Holland American Wafer Co.

HOLLAND AMERICAN WAFER COMPANY Holland American Wafer Company and Local No. 70, Bakery and Confectionery Workers Interna- tional Union, AFL-CIO. Case 7-CA-178901 January 14, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND ZIMMERMAN Upon a charge filed on June 16, 1980, by Local No. 70, Bakery and Confectionery Workers Inter- national Union, AFL-CIO, herein called the Union, and duly served on Holland American Wafer Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on July 11, 1980, 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 (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. With respect to the unfair labor practices, the complaint alleges in substance that on May 15, 1980, following a Board election in Case 7-RC- 15571, the Union was duly certified as the exclu- sive collective-bargaining representative of Respon- dent's employees in the unit found appropriate; 2 and that, commencing on or about June 5, 1980, and at all times thereafter, Respondent has refused, I On July 14, 1980, the Regional Director for Region 7 issued all order consolidating cases and complaint and notice of hearing in Cases 7 CA 17795 and 7-CA 17890, alleging violations of Sec. 8(aXl). (3), and (5) of the Act. Prior thereto, the Regional Director had issued a separate cotm- plaint on the 8(a)5) aspects in Case 7 CA 17890, since it appeared that those aspects could be handled through a Motion for Summary Judg- ment. On August 14, 1980, the General Counsel filed directly with the Board a Motion for Summary Judgment in Case 7-CA 17890, the instant proceeding, seeking summary judgment on the 8(a)(1) and 5) violations alleged therein. By letter dated September 12, 1980, the Acting Regional Director for Region 7 advised the Board that summary judgment was being sought only on the 8(a(5) violation alleged in Case 7-CA-17890, and that the General Counsel's motion should be amended to read "Motion for Partial Summary Judgment" He further advised the Board that the General Counsel would "of course, be proceeding to trial, if nec- essary, on the 8(a)(1) and (3) allegations set forth in the Order Consoli- dating Cases, Complaint and Notice of Hearing, which issued on July 14, 1980." Therefore, he Board amended the motion and apprised Respon- dent of these facts through its October 7, 1980. order transferring the proceeding to the Board and Notice To Shosw Cause why the General Counsel's Motion for Partial Summary Judgment should not he granted Respondent failed to respond to the Notice To Show Cause 2 Official notice is taken of the record in the represcniation proceed- ing, Case 7 RC-15571, as the term "record" is defined in Secs 102 68 and 10 2.69(g) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc., 166 NI.RB 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 C. . Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follett Corp., 164 NL.RB 378 (1967). enfd 397 F 2d 91 (7th Cir. 1968): Sec. 9(d) of the NLRA. as amended. 254 NLRB No 47 and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On July 22, 1980, Re- spondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint in Case 7-CA-17890, the instant case. On August 14, 1980, counsel for the General Counsel filed directly with the Board a Motion for Partial Summary Judgment. Subsequently, on Oc- tober 7, 1980, the Board issued an order transfer- ring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Partial 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 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 Partial Summary Judgment In its answer to the complaint, Respondent denies the validity of the certification of the Union, admits the Union's request to bargain, and, as an af- firmative defense, avers that the Board's Decision and Certification of Representative in Case 7-RC- 15571 is improper because the underlying election results were unfairly prejudiced by the preelection misconduct of the Union. Respondent contends that the Board should have found merit to its ob- jection challenging such conduct and should have directed a new election. Therefore, Respondent concludes, it is not obligated to bargain with the Union. A review of the record herein, including the record in Case 7-RC-15571, reveals that, pursuant to a Stipulation for Certification Upon Consent Election approved August 30, 1979, an election was conducted on October 18, 1979, which result- ed in a vote of 135 for, and 27 against, the Union, with 3 challenged ballots. Thereafter, on October 24, 1979, Respondent filed a timely objection to conduct affecting the results of the election alleg- ing, in substance, that the Union told employees that, because of its bargaining relationship with certain of Respondent's customers, it could exert pressure on those customers to cease doing business with Respondent in order to gain bargaining con- cessions and/or a favorable contract with Respon- dent without resorting to a strike. Further, Respon- dent asserted that the Union improperly supported 429 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its misrepresentation by presenting the employees with selected excerpts from N.L.R.B. v. Servette, Inc., 377 U.S. 46 (1964), which deals with permissi- ble secondary activity. On October 25, 1979, after a preliminary investi- gation of Respondent's objection, the Regional Di- rector concluded that it raised substantial and ma- terial factual issues, and issued a notice of hearing. The hearing was held on November 14, 1979. On December 5, 1979, the Hearing Officer issued his report wherein he found no merit in Respondent's allegations, and recommended that Respondent's objection be overruled in its entirety and that the Union be certified as the exclusive representative of the unit employees. On December 13, 1979, Re- spondent filed timely exceptions to the Hearing Of- ficer's report and recommendations on its objection which, in essence, iterated the substance of its ob- jection. On May 15, 1980, the Board issued its De- cision and Certification of Representative which adopted the Hearing Officer's findings and recom- mendations. 3 As indicated supra, Respondent has admitted the factual and legal allegations in the complaint and has not filed a response to the Notice To Show Cause. Therefore, the allegations of the motion for findings of fact and conclusions of law based on the pleadings stand uncontroverted. 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.4 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered 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 Partial Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Michigan corporation, with its principal place of business in Grand Rapids, Michi- 3 Not reported in volumes of Board Decisions. 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 102.6 9 (c). gan, is engaged in the production, sale, and distri- bution of wafers, cookies, and other confectionery foods. During the past calendar year, Respondent derived gross revenues in excess of $500,000 and purchased and received in interstate commerce ma- terials and supplies valued in excess of $50,000 from points located outside the State of Michigan. 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. 11. THE LABOR ORGANIZATION INVOLVED Local No. 70, Bakery and Confectionery Work- ers International Union, AFL-CIO, is a labor orga- nization 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 consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time production and maintenance employees and shipping and receiving employees employed by Respondent at its Grand Rapids, Michigan, facility, exclud- ing all transport drivers, salesmen, office cleri- cal employees, guards and supervisors as de- fined in the Act. 2. The certification On October 18, 1979, 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 7, 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 May 15, 1980, 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 19, 1980, 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 430 HOLLAND AMERICAN WAFER COMPANY the employees in the above-described unit. Com- mencing on or about June 5, 1980, and continuing at all times thereafter to date, Respondent has re- fused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since June 5, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR I.ABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its oper- ations described in section 1, 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: CONCIUSIONS OF LAW 1. Holland American Wafer Company is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local No. 70, Bakery and Confectionery Workers International union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees and shipping and re- ceiving employees employed by Respondent at its Grand Rapids, Michigan, facility, excluding all transport drivers, salesmen, office clerical employ- ees, 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 15, 1980, 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 June 5, 1980, 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 prac- tices within the meaning of Section 8(a)(5) 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, 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, Holland American Wafer Company, Grand Rapids, Michigan, its officers, agents, successors, and as- signs, 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 Local No. 70, Bakery and Confectionery Workers International Union, AFL-CIO, as the exclusive bargaining rep- 431 I)EC'ISIONS OF NAIIONAL LABOR RELATIONS BOARD resentative of its employees in the following appro- priate unit: All full-time and regular part-time production and maintenance employees and shipping and receiving employees employed by Respondent at its Grand Rapids, Michigan, facility, exclud- ing all transport drivers, salesmen, office cleri- cal employees, guards and supervisors as de- fined 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 Grand Rapids, Michigan, facility copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 7, 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 Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. 5 In the event that this Order is enfirced h a Judgment of a United States Court of Appeals, the words in the notice reading "Posted hby Order of the National l abor Relations Board" shall read "'Posted Pursu ant to a Judgment of the United Slates Courl of Appeals Ellforciing a11 Order of the National Relations Board" (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 No. 70, Bakery and Confectionery 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 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 represen- tative 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 full-time and regular part-time produc- tion and maintenance employees and ship- ping and receiving employees employed by us at our Grand Rapids, Michigan, facility, excluding all transport drivers, salesmen, office clerical employees, guards and super- visors as defined in the Act. HOI.LAND AMERICAN WAFER COM- PANY 432