American Seaway Foods, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Seaway Foods, Inc. and Office and Pro- fessional Employees International Union-Local No. 17, AFL-CIO. Case 8-CA-13938 November 30, 1980 DECISIONS AND ORDER BY MEMBERS JENKINS, PENEI.LO, AND ZIMM.RMAN Upon a charge filed on June 19, 1980, by Office and Professional Employees International Union- Local No. 17, AFL-CIO, herein called the Union, and duly served on American Seaway Foods, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 8, issued a complaint and notice of hearing on July 28, 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 2, 1980, following a Board election in Case 8-RC-12051, the Union was duly certified as the exclusive col- lective-bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about June 26, 1980, and at all times thereafter, Respondent has refused, and con- tinues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representa- tive, although the Union has requested and is re- questing it to do so. On August 7, 1980, Respond- ent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On September 8, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on September 10, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause entitled "Cross Motion to the National I Official notice is taken of the record in the represnatiion pro-ceed- ing, Case 8-RC-12051. as the term "record" is defined i Sees 102.68 and 102.h9(g) of the Board's Rules and Regulations, Series 8, as amended See 1.1V Elctrosyotems. Inc., 166 NLRBH 938 (197), enfd 388 F 2d 683 (4th Cir 1968); Golden 4ge Beverage (Co. 167 NI.RH 151 (14967), nfd 418 F2d 26 (5th Cir. 1969); InlertYpe Co. v. Pncllo, 2h9 F.Supp. 573 (D.CVa 17); Follrtt Corp. 164 NIRH 378 (19h67). enfd 397 F2d 91 (7th Cir 1968); Sec. 9(d) of the NLRA. ais amended 253 NLRB No. 42 Labor Relations Board for Summary Judgment." Respondent also filed a memorandum in support of its cross-motion and in 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 Summary Judgment In its answer to the complaint and its response to the Notice To Show Cause, Respondent essentially contests the validity of the Union's certification. Although Respondent admits its refusal to bargain, Respondent denies that it thereby violated Section 8(a)(5) and (1) of the Act. Specifically, Respondent contends that the Union should not have been cer- tified because the Regional Director directed an election in an inappropriate unit. In the Motion for Summary Judgment, the General Counsel main- tains that Respondent is attempting to relitigate the issues it raised in the related representation pro- ceeding. We agree with the General Counsel. Review of the record herein, including the record in Case 8-RC-12051, reveals that on Febru- ary 27, 1980, after a hearing and the submission of briefs by the parties, the Regional Director issued a Decision and Direction of Election. On March 12, 1980, Respondent filed with the Board a request for review of the Decision and Direction of Elec- tion contending that the unit was inappropriate in that it improperly excluded office clerical workers at Respondent's Bedford Heights facilities. On March 24, 1980, the Board denied the request for review. An election was conducted on April 2, 1980, which resulted in a vote of 41 for, and 5 against, the Union. There were three challenged ballots, an insufficient number to affect the results of the election. On April 9, 1980, Respondent filed objections to the conduct of the election contend- ing, in essence, that acts of union representatives and supporters had interfered with the exercise of the employees' freedom of choice. Respondent also contended that the election was conducted in an in- appropriate unit. On May 2, 1980, the Regional Di- rector issued a Supplemental Decision and Certifi- cation of Representative overruling Respondent's objections and certifying the Union. It thus appears that Respondent is attempting to raise herein issues which were raised and determined in the underly- ing representation case. 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- 322 AMERICAN SEAWAY FOOD)S. INC. 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.2 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 Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONI)ENT Respondent is, and has been at all times material herein, an Ohio corporation with an office and place of business located at Bedford Heights, Ohio, where it is engaged in the business of wholesale distribution of grocery and related products. Annu- ally, during the course and conduct of its business operations, Respondent ships goods valued in excess of $50,000 directly from its Bedford Heights facility to points located outside the State of Ohio. 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. :i. THE I.ABOR ORGANIZATION INVOI.VED Office and Professional Employees International Union-Local No. 17, AFL-CIO, is a labor orga- nization within the meaning of Section 2(5) of the Act. Ill. 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 plant clerical employees employed by the Respondent at its Bedford Heights, Ohio facili- See Pittsburgh Pla Gbls, Co . .L.R.1, 311 t S 14h, 162 (1941); Rules and Rgulations of the oard. Scee 12 7(f) and 102 (c) ty, including freezer clerks, transportation clerks, collection and will call clerks, receiving office clerks, food service warehouse clerks, and Station I and Station 3 clerks, but exclud- ing all office clerical employees, confidential employees, managerial employees, and all pro- fessional employees, guards, and supervisors as defined in the Act, and all other employees. 2. The certification On April 2, 1980, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 8, 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 2, 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 April 7, 1980, again on May 6, 1980, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining repre- sentative of all the employees in the above-de- scribed unit. Commencing on or about June 26, 1980, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclu- sive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since June 26, 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 LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its oper- ations described in section I, 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. 323 DE.CISI)NS OF NATIONAL. LAB()R RELAI'IONS BO()ARI) V. HI- REMiI)Y Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) 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: CONCL.USIONS OF LAW 1. American Seaway Foods, Inc., is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Office and Professional Employees Interna- tional Union-Local No. 17, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All plant clerical employees employed by Re- spondent at its Bedford Heights, Ohio, facility, in- cluding freezer clerks, transportation clerks, collec- tion and will call clerks, receiving office clerks, food service warehouse clerks, and Station I and Station 3 clerks, but excluding all office clerical employees, confidential employees, managerial em- ployees, and all professional employees, guards, and supervisors as defined in the Act, and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. Since May 2, 1980, 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 June 26, 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, Respond- ent 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, American Seaway Foods, Inc., Bedford Heights, Ohio, 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 Office and Profes- sional Employees International Union-Local No. 17, AFL-CIO, as the exclusive bargaining repre- sentative of its employees in the following appro- priate unit: All plant clerical employees employed by the Respondent at its Bedford Heights, Ohio facili- ty, including freezer clerks, transportation clerks, collection and will call clerks, receiving office clerks, food service warehouse clerks, and Station I and Station 3 clerks, but exclud- ing all office clerical employees, confidential employees, managerial employees, and all pro- fessional employees, guards and supervisors as defined in the Act, and all other employees. (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. 324 (b) Post at its facilities located at !edford Heights, Ohio. copies of the attached notice marked "Appendix." " Copies of said notice, on forms provided bN the Regional l)irector for Region 8. after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places. including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respoindent to insure thlat said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional D)irector for Region 8, in \writing, within 20 days from the date of this Order, what steps have been taken to comply hre, ith. t' I the e,er l ihat hlli ()rd r is ,t'rcdl tbh I Jtldrillt'IuiI of I L 'll 1 States Court f Appeal. thu rd i the notic rdilig 'Tlud h Order or he N;ltional Lahor Relation, i0.rd" hl'.hil Icad ''ttcd I'ursil- alnt to a Judgmenti I the Unired States Court f Appeals illfortill In Order of te Nationa.l Iahor Relations loard APPENDIX No I t i To 1,MI ti O i s !()S' II) IY ()Rl)lIR t- 'I l: N ION \I L. XIOR R it ,V iONS 3o RI) An Agency of the Unlited States (ioririnnrt WV wit i1 NOt refuse to bargain collectively concerning rates otf pay. \wages, hours. and other terms and conditions of employlment ,,ith ()ffice Professionall Emploces Interrla- tional Union- Local No. 17, AFl--CI(, as the exclusive representative of the employees in the bargaining unit described below. W'li Wit I N ill allny like or related manner interfere with, restrain, or coerce our eploy- ees in the exercise of the rights guaranteed them by Section 7 of the Act. W wi t Ill, upon request, bargain with the above-named Union, as the exclusive repre- senitative of all employees in the bargaining unit described below , with respect io rates of pay, \wages. hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit i: All plant clerical employees employed by the Employer at its Bedford Heights. Ohio facility, including freezer clerks, transporta- tion clerks, collection and ill call clerks. receiving office clerks, food service rare- house clerks, and Station I and Station 3 clerks, but excluding all office clerical em- ployees, confidential employees, managerial employees, and all professional employees. guards and supervisors as defined in the Act, and all other employees. AMIIRICAN SAWA FOO)S, INC. AVILRKICA:N SI:IA%\ A) I ((n)1). I( 325