Boston Beef Co.

BOSTON BEEF CO. Boston Beef Co., Inc. and Truck Drivers Union, Local No. 170, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case -CA-17556 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENEI.L.O Upon a charge filed on June 11, 1980, and an amended charge filed on June 24, 1980, by Truck Drivers Union, Local No. 170, a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of Amercia, herein called the Union, and duly served on Boston Beef Co., Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 1, issued a complaint on June 30, 1980, against Respondent, 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 pro- ceeding. The complaint alleges in substance that on May 19,1980, following a Board election in Case 1- RC-16628, the Union was duly certified as the ex- clusive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about June 4, 1980, and at all times thereafter, Respondent has refused, and continues to date to reuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. On July 9, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint. On August 20, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 29, 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 I Official notice is taken of the record in the representation proceed- ing, Case -RC-16628, as the term "record" is defined in Secs. 102.68 and 102.6 9 (g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Eeclrovmrns, Inc. 166 NLRB 938 (1967), enfd 388 F2d 683 <4th Cir 1968); Golden A4ge Beverage Co. 167 NLRB 151 (1967), enfd 415 F 2d 26 (5th Cir 1969); Interoype Co. , Penello, 269 FSupp. 573 (DC Va. 1967); 1-olett Corp, 164 NLRB 378 (1967), enfd 397 F2d 91 (7th Cir 1968) Sec 9(d) of the NLRA. as amended 252 NLRB No. 101 thereafter filed a response to theNotice To Show Cause and a motion to dismiss the complaint.2 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 response to the Notice To Show Cause, Respondent in sub- stance contends that the certification is invalid for the reasons stated in its exceptions to the Acting Regional Director's Report on Challenged Ballots. A review of the record in the representation pro- ceeding, Case -RC-16628, discloses that an elec- tion directed by the Regional Director was held on December 5, 1979; there were 15 votes cast for, and 12 against, the Union, and 4 challenged ballots, a number sufficient to affect the results of the elec- tion. The Acting Regional Director recommended sustaining the challenged ballots of O'Connell and Westerberg, and issuing a revised tally of ballots and certification of representative. Respondent filed exceptions to the Acting Regional Director's rec- ommendation regarding Westerberg's ballot. The Board, on May 19, 1980, in an unpublished deci- sion, adopted the Acting Regional Director's find- ings and recommendations and certified the Union as the exclusive collective-bargaining representative of Respondent's employees in the unit found appro- priate. 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- 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. 3 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 2 Respondenlt's response to the Motion for Summary Judgment and motion to dismiss the complaint in part requests that the Board reconsid- er its decision in the underlying representation case. To the extent that Respondent's response may be considered a motion for reconsideration it is denied as lacking in merit. Respondent's motion to dismiss the com- plaint as denied in light of our decision herein. 3 See Ptlshurgh Plate Glao Co. VL. RB.. 313 US 146, 162 (1941); Rules and Regulations of the Board, Secs 102 67(f) and 102 6 9 (c) 711 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 RESPONDENT Boston Beef Co., Inc., a Massachusetts corpora- tion, has its principal office and place of business in Worcester, Massachusetts, where it is engaged in the wholesale sale and distribution of meat prod- ucts and related products. During a representative 12-month period, Respondent, in the course and conduct of its business operations, purchased and recieved at its Worcester, Massachusetts, facility products, goods, and materials valued in excess of $100,000 directly from points located outside the State of Massachusetts. 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. II. THE LABOR ORGANIZATION INVOLVED Truck Drivers Union, Local No. 170, a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. 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 full-time and regular part-time employees including drivers, loaders, shippers, receivers, pickers, maintenance employees, shipping clerks, head shippers, head receivers and plant clericals of the Employer's plant located at La- fayette and Franklin Streets, Worcester, Mas- sachusetts, but excluding office clerical em- ployees, professional employees, guards and supervisors as defined in the Act. 2. The certification On December 5, 1979, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 1, 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 19, 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 June 5, 1980, and at all times thereafter, the Union has requested Respond- ent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about June 4, 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 exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since June 4, 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. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) 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 712 BOSTON BEEF CO. 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: CONCLUSIONS OF LAW 1. Boston Beef Co., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Truck Drivers Union, Local No. 170, a/w In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees including drivers, loaders, shippers, receivers, pick- ers, maintenance employees, shipping clerks, head shippers, head receivers and plant clericals of the Employer's plant located at Lafayette and Franklin Streets, Worcester, Massachusetts, but excluding officer clerical employees, professional employees, guards and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since May 19, 1980, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 4, 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)(l) 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, Boston Beef Co., Inc., Worcester, Massachusetts, 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 Truck Drivers Union, Local No. 170, a/w International Brother- hood Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive bargaining representative of its employees in the following ap- propriate unit: All full-time and regular part-time employees including drivers, loaders, shippers, receivers, pickers, maintenance employees, shipping clerks, head shippers, head receivers and plant clericals of the Employer's plant located at La- fayette and Franklin Streets, Worcester, Mas- sachusetts, but excluding office clerical em- ployees, professional employees, guards and supervisors as defined in the Act. (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. (b) Post at its facility in Worcester, Massachu- setts, copies of the attached notice marked "Appen- dix." 4 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Repon- ' In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 713 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Truck Drivers Union, Local No. 170, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive repre- sentative of all employees in the bargaining unit described below, with respect to 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 is: All full-time and regular part-time employ- ees including drivers, loaders, shippers, re- ceivers, pickers, maintenance employees, shipping clerks, head shippers, head receiv- ers and plant clericals of the Employer's plant located at Lafayette and Franklin Streets, Worcester, Massachusetts, but ex- cluding office clerical employees, profession- al employees, guards and supervisors as de- fined in the Act. BOSTON BEEF CO. INC. 714