Coffee System of Western New York

National Labor Relations Board - Board Decisions

Nov 9, 1979

246 N.L.R.B. 433 (N.L.R.B. 1979)

COFEEF SYSTEM OF WESTERN NEW YORK
Coffee System of Western New York, a Division of
Coffee System, Inc., a Wholly-Owned Subsidiary of
ARA Services, Inc. and Bakery Drivers, Local 264,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America. Case
3 CA 9151
November 9, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND Mtl BFRS MURPIIY
AND TRt'SDA[II
Upon a charge filed on June 12. 1979. by Bakery
Drivers, Local 264. International Brotherhood of
Teamsters, Chauffeurs. Warehousemen & Helpers of
America, herein called the Union, and duly served on
Coffee System of Western New York, a Division of
Coffee System, Inc.. a Wholly-Owned Subsidiary of
ARA Services, Inc., herein called Respondent, the
General Counsel of' the National Labor Relations
Board, by the Regional Director for Region 3. issued
a complaint and notice of hearing on June 29, 1979,
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 Na-
tional 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 com-
plaint alleges in substance that on May 7, 1979, fol-
lowing a Board election in Case 3-RC-7331, 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 May 15, 1979, and at all times thereafter,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
July 9, 1979, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the alle-
gations in the complaint.
On July 27, 1979, counsel for the General Counsel
filed directly with the Board a motion entitled "Mo-
tion To Transfer Proceeding to the Board, To Strike
I Official notice is taken of the record in the representation proceeding,
Case 3-RC 7331, 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 Electrosvsterm. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage Co. 167 NLRB 151 (1967). enfd. 415 F.2d 26
(5th Cir 1969): Inerrvpe Co v. Penello, 269 F.Supp. 573 D.('.Va 1967):
Foilett Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (7th Cir 1968); Sec.
9(d) of the NLRA, as amended.
Respondent's Affirmative Defenses and For Sum-
mary Judgment and Issuance of the Board's Decision
and Order," with exhibits attached. Subsequently, on
August 2, 1979, the Board issued an order transfer-
ring the proceeding to the Board and a Notice To
Show Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent 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 and its response to
the Notice To Show Cause, Respondent admits most
of the factual allegations of the complaint, but denies
the conclusionary averments on the bases that the
representation election was conducted in a unit inap-
propriate for collective bargaining; that both union
and Board agent misconduct interfered with the elec-
tion and prevented the election from being conducted
under the requisite laboratory conditions that the
Board improperly denied Respondent a hearing on its
objections to the conduct of the election: and that the
Board failed to explicate fully and clearly its rulings
concerning Respondent's objections. Respondent also
denies that it did engage in, and is engaging in, unfair
labor practices affecting commerce within the mean-
ing of Sections 8(a)( I) and (5) and 2(6) and (7) of the
Act.
The General Counsel contends that Respondent is
improperly seeking to relitigate issues which were
raised and decided, or which could have been raised,
in the underlying representation proceeding. We
agree with the General Counsel.
Review of the record herein, including that in the
underlying representation proceeding (Case 3-RC
7331), shows that the election in this matter was held
on December 22, 1978. The election was held pursu-
ant to a Decision and Direction of Election issued by
the Regional Director on November 17, 1978. In his
decision, the Regional Director found appropriate a
unit of all warehousemen, drivers, customer service
representatives, and warehouse mechanics at Respon-
dent's facility at 1800 Broadway, Buffalo, New York.
The Regional Director included in the unit two em-
ployees he found to be warehousemen (rather than
supervisors, management trainees, or "Comprehen-
sive Employment and Training Act (CETA) employ-
ees" as argued by Respondent). Thereafter, Respon-
dent filed a request for review of the Regional
246 NLRB No. 66
433
I)E('ISIONS OF NATIONAL. I.ABOR REI.ATIONS BOARI)
Director's decision which was denied by the Board on
December 19, 1978. The election resulted in a vote of
seven votes for, and four against, the Union. There
was one challenged ballot which was not sufficient in
number to affect the results of the election. Respon-
dent thereafter filed timely objections to conduct at-
fecting the results of the election. On January 24,
1979, the Regional Director issued his Report on Ob-
jections in which he recommended that Respondent's
objections be overruled in their entirety and further
recommended that a certification of representative is-
sue. ontrary to Respondent's contention, the Re-
gional Director found, with respect to Objection 1. no
evidence that any agent or representative of the
Union had impermissibly threatened employees and,
with respect to Objection 2, no evidence of' any Board
agent misconduct in the running of' the election. The
Regional Director further recommended that Objec-
tion 3 be overruled as it raised no issues not raised by
the first two objections and recommended that Objec-
tion 4 which reiterated the Respondent's preelection
contentions with respect to unit issues, be overruled
as raising nothing not addressed in the preelection
phase of the proceeding.
On February 13, 1979, Respondent filed exceptions
to the Regional Director's Report on Objections.
Thereafter. the Board, on May 17. 1979. adopted the
Regional Director's findings and recommendations
and certified the Union as the exclusive collective-
bargaining representative of the employees in the unit
found appropriate. In doing so, the Board further
elaborated upon its reasons for adopting the Regional
Director's report respecting Objection 2 and found
specifically that the Employer's exceptions raised no
material issues which could warrant a hearing.
In its response to the Notice To Show Cause
herein, Respondent again raises the various allega-
tions, described above, which have already been con-
sidered and rejected by the Board in ruling upon Re-
spondent's request for review and its exceptions to the
Regional Director's Report on Objections. It thus ap-
pears that Respondent is seeking to relitigate herein
the issues which were fully litigated and decided ad-
versely to it in the representation case.'
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 relitigate
issues which were or could have been litigated in a
prior representation proceeding.'
2 Respondent also argues that it is entitled to the "written affidavits taken
of the Board agents" involved in its Objection 2. This argument was raised
to, and rejected by, the Board in the underlying representation case proceed-
ing. See also Valentine A. Heid Estate, Frst Trust & Deposit (Co., Trustee
d/h/ua Heid's Lunch Stand, 243 NLRB 558 (1979).
3See Pittsburgh Plate Glass Co. v. N.L.R.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 repre-
sentation proceeding, and Respondent does not offier
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
In this proceeding Respondent contends that the
Board failed to consider its exceptions to the Report
on Objections because the Board did not specifically
comment on its Objection I, and Respondent argues
further that due process entitles it to a hearing on its
objections to the election. Prior to adopting the find-
ings conclusions, and recommendations of the Re-
gional Director's Report on Objections, the Board
considered the report, the Employer's exceptions
thereto, and the entire record in that case. By its
adoption of the report recommending that the Em-
ployer's objections be overruled, the Board necessar-
ily passed on all the objections at issue and found that
the objections raised no substantial or material issues
warranting a hearing.4 Further with respect to Re-
spondent's due process argument, it is well estab-
lished that the parties do not have an absolute right to
a hearing on objections to an election. It is only when
the moving party presents a prima J/ciC showing of'
substantial and material issues which would warrant
setting aside the election that it is entitled to an evi-
dentiary hearing. It is clear that, absent arbitrary ac-
tion, this qualified right to a hearing satisfies the con-
stitutional requirements of due process.' Accordingly,
we grant the Motion r Summary Judgment.'
On the basis of the entire record, the Board makes
the tollowing:
FINDIN<;S ()F FAC(
I. I11: BUSINESS 01- RISPONDENI'
Respondent is, and has been at all times material
herein, a Delaware corporation, and has maintained
its principal office and place of business at 6th and
'Madissonille Concrete (o., A Dvision of forum & Edlwards. Inc.. 220
NIRB 668 (1975); Evansville Auto Parts. Inc. 217 NLRB 660 (1975).
'GTE Lenkurt. Incorporated, 218 NLRB 929 (1975) Heaveni Valley Ski
Area, a (alifornia Corporation, and lHeaven ' Valley a Partnership. 215
NlIRB 734 (1974): Amalgarmuated ('lothing Workers of America [Winfield
Wanufacturing ompany, Inc.] v. N.I..R.B. 424 F.2d 818, 828 (D.C. Cir.
1970).
l In view of our findings and conclusions herein. we find it unnecessar to
pass on the General Counsel's motion to strike Respondent's affirmative
defenses.
434
COFFEE SYSTEM OF WESTERN NEW YORK
Walnut Streets, Philadelphia, Pennsylvania. Respon-
dent has also maintained a facility located at 1800
Broadway, Buffalo, New York, where it is engaged in
the wholesale sale and dispensing of coffee, tea, other
beverages, snacks, and related products. 7 Respondent,
during the calendar year preceding issuance of the
complaint, which period is representative of all times
material herein, purchased and received goods and
materials valued in excess of $50,000 directly from
suppliers located outside the State of New York.
We find, on the basis of the firegoing, that Respon-
dent 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. ['HE IABOR OR(iANI/A I ION INVOI.VtiI)
Bakery Drivers, Local 264, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America. is a labor organization within the
meaning of Section 2(5) of the Act.
I11. IHE UNFAIR I.ABOR PRA(I'I('FS
A. The Representation Proceeding
I. 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 warehousemen, drivers, customer service rep-
resentatives, and warehousemen mechanics em-
ployed by Respondent at its 1800 Broadway,
Buffalo, New York, facility; but excluding out-
side salesmen, office clerical employees, profes-
sional employees, guards and supervisors as de-
fined in the Act.
2. The certification
On December 22, 1978, 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 3, designated the Union as their
representative for the purpose of collective bargaining
7 In its answer to the complaint, Respondent denied hat its sales are
wholesale, but instead stated that its sales are almost entirel2 retail. This
assertion is contrary to the finding of the Regional Director in the underlying
representation case to which Respondent did not except. We note that, even
if Respondent's assertion is correct and its sales are therefore only partially
wholesale, the nonretail standard for assertion ofjunsdiction nevertheless is
applicable. See Pease Oil Companv, 122 NLRB 344 1958).
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on May 7, 1979. and the Union continues to
be such exclusive representative within the meaning
of Section 9(a) of the Act.
B. The Requ'li. To Bargain and Respondent s Re/Uisal
Commencing on or about May 15, 1979, and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
Mav 15, 1979, and continuing at all times thereafter
to date, Respondent has refused, and continues to re-
fuse, 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
May 15, 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 en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
IV. TIliF EFFECT ()F THE UNFAIR I.ABOR PRA('II('ES
UPON (OMMERC(
The activities of Respondent set forth in section
ll, above, occurring in connection with its operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce 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-
ing of Section 8(a)(5) and (I) 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 commences
435
DECISIONS OF NATIONAL LABOR RELATIIONS BOARD
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Companv, 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 Con-
struction Company, 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (lOth Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONc('USIONS OF LAW
1. Coffee System of Western New York, a Division
of Coffee System, Inc., a Wholly-Owned Subsidiary
of ARA Services, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Bakery Drivers, Local 264, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All warehousemen, drivers, customer service
representatives, and warehousemen mechanics em-
ployed by Respondent at its 1800 Broadway, Buffalo,
New York, facility; but excluding outside salesmen,
office clerical employees, professional employees,
guards and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since May 7, 1979, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 May 15, 1979, 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
in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, and thereby has engaged 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 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 Rela-
tions Board hereby orders that the Respondent, Cof-
fee System of Western New York, a Division of Cof-
fee System. Inc., a Wholly-Owned Subsidiary of
ARA Services, Inc., Buffalo, New York, 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 con-
ditions of employment with Bakery Drivers, Local
264, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All warehousemen, drivers, customer service rep-
resentatives, and warehousemen mechanics em-
ployed by Respondent at its 1800 Broadway,
Buffalo, New York, facility: but excluding out-
side salesmen, office clerical employees, profes-
sional employees, guards and supervisors as de-
fined 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 facility located at 1800 Broadway,
Buffalo, New York, copies of the attached notice
marked "Appendix." Copies of said notice, on forms
provided by the Regional Director for Region 3, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
i 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."
436
COFFEE SYSTEM OF WESTERN NEW YORK
APPENDIX
NoTrcE To EMPLOYEES
POSTED BY ORDER OF THI
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 Bak-
ery Drivers, Local 264, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, 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 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 de-
scribed 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
agreement. The bargaining unit is:
All warehousemen, drivers, customer service
representatives, and warehousemen mechanics
employed by the Employer at its 1800 Broad-
way, Buffalo, New York, facility; but exclud-
ing outside salesmen, office clerical employees,
professional employees, guards and supervi-
sors as defined in the Act.
COFFEE SYSTEM OF WESTERN NEW YORK, A
DIVISION OF COFFEE SYSTEM, INC., A
WHOLLY-OWNED SUBSIDIARY OF ARA SER-
VI('ES, INC.
437