Capital Bakers, Inc.

CAPITAL BAKERS, INC. Capital Bakers, Inc. and Local 464, Bakery & Confec- tionery Workers International Union, AFL-CIO, Case 4-CA-9684 May 8. 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon a charge filed on October 6, 1978, by Local 464, Bakery & Confectionary Workers International Union, AFL-CIO, herein called the Union, and duly served on Capital Bakers, Inc., herein called Respon- dent, the General Counsel of the National Labor Re- lations Board, by the Regional Director for Region 4, issued a complaint on October 27, 1978, against Re- spondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (I) 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 adminis- trative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on June 19, 1978, fol- lowing a Board election in Case 4-RC-12202 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 October 2, 1978, and at all times there- after, 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 November 20, 1978, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On February 8, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 14, 1979, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after 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 Na- I Official notice is taken of the record in the representation proceeding, Case 4 RC-12202, 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 Elecirosystens, 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); Inrertype Co. v. Penello, 269 F. Supp. 573 (D.C. Va. 1967); Follettrr Corp., 164 NLRB 378 (1967). enfd. 397 F2d 91 (7th Cir. 1968): Sec. 9(d) of the NLRA, as amended. 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 Summar)y Judgment In its answer to the complaint Respondent admits that the Union requested bargaining and does not re- spond to the allegation that it refused to bargain ex- cept to assert that it is not bound to bargain? In its response to the Notice To Show Cause, Respondent contends that the General Counsel's Motion for Sum- mary Judgment should be denied on grounds that: (I) the Administrative Law Judge3 failed to make credi- bility findings or explain the findings of fact and con- clusions of law upon which he found group leaders to be supervisors and that further hearing, therefore, should be held on this issue: (2) the Board affirmed the Administrative Law Judge's finding that sales sta- tion employees were not within the unit: however, this issue was not litigated at the hearing and thus a hearing on these employees' community of interest with the unit employees is warranted; and (3) the Board has in other decisions found employees who possess far more supervisory authority than the group leaders to be employees within the meaning of the Act and eligible to vote, and, thus, the Board's deter- mination of this issue should be reconsidered. Our review of the record herein, including Case 4- RC-12202, discloses that pursuant to a Decision and Direction of Election issued by the Regional Director for Region 4 an election was conducted among the employees in the production and maintenance unit found appropriate on August 12, 1976. Of the total number of votes cast, 143 were for, and 121 against, the Union, with 43 challenged ballots, a number suf- ficient to affect the results of the election. 4 2 Any allegation of the complaint not specifically denied or explained is deemed by the Board to be admitted, unless the respondent states it is with- out knowledge. See Sec. 102.20 of the Board's Rules. Since Respondent did not deny or make any other statement with respect to the allegation that it failed to bargain (other than to assert that it is not bound to do so), we find that it has admitted its refusal to bargain. Furthermore, in a letter dated October 2, 1976, from Respondent to the Union. Respondent affirmatively states that it will not bargain with the Union "until such time as the decision of the NLRB has been reviewed by the courts." Respondent does not contest the authenticity of this letter. Therefore, we find Respondent has refused to bargain with the Union I The underlying representation case issues were considered by an Admin- istrative Law Judge as part of a consolidated proceeding. Capital Bakers, Inc., 236 NLRB 1053 (1978). ' Respondent filed objections to conduct of the election, but the Regional Director dismissed them as untimely pursuant to Sec. 102.6 9(c) of the Board's Rules and Regulations. On September 20. 1976, Respondent filed a motion for reconsideration of the dismissal of the Employer's objections to the conduct of the election and to conduct affecting the results of the elec- tion. The Acting Regional Director for Region 4 In a Supplemental Decision issued on October 14. 1976. reaffirmed the earlier finding that Respondent's objections provided no basis for setting aside the election. 242 NLRB No. 18 77 D)I('ISIONS ()O NAI ()ONA I.ABO()R RELAT IONS BOARD On September 29, 1976, the Regional I)irector for Region 4 directed a consolidated hearing of' the chal- lenged ballot issues in Case 4 RC 12202 and the is- sues in certain related unfair labor practices cases, Cases 4 CA 8142, 4 CA 8156. and 4CA 8159, which involved allegations of violations of Section 8(a)( ) and (3) of the Act. The consolidated hearing befire a duly designated Administrative Law Judge was held on November 8, 1976. On February 21, 1978, the Administrative aw Judge issued his Deci- sion in which, inter alia, he recommended that the challenges to the ballots of 22 votes be sustained and that the Board find it unnecessary to resolve the re- maining 10 challenges since they were insufficient to affect the outcome of the election.' Thereafter, Re- spondent filed timely exceptions to that Decision. On June 19, 1978, the Board issued its Decision, Order, and Certification of Representative (236 NLRB 1053) in which, after affirming the rulings, findings, and conclusions of the Administrative Law Judge and adopting his recommended Order, it certified the Union as the exclusive bargaining representative of the employees in the appropriate unit. On or about September 12, 1978, the Union re- quested Respondent to bargain with it collectively over rates of pay, wages, hours, and other terms and conditions of employment of the employees in the unit. By letter dated October 2, 1978, Respondent stated in pertinent part that "[s]ince the only method available to the Company to contest the Board's deci- sion is to refuse to bargain, we must decline to meet with you on October 4, or until such time as the deci- sion of the NLRB has been reviewed by the courts." Thereafter, the Union filed the instant unfair labor practice charge. As noted previously, Respondent argues that fur- ther hearing is required regarding the group leaders because the Administrative Law Judge allegedly failed to make credibility resolutions or explain the basis on which he concluded that they were supervi- sors within the meaning of the Act. We find no merit to this contention. The status of the group leaders was fully litigated in the underlying representation pro- ceeding, and the evidentiary and legal basis for the Administrative Law Judge's finding that they were supervisors is clearly set forth in his Decision in that case. That the Administrative Law Judge may not have made explicit credibility findings or related con- ceivable testimonial conflicts does not detract from the validity of his findings and conclusions. It is well established, that "[t]he failure of [an Administrative Law Judge] to detail completely all conflicts in the evidence does not mean . . . that this conflicting evi- s In addition three challenges were withdrawn and the parties stipul;lte that eight challenges should he sustained dence was not considered.'" In any event, the Board affirmed those findings and conclusions of the Ad- ministrative Law Judge and we will not allow this issue to be relitigated here. We further find no merit to Respondent's conten- tion that a hearing is warranted on the issue of whether the sales station employees were within the designated unit because that issue allegedlN was not fully litigated in the underlying representation pro- ceeding. This contention lacks merit because the Board found that the findings of' the Administrative l.aw Judge on this issue were supported by the record in the representation proceeding, and thus affirmed them, and because Respondent had an opportunity to present evidence on that issue in that proceeding and it has not shown any special reason as to why it did not do so, or that such evidence was unavailable or not known to it. It is well settled that in the absence of newly dis- covered 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 raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- erly 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: FINDIN(;S ()F FACt' I. I BSINESS OF RESPONI)DEN Respondent is a Pennsylvania corporation engaged in the business of baking and selling bread and rolls. Respondent, in the course of conduct of its business, annually sells and ships goods valued in excess of $50,000 directly to various firms located outside the Commonwealth of Pennsylvania. We find, on the basis of the foregoing, that Respon- dent is, and has been at all times material herein, an ' ABC Speialtc Foods. In., 234 NRB 475. fn. 2 1978). citing Bishop and Malco. Inc, d/h/la Walker's, 159 NLRB 1159 1161 (1966) 'See Pittsburgh Plate Glass (o. . NV.I.RB. 313 U.S. 146, 162 (1941): Rules and Regulations of the Board Secs. 102.67(1f and 102.6 9(c). 8 We also find no merit to Respondenits contention that the Board's deter- mination that group leaders are supervisrs, is contrarN to precedent 7X CAPITAL BAKERS, INC. employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it vill effectuate the policies of the Act to assert jurisdiction herein. II. It e IAB()R ORGANIZAII()N INV()I.LVED Local 464, BakerN & Confectionery Workers Inter- national Union, AFL. CIO, is a labor organization within the meaning of Section 2(5) of the Act. llI. HE UNFAIR LABOR PRACTI(CES A. The Representation Proceeding I. 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 production and maintenance employees. including plant clericals, sanitation, shipping- transport drivers, and mechanics at Respon- dent's plant located at 3996 Paxton Street, Har- risburg, Pennsylvania; but excluding all office clericals, guards and supervisors as defined in the Act. 2. The certification On August 12, 1976, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 4, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on June 19, 1978. and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refisal Commencing on or about September 12, 1978, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about October 2, 1978, and continuing at all times thereafter to date, Respondent has refused, and con- tinues 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 October 2, 1978, 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 en- gaged in and is engaging in and unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. IV. 1t: E FF(I ()F IHE 'Ni AIR l.AB()R PRA('II('ES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. IIE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See MaZr-Jac Poultlr Compantly. Inc., 136 NLRB 785 (1962); Commerce Compantr d/h/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964): 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: CON('I.USIONS OF LANw 1. Capital Bakers, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 464, Bakery and Confectionery Workers Union, AFL CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees in- cluding plant clericals, sanitation, shipping-transport drivers, and mechanics at Respondent's plant located at 3996 Paxton Street, Harrisburg, Pennsylvania; but 79 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excluding all office clericals, 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 June 19, 1978, 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 October 2, 1978, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar.- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en.- gaged 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 Sec tion 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( ) 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 Rela- tions Board hereby orders that the Respondent, Capi- tal Bakers, Inc., Harrisburg, Pennsylvania, 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 con- ditions of employment with Local 464, Bakery and Confectionery Workers Union, AFL-CIO, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees including plant clericals, sanitation, shipping- transport drivers, and mechanics at Respon- dent's plant located at 3996 Paxton Street, Har- risburg, Pennsylvania; but excluding all office clericals, 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 understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its facility at 3996 Paxton Street, Har- risburg, Pennsylvania, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. ' 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 Local 464, Bakery and Confectionery Workers Union, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described be- low. 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 de- scribed 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 production and maintenance employees, 80 CAPITAL BAKERS. INC. including plant clericals, sanitation, shipping- transport drivers, and mechanics at Employ- er's plant located at 3996 Paxton Street, Har- risburg, Pennsylvania: but excluding all office clericals, guards and supervisors as defined in the Act. CAPITAL BAKERS, IN(C. 81