Flowers Baking Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Flowers Baking Company of Gadsden/a Division of Flowers Industries and Service Employees Interna- tional Union Local No. 579, AFL-CIO. Case 10- CA-12564 June 27, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge and amended charge filed on February I and 3, 1977, respectively, by Service Employees International Union Local No. 579, AFL-CIO, herein called the Union, and duly served on Flowers Baking Company of Gadsden/a Division of Flower Industries, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 10, issued a complaint and notice of hearing on March 2, 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 January 12, 1977, following a Board election in Case 10-RC- 10834 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 January 28, 1977, 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 15, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 1, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 15, 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. ' Official notice is taken of the record in the representation proceeding, Case 10-RC-10834, 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 (C.A. 4, 230 NLRB No. 79 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. 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 basically attacks the validity of the Union's majority status and certification because of the issues raised by the challenges to the determinative ballots cast in the representation election and by Respondent's election objections upon which Respondent is entitled to a hearing. On the other hand, the General Counsel argues that there are no litigable issues of fact or law requiring a hearing. We agree with the General Counsel. Review of the record herein, including that in the representation proceeding, Case 10-RC-10834, shows that the election conducted on October 13, 1976, pursuant to a Stipulation for Certification Upon Consent Election, resulted in a vote of six for and four against the Union, with three challenged ballots which were sufficient in number to affect the results of the election. Both Respondent and Union filed timely objections to the election. Respondent's objections alleged, in substance, that union represen- tatives and agents (1) intimidated, coerced, and harassed employees and their relatives who openly supported Respondent; and (2) threatened employ- ees with loss of jobs if the Union were not voted in. After investigation, the Regional Director issued on November 19, 1976, his report on objections and challenged ballots in which he recommended that the challenges to the three ballots be overruled; that the ballots be opened and counted; and that Respon- dent's objections be overruled in their entirety because they did not raise material or substantial issues affecting the results of the election. He also recommended that the Union be certified if the revised tally of ballots showed a majority for the Union and that, if the Union did not receive a majority of the valid votes, a hearing be held on two of the three union objections. Respondent filed timely exceptions to the Regional Director's report, with a supporting brief, reiterating its objections and specifically excepting to the recommendation overruling the Board agent's chal- lenge to the ballot of Virginia Mashburn who was not on the eligibility list and who the evidence 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 532 FLOWERS BAKING COMPANY OF GADSDEN indicated, according to the Regional Director, was on maternity leave during the relevant eligibility period and therefore eligible to vote. On January 4, 1977, the Board issued a Decision and Direction of Election in which it adopted the Regional Director's findings and recommendations and directed that he open and count the three challenged ballots, issue a revised tally, and, as appropriate, either issue a certification of representative to the Union or direct a hearing on the Union's objections. On January 6, 1977, a revised tally of ballots was issued showing that, of the 13 eligible voters, 7 cast votes for and 6 against the Union. On January 12, 1977, absent objection to the revised tally, the Regional Director certified the Union. In its response to the Notice To Show Cause, Respondent contends that it is entitled to a hearing on the issues raised by the challenged ballots and its objections. We find no merit in this contention. By its January 4, 1977, adoption of the Regional Director's findings and recommendations with re- spect to the challenges and the objections, the Board necessarily found that there were no substantial or material issues warranting a hearing. Where, as here, Respondent failed to raise substantial or material issues in the representation case below, the Board has held, with judicial approval, that an evidentiary hearing is not required.2 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 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. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: 2 Handy Hardware Wholesale, Inc., 222 NLRB 373 (1976); Janler Plastic Mold Corporation, 191 NLRB 662 (1971); Crest Leather Manufacturing Corporation, 167 NLRB 1085 (1967), and cases cited therein. FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Delaware corporation with an office and place of business in Gadsden, Alabama, where it is engaged in the production of bakery goods. During the past calendar year, Respondent has sold and shipped goods valued in excess of $50,000 directly to customers located outside the State of Alabama. 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 Service Employees International Union Local No. 579, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. HI. 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 office clerical employees employed by the Employer at its Gadsden, Alabama, facility, but excluding all production and maintenance em- ployees, shipping employees, sales employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On October 13, 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 10, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on January 12, 1977, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. 3 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(0 and 102.69(c). 533 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Request To Bargain and Respondent's Refusal Commencing on or about January 14, 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 and to provide it the last, first, and middle names of employees in the unit with addresses, telephone numbers, rates of pay, hiring dates, and job classifications and other information concerning benefits, wages, and related matters. Commencing on or about January 28, 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 and to provide such information. Accordingly, we find that Respondent has, since January 14, 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, Respon- 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 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 and to provide the Union, upon request, information relevant to and necessary for collective bargaining. 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-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. Flowers Baking Company of Gadsden/a Divi- sion of Flowers Industries is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Service Employees International Union Local No. 579, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All office clerical employees employed by the Employer at its Gadsden, Alabama, facility, but excluding all production and maintenance employ- ees, shipping employees, sales employees, profession- al 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 12, 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 January 28, 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, and to provide it with information relevant to or necessary for the purpose of collective bargaining, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) 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. 534 FLOWERS BAKING COMPANY OF GADSDEN ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Flowers Baking Company of Gadsden/a Division of Flowers Industries, Gasden, Alabama, 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 Service Employees International Union Local No. 579, AFL-CIO, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All office clerical employees employed by the Employer at its Gadsden, Alabama, facility, but excluding all production and maintenance em- ployees, shipping employees, sales employees, professional employees, guards and supervisors as defined in the Act. (b) Refusing to provide the above-named labor organization, upon request, information relevant to and necessary for the purpose of collective bargain- ing. (c) 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 and provide the above-named labor organization, upon request, information rele- vant to and necessary for the purpose of collective bargaining. (b) Post at its Gadsden, Alabama, facility copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 10, 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 10, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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." 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 Service Employees International Union Local No. 579, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT refuse to provide Service Em- ployees Union Local No. 579, AFL-CIO, upon request, information relevant to and necessary for the purpose of collective bargaining. 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 and provide (names), upon request, infor- mation relevant to and necessary for the purpose of collective bargaining. The bargaining unit is: All office clerical employees employed by the Employer at its Gadsden, Alabama, facility, but excluding all production and maintenance employees, shipping employ- ees, sales employees, professional employees, guards and supervisors as defined in the Act. FLOWERS BAKING COMPANY OF GADSDEN/A DIVISION OF FLOWERS INDUSTRIES 535