Seder Foods Corp.

SEDER FOODS CORP. 215 Seder Foods Corporation and General Teamsters, Chauffeurs, Warehousemen and Helpers, Build- ing Materials, Heavy and Highway Construc- tion Employees Local 404, affiliated with Inter- national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America. Case 1-CA-24571 30 September 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS BABSON, STEPHENS, AND CRACRAFT Upon a charge filed by the Union 6 March 1987, the General Counsel of the National Labor Rela- tions Board issued a complaint on 27 April 1987 against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act. The complaint alleges that on 13 February 1987, following a Board election in Case 1-RC-18701, 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); Frontier Hotel, 265 NLRB 343 (1982).) The complaint fur- ther alleges that since 2 March 1987 the Company has refused to bargain with the Union. On 4 May 1987 the Company filed its answer admitting in part and denying in part the allegations in the com- plaint. On 12 June 1987 the General Counsel filed a Motion for Summary Judgment. The Company filed an opposition. On 16 June 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 In its answer to the complant and its response to the Notice to Show Cause, the Company admits that it has refused to bargain with the Union but attacks by way of an affirmative defense the validi- ty of the certification based on its contentions pre- viously made in the underlying representation pro- ceeding. In addition, the Company asserts that there exists newly discovered evidence concerning the Union that has come to the Company's atten- tion since the Board's certification of representative in this matter that should preclude the Union's cer- tification as the representative of the Company's employees. The General Counsel argues that all material issues have been previously decided. We agree with the General Counsel and add that the newly discovered evidence the Company advances is not such as would warrant a hearing to resolve the issues raised by the Company. The record shows that in Case 1-RC-18701 a representation petition was filed by the Union on 26 March 1986. Pursuant to a Stipulation for Certi- fication Upon Consent Election, an election was held 21 August 1986 among the employees in the unit stipulated to by the Union and the Company. The Union received a majority of the votes cast. On 28 August 1986 the Company filed timely, ob- jections to the conduct of the election alleging that the Board agent had permitted the Union's observ- er to maintain a list of employees who had voted, had permitted an employee to vote after the agreed-on time to conduct the election had elasped, and had left the polling area during the conduct of the election. On 27 October 1986 the hearing officer issued his report on objections recommending that the Union be certified as the exclusive collective-bar- gaining representative in the stipulated unit. On 13 February 1987 the Board adopted the hearing offi- cer's report and issued a Decision and Certification of Representative. On 19 February 1987 the Union by letter re- quested to bargain with the Company. On 2 March 1987 the Company by letter refused and has contin- ued to refuse to bargain with the Union. The Com- pany maintains that (1) the Board should reconsid- er its prior decision, overrule the hearing officer, and uphold the objections to the conduct of the election; and (2) there exists newly discovered evi- dence concerning the Union that has come to the Company's attention since the Board's certification of representative in this matter that should pre- clude the Union's certification as the representative of the Company's employees. The Company states that this "germane information, totally in control of the federal government" was unavailable to it even at the time its answer to complaint was filed in this matter. The newly discovered evidence that the Compa- ny proffers consists of a news article prepared by the Associated Press and appearing in the Spring- field Union Newspaper. The article reports that for the previous 2 months the Federal Government had been compiling data on racketeering, election fraud, and extortion on the Teamsters in prepara- tion for a legal battle to oust the leadership of the Teamsters Union. However, the article does not allege misconduct regarding the Local Union or its 286 NLRB No. 16 216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD officers involved in this matter. The focus is on the International Union, reporting that the Justice De- partment is drafting a lawsuit aimed at forcing from office Teamsters President Jackie Presser and others on the executive board because they are controlled by organized crime. The article states that the proposed civil suit would replace the In- ternational's leadership with court-appointed trust- ee. According to the article, the Labor Department, at the request of the Justice Department, began compiling data on pension abuse, election fraud, ex- tortion, assualt and battery, and labor racketeering cases over the past several years against officials of unspecified Teamsters locals. However, the effort is described as "very preliminary," accordingly making no mention of indictments to be issued against any union official in this matter. The Company proposes that the Board give it an opportunity to discover the facts on which the Government is proceeding against the Teamsters Union, claiming that the Teamsters Union, because of the "drastic measures being taken by the federal government," "clearly demonstrates that it is unfit to be certified as the Representative of the Em- ployer's employees." A review of the record reveals that (1) the Com- pany is attempting to relitigate the issues that were considered by the Board in the prior proceeding and that were found to be without merit and (2) there is no indication that the alleged newly dis- covered evidence relied on by the Company pro- vides a basis for the Board to deny summary judg- ment in this matter. Newly discovered evidence is evidence that was in existence at the time of the hearing, and of which the movant was excusably ignorant. Nabco Corp., 266 NLRB 687 (1983). In order to warrant a reopened hearing, the newly discovered evidence, in addition, must be such that if adduced and cred- ited it would require a different result. See Section 102.48(d)(1) of the Board's Rules and Regulations. The newly discovered evidence the Company offers does not involve the Local Union in this matter nor is there any allegation that the officers in charge have engaged in any wrongdoing. Ac- cordingly, even assuming the evidence proffered was newly discovered, there is no showing that it would require a different result in this proceeding. All other issues raised by the Company were or could have been litigated in the prior representa- tion proceeding and thus, the Respondent, in a pro- ceeding 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 pro- ceeding. 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 . Additionally, the Company does not allege any special circum- stances that would require the Board to reexamine the decision made in the representation 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 1. JURISDICTION The Company, a Massachusetts corporation, is engaged in the wholesale distribution of food at its facility in Palmer, Massachusetts, where it annually sells and ships from its facility products, goods, and materials valued in excess of $50,000 directly to points outside the Commonwealth of Massachusetts and purchases and receives at its facility products, goods, and materials valued in excess of $50,000 di- rectly from points outside the Commonwealth of Massachusetts. We find that the Company is an em- ployer engaged 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 Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 21 August 1986 the Union was certified 13 February 1987 as the collec- tive-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time truck driv- ers, selectors, checkers, the janitor, the me- chanic, the inventory control clerk, the ware- house clerk and the leadman, employed by the Employer at its Palmer, Massachusetts loca- tion, but excluding office clerical 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 19 February 1987 the Union has requested the Company to bargain, and since 2 March 1987 the Company has refused. We find that this refusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. SEDER FOODS CORP. 217 CONCLUSIONS OF LAW By refusing on and after 2 March 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. 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).1 All full-time and regular part-time truck driv- ers, selectors, checkers, the janitor, the me- chanic, the inventory control clerk , the ware- house clerk and the leadman, employed by the Employer at its Palmer, Massachusetts loca- tion, but excluding office clerical employees, guards and supervisors as defined in the Act. (b) Post at its facility in Palmer , Massachuetts, copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Re- gional Director for Region 1, 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. 2 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 " ORDER The National Labor Relations Board orders that the Respondent, Seder Foods Corporation, Palmer, Massachusetts, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with General Teamsters, Chauffeurs, Warehousemen and Helpers, Building Materials, Heavy and Highway Construction Em- ployees Local 404, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America as the exclusive bar- gaining representative of the employees in the bar- gaining 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: 1 The General Counsel's request for a visitatonal clause is denied, as such a provision is unnecessary in the circumstances of this case APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations 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 General Teamsters, Chauffeurs, Warehousemen and Help- ers, Building Materials, Heavy and Highway Con- struction Employees Local 404, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America as the exclusive representative of the employees 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: 218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All full-time and regular part-time truck driv- tion, but excluding office clerical employees, ers, selectors, checkers, the janitor, the me- guards and supervisors as defined in the Act. chanic, the inventory control clerk, the ware- house clerk and the leadman, employed by the SEDER FOODS CORPORATION Employer at its Palmer, Massachusetts loca-