Capital Bakers, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 259 (N.L.R.B. 1969)

CAPITAL BAKERS, INC.
Capital Bakers, Inc. and Local 776, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
4-CA-4956
December 16, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On September 10, 1969, Trial Examiner Paul E.
Weil issued his Decision in the above-entitled
proceeding granting General Counsel's Motion for
Summary Judgment on the ground that there are no
unresolved issues requiring an evidential hearing and
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended . The Trial Examiner recommended that
the Respondent cease and desist from such unfair
labor practices and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board having reviewed the Trial Examiner's
Decision , the exceptions and brief, and the entire
record in this case and in the representation case,
agrees with the Regional Director 's findings as to
the appropriate unit and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Capital Bakers,
Inc., Harrisburg , Pennsylvania, its officers , agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner ' s Recommended Order,
as modified below.'
259
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: On a charge filed June
24, 1969, by Local 776, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, hereinafter called the Union, the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 4, issued a complaint dated
July 16, 1969, against Capital Bakers, Inc., hereinafter
called Respondent, alleging that the Respondent had
engaged in and was engaging in unfair labor practices
within the meaning of Sections 8(a)(5) and (1) and 2(6)
and (7) of the National Labor Relations Act, as amended.
Copies of the charge, complaint and notice of hearing
before a Trial Examiner were duly served upon
Respondent. The complaint alleges that the Union having
been duly certified by the Board as the exclusive
bargaining representative of Respondent's employees in an
appropriate unit requested and is requesting Respondent
to bargain with it and that Respondent has refused and is
refusing to bargain collectively with the Union as such
exclusive bargaining representative. By its timely answer
Respondent admitted certain allegations of the complaint
but denied the validity of the certification, the fact of the
Union's demand to bargain and that it refused to bargain
and affirmatively contended that it had committed no
unfair labor practice as alleged and that the complaint
should be dismissed because (1) Respondent was denied a
full and fair hearing concerning the determination of an
appropriate unit in Case 4-RC-7847 (2) the Regional
Director erred in his unit determination and his
determination was arbitrary and capricious (3) The
National Labor Relations Board arbitrarily and
capriciously declined to review the Regional Director's
Decision and Direction of Election and (4) the election
was invalidly conducted and its results are null and void.
On August 7, 1969, counsel for the General Counsel
moved for a Summary Judgment, appending to his motion
copies of the relevant documents both from the
representation case and from the unfair labor practice
charge, including the demand to bargain signed by the
attorney for the Charging Party and the response thereto
signed by the attorney for Respondent stating
Respondent's position that the certification is invalid and
the Company is not obligated to recognize or bargain with
the Union. On August 11, 1969, Trial Examiner Charles
W. Schneider issued his Order to Show Cause why the
General Counsel's motion should not be granted. The
Order directs that if the Respondent files a response it
shall specifically state whether it contests the authenticity
or correctness of any of the exhibits attached to the
General Counsel 's motion . A statement in opposition to
the General Counsel' s motion was thereafter received
from Respondent in which it reiterated the contentions set
forth in its answer as affirmative defense but did not
controvert any document attached to the General
Counsel' s motion.
THE REPRESENTATION CASE
'The following sentence should be substituted for fn . 3 of the Trial
Examiner 's Decision : In the event this Order is enforced by a judgment of
the 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."
On September 18, 1968, the Regional Director for
Region 4 of the National Labor Relations Board, upon a
petition filed by the Union, after hearing, directed an
election in a unit, hereinafter described, of employees of
Respondent and on September 19 the Regional Director
issued a correction to his Decision and Direction of
180 NLRB No. 36
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Election. On October 8, 1968, Respondent filed with the
Board a request for review of the Regional Director's
Decision and Direction of Election contending that the
unit spelled out therein consisting of "all transport drivers
working out of the Employer's Harrisburg, Pennsylvania
No. 2 plant, including the transport supervisor but
excluding all other employees, guards and supervisors as
defined in the Act" is inappropriate. The Board denied
Respondent's request for review on the ground that it
raised no substantial issues warranting review. Thereafter
the Respondent moved to amend the decision to update
the payroll period of eligibility, which motion was
granted. An election was duly conducted on March 13,
1969, after which Respondent filed its Objections to the
Election contending that the election was void because the
unit was inappropriate and further contending that the
Union had caused a sample ballot to be defaced thereby
creating an atmosphere that made a free choice impossible
for the employees. Respondent also contended that the
election was invalid because the Respondent was required
to submit to the Regional Director the names and
addresses of the eligible voters under the Board's Excelsior
Underwear rule.
The Regional Director on April 10, 1969, concluded
that the objections lack substance and issued his
Certification of Representative. The Employer thereafter
requested review of the Regional Director's Supplemental
Decision and Certification reiterating its contention that
the unit was inappropriate and "submitting" that the
Regional Director erred in dismissing the Respondent's
contentions with regard to the improper defacement of the
Notice of Election and the Excelsior rule but setting forth
no argument with regard to the latter two issues. By
telegram dated May 1, 1969, the Board denied
Respondent's request for review of the Regional Director's
Supplemental Decision and Objections on the ground that
it raised no substantial issue warranting review.
RULING ON MOTION FOR SUMMARY JUDGMENT
Respondent resists the Motion for Summary Judgment
in essence on the ground that Respondent denies that the
election was held in an appropriate unit, denies that the
election was legally conducted and denies that the
certification was invalid. Accordingly Respondent denies
that it committed an unfair labor practice in refusing to
bargain since no obligation to bargain existed.
By way of further answer Respondent alleged that it
was denied a full and fair hearing concerning the
determination of the unit.'
Respondent argues that it was denied a full and fair
hearing concerning the determination of an appropriate
unit in the background representation matter. This
argument put forth in its statement in opposition to the
General Counsel's Motion for Summary Judgment is the
first time such a contention has appeared herein.
Respondent does not state in what respect it was denied a
full and fair hearing nor does the Respondent suggest any
evidence that it might adduce if it were not granted
another hearing in the representation case. Respondent
does not appear to contend that it has newly discovered or
previously unavailable evidence or that special
circumstances exist requiring a new hearing.
'The Respondent additionally argues that the Motion for Summary
Judgment is invalid because it should have been addressed to the Trial
Examiner and not to the Board Respondent apparently failed to note that
the motion was addressed to the Trial Examiner.
The record reveals that a hearing was conducted in the
representation case. However Respondent appears to
contend that it should have another hearing before a Trial
Examiner, arguing that the Summary Judgment procedure
sought to be invoked in this case denies Respondent due
process. A short answer is that where there is no issue
litigable before a Trial Examiner there is no matter
requiring a hearing and a hearing need not be conducted.
The recent case of Pepsi-Cola Buffalo Bottling Co. v.
N L R.B., 409 F.2d 676 (C.A. 2), relied on by the
Respondent, does not support its contention to the
contrary. The Court therein was at pains to point out that
its decision did not mean that a new hearing should be
held but rather that the Board, in the unfair labor practice
stage of the proceeding, should make its own
determination as to whether the Regional Director's
decision was right, based on the record in the
representation case. I must reject Respondent's contention
that it must be given a hearing before a Trial Examiner.'
In the instant case the Respondent contends that the
Regional Director's unit determination and his
determination as to the validity of the election were both
erroneous. In such a situation the disposition of the
representation matter is the law of the case at this stage of
the proceeding and is binding on the Trial Examiner.
Respondent in its answer admitted the Board's jurisdiction
and the existence of the labor organization; it is clear
from its Statement in Opposition that it admits the
existence of the certification although it denies its validity.
The letter of Charging Party appended to the General
Counsel's Motion for Summary Judgment constitutes a
clear and unequivocable demand to meet and bargain and
the Respondent's answer thereto denying any obligation to
recognize and bargain with the Charging Party constitutes
a refusal to meet and bargain in response to the demand.
The only issue raised by Respondent in its opposition to
the motion has to do with the validity of the certification.
Accordingly, there being no issue to be tried before a
Trial Examiner the Motion for Summary Judgment is
hereby granted.
I hereby make the following further:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Pennsylvania corporation engaged in
the production, sale and distribution of bakery products.
During the past year Respondent in the course and
conduct of its business operations produced and sold
products valued in excess of $1 million of which products
valued in excess of $50,000 were shipped directly to States
of the United States other than the Commonwealth of
Pennsylvania. Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 776, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America is
and at all times relevant hereto has been a labor
'See the discussion of Trial Examiner Schneider in El-G Potato Chip
Company, Inc. 173 NLRB No 19 , in which the same contention was
raised . I note that the counsel representing the various parties therein are
the same as the counsel representing the parties herein
CAPITAL BAKERS , INC. 261
organization within the meaning of Section 2(6) and (7) of
the Act.
III. THE UNFAIR LABOR PRACTICES
The following employees constitute a unit appropriate
for purposes of collective bargaining within the meaning
of Section 9(b) of the Act-
All transport drivers working out of the Employer's
Harrisburg, Pennsylvania No. 2 plant including the
transport supervisor but excluding all other employees,
guards and supervisors as defined in the Act.
On March 13, 1969, a majority of Respondent's
employees in the appropriate unit selected the Union as
their collective-bargaining representative in a secret ballot
election conducted under the supervision of the Regional
Director for Region 4 of the National Labor Relations
Board. At all times since March 13, 1969, and continuing
to date the Union has been the representative for purposes
of collective bargaining of the employees in the said unit
and by virtue of Section 9(a) of the Act has been and is
now the exclusive representative of all employees in the
said unit for purposes of collective bargaining with respect
to rates of pay, wages, hours of employment and other
terms and conditions of employment.
On June 11, 1969, the Union demanded that
Respondent meet and bargain with it as the representative
of the employees in the aforesaid unit and on June 19,
1969, Respondent declined to do so. At all times since
Respondent has failed to meet and bargain with the
Union. By the foregoing conduct Respondent has refused
to bargain collectively in violation of Section 8(a)(5) of
the Act and has interfered with, restrained, and coerced its
employees in violation of Section 8(a)(1) of the Act. The
aforesaid unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act. Upon the
foregoing findings and conclusions and the entire record in
the case and pursuant to Section 10(c) of the Act I
recommended the Board issue the following:
ORDER
A. For purposes of determining the effective period of
duration of the certification the initial year of certification
shall be deemed to begin on the date that Respondent
commences to bargain in good faith with the Union as the
recognized bargaining representative in the appropriate
unit.
B. Capital Bakers, Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 776,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as the exclusive
bargaining representative in the following appropriate
unit:
All transport drivers working out of the Employer's
Harrisburg, Pennsylvania No. 2 plant including the
transport supervisor but excluding all other employees,
guards and supervisors as defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent employees in the appropriate
unit as the exclusive collective- bargaining representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively with Local 776,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as the exclusive
representative of the employees in the appropriate unit
with respect to rates of pay, wages, hours of work and
other terms and conditions of employment and embody in
a signed agreement any understanding reached.
(b) Post at its Harrisburg, Pennsylvania, plant copies of
the attached notice marked "Appendix."' Copies of said
notice on forms to be furnished by the Regional Director
for Region 4, being duly signed by an authorized
representative of the Respondent, shall be posted by the
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 the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 4, in
writing, within 20 days from the receipt of this
Recommended Order what steps it has taken to comply
herewith.
In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
41n the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 4, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse to bargain collectively with
Local 776, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America as
the exclusive bargaining representative of all our
employees in the following appropriate unit.
All transport drivers working out of the Employer's
Harrisburg, Pennsylvania No. 2 plant including the
transport supervisor but excluding all other employees,
guards and supervisors as defined in the Act.
WE WILL NOT interfere with the efforts of said union
to negotiate for or represent the employees in the
appropriate unit as the exclusive collective bargaining
representative.
WE WILL bargain collectively with the Union as the
exclusive representative of the employees and if an
understanding is reached WE WILL sign a contract with
the Union.
Dated By
CAPITAL BAKERS, INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
directly with the Board ' s Regional Office , 1700 Bankers Philadelphia , Pennsylvania 19107, Telephone
Securities Building , Walnut & Juniper Streets , 215-597-7601.