed 57 votes cast for and 40 against the Union. There were 54 challenged bal- lots which were sufficient in number to affect the results of the election. Respondent filed timely ob- jections alleging, inter alia, that the Union threat- ened employees, made promises of benefits to em- ployees, improperly offered to waive initiation fees, and made material misrepresentations. It further al- leges that the Board agent interfered with the fair operation of the election process by, inter alia, demonstrating bias and prejudice against Respond- ent prior to and during the election. After investi- gation, the Regional Director on March 13, 1979, issued a Report on Challenged Ballots and Objec- tions in which she recommended that the objec- tions be overruled, that the challenge to I voter's ballot be overruled, and that a hearing be held to 3 On this date, counsel for the General Counsel also filed with the Board a memorandum in support of the motion. 642 SONOMA VINEYARDS. INC. resolve the eligibility of the remaining 53 chal- lenged voters. On April 2, 1979, Respondent filed exceptions to the Regional Director's report in which it essential- ly reiterated the allegations and contentions set forth in its objections. Respondent also excepted to the Regional Director's recommendation that a hearing be held to resolve certain challenges. On July 11, 1979, the Board issued a Decision and Order Directing Hearing 4 in which it adopted the findings and recommendations set forth in the Re- gional Director's report. Pursuant to the Board's order directing hearing, a hearing was held on September 18, September 26-28, October 1-5, and October 10, 1979. On Sep- tember 25, 1980, the Hearing Officer's report on challenges issued recommending that 47 of the 53 challenges be sustained and that the remaining challenges be overruled and those ballots be opened and counted. On October 14, 1980, Re- spondent filed exceptions to the Hearing Officer's report, alleging, inter alia, that the Hearing Officer erroneously sustained the challenges to the ballots of a number of employees whose inclusion was re- quired by the language of the stipulation concern- ing the appropriate bargaining unit. On July 14, 1981, the Board issued a Supplemental Decision and Certification of Representative s adopting the Hearing Officer's report and certifying the Union as the collective-bargaining representative of the employees in the appropriate unit. In its Decision, the Board found that an ex parte communication which occurred prior to the issuance of the Hear- ing Officer's report did not prejudice Respondent. On July 24, 1981, Respondent filed a motion for reconsideration of the Board's Supplemental Deci- sion and Certification, alleging, inter alia, that the Board committed grievous error by finding that the ex parte communication was harmless. On Septem- ber 18, 1981, the Board issued an order denying motion in which it found Respondent's motion lacked merit and contained no issue not previously considered by the Board. By letters dated September 3 and September 22, 1981, the Union requested that Respondent meet with it for the purpose of negotiating a collective- bargaining agreement. By letters dated September 18 and September 29, 1981, Respondent refused to recognize and bargain with the Union. After issuance of the complaint in this proceed- ing, Respondent filed a "Motion to Extend Indefi- nitely Time to Answer Complaint and Motion to Withdraw Complaint," alleging that the Board's certification of the Union is invalid because of ' Not reported in bound volumes of Board Decisions Not reported in bound volumes of Board Decisions. newly discovered evidence showing the bias of the Board agent who conducted the election. Thus, Respondent submitted evidence that said Board agent accepted employment with the Union as a business representative responsible for representing the Union in its ongoing efforts to secure recogni- tion from Respondent. Respondent argues that this is in direct contravention of Section 102.119 of the Board's Rules and Regulations, Series 8, as amend- ed, prohibiting practice before the Board of its former employees in cases pending during employ- ment with the Board. It further argues that the Board agent's current employment supports Re- spondent's earlier contentions that the Board agent was biased. The Acting Regional Director denied this motion without comment. On March 3, 1982, Respondent filed a "Cross- Motion for Withdrawal of Order Transferring Pro- ceeding to the Board and Notice To Show Cause," reiterating the arguments it made in its "Motion to Extend Indefinitely Time to Answer Complaint and Motion to Withdraw Complaint." Respond- ent's cross-motion is denied as lacking in merit. In the underlying representation case, Respond- ent alleges four instances of the Board agent's bias or interference in the election process. First, the Board agent allegedly told the Petitioner's observer that there were several ways to prove challenges and he thought it would be easy for the Petitioner to prove most of its challenges. Second, the Board agent allegedly delayed opening the preelection conference by 15 minutes, awaiting the arrival of the Petitioner's representative, and then did not properly provide for the release of voters by ac- ceding to the Petitioner's objection to the use of the public address system for such purpose. Third, the Board agent allegedly stopped informing em- ployees that the Petitioner challenged their vote after the Petitioner's observer remarked that em- ployees appeared to be upset at being challenged. For the remaining election period the Board agent simply informed employees that their vote had been challenged. Fourth, the Board agent allegedly forced a unit employee to stand aside and wait during the polling period, thereby discouraging him from voting. Thus, when the employee ap- peared to vote, the Petitioner's observer said he was not sure whether the voter was in the unit and wanted to wait for the return of his fellow observ- er before challenging the voter. The Board agent asked the employee to wait and, after more than 10 minutes, the employee left without voting. With respect to the first instance, the Regional Director found there was no evidence that the al- leged statements were overheard by any employee other than the Employer's observer. He concluded 643 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, assuming such statements occurred, they could not have had a material impact on the elec- tion. As to the second instance, the Regional Di- rector found there was no evidence that the delay in opening the preelection conference prejudiced Respondent or that the method of releasing voters denied any employee the opportunity to vote. With regard to the third instance, the Regional Director found there was no evidence that the alleged chal- lenge procedure used by the Board agent influ- enced the outcome of the election. Finally, the Re- gional Director found nothing improper in the Board agent's asking the voter to wait, as this was an attempt to avoid a challenge to the voter. The Board subsequently affirmed the Regional Director's conclusions. We see nothing in Respond- ent's so-called newly discovered evidence which warrants a different result. While we might ques- tion the former Board agent's judgment in accept- ing responsibility for the Union's efforts to secure recognition from Respondent, his employment with the Union in connection with this proceeding does not vitiate our earlier findings regarding his con- duct during the election. We have carefully reex- amined our previous findings and see no basis for altering them. Respondent's evidence does not now, in light of subsequent events, indicate any error in our previous decision detailed above. As noted above, there was no evidence that the Board agent's conduct had a material impact on the election. Thus, for example, even assuming his comments to the Petitioner's observer about the ability to prove challenges showed bias, there is no evidence that they were overheard by any voters. That the former Board agent now, some 3 years after the election, works for the Union and against Respondent does not change this. Nor do we find merit in Respondent's argument that the former Board agent's employment with the Union contravenes Section 102.119 of the Board's Rules and Regulations. That section prohibits prac- tice before the Board of its agents in connection with any case or proceeding pending before the Board during the time of employment with the Board. While Respondent has offered evidence that the former Board agent is acting as the Union's business representative in its picketing of Respond- ent in connection with Respondent's refusal to bar- gain at issue herein, there is no evidence that he is representing the Union in any capacity before the Board in this proceeding. Accordingly, Respond- ent's cross-motion for withdrawal of order transfer- ring the proceeding to the Board and Notice To Show Cause is denied. All other matters raised in Respondent's answer to the complaint and response to the Notice To Show Cause were raised in the underlying representation case. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging 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. 6 All material issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor prac- tice 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 Sonoma Vineyards, Inc., a California corpora- tion, has at all times material herein maintained an office and place of business in Windsor, California, where it has been and is engaged in the operation of a winery and in the sale of wine. During 1980, Respondent sold and shipped from that facility wine valued in excess of $50,000 directly to points outside California. We find, on the basis of the foregoing, that Re- spondent 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 Winery, Distillery and Allied Workers Union, Local No. 186, 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 I. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by the Employer at its Windsor, California facilities, including cellar employees, tasting room employees, maintenance and 6 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). 644 SONOMA VINEYARDS, INC. repair employees, mail order processing em- ployees, labeling employees, shipping and re- ceiving employees; excluding catering employ- ees, office clerical employees, guards and su- pervisors as defined in the Act. 2. The certification On December 8, 1978, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 20, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on July 14, 1981, 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 3, 1981, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about September 18, 1981, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since September 18, 1981, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit and that, by such refusal, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) 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 oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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. Sonoma Vineyards, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Winery, Distillery and Allied Workers Union, Local No. 186, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by the Employer at its Windsor, Califor- nia facilities, including cellar employees, tasting room employees, maintenance and repair employ- ees, mail order processing employees, labeling em- ployees, shipping and receiving employees; exclud- ing catering employees, office clerical employees, guards and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since July 14, 1981, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about September 18, 1981, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Re- spondent 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, Respond- ent has interfered with, restrained, and coerced, 645 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 en- gaged 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 Re- lations Board hereby orders that the Respondent, Sonoma Vineyards, Inc., Windsor, 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 Winery, Distillery and Allied Workers Union, Local No. 186, AFL- CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by the Employer at its Windsor, California facilities, including cellar employees, tasting room employees, maintenance and repair employees, mail order processing em- ployees, labeling employees, shipping and re- ceiving employees; excluding catering employ- ees, office clerical employees, guards and su- pervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 under- standing in a signed agreement. (b) Post at its Windsor, California, facility copies of the attached notice marked "Appendix." 7 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Copies of said notice, on forms provided by the Regional Director for Region 20, 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 shall be taken by Re- spondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 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 Winery, Distillery and Allied Workers Union, Local No. 186, AFL-CIO, as the ex- clusive 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 employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees employed by the Employer at its Windsor, California facilities, including cellar employ- ees, tasting room employees, maintenance and repair employees, mail order processing employees, labeling employees, shipping and receiving employees; excluding catering em- ployees, office clerical employees, guards and supervisors as defined in the Act. SONOMA VINEYARDS, INC. 646