Krispy Kreme Doughnut Corp.

70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Krispy Kreme Doughnut Corporation and Bakery, Confectionery and Tobacco Workers Interna- tional Union, Local No. 213, AFL-CIO-CLC Bakery, Confectionery and Tobacco Workers Inter- national Union, Local No. 213, AFL-CIO-CLC and Krispy. Kreme Doughnut Corporation. . Cases 9-CA-18422, 9-CB-4595, and 9-RC- 13315 30 November 1984 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 7 May 1982 the National Labor Relations Board issued its Decision, Order, and Certification of Representative in Cases 9-RC-13315 and 9-CB- 4595.' The Board adopted, as modified, Adminis- trative Law Judge John H. West's recommended findings that the Respondent Union had not violat- ed Section 8(b)(1)(A) as alleged, that the complaint be dismissed, and that the objections to the election be overruled. In so doing, the Board adopted the judge's credibility finding that employee Robert Foote had not promised to waive initiation fees for employees who signed authorization cards before the representation election. 2 Accordingly, the Board certified the Union as collective-bargaining representative in an appropriate unit of the Em- ployer's employees. Thereafter, the Employer re- fused to bargain with the Union and, in a subse- quent proceeding, the Board granted the General Counsel's Motion for Summary Judgment and found that the Respondent Employer's refusal to bargain with the Union was violative of Section 8(a)(5) and (1).3 Thereafter, the Employer petitioned the United States Court of Appeals for the Sixth Circuit for review of the Board's orders dismissing the com- plaint in Case 9-CB-4595 and directing the Em- ployer to bargain with the Union in Case 9-CA- 18422. The Board cross-applied for enforcement of its bargaining order. On 27 April 1984 the court issued its decision wherein it reversed the Board, set aside the election, and remanded the controver- sy to the Board for further proceedings consistent with its decision. 4 In so doing, the court found ' 261 NLRB 773 (1982) Chairman Dotson did not participate in that case or in the subsequent proceeding 2 Because of the finding that Foote had not made these statements as alleged, the Board found It unnecessary to consider the Issue of whether Foote was an agent for the Respondent Union The Board also dis- avowed an adverse inference drawn by the judge based on the General Counsel's failure to call a former employee as a corroborating witness 3 264 NLRB No 131 (1982) (Not reported in Board volumes ) 4 Krispy Kreme Corp v NLRB, 732 F 2d 1288 (6th Cir 1984) that, under the facts of this case, the judge unrea- sonably credited employee Foote's denial of having advised employees that union initiation fees would be waived for those who signed union authdriza- tion cards before the election and that "it seems dear that . . . Foote was the source of the discus- sions about waiving initiation fees." 5 The court noted that statements of this nature have been pro- scribed in Savair, 6 and the court construed such statements to be an unfair labor practice.7 Thereafter, the Board accepted the court's remand and notified the parties that they could file statements of position with respect to the issues raised by the remand. Subsequently, the Employer and the Union filed statements of position. In its statement of position, the Employer argues that further proceedings in Case 9-CA-18422 are unnecessary because the court overturned the credibility findings of the Board and found that Foote made unlawful initiation fee offers to em- ployees while soliciting union cards. Further, ac- cording to the Employer, the court implicitly found Foote to be an agent for the Union and overturned the election which was the basis for the Board's bargaining order. The Employer argues that a remedial order should issue in Case 9-CB- 4595 because the court reversed the Board's dismis- sal of the complaint in that case. Finally, the Em- ployer contends that the Board should not direct a second election absent the Union's establishing a current showing of interest because the original showing of interest was tainted by Foote's unlaw- ful offer to waive initiation fees. In its statement of position, the Union asserted that it does not wish to participate in a second election, and that it no longer desires the Board to process the representation case. Having accepted the remand of the instant case, we must observe the court's opinion as the law of the case. For this reason we find that the Respond- ent Union, through its agent Robert Foote, violat- ed Section 8(b)(1)(A) of the Act by telling employ- ees that union initiation fees would be waived for those who signed union authorization cards prior to the representation election. In remedying this violation, we shall order the Respondent Union to cease and desist from this conduct and to take the appropriate affirmative action. Upon consideration of the Respondent Union's statement of position, we shall further order that the petition in Case 9- RC-13315 be dismissed. 5 Id at 1293 NLRB v Savair Mfg Go, 414 US 270 (1973) 7 732 F 2d at 1289 273 NLRB No. 13 . KRISPY KREME DOUGHNUT CORP 71 .ORDER • IT • IS FURTHER ORDERED that the Respondent, , • . Bakery, Confectionery arid • Tobacco Workers International Union, Local No. 213, ,AFL,CIO- , CLC, its officers, agents, and represeritatiyes,,:-,shall 1.Cea.e and d'e'sist'from-' . (a) Telling eirfployees ., that unidin initiation fees will be WaiVed for those who sign a union, authori- zation' card prior tO a .repreentation election., (b) , In' anSi 'like' of related ,manner. restraining or cberding employeei in the eXercise of the rights gUaranteed them by Section 7 of the , Act. 2. 'Take, the following 'affirmative a .ction neces- ... „ sary 10 effectuate the poliCie's'of,the Act. (a) Post at its union office copies. 'of the aftached notice marked "APpendix." 8 , Copies of the ,notice, on forms. provided by the Regional DireCtor for Region: 9,..after being signed by ._the RespOndent's authOrized representative,' shall be posted by the Respondent Immediately upon receipt and , main- tained for '60 .consechtiye, , days in' conspicuous 'place's including all places Where ''notides to ifieni- bers are- dustornarily . posted. Reasonable' steps-shall be taken by the Respondent to 'ensure that the :no- tices are not altered, defaCed, Or Covered by" any other material. . „ ; (b) Sign and return to' the Regional Director, suf- - ficient copies of 'the notice for posting by Kri§py Kreme Division, 'Beatrice ' Foods CO.,- if willing, at 8 If this Order is enforced by a Judgment of a United States COurf of App.ea.ls; the Words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shalEread.:Posteii Pursuant to a Judgment of the United States ,,Court of Appeals Enforcing an Order of the Nation- al Labor Relations BoM.d " ' - all.,places. where,' notices- toeinployeesi rare-,b-ustom- .arily posfed. • t • s _ (c) Notify- the . Regional .- DirectOr7-rifiN..-writnig 'within 20 days frorfithe . date Ordef what steps the Respondent has taken Io•Com`p1)-7: IT IS FURTHER. ;,ORI3ERED;;-that i •the BOard's Deci- sion and Order -in -Case . 9-CA-18422, 264 NLRB, No. 131 (1982);:findini •that the- EiriplOyer violated Section 8(a)(1) and (5,) , of 4theAct, by _refusing to bargain with -the' . Union; be ievOked afici that the complaint be - dismiss -ed. . IT IS FURTHER.ORDERED that the CertificatiOn of . Representative' be ;revoked'. and that' the- petition. in . Case . 9=RC-13315;-261.NLRB 773 (1982), be 'dis- missed. • r . • : • *.• • -• = ' APPENDIX- •••:- . .!: . NOTICE TO MEMBERS • • -t 'POSTED BY ORDER-,OF THE ...NATIONAL LABOR RELATIONS :BOARD An Agency of-the . :Uni.ted .States Government , The National Labor- Relations. Board has :found that we violated the National Labor Relations Act , and has ordered usl_to{p'ost andabide by this_ notice. „ _ . • WILL NOT •-telf: 'emplbyees that-- union initi- ation fees will be waived- f for those: who sign' a union' authorization I Cardi 'prior to a- fepre'sentition 'election: ' • • WE'"wiLL. NOT 'in any- like Or related manner -re- strain or- coerce youln' the exercise- of the rights guaranteed 'you -by .Section- 7 •of,the-Adi. .$ BAKERY, `CONFECTIONERY .'AND TO- dACCO WORKERS "INTERNATIONAL - UNION,' LOCAL No. 213, AFL-CIO- . CLC' • • • •-(+ • "---i uris jr,•:„ , • .'{ • .‘,TI.J•-•. ..'••••.• I " -' , The Natibnal Laboi ,',Relations Board'orders that its . DedisiOn and„Order,. 'Case 9-CB-4595, .261 -"NLRB 171 (1982)', dismissing the cOmplaint .in its 'entirety, i revoked. „ . „ "1" 4 r" ;- —