A-1 King Size Sandwiches, Inc.

National Labor Relations Board - Board Decisions

Jan 3, 1980

247 N.L.R.B. 69 (N.L.R.B. 1980)

A-I KING SIZE SANDWICHES, INC.
A-i King Size Sandwiches, Inc. and Hotel, Motel,
Restaurant Employees & Bartenders Union, Local
737, AFL-CIO. Case 12-CA-8770
January 3, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
Upon a charge filed on August 24, 1979, by Hotel,
Motel, Restaurant Employees & Bartenders Union,
Local 737, AFL-CIO, herein called the Union, and
duly served on A-I King Size Sandwiches, Inc.,
herein called Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 12, issued a complaint on August
31, 1979, against Respondent, alleging that Respon-
dent 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, 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 August 9, 1979,
following a Board election in Case 12-RC-5641, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about August 20, 1979, and at all times
thereafter, Respondent has refused, and continues to
date to refuse, to bargain collectively with the Union
as the exclusive bargaining representative, although
the Union has requested and is requesting it to do so.
On September 11, 1979, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint, and stating certain
affirmative defenses.
On October 10, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on October 16,
1979, the Board issued an order transferring the
proceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent thereaf-
ter filed a response to the Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
' Official notice is taken of the record in the representation proceeding. Case
12-RC-5641, as the term "record" is defined in Secs. 102.68 and 102.69(g) of
the Board's Rules and Regulations, Series 8, as amended. See LTV
Electrosystems Inc.. 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir,
247 NLRB No. 14
National Labor Relations Board has delegated its
authority 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, Respondent ac-
knowledges that it has refused to bargain with the
Union. However, Respondent attacks the validity of
the Board's certification of the Union as the exclusive
bargaining representative of the employees in question
on the grounds that the Board, in the underlying
representation proceeding, acted illegally, arbitrarily,
capriciously, and without effect in failing to direct a
hearing on and in overruling Respondent's objections
to conduct affecting the results of the election. The
General Counsel argues that all material issues have
been decided and that there are no litigable issues
warranting a hearing. We agree with the General
Counsel.
Review of the record herein, including the record in
the representation proceeding, Case 12-RC-5641,
establishes that pursuant to a Stipulation for Certifica-
tion Upon Consent Election, approved by the Region-
al Director for Region 12 on April 2, 1979, an election
was conducted on April 26, 1979. The tally was 32
votes for, and 19 votes against, the Union, with I
challenged ballot. Thereafter, Respondent timely filed
objections to conduct affecting the results of the
election. Respondent's objections alleged in substance:
(I) that, secretly and against Respondent's express
instructions, one of its supervisors actively supported
and aided the Union during the critical period prior to
the election; (2) that this same supervisor, again in
disobedience of Respondent's instructions, and in part
as a result of the Union's inducement, attended two
union campaign meetings during the critical period;
and (3) that, unknown to Respondent and with the
encouragement of the Union, this same supervisor
actively campaigned on behalf of the Union, contrary
to her promise to Respondent to actively support its
position in opposition to the Union.
After investigating Respondent's objections, the
Regional Director, on June 6, 1979, issued his Report
on Objections, in which he concluded that Respon-
dent's objections did not raise material and substantial
issues which would either warrant a hearing thereon
or warrant setting the election aside. Thus, the
Regional Director recommended that Respondent's
objections be overruled in their entirety.
1968); Golden Age Bevenrge Coa., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); Intertype Co. v. Penello. 269 F.Supp. 573 (D.C. Va. 1967);
Follerr Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, Respondent timely filed exceptions and
a supporting brief to the Regional Director's Report
on Objections. Therein, Respondent excepted to the
Regional Director's failure to direct a hearing on the
issues raised by the objections and his recommenda-
tion that those objections be overruled.
On August 9, 1979, the Board, after reviewing the
record in light of Respondent's exceptions and sup-
porting brief, issued its Decision and Certification of
Representative, 2 in which it found that Respondent's
exceptions raised no material or substantial issues of
law or fact that would warrant either a hearing
thereon or a reversal of the Regional Director's
recommendations to overrule the objections. Thus, the
Board adopted the Regional Director's findings and
recommendations and certified the Union as the
exclusive collective-bargaining representative of the
employees in question.
As affirmative defenses against the complaint's
allegations of unlawful refusal to bargain with the
Union, and also in its response to the Notice To Show
Cause, Respondent renews the contentions it earlier
put forth in support of its objections and exceptions to
the Regional Director's Report on Objections. Specifi-
cally, Respondent contends that the Board's certifica-
tion of the Union is illegal and without effect because
the fairness of the election upon which the certifica-
tion is based was compromised by the allegedly
objectionable conduct of Respondent's supervisor
who, in the course of that conduct, was purportedly
acting as an agent for and with the encouragement of
the Union. Respondent argues that the Board erred in
failing to find the supervisor's alleged conduct objec-
tionable and in failing to set aside the election.
Respondent also reasserts that the Regional Director's
investigation of Respondent's objections was compro-
mised and impeded by alleged threats made against
employees by the Union's members or supporters,
which alleged threats purportedly caused certain
employees not to disclose to the Regional Director
allegedly objectionable conduct on the part of the
supervisor in question. Also, Respondent renews its
contention that the Regional Director's investigation
of Respondent's objections was inadequate because of
his failure to interview all available employees whose
names and statements were submitted to him by
Respondent, and that the Board abused its discretion
in not directing a hearing on Respondent's objections.
It is well settled that in the absence of newly
discovered or 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 which were or could have been
litigated in a prior representation proceeding.'
'Not reported in volumes of Board Decisions.
'See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules
and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and Respondent does not
offer to adduce at a hearing any newly discovered 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 RESPONDENT
Respondent is now, and has been at all times
material herein, a Florida corporation engaged in the
business of manufacturing prepared foods, such as
sandwiches and pies, at its facility located in Orlando,
Florida. During the past 12 months, which is a
representative period of time, Respondent sold and
shipped prepared foods valued in excess of $50,000
from its Orlando, Florida, facility directly to custom-
ers located outside the State of Florida.
We find, on the basis of the foregoing, that
Respondent 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
Hotel, Motel, Restaurant Employees & Bartenders
Union, Local 737, AFL-CIO, 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 constitute a
unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All employees employed as sandwich production
workers, salad production workers, maintenance,
custodial, sanitary workers, pie shop workers,
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A-I KING SIZE SANDWICHES. INC.
shuttle drivers and shipping helpers; but exclud-
ing office clerical employees, all other truck
drivers, guards and supervisors as defined in the
Act.
2. The certification
On April 26, 1979, 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 12, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on August 9, 1979, 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 August 13, 1979, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about August 20, 1979, 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
August 20, 1979, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has
engaged in and is engaging in unfair labor practices
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 operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce
and the free flow of commerce.
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 appro-
priate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recognized
bargaining representative in the appropriate 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. A-I King Size Sandwiches, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Hotel, Motel, Restaurant Employees & Bartend-
ers Union, Local 737, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All employees employed as sandwich production
workers, salad production workers, maintenance
workers, custodial workers, sanitary workers, pieshop
workers, shuttle drivers, and shipping helpers; but
excluding office clerical employees, all other truck-
drivers, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since August 9, 1979, the above-named labor
organization has been and now is the certified and
exclusive 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 August 20, 1979, 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 practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
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 engaged in and is
71
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 mean-
ing 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
Relations Board hereby orders that the Respondent,
A-i King Size Sandwiches, Inc., Orlando, Florida, 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 Hotel, Motel, Restaurant Em-
ployees & Bartenders Union, Local 737, AFL-CIO, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All employees employed as sandwich production
workers, salad production workers, maintenance,
custodial, sanitary workers, pie shop workers,
shuttle drivers and shipping helpers; but exclud-
ing office clerical employees, all other truck
drivers, guards and supervisors as defined in the
Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise 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 understand-
ing is reached, embody such understanding in a signed
agreement.
(b) Post at its Orlando, Florida, facility, copies of
the attached notice marked "Appendix."4 Copies of
said notice, on forms provided by the Regional
Director for Region 12, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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 Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
' 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 Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
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 Hotel,
Motel, Restaurant Employees & Bartenders
Union, Local 737, AFL-CIO, 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 employees
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 representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All employees employed as sandwich produc-
tion workers, salad production workers, main-
tenance, custodial, sanitary workers, pie shop
workers, shuttle drivers and shipping helpers;
but excluding office clerical employees, all
other truck drivers, guards and supervisors as
defined in the Act.
A-I KING SIZE SANDWICHES, INC.
72