Kline's Potato Chips, Inc.

628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kline's Potato Chips, Inc. and General Truck Driv- ers & Helpers Union Local 92, affiliated with International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America. Case 8-CA-16189 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Upon a charge filed by the Union 22 October 1982, the General Counsel of the National Labor Relations Board issued a complaint on 29 Novem- ber 1982 against the Company, the Respondent, al- leging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 22 July 1982, fol- lowing a Board election in Case 8-RC-12405, the Union was certified as the exclusive collective-bar- gaining representative of the Company's employees in the unit found appropriate. (Official notice is taken of the "record" in the representation pro- ceeding as defined in the Board's Rules and Regu- lations, Secs. 102.68 and .102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint further al- leges that since 14 September 1982 the Company has refused to bargain with the Union. On 9 De- cember 1982 the Respondent filed its answer admit- ting in part and denying in part the allegations in the complaint. On 27 January 1983 the General Counsel filed a Motion for Summary Judgment. On 10 February 1983 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response. The Respondent thereafter filed a response to Notice to Show Cause and the Respondent moved the Board to make certain documents a part of the record.' The General Counsel opposed the motion arguing that those documents relating to the instant case are al- ready a part of the record, and that the remaining documents consist of material from the Region's in- ' Briefly they are the charge and the following documents in the un- derlying representation proceeding, Case 8-RC-12405, the Excelsior list with a covering letter from Respondent's counsel, the counsel's notice of intention to file exceptions to the Regional Director's report of 28 April 1981, and request to transfer the entire case filed to the Board, counsel's letter requesting a ruling relative to the request to transfer and the Re- gional Director's letter denying the request, the transcript of the hearing in the representation case with the motion to correct the transcript, the posthearing brief for the employer in the representation case, the Re- gion's letter informing the Respondent that the challenged ballots would be opened, and the affidavits of Lee Dalton, Edward McDonnell, and Linda Willard Member Hunter notes that he did not participate in the underlying rep- resentation case vestigative case filed in Case 8-RC-12405. The General Counsel also argues that the Respondent is attempting to relitigate in this unfair labor practice case matters litigated in the underlying representa- tion case, and is attempting collaterally to attack the certification. The General Counsel argues that these documents are not relevant to the issue pres- ently before the Board and, therefore, the Re- spondent's motion should be denied. Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice to Show Cause, the Respondent admits its refusal to bargain with the Union. The Respond- ent denies, however, that it violated Section 8(a)(5) and (1) of the Act, arguing that the Board improp- erly certified the Union. The Respondent asserts that the Board erroneously overruled its challenges to certain voters, erroneously refused to direct a hearing on the ballot of Allen Veigel, that the Board erroneously overruled its objections, that the Board's ruling on the Report on Objections and Challenged Ballots was made in deliberate disre- gard of the mandate of the court in NLRB v. North Electric Co., 644 F.2d 580 (6th Cir 1981), and that the Board, in considering the merits of exceptions to the Regional Director's report, must consider all evidence on which the Regional Director relied. The General Counsel contends that the Respondent is attempting to relitigate issues it raised in the re- lated representation proceeding. We agree with the General Counsel. Review of the record herein, including the record in Case 8-RC-12405, shows that pursuant to a Stipulation for Certification Upon Consent Election approved by the Regional Director on 18 February 1981, an election was conducted on 13 March 1981. The tally was three for, and three against, the Union; there were two challenged bal- lots, a number sufficient to affect the results of the election. Thereafter, the Respondent filed timely objections to conduct affecting the results of the election and to the conducting of the election, al- leging that Don Mullett, a member of management, improperly assisted the Union and aided and assist- ed the Union by fraternizing with its business agent before and during the times the polls were open in the presence of eligible voters. On 28 April 1981 the Regional Director for Region 8 issued his Report on Objections and Challenged Ballots in Case 8-RC-12405 recommending that Respond- ent's Objections 1(a), (b), and (c) be overruled and that the challenged ballots be opened and counted. On 22 May 1981 the Respondent filed timely ex- ceptions to the Regional Director's report contend- ing that the Regional Director should have sus- 274 NLRB No. 88 KLINE'S POTATO CHIPS tanned Objections 1(a), (b), and (c) and the chal- lenges to the ballots of Allen Veigel and Elden Mullet or, in the alternative, directed a hearing to resolve the material and substantial issues of fact raised by those objections and challenged ballots. On 1 March 1982 the Board issued its Decision and Direction (not reported in Board volumes) finding that Respondent's Objections 1(a), (b), and (c) and the challenge to the ballot of Elden Mullett raised substantial issues of fact and law, and directed that a hearing be held thereon. A hearing was held and subsequently, on 16 April 1982, the hearing offi- cer's Report on Objections and Challenged Ballot issued, wherein he recommended that the Respond- ent's objections be overruled, that the challenge to the ballot of Elden Mullett be overruled, and that Mullett's ballot be opened and counted. Thereafter, the Respondent filed exceptions to the hearing officer's report. The Board, on 2 July 1982, issued a Supplemental Decision and Direc- tion (not reported in Board volumes) adopting the hearing officer's findings and recommendations, overruling the objections, and directing that the ballots of Mullett and Veigel be opened and count- ed. The ballots were opened and counted and a re- vised tally of ballots was issued 15 July 1982, showing that, of approximately eight eligible voters, five cast ballots for, and three against, the Union. On 22 July 1982 the Regional Director for Region 8 issued a Certification of Representative. In view of the foregoing, despite the Respondent's denial in its answer, there are no issues of fact raised herein which would require an evidentiary hearing in this matter. It thus appears that the Re- spondent is attempting to raise issues which were raised and determined in the underlying representa- tion case. The Board has addressed the issues raised by NLRB v. North Electric Co., supra, concerning the matter of the completeness of the record in repre- sentation cases in Frontier Hotel, 265 NLRB 343 (1982), in which we cited our newly revised regu- lation providing, [T]he record in objections cases where no hearing is held consists of the objections which were filed, the regional director's report or decision, all documentary evidence, except statements of witnesses, relied upon by the re- gional director in his report or decision, any briefs, other legal memorandums submitted by the parties, and any other motions, rulings, or orders of the regional director. Section 102.69 (g)(1)(ii). Section 102.69(g)(1)(i), applicable in this case in which a hearing was held, provides as follows: 629 In a proceeding pursuant to this section in which a hearing is held, the record in the case shall consist of the notice of hearing, motions, rules, orders, stenographic report of the hear- ing, stipulations and exhibits, together with the objections to the conduct of the election or to conduct affecting the results of the election, any report on such objections, any report on challenged ballots, exceptions to any such report, any briefs or other legal memoranda submitted by the parties, the decision of the re- gional director, if any, and the record previ- ously made as defined in section 102.68. Mate- rials other than those set out above shall not be a part of the record. [Emphasis added.] Based on the foregoing, we conclude that the failure of the Regional Director to transmit state- ments of witnesses to the Boatd does not invalidate the Certification of Representative herein. Accord- ingly, we deny the Respondent's motion to add certain documents to the record, as they are not a part of the record and are not relevant to the issue presently before the Board.2 Moreover. in the instant case, the Respondent, in the underlying representation proceeding, was granted a hearing, wherein it participated fully on its objections and on the challenge to the ballot of Elden Mullett, but not on challenge to the ballot of Allen Veigel. However, the revised tally of ballots indicated five ballots were cast for the Petitioner and three against, with no remaining challenged ballots. Thus, the failure to hold a hearing on the challenge to the ballot of Allen Veigel could not have had any effect on the outcome of the election or on the validity of the resulting Certification of Representative. It is well settled that in the absence of newly dis- covered and 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 that were or could have been litigated in a prior representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Company were or could have been litigated in the prior representation pro- ceeding. The Company does not offer to adduce at a hearing any newly discovered and previously un- available evidence, nor does it allege any special circumstances that would require the Board to re- examine the decision made in the representation 2 In denying the Respondent's motion, Member Dennis finds it unnec- essary to rely on Frontier Hotel and relies instead an the alternate a ra- tionale set forth in the paragraph that follows 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proceeding. We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Respondent is an Ohio corporation with an office and place of business in Bolivar, Ohio. At all times material it had been engaged in the manufac- ture and wholesale sale of potato chips. Annually, in the course and conduct of its business operation, the Respondent purchases and receives at its Boli- var, Ohio facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Ohio. We find that the Company is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 13 March 1981 the Union was certified 22 July 1982 as the collective- bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time truck driv- ers and driver salesmen at the Respondent's fa- cility in Bolivar, Ohio, but excluding packers, peelers, cooks, mechanics and groupleaders, janitors, on-call employees, office clerical and professional employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 12 August 1982 the Union has requested the Company to bargain, and since 14 September 1982 the Company has refused. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 14 September 1982 to bargain with the Union as the exclusive collective- bargaining representative of employees in the ap- propriate unit, the Company has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Kline's Potato Chips, Bolivar, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with General Truck Drivers & Helpers Union Local 92 affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America as the exclusive bargaining representative of the em- ployees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time truck driv- ers and driver salesmen at Respondent's facili- ty in Bolivar, Ohio, but excluding packers, peelers, cooks, mechanics and groupleaders, janitors, on-call employees, office clerical and professional employees, guards and supervisors as defined in the Act. KLINE'S POTATO CHIPS (b) Post at its facility in Bolivar, Ohio, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 3 If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 631 WE WILL NOT refuse to bargain with General Truck Drivers & Helpers Union Local 92, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, as the exclusive representative of the employ- ees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All full-time and regular part-time truck driv- ers and driver salesmen at our facility in Boli- var, Ohio, but excluding packers, peelers, cooks, mechanics and groupleaders, janitors, on-call employees, office clerical and profes- sional employees, guards and supervisors as defined in the Act. KLINE'S POTATO CHIPS, INC. The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice.