Turnbull Cone Baking Co.

TURNBULL CONE BAKING CO. Turnbull Cone Baking Company of Louisiana and Bakery and Confectionery Workers' International Union of America, AFL-CIO-CLC, Local No. 35. Case 15-CA-6303 April 28, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon a charge filed on November 19, 1976, by Bakery and Confectionery Workers' International Union of America, AFL-CIO-CLC, Local No. 35, herein called the Union, and duly served on Turnbull Cone Baking Company of Louisiana, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 15, issued a complaint on December 15, 1976, 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 were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on October 27, 1976, following a Board election in Case 15-RC- 5770 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 November 2, 1976, the Union requested, and is continuing to request, Respondent to furnish it with certain information and to recognize the Union and to meet and bargain collectively with the Union as the exclusive collec- tive-bargaining representative of the employees in the unit found appropriate in Case 15-RC-5770, and at all times thereafter, Respondent has refused, and continues to date to refuse, to furnish said informa- tion and to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On December 28, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On January 19, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 10, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show I Official notice is taken of the record in the representation proceeding, Case 15-RC 5770, as the term "record" is defined in Sees. 102.68 and 102.6 9(g) of the Board's Rules and Regulations, Series 8. as amended. See LTV Electro.rvstems. Inc., 166 NL.RB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 229 NLRB No. 7 Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent thereafter filed a response to Notice To Show Cause. 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 The only issue raised by Respondent's answer to the complaint is the validity of the election and subsequent certification in Case 15-RC-5770, the underlying representation proceeding. In view of that fact, the General Counsel asserts that Respondent is attempting to test the validity of the Regional Director's certification through relitigation of issues determined, or which could have been determined, in the representation case, and that there are no factual issues which would necessitate an evidentiary hear- ing. We agree with the General Counsel. Review of the record herein, including that in Case 15-RC-5770, discloses that on November 21, 1975, Respondent filed objections to conduct affecting results of the election in that case. On February 18, 1976, the Regional Director issued a Report on Objections in which he recommended that Respon- dent's objections be overruled in their entirety, and on March 9, 1976, Respondent filed with the Board its exceptions to the Regional Director's report. On May 26, 1976, the Board issued a Decision and Order remanding the case to the Regional Director and directing a hearing on Respondent's Exception 7. The Board adopted the remainder of the Regional Director's findings and recommendations. After a hearing was held before a duly designated Hearing Officer, the Hearing Officer issued his report with a recommendation that the objection be overruled. Respondent filed exceptions to the Hearing Officer's recommendation. Finally, on October 27, 1976, the Board issued a Supplemental Decision and Certifica- tion of Representative, adopting the Hearing Offi- cer's rulings, findings, and recommendations. The Board further certified the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit. It thus does appear that Respondent is endeavoring here to relitigate matters considered and determined in the representation proceeding. 1968); Golden Age Beverage Co. 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Inrertype Co. v. Penello. 269 F.Supp. 573 (D.C.Va., 1967); FolletI Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (C.A. 7. 1968): Sec. 9(d) of the NLRA. as amended. 313 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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.2 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: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Tennessee corporation, licensed to do, and doing, business in the State of Louisiana, is engaged in the manufacture of baking goods and related items at its 523 First Street, New Orleans, Louisiana, location. During the past 12 months, a representative period, Respondent purchased goods and materials valued in excess of $50,000 which were shipped directly to it from points outside the State of Louisiana. During the same 12-month period, Re- spondent sold and shipped goods and materials valued in excess of $50,000 directly to customers located outside the State of Louisiana. 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. 1!. THE LABOR ORGANIZATION INVOLVED Bakery and Confectionery Workers, International Union of America, AFL-CIO-CLC, Local No. 35, is a labor organization within the meaning of Section 2(5) of the Act. 2 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() and 102.69(c). 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 production and maintenance employees employed by Respondent at its 523 First Street, New Orleans, Louisiana, location; excluding all office clerical employees, guards, watchmen and supervisors (including foremen) as defined in the Act. 2. The certification On November 14, 1975, 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 15, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining representa- tive of the employees in said unit on October 27, 1976, 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 November 2, 1976, and at all times thereafter, the Union has requested Respondent to furnish it with certain information and to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about November 12, 1976, 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. Accordingly, we find that Respondent has, since November 12, 1976, 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 (I) of the Act. 314 TURNBULL CONE BAKING CO. 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. 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. Turnbull Cone Baking Company of Louisiana is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Bakery and Confectionery Workers' Interna- tional Union of America, AFL-CIO-CLC, Local No. 35, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by Respondent at its 523 First Street, New Orleans, Louisiana, location; excluding all office clerical employees, guards, watchmen and supervi- sors (including foremen) 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 October 27, 1976, 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 November 12, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Respon- dent 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, 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)(l) 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 Relations Board hereby orders that the Respondent, Turnbull Cone Baking Company of Louisiana, New Orleans, Louisiana, 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 Bakery and Confec- tionery Workers' International Union of America, AFL-CIO-CLC, Local No. 35, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by the Employer at its 523 First Street, New Orleans, Louisiana, location; excluding all office clerical employees, guards, watchmen and supervisors (including foremen) 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 under- 315 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standing is reached, embody such understanding in a signed agreement. (b) Post at its 523 First Street, New Orleans, Louisiana, facility copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's represen- tative, 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 15, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 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 Bakery and Confectionery Workers' International Union of America, AFL-CIO-CLC, Local No. 35, 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 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. The bargaining unit is: All production and maintenance employees employed by Respondent at its 523 First Street, New Orleans, Louisiana location; excluding all office clerical employees, guards, watchmen and supervisors (includ- ing foremen) as defined in the Act. TURNBULL CONE BAKING COMPANY OF LOUISIANA 316