E. K. Cheese Co., Inc.

E. K. CHEESE CO. 855 E. K. Cheese Company, Inc. and International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local Union 776. Case 4-CA-16338 30 June 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On charges filed by the Union on 20 and 27 Jan- uary 1987, the General Counsel of the National Labor Relations Board issued a complaint 5 March 1987 against the Company, the Respondent, alleg- ing that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that 18 December 1986, following a Board election in Case 4-RC-16294, the Union was certified as the exclusive collective- bargaining representative of the Company's em- ployees in the unit found appropriate. (Official notice is taken of the "record" in the representation proceeding as defined in the Board's Rules and Regulations, Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint fur- ther alleges that since about 7 January 1987 the Company has refused to bargain with the Union. On 19 March 1987 the Company filed its answer admitting in part and denying in part the allega- tions in the complaint. On 21 April 1987 the General Counsel filed a Motion for Summary Judgment. On 24 and 29 April 1987 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 Company filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Company's answer admits its refusal to bar- gain but attacks the validity of the certification on the basis of its objections to the election in the rep- resentation proceeding. The General Counsel argues that all material issues have been previously decided. We agree with the General Counsel. The record, including the record in Case 4-RC- 16294, reveals that an election was held 19 August 1986 pursuant to a Stipulation Election Agreement. The tally of ballots shows that, of approximately 35 eligible voters, 21 cast valid votes for and 7 against the Union; there were 2 challenged ballots, an in- sufficient number to affect the results of the elec- tion. After conducting an investigation on the Company's objections, the Regional Director on 29 September 1986 issued his report recommending that the objections be overruled. The Company filed exceptions to the report. On 18 December 1986 the Board adopted the Regional Director's report and certified the Union as the exclusive bar- gaining representative of the employees in the stip- ulated unit.' By letter dated 31 December 1986, the Union re- quested the Company bargain about rates of pay, wages, hours of employment, and other terms and conditions of employment. Since about 7 January 1987, the Company has failed and refused to recog- nize or bargain with the Union. It is well settled that, in the absence of newly discovered 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 Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(0 and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Company's answer were or could have been litigated in the prior representa- tion proceeding. The Company does not offer to adduce at a hearing any newly discovered and pre- viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representa- tion proceeding. We therefore fmd that the Compa- ny has not raised any issue that is properly litigable in this unfair labor practice proceeding. 2 Accord- ingly, we grant the Motion for Summary Judg- ment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Company, a Pennsylvania corporation, cuts and packages cheese at its facility in Harrisburg, Pennsylvania, where during the past year it sold and shipped goods valued in excess of $50,000 di- rectly to points outside the Commonwealth of Pennsylvania. We find that the Company is an em- ployer engaged in commerce within the meaning of Not reported in Board volumes. 2 The Respondent attached to its opposition to the General Counsel's Motion for Summary Judgment filed 11 May 1987 a copy of a letter to the Union dated 1 May 1987. This letter purported to confirm a 30 April conversation with the Union in which the Respondent informed the Umon that the Harrisburg plant would be closed 22 May and which of- fered to discuss the matter with the Union. Assummg arguendo that the facts are as the Respondent alleges, we do not agree that such a letter moots the issue of the Respondent's refusal to recognize or bargain with the Union for more than 3 months. 284 NLRB No. 93 856 DECISIONS OF, THE NATIONAL LABOR RELATIONS BOARD Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 19 August 1986 the Union was certified 18 December 1986 as the col- lective-bargaining representative of the employees in the following appropriate unit: All production employees employed at the Employer's 802 S. 16th St., Harrisburg, Penn- sylvania facility excluding all other employees including electronics maintenance mechanic, office clerical employees, guards and supervi- sors 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 31 December 1986 the Union has request- ed the Company to bargain, and since 7 January 1987 the Company has refused. We fmd 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 7 January 1987 to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appro- priate 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.3 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 3 The General Counsel has requested that a visitatorial clause be in- cluded in the Order. In the circumstances of this case we find a visitator- ial clause unnecessary and deny the request Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th air. 1965). ORDER The National Labor Relations Board orders that the Respondent, E. K. Cheese Company, Inc., Har- risburg, Pennsylvania, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 776 as the exclusive bargaining representative of the employ- ees 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 production employees employed at the Employer's 802 S. 16th St., Harrisburg, Penn- sylvania facility excluding all other employees including electronics maintenance mechanic, office clerical employees, guards and supervi- sors as defined in the Act. (b) Post at its facility in Harrisburg, Pennsylva- nia, copies of the attached notice marked "Appen- dix."4 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly on receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable 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. 4 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 Nation- al 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." E. K. CHEESE CO. 857 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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. WE WILL NOT refuse to bargain with Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local Union 776 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- e 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 production employees employed at the Employer's 802 S. 16th St., Harrisburg, Penn- sylvania facility excluding all other employees including electronics maintenance mechanic, office clerical employees, guards and supervi- sors as defined in the Act. E. K. CHEESE COMPANY, INC.