Cross Baking Co., Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1971

191 N.L.R.B. 27 (N.L.R.B. 1971)

CROSS BAKING COMPANY, INC.
Cross Baking Company , Inc. and Bakery & Confec-
tionery Workers ' International Union of America,
Local 100, AFL-CIO. Case 1-CA-7432
June 10, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
Upon a charge filed on December 17, 1970, by Bak-
ery & Confectionery Workers' International Union of
America, Local 100, AFL-CIO, herein called the
Union, and duly served on Cross Baking Company,
Inc., herein called the Respondent, the General Coun-
sel of the National Labor Relations Board, by the Re-
gional Director for Region 1, issued a complaint - on
January 15, 1971, 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 Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing before
a Trial Examiner-were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on October 31, 1970,
following a Board election in Case 1-RC-10271, 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 November 12, 1970, and at all times there-
after, 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
January 26, 1971, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On February 8, 1971, counsel for the General Coun-
sel filed a Motion for Summary Judgment with the
Acting Regional Director who, by Order of the same
date, referred the motion to the Board in Washington,
D.C., for ruling. Subsequently, on February 17, 1971,
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 thereafter filed a
I Official notice is taken of the record in the representation proceeding,
Case 1-RC-10271 as the term "record" is defined in Secs. 102.68 and
102.69(f) of the Board's Rules and Regulations , Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello,
269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397
F 2d 91 (C.A. 7, 1968); Sec 9(d) of the NLRA
191 NLRB No. 9
27
response to Notice To Show Cause, characterized as
affidavit in opposition.
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 powers
in conncetion with 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 in its response to
the Notice To Show Cause, the Respondent denies that
the Union, certified by the Regional Director in Case
1-RC-10271, is the exclusive majority bargaining rep-
resentative of the employees in the appropriate unit,
and therefore it opposes the General Counsel's Motion
for Summary Judgment.
The record in Case 1-RC-10271 reflects that in his
Decision and Direction of Election issued on December
17, 1968, the Regional Director excluded garage me-
chanics and thrift shop employees from the production
and maintenance unit found to be appropriate. On
January 13, 1969, the Respondent filed a Request-for
Review contending that the Regional Director erred in
making these exclusions. The Board, on January 15,
1969, denied the request for Review as raising no issues
warranting review.
The election was conducted on January 22, 1969,
and the tally of ballots reflected that of a total of 70
ballots cast, 34 were for, and 32 against, the Union with
4 ballots challenged. The challenged ballots were deter-
minative of the election results. The Respondent subse-
quently filed timely objections to the conduct of the
election.
After an investigation, the Regional Director issued
his Supplemental Decision on Objections and Chal-
lenges on March 26, 1969, in which he sustained two
challenges, but deferred disposition of the challenges to
the ballots of employee Patricia Von Dreden and of
alleged Supervisor Valeria Hull, pending final deter-
mination of the unfair labor practice charges in Case
1-CA-6547. In addition, 'he concluded that the objec-
tions concerning the alleged wage misrepresentation by
the Union and Von Dreden's alleged involvement in
threats to and assault of other employees might best be
resolved at a hearing. In these circumstances, the Re-
gional Director advised that he would move' the Trial
Examiner to reopen the hearing in Case ,I-CA-6547
and consolidate it with Case 1-RC-1027L
The General Counsel's motion to reopen and con-
solidate Cases i-RC-12071 and 1-CA-6547, ad-
dressed to the Trial Examiner in Case 1-CA-6547, was
opposed by the Respondent. The Trial Examiner, how-
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever in his telegram dated April 4, 1969, and in his
Order dated May 20, 1969, granted the motion but only
to the extent that any additional evidence sought to be
presented in the unfair labor practice proceeding was
shown to be newly discovered or previously unavail-
able.
The consolidated hearing was held on July 8, 1969,
with counsel representing the General Counsel in the
unfair labor practice case and with separate counsel
representing the Regional Director in the representa-
tion case. At the hearing, the Respondent argued
against limitations imposed upon the presentation of
evidence proffered by the Respondent as to the objec-
tions, and against the participation of the counsel for
the General Counsel in the objections hearing. The
Trial Examiner ruled adversely to the Respondent.
Thereafter, on September 18, 1969, the Trial. Exam-
iner issued his Decision and Recommendation on Chal-
lenges and Objections in the consolidated cases,
finding, inter alia, that the Respondent had not dis-
criminatorily suspended and discharged employee Von
Dreden, and recommending that the challenge to her
ballot be sustained , and that the objections to the con-
duct of the election be overruled in their entirety, and
that the results of the election be certified. Both the
General Counsel and the Respondent filed exceptions
to the Trial Examiner's Decision. Subsequently, on Oc-
tober 31, 1970, the Board issued its Decision, Order,
and Certification of Representative in which it adopted
the Trial Examiner's aforesaid finding and recommen-
dations and certified the Union as the exclusive bar-
gaining representative of the employees in the appro-
priate unit since the challenges to three of the four
challenged ballots were sustained and the remaining
unopened ballot could not affect the results of the elec-
tion.
In its affidavit in opposition to the General Counsel's
Motion for Summary Judgment, the Respondent con-
tends that the General Counsel's motion should be
denied on two grounds. First, the Respondent contends
that it was denied a hearing and a ruling on one of its
objections to conduct affecting the election, namely, its
allegations that employee Patricia Von Dreden was
involved in threats to and an assault upon other em-
ployees, which actions it contends warrant setting aside
the election. Second, -the Respondent contends that
counsel, for the General Counsel denied the Respond-
ent a "full and fair hearing" by improperly participat-
ing in the representation case. We have reexamined the
record and, for the reasons set forth below, we do not
find merit in the Respondent's contentions.
With respect to its first contention, the Trial Exam-
iner held that Von Dreden was not an agent of the
Union, and the Respondent does not now claim that
she was; rather, it claims that her conduct created an
"atmosphere of fear and coercion" which rendered im-
possible the expression of employee free choice in the
election. The record reveals that in defending against
an allegation of discrimination against Von Dreden, the
Respondent adduced certain evidence relating to Von
Dreden's alleged November 18, 1968, threats to and
assault upon members of the electorate. At the hearing,
the Respondent further offered to prove, through three
witnesses, that early in November 1968 Von Dreden
and her fellow employee Bunnell frightened employee
Murphy by discussing in her presence the possibility of
attacking an antiunion employee and of writing an
anonymous letter to that employee (which they de-
stroyed in Murphy's presence); that the story of Von
Dreden's alleged assault of two antiunion employees on
November 18, 1968, was "well know' throughout the
entire plant" at that time; that on November 19, 1968,
Von Dreden and Bunnell threatened employee Russell
in the plant because she was against the Union; that on
November 20, 1968, employee Magoon heard Von
Dreden twice ask another employee if she would like to
fight (without stating a reason for the challenge) but
that the other employee declined.
The Trial Examiner rejected these offers,of proof.
After reexamining the record, we hereby reaffirm our
adoption of the Trial Examiner's recommendation that
the Von Dreden objection be overruled. Even assuming
that the proffered evidence is true, the facts alleged by
the Respondent do not constitute grounds for setting
aside the election or require the holding of a further,
evidentiary hearing. Thus, the Respondent's offers of
proof relate to Von Dreden's actions and their effect on
the electorate during the month of November 1968. As
a result of the fight of November 18, the Respondent
suspended Von Dreden on November 22 and dis-
charged her on November 25 or 26, 1968. The Re-
spondent did not allege or offer to prove that Von
Dreden thereafter renewed or attempted to carry out
her alleged threats nor did, it offer to prove that any
other circumstance rejuvenated the alleged' threats so
that they created an "atmosphere of fear and coercion"
at the election which was not conducted until 2 months
later, on January 22, 1969.
It has long been established that, while conduct not
attributable to either party to an election may be
grounds'for setting the election aside, "the Board ac-
cords less weight to such conduct than to'conduct of
the' parties." Orleans Manufacturing Company, 120
NLRB 630, 633. In the instant case, the conduct com-
plained of and the alleged effects were too remote from
the election, which was conducted 2 months later, to
have created an atmosphere of fear or coercion thereat
warranting setting aside the election. Bridgeport Cast-
ings Company, 109 NLRB 749, 754; E. I. Dupont De
Nemours & Company, Inc., 105 NLRB 170.2 The Trial
The case relied upon by the Respondent, Diamond State Poultry Co.,
CROSS BAKING COMPANY, INC.
Examiner's rejection of Respondent's offers of proof
was therefore not prejudicial.
Likewise, we do not find meritorious the Respond-
ent's second contention, viz, that counsel for the Gen-
eral Counsel denied the Respondent a fair and full
hearing by his allegedly improper involvement in the
representation case. Upon reexamination of the record,
we find that the conduct of the General Counsel's rep-
resentative and the Regional Director's representative
at the representation hearing was consistent with their
responsibility for the development of a complete
record. Sahara-Tahoe Corporation, 173 NLRB 1349.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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.'
All issues raised by the Respondent in this proceed-
ing were either litigated in the prior representation pro-
ceeding, or considered herein above; the Respondent
does not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, and we have
concluded that the evidence adduced and sought to be
adduced does not warrant either a further hearing or a
modification of the decision made in the representation
proceeding. We therefore find that the Respondent has
not raised any issue which is properly litigable in this
unfair labor practice proceeding. We shall, accord-
ingly, 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 THE RESPONDENT
Respondent is and has been at all times material
herein a corporation duly organized under and existing
by virtue of the laws of the State of Vermont.
At all times herein mentioned, Respondent has
maintained its principal office and place of business at
149 Maple Avenue in the city of Claremont, county of
Sullivan and State of New Hampshire (herein called the
Claremont location), and is now and continuously has
been engaged at said location in the manufacture, sale,
and distribution of baked goods and related products.
Respondent in the course and conduct of its business
causes, and continuously has caused, at all times herein
mentioned, large quantities of flour, sugar, and other
ingredients used by it in the manufacture of its baked
Inc., 107 NLRB 3, is clearly distinguishable from the instant case in that,
in Diamond, the election was set aside because of threats made in the plant
on the day of the election.
' See Pittsburgh Plate Glass Co. v N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs 102 67(1) and 102.69(c).
29
goods to be purchased and transported in interstate
commerce from and through various States of the
United States other than the State of New Hampshire,
and causes, and continuously has caused, at all times
herein mentioned, substantial quantities of baked goods
to be sold and transported from said location in inter-
state commerce to States of the United States other
than the State of New Hampshire.
In the course and conduct of its business Respondent
annually purchases goods and materials in excess of
$50,000 directly from points outside the State of New
Hampshire which are received at its Claremont loca-
tion.
We find, on the basis of the foregoing, that Respond-
ent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Bakery & Confectionery Workers' International
Union of America, Local 100, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LA13OR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All production and maintenance employees of
Respondent employed at its Claremont, New
Hampshire, location, exclusive of office clerical
employees, driver-salesmen, transport drivers,
thrift shop employees, garage mechanics, guards
and all supervisors as defined in Section 2(11) of
the Act.
2. The certification
On January 22, 1969, a majority of the employees of
Respondent in said unit, in a secret ballot election con-
ducted under the supervision of the Regional Director
for Region 1, designated the Union as their representa-
tive for the purpose of collective bargaining with the
Respondent. The Union was certified as the collective-
bargaining representative of the employees in said unit
on October 31, 1970, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about November 7, 1970, and at
all times thereafter , the Union has requested the Re-
spondent 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 November 12, 1970 , and continuing at all times
thereafter to date, the Respondent has refused, and
continues to refuse , to recognize and bargain with the
Union as the exclusive representative for collective bar-
gaining of all employees in said unit.
Accordingly, we find that the Respondent has, since
November 12, 1970, 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 de-
scribed 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, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached , embody such under-
standing in a signed agreement.
In order to insure that the employees in the appropri-
ate 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 begin-
ning 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; Commerce
Company d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421, enfd. 350 F.2d 57 (C.A. 10).
The Board, upon the basis of the foregoing facts and
the entire record , makes the following: `
CONCLUSIONS OF LAW
1. Cross Baking Comapny , Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Bakery & Confectionery Workers' International
Union of America, Local 100, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the
Act.
3. All production and maintenance employees of Re-
spondent employed at its Claremont, New Hampshire,
location, exclusive of office clerical employees, driver-
salesmen, transport drivers, thrift shop employees, ga-
rage mechanics , guards and all supervisors as defined
in Section 2(11) of the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
4. Since October 31, 1970, the above- named labor
organization has been and now is the certified and ex-
clusive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bargain-
ing'within the meaning of Section 9(a) of the Act.
5. By refusing on or about November 12, 1970, 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 Respond-
ent 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 in-
terfering with , restraining , and coercing, employees in
the exercise of the rights guaranteed to them in Section
7 of the Act, and thereby has engaged in and is engag-
ing 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 Re-
lations Act , as amended, the National Labor Relations
Board hereby orders that Respondent , Cross Baking
Comapny, Inc., 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 Bakery & Confectionary Workers'
International Union of America, Local 100, AFL-
CIO, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All production and maintenance employees of
Respondent employed at its Claremont, New
Hampshire, location, exclusive - of office clerical
CROSS BAKING COMPANY, INC.
employees, • driver-salesmen,, transport drivers,
thrift shop employees, garage mechanics; guards
and all supervisors as defined in Section 2(11) of
the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights guaran-
teed 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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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:
(b) Post at its Claremont, New Hampshire, location
copies of the attached notice marked "Appendix."" Co-
pies of said notice,, on forms provided by the Regional
Director for Region 1, after being duly signed by Re-
spondent's representative, shall be posted by Respond-
ent immediately upon receipt thereof, and be main-
tained 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 1,' 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 be changed
to 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
31
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Bakery
& Confectionery Workers' International Union of
America,. Local. 100, 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 guranteed them by Sec-
tion 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 employ-
ment, and, if an understanding is reached, embody
such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance employees
of Respondent employed at its Claremont,
New Hampshire, location, exclusive of office
clerical employees, driver-salesmen, trans-
port drivers, thrift shop employees, garage
mechanics, guards and all supervisors as
defined in Section 2(11) of the Act.
CROSS BAKING
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Seventh Floor, Bulfinch Building, 15 New Char-
don Street, Boston, Massachusetts 02114, Telephone
617-223-3330.
WE WILL NOT refuse to bargain collectively