George Wiedemann Brewing Co.

79()0 I)(ISI()NS ()F N II()NAI. I.A()R REI.AIO()NS BO()AR) George Wiedemann Brewing Company, Division of G. Heileman Brewing Company, Inc. and Inter- national Brotherhood of Firemen and Oilers, AFL-CIO. Case 9-CA-15300 August 27, 1980 DECISION AND ORDER By CHAIRMAN FANNING ANI) MEMBI RS JENKINS ANI) TRUI.SDAI1.E Upon a charge filed on May 7, 1980, by Interna- tional Brotherhood of Firemen and Oilers, AFL- CIOC), herein called the Union, and duly served on George Wiedemann Brewing Company, Division of G. Heileman Brewing Company, Inc., herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 9, issued a complaint on May 21, 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 L.abor Relations Act, as amended. Copies of the charge ad 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 February 22, 1980, following a Board election in Case 9-RC- 13086, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about May 5, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, 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 May 28, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint. On June 10, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. 2 Subsequently, on June 17, 1980, i Official inllicc is lken f the record in the represenlation proceed- ing, Cas R 30()6. as the term "record" is defiled in Scs 10268 and 102 69 (g) of the Board' s Rules and Regulalliols, Series , as aIlended See L.l1 lIccIr,roJwri,. I1, 166 NLRti 938 (1967), efd 388 F2d 683 (4th Cir 1968): (iolden i , IBevera (, 167 Nl.RB 151 (19t7), enfd 415 F2d 26 (5th Clr Il69): Iinterilpc (io. Peneillo, 269 1 Supp 573 (D.C V, 967). llett Corp, 164 NI RB 378 (1967). enil 397 F 2d 91 (7th (ir 1968) See 1(d) ,of tle NI RA. is anIended 2 Wet hticrch granlilt the ( ictiial (ot lls l iil 11 tii llt aiemlid (ti' Mltilon for SunIlnlia Jutdgnll tto relect Resplldelt's correct llalle. George 251 NLRB No. 109 the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to 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, response to the Notice To Show Cause, and memorandum in oppo- sition to the Motion for Summary Judgment, Re- spondent, in substance, admits that the Union is the certified bargaining representative and that it has refused the Union's demand for bargaining but at- tacks the validity of the Union's certification on the grounds that the Board improperly overruled its objections to the election in the underlying repre- sentation proceeding. A review of the record herein, including that in the representation proceeding, Case 9-RC-13086, establishes that, pursuant to a Stipulation for Certi- fication Upon Consent Election, an election was conducted among certain of Respondent's employ- ees on November 20, 1979, which the Union won by a vote of 12 to 10, with I challenged ballot. Re- spondent filed timely objections to conduct affect- ing the results of the election, alleging that certain preelection conduct by union adherents interfered with the employees' exercise of a free choice of bargaining representative. After investigation, the Regional Director for Region 9, on February 22, 1980, issued his Supplemental Decision and Certifi- cation of Representative, in which he concluded that Respondent's objections were without suffi- cient merit to warrant setting aside the election. Thereafter, Respondent filed a request for review of the Supplemental Decision and Certification of Representative, contending that the Regional Di- rector had improperly overruled the objections without a hearing. The Board, by telegraphic order dated April 16, 1980, denied the request as it raised no substantial issue warranting review. 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 Wiedcemarln lire iig C(lrpanl, i)iiiilil of (i Heileman liresing Cornm- rany.. Inc GEORGE WIEDEMANN BREWING COMPANY 79 to relitigate issues which were or could have been litigated in a prior representation proceeding. 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 1. THE BUSINESS OF RESPONDENT Respondent, a Wisconsin corporation, is licensed to do business in Kentucky, where it is engaged in the operation of a brewery at its Newport, Ken- tucky, facility. During the past 12 months, a repre- sentative period, Respondent has sold and shipped from its Newport, Kentucky, facility products, goods, and materials valued in excess of $50,000 di- rectly to points located outside the State of Ken- tucky. 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 International Brotherhood of Firemen and Oilers, AFL-CIO, is a labor organization 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 Re- spondent at its Newport, Kentucky, facility; excluding all other employees, all office cleri- cal employees, and all professional employees, guards, and supervisors as defined in the Act. : See Pittburgh Plate G/ais Co v A'L.RB.. 313 U S. 146. 162 11941); Rules and Regulations of the Board. Secs I02.67(f) and 102 6 9 (c) 2. The certification On November 20, 1979, a majority of the em- ployees of Respondent in said unit, in a secret- ballot election conducted under the supervision of the Regional Director for Region 9, 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 February 22, 1980, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about April 23, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about May 5, 1980, and continuing at all times thereafter to date, Respondent has re- fused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since May 5, 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 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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: CONCLUSIONS OF LAW 1. George Wiedemann Brewing Company, Divi- sion of G. Heileman Brewing Company, Inc., is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. International Brotherhood of Firemen and Oilers, 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 Newport, Kentucky, facility; ex- cluding all other employees, all office clerical em- ployees, and all professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since February 22, 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 May 5, 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, George Wiedemann Brewing Company, Division of G. Heileman Brewing Company, Inc., Newport, Kentucky, its officers, agents, successors, and as- signs, 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 International Brotherhood of Firemen and Oilers, AFL-CIO, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All plant clerical employees employed by Re- spondent at its Newport, Kentucky, facility; excluding all other employees, all office cleri- cal employees, and all 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 Newport, Kentucky, facility copies of the attached notice marked "Appendix. " 4 Copies of said notice, on forms provided by the Regional Director for Region 9, 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the ords 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." GEORGE WIEDEMANN BREWING COMPANY 793 (c) Notify the Regional Director for Region 9, 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 International Brotherhood of Firemen and Oilers, AFL-CIO, as the exclusive repre- sentative 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 plant clerical employees employed by us at our Newport, Kentucky, facility; exclud- ing all other employees, all office clerical employees, and all professional employees, guards, and supervisors as defined in the Act. GEORGE WIEDEMANN BRI WING COMPANY, DIVISION OF G. Hil.i-- MAN BREWING COMPANY, INC.