Campbell Soup Co.

National Labor Relations Board - Board Decisions

May 24, 1976

224 N.L.R.B. 13 (N.L.R.B. 1976)

CAMPBELL SOUP COMPANY 13
Campbell Soup Company and Chauffeurs, Ware-
housemen and Helpers , Local Union No. 876, Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America . Case 5-
CA-7761
May 24, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed on February 5, 1976, by
Chauffeurs, Warehousemen and Helpers, Local
Union No 876, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, and duly served
on Campbell Soup Company, herein called Respon-
dent, the General Counsel of the National Labor Re-
lations Board, by the Regional Director for Region 5,
issued a complaint and notice of hearing on Febru-
ary 13, 1976, against Respondent, alleging that Re-
spondent had engaged in and was engaging in unfair
labor practices affecting commerce within the mean-
ing 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 hear-
ing before an Administrative Law Judge were duly
served on the parties to this proceeding
With respect to the unfair labor practices, the com-
plaint alleges in substance that on November 28,
1975, following a Board election in Case 5-RC-9419,
the Union was duly certified as the exclusive collec-
tive-bargaining representative of Respondent's em-
ployees in the unit found appropriate,' and that,
commencing on or about January 29, 1976, and at all
times thereafter, Respondent has refused, and con-
tinues 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 February 25, 1976, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint
On March 2, 1976, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
' Official notice is taken of the record in the representation proceeding
Case 5-RC-9419, as the term `record" is defined in Sees 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 (C A 4
1968), Golden Age Beverage Company, 167 NLRB 151 (1967), enfd 415 F 2d
26 (C A 5 1969), Intertype Company a Division of Harris Intertype Corp v
Penello, 269 F Supp 573 (D C Va, 1967), Follett Corporation 164 NLRB
378 (1967), enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA
mary Judgment Subsequently, on March 11, 1976,
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 Judg-
ment should not be granted Respondent thereafter
failed to file 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, Respondent denies
the validity of the Union's certification as the exclu-
sive bargaining representative of its professional em-
ployees who, Respondent asserted, were supervisors
and not employees On the other hand, the General
Counsel contends that Respondent is seeking to relit-
igate issues raised and decided by the Board in the
underlying representation case and this it may not
do We agree with the General Counsel
Review of the record herein, including that of rep-
resentation Case 5-RC-9419, establishes that after a
hearing, the Regional Director, on October 22, 1975,
issued a Decision and Direction of Election in which
he ordered elections in two voting groups, with the
employees in the professional group being asked
whether they desire to be included in the unit of non-
professional employees or desire to be separately rep-
resented by the Union in an appropriate professional
employees unit In the professional unit, there were
only two employees, the chemist and the bacteriolo-
gist who, the Regional Director concluded contrary
to Respondent, were not supervisors but employees
Thereafter, Respondent filed with the Board a timely
request for review in which it argued that the Region-
al Director had erroneously found that the chemist
and bacteriologist were employees rather than super-
visors On November 19, 1975, the Board denied the
request for review as raising no substantial issues
warranting review On the same date, the election
was conducted The tally of ballots showed that the
two professional employees in the unit voted for rep-
resentation by the Union in a separate appropriate
professional employees unit Thereafter, in the ab-
sence of any objections to the tally or conduct of the
election, the Union was certified on November 28,
1975
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
224 NLRB No 2
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gate issues which were or could have been litigated in
a prior representation proceeding 2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or pre-
viously 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 proper-
ly litigable in this unfair labor practice proceeding
We shall, accordingly, grant the Motion for Summa-
ry Judgment
On this basis of the entire record, the Board makes
the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent, a New Jersey corporation, with its
principal office in Camden, New Jersey, is engaged
at Salisbury, Maryland, in the production of frozen
food products During the preceding 12 months, a
representative period, Respondent sold and shipped
products, in interstate commerce, valued in excess of
$50,000 to points located outside the State of Mary-
land
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the polices of the Act to assert juris-
diction herein
II THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Warehousemen and Helpers, Local
Union No 876, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and 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 the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act
2 See Pittsburgh Plate Glass Co v NLRB 313 U S 146 162 (1941)
Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c)
All professional employees, including the
chemist and bacteriologist employed at the
Employer's Salisbury, Maryland, plant, but ex-
cluding all other employees, guards, and super-
visors as defined in the Act
2 The certification
On November 19, 1975, a majority of the employ-
ees of Respondent in said unit, in a secret ballot elec-
tion conducted under the supervision of the Regional
Director for Region 5, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent The Union was certified as the
collective-bargaining representative of the employees
in said unit on November 28, 1975, 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 January 12, 1976, 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 em-
ployees in the above-described unit Commencing on
or about January 29, 1976, 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 collec-
tive bargaining of all employees in said unit
Accordingly, we find that Respondent has, since
January 29, 1976, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate 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 opera-
tions described in section I, above, have a close, inti-
mate, 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 mean-
CAMPBELL SOUP COMPANY
mg 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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
(C A 5, 1964), cert denied 379 U S 817 (1964), Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd 350 F 2d 57 (C A 10, 1965)
The Board, upon the basis of the foregoing facts
and the entire record, makes the following
CONCLUSIONS OF LAW
1 Campbell Soup Company is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act
2 Chauffeurs, Warehousemen and Helpers, Local
Union No 876, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act
3 All professional employees, including the chem-
ist and bacteriologist employed at the Employer's
Salisbury, Maryland, plant, but excluding all other
employees, 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 November 28, 1975, the above-named la-
bor 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 January 29, 1976, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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
15
in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 Re-
lations Board hereby orders that the Respondent,
Campbell Soup Company, Salisbury, Maryland, 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 Chauffeurs, Ware-
housemen and Helpers, Local Union No 876, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the ex-
clusive bargaining representative of its employees in
the following appropriate unit
All professional employees, including the
chemist and bacteriologist employed at the
Employer's Salisbury, Maryland, plant, but ex-
cluding all other employees, guards, and super-
visors 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 under-
standing is reached, embody such understanding in a
signed agreement
(b) Post at its Salisbury, Maryland, plant copies of
the attached notice marked "Appendix " 3 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 5, 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 no-
3 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
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tices to employees are customarily posted Reason-
able 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 5, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with
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
Chauffeurs, Warehousemen and Helpers, Local
Union No 876, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed 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 represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement The bargaining unit is
All professional employees, including the
chemist and bacteriologist employed at the
Employer's Salisbury, Maryland, plant, but
excluding all other employees, guards, and su-
pervisors as defined in the Act
CAMPBELL SOUP COMPANY