Farmers Union Co-Operative Business Association

National Labor Relations Board - Board Decisions

Sep 5, 1969

178 N.L.R.B. 336 (N.L.R.B. 1969)

336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Farmers Union Co-operative Business Association
and American Federation of Grain Millers,
AFL-CIO. Cases 17-CA-3836-1 and
I7-CA-3836-2
September 5, 1969
DECISION AND ORDER
BY CHAIRMAN 1MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On July 9. 1969, Trial Examiner Charles NV.
Schneider issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action as set forth in the attached Trial Examiner's
Decision. Thereafter, 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 has considered the Trial Examiner's
Decision, the exceptions and brief, and the entire
record in this case, 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 Respondent. Farmers Union
Co-operative Business Association, Holton, Kansas,
its officers, agents. successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceedings'
CHARLES W. SCHNETDERTrial Examiner: Upon petitions
filed under Section 9(c) of the National Labor Relations
Act (29 U.S.C.A. 159(c)) on October 1, 1968, in Case
17-RC-585I and on October 25, 1968, in Case
17-RC-5874, by the American Federation of Grain
'Administrative or official notice is taken of the record in the
representation proceedings , Cases 17-RC-5851 and 17-RC-5874, as the
term "record ," is defined in Sec 102 68 and 102 69 (f) of the Board 's rules
(Rules and Regulations and Statements of Procedure, National Labor
Relations Board , Series 8, as amended ) See LTV Electrosystems , Inc , 166
NLRB No. 81, cnfd 388 F 2d 683 (C A 4), Golden Age Beverage Co,
178 NLRB No. 56
Millers, AFL-CIO, herein called the Union, a hearing was
held on the question of representation presented in the two
cases, pursuant to a notice of representation hearing and
order consolidating cases, on November 1, 1968, before a
Hearing Officer of the National Labor Relations Board
Thereafter on November 26, 1968. the Regional Director
for Region 17 pursuant to Section 102.72(a)(4) and (c) of
the Board's Rules, severed Case 17-RC-5851 from Case
17-RC-5874 and issued, on the same day. (1) a Decision
and Direction of Election in Case 17-RC-5851 in an
appropriate unit of Respondent's employees described
hereinafter and (2) a Decision and Direction of Election in
Case l7-RC-5874 in an appropriate unit of Respondent's
employees described hereinafter
On December 9, 1968, Respondent filed with the Board
in Washington, D C , a petition for review of the Regional
Director's Decision and Direction of Election in Case
17-RC-5851. On December 23, 1968, the Board denied
Respondent's petition for review No request for review of
the Decision and Direction of Election was filed in Case
17-RC-5874.
Pursuant to the respective directions of election,
elections by secret ballot were conducted on December 31,
1968, among the employees in the appropriate units to
determine the question concerning representation Upon
conclusion of the balloting, tallies of the ballots in both
elections were prepared In Case 17-RC-5851, of a total of
approximately 17 eligible voters, 13 cast ballots for the
Union, 3 cast ballots against the Union, no ballots were
challenged and no ballots were void. In Case 17-RC-5874,
of a total of approximately 4 eligible voters. 2 cast ballots
for the Union, one ballot was cast against the Union. one
ballot was challenged, and no ballots were void. The
challenged ballot in Case 17-RC-5874 was sufficient to
affect the results of the election.
No objections to conduct affecting the results of
election were filed in Case 17-RC-5851, and, accordingly.
on January 15. 1969, the Regional Director issued and
duly served on the Respondent and the Union a
Certification of Representative, certifying the Union as
the representative for the purposes of collective bargaining
for the employees in the appropriate unit. No objections
to conduct affecting the results of the election were filed
in Case 17-RC-5874. The challenged ballot was then
investigated pursuant to Section 102.69 of the Board's
Rules and on February 13, 1969, the challenge to said
ballot was sustained. and the Regional Director issued a
Supplemental Decision and Certification of
Representative, in Case 17-RC-5874 certifying the Union
as the representative for the purposes of collective
bargaining for Respondent's employees in the appropriate
unit. On February 26, 1969, Respondent filed a request
for review of the Regional Director's Supplemental
Decision and Certification of Representative in Case
17-RC-5874 The Regional Director for Region 17
declined to consider the Respondent's request for review
as a motion for reconsideration, and on March 7, 1969,
the Board denied the Respondent ' s request for review.
The Complaint Case
On March 18, 1969, the Union filed a charge in Case
17-CA-3836-1 alleging that since on or about February 5,
167 NLRB No. 24, Intertype Co. v Penello , 269 F. Supp . 573 (D.C Va),
Intertype Co v. N L.R.B, 401 F 2d 41 (C A 4), Follett Corp, et al. 164
NLRB No. 47, enfd 397 F.2d 91 (C.A 7), See 9 (d) of the National
Labor Relations Act
FARMERS UNION CO-OPERATIVE 337
1969, the Respondent had refused to bargain with the
Union as the duly designated representative of a majority
of the employees in the unit found appropriate in Case
17-RC-5851. and thus had violated Section 8(a)(1) and (5)
of the Act. Also on March 18, 1969. the Union filed
another charge. in Case 17-CA-3836-2, alleging that since
on or about February 26, 1969. the Respondent had
refused to bargain with the Union as the duly designated
representative of a majority of the employees in the unit
found appropriate in Case 17-RC-5874 in contravention of
the Regional Director's Decision in Case 17-RC-5874 and
thus had violated Section 8(a)(1) and (5) of the Act.
On April 11. 1969, the General Counsel, by the
Regional Director for Region 17, issued an Order
Consolidating Cases, Consolidated Complaint and Notice
of Hearing in these cases alleging that the Respondent had
committed unfair labor practices in violation of Section
8(a)(1) and (5) and Section 2(6) and (7) of the Act by
refusing to bargain with the Union upon request in the
two units. In due course. on April 24. 1969, the
Respondent filed its Answer to the Complaint in which it
admitted certain allegations of the complaint and denied
others
In its answer, the Respondent admitted the following
allegations of the complaint. (1) filings and service of the
charges, (2) certain jurisdictional facts, (3) that the Union
is a labor organization within the meaning of Section 2(5)
of the Act, (4) the facts of the representation proceedings
cited above including the appropriateness of each unit, (5)
the Union's requests to bargain collectively and the
Respondent's refusal. Respondent further admitted that it
has continued to refuse to recognize and bargain with the
Union and admitted that its sole objective in so doing is
to test the validity of the Regional Director's respective
certifications of representative in Cases 17-RC-5851 and
17-RC-5874, by means of Board review and court
decision. Respondent admitted the fact of the election and
certification, but denied the validity of the election and
certification, asserting with regard to the unit in Case
17-RC-5851 that the employer's operation is seasonal and
that the election was conducted at a time when the work
complement was approximately only 50 percent of the
peak season complement, and further asserting with
regard to the election in Case l7-RC-5874, that the
challenge to the ballot which affected the results of the
election, was improperly sustained. Respondent, in sum,
denied that it is engaging in any unfair labor practices
affecting commerce
Under date of May 2, 1969, received May 5, 1969,
counsel for General Counsel filed a motion for summary
judgment, in which he contends that the pleadings.
considered together with the official Board record in the
underlying representation proceedings in Cases
17-RC-5851 and 17-RC-5874, raise no factual issues
requiring a hearing, that Respondent's Answer alleges no
newly discovered evidence or evidence not available at the
time of the representation proceedings, and that, as a
matter of law, Respondent has no valid defense to the
complaint.
On May 6, 1969, 1 issued an order on the General
Counsel's motion for summary judgment, returnable May
23, 1969, directing the parties to show cause as to whether
or not General Counsel's motion should be granted. The
order stated inter alia that "if no response disclosing
material unresolved issues litigable before and requiring
hearing by a Trial Examiner is filed by May 23, 1969, the
motion for summary judgment may be granted
forthwith." No responses were received to the Order.
Ruling on Motion for Summary Judgment
in its Answer, Respondent contends that its refusals to
bargain collectively are fully justified because the Union
has been illegally certified as the bargaining representative
for the units involved herein Respondent asserts that the
election in the unit involved in Case 17-RC-5851 was
conducted at a time of the year when the work
complement was approximately 50 percent of the peak
season's complement, and that the employer's operation in
said unit is seasonal in nature Further, Respondent
asserts that the challenge to the ballot, affecting the
results of the election in the unit involved in Case
17-RC-5874, was improperly sustained.
With regard to Case 17-RC-5851, the question of the
size of the appropriate unit was ruled on by the Regional
Director in his Decision and Direction of Election, dated
November 26, 1968, at page three thereof, and at that
time Respondent's contention that since its operation is
seasonal in nature no election should be held until the
spring of 1969 when it was to add additional employees,
in keeping with its practice. was rejected With regard to
Case 17-RC-5874, the issue of the challenged ballot was
decided by the Regional Director in the Supplemental
Decision and Certification of Representative, dated
February 13, 1969. Respondent's request for review in
Case 17-RC-5874 was denied by the Board on March 7.
1969. Respondent's contentions were thus fully litigated
and decided in the prior representation proceedings and
Respondent has offered no new or previously unavailable
evidence to support its present assertions.
It is established Board policy, in the absence of newly
discovered or previously unavailable evidence or special
circumstances not to permit litigation before a Trial
Examiner in an unfair labor practice case of issues which
were or could have been litigated in a prior related
representation proceeding.' This policy is applicable even
though no formal hearing on objections has been provided
by the Board. Such a hearing is not a matter of right
unless substantial and material issues are raised;' and that
there are not such issues here has been effectively decided
by the Board
In the representation proceedings. the Respondent
presented, or had opportunity to present, all its present
contentions concerning the validity of the election and the
certification. The Respondent is thus seeking to relitigate
the Board's determinations in the representation
proceedings. There being no unresolved matters requiring
an evidential hearing, the motion of the General Counsel
for summary judgment is granted, and I hereby make the
following further:
Findings and Conclusions
L 1HE BUSINESS 01 THE RESPONDENT
Farmers Union Co-operative Business Association is,
and has been at all times material herein, a Kansas
'Howard Johnson Company. 164 NLRB No 121, Metropolitan Life
Insurance Company. 163 NLRB No 71, Krieger-Ragsdale & Co, Inc.
159 NLRB 490, enfd 379 F 2d 517 (C.A. 7), cert denied 389 U S. 1041.
N L R B v Afacomb Pottery, 376 F 2d 450 (C A 7) See Pittsburgh Plate
Glass Co v . N L R B , 313 U S 146, 162, NLRB Rules and Regulations,
Sec. 102 67(f) and 102.69(c)
10 K Van and Storage, Inc, 127 NLRB 1537, enfd 297 F.2d 74 (C A.
5). See N L R B. v. Air Control Window Products , Inc, 335 F.2d 245, 249
(C A 5). "If there is nothing to hear, then a hearing is a senseless and
useless formality " See also .N.L R B. v Bata Shoe Co., 377 F.2d 821. 826
(C A 4).
338 DECISIONS OF N NTiONAL LABOR RELATIONS BOARD
corporation with its principal place of business at Holton.
Kansas. It operates grain elevators at Holton, Valley
Falls, and Mavetta, and a feed mill at Denison. also in
Kansas. It also operates petroleum service stations at
Holton and Denison, a lertilizer department and store at
Holton, and a petroleum bulk plant at Denison.
in the course and conduct of its business, the
Respondent annually sells and distributes products, the
gross value of which exceeds $500,000. The Respondent
annually receives goods valued in excess of $50,000
transported to its place of business in interstate commerce
directly from states of the United States other than the
State of Kansas Respondent is now, and at all times
material herein has been, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
11. THE I ABOR ORGANIZATION INVOLVED
The Union is. and at all times material herein has been,
a labor organization within the meaning of Section 2(5) of
the Act.
iii. TiIE UNFAIR LABOR PRAC1ICES
With regard to Case 17-RC-5851, the following
employees of the Respondent constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
All production and maintenance employees of Farmers
Union Co-operative Business Association at its Holton,
Denison, Mayetta, and Valley Falls, Kansas locations,
including service station employees, tankmen, truck
drivers, mechanics, regular part-time employees, and
regular seasonal employees, but EXCLUDING office
clerical employees, temporary employees, and
professional employees, guards, and supervisors within
the meaning of the Net.
With regard to Case 17-RC-5874, the following
employees of the Respondent constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
All full-time and regular part-time office clerical
employees of Farmer-, Union Co-operative Business
Association, EXCLUDING all other employees and
professional employees, guards. and supervisors within
the meaning of the Act.
On December 31. 1968, a majority of Respondent's
employees in each unit designated and selected the Union
as their collective-bargaining representative in secret-ballot
elections conducted under the supervision of the Regional
Director of Region 17 of the National Labor Relations
Board On January 15, 1969, the Regional Director
certified the Union as the collective-bargaining
representative for the unit of employees designated in
Case 17-RC-5851 and on February 13. 1969, the Regional
Director certified the Union as the collective-bargaining
representative for the unit of employees designated in
Case 17-RC-5874. From January 15, 1969 in Case
17-RC-5851 and from February 13. 1969 in Case
17-RC-5874, and at all times since, the Union has been
the collective-bargaining representative of a majority of
the employees in the above-mentioned units and by virtue
of Section 9(a) of the Act, has been, and is now, the
exclusive representative of all the employees in said units
for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment.
On or about January 22. 1969, the Union requested the
Respondent to bargain collectively with respect to rates of
pay, wages, hours of employment and other terms and
conditions of employment of the employees in the unit
found appropriate in 17-RC-585I On or about February
5, 1969, and at all times since, Respondent has refused to
bargain collectively with the Union
On or about February 26, 1969, the Union requested
Respondent to bargain collectively with respect to rates of
pay, wages, hours of employment and other terms and
conditions of employment of the employees in the unit
found appropriate in Case 17-RC-5874 On or about
February 27. 1969, and at all times since the Respondent
refused to bargain collectively with the Union
By these refusals to bargain with the Union. the duly
designated representative of the employees in each unit.
Respondent engaged in, and is engaging in. unfair labor
practices in violation of' Section 8(a)(5) of the Act and is
interfering with, restraining, and coercing 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, I recommend that the Board
issue the following'
ORDER
A For the purpose of determining the effective period
of the certification, the initial year of certification shall be
deemed to begin on the date(s) the Respondent
commences to bargain in good faith with the Union as the
recognized bargaining representative in the appropriate
units
B. Farmers Union Co-operative Business Association,
Dolton, Kansas, its officers, agents, successors. and
assigns. shall:
1. Cease and desist from-
(a) Refusing to bargain collectively with American
Federation of Grain Millers, AFL-CIO, as the exclusive
collective-bargaining representative of the employees in
the following appropriate units.
All production and maintenance employees of Farmers
Union Co-operative Business Association at its Holton,
Denison, Mayetta, and Valley Falls, Kansas locations,
including service station employees, tankmen, truck
drivers, mechanics, regular part-time employees. and
regular seasonal employees, but LXCLUDING office
clerical employees. temporary employees. and
professional employees, guards, and supervisors within
the meaning of the Act
All full-time and regular part-time office clerical
employees of Farmers Union Co-operative Business
Association, EXCLUDING all other employees and
professional employees, guards and supervisors within
the meaning of the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent the employees in the said
'The purpose of this provision is to ensure that the employees in the
appropriate units will be accorded the services of their selected bargaining
agent for the period provided by law See Mar-Jac Poultry Co . Inc , 136
NLRB 785, Commerce Co d/b/a Lamar Hotel, 140 NLRB 226. 229,
enfd 382 F 2d 600 (C A 5 ), Burnett Consirucuon Co. 149 NLRB 1419,
1421, enfd 350 P 2d 57 (C.A 10), ccrt denied 379 C S 817
FARMERS UNION CO-OPERATIVE
appropriate units 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 American
Federation of Grain Millers, AFL-CIO, as the exclusive
representative of the employees in the appropriate units
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 all its locations in Holton, Denison,
Mayetta, and Valley Falls, Kansas, copies of the attached
notice marked "Appendix."' Copies of said notice, on
forms to be furnished by the Regional Director for Region
17, alter being duly signed by an authorized representative
of the Respondent. shall he 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 17, in
writing, within 20 days from 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 Exmamer" 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 "
'in the esent that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 17, 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
339
WE WILL NOT refuse to bargain collectively with the
American Federation of Grain Millers, AFL-CIO, as
the exclusive collective-bargaining representative of all
our following employees:
All production and maintenance employees at our
Holton. Denison, Mayetta, and Valley Palls, Kansas
locations, including service station employees,
tankinen, truck drivers, mechanics, regular part-time
employees, and regular seasonal employees, but
EXCLUDING office clerical employees, temporary
employees, and professional employees, guards, and
supervisors within the meaning of the Act.
All full-time and regular part-time office clerical
employees EXCLUDING all other employees, and
professional employees, guards, and supervisors
within the meaning of the Act.
WF WIT I NOT interfere with the efforts of the Union
to negotiate for or represent employees as exclusive
collective-bargaining representative.
WE WILL bargain collectively with the Union as
exclusive collective-bargaining representative of the
employees in the appropriate units and if an
understanding is reached we will sign a contract with
the Union.
Dated By
FARMERS UNION
CO-OPERATIVE BUSINESS
AssociATiON
(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.
Any questions concerning this notice may be directed to
the Board 's Regional Office, 610 Federal Building, 601
East 12th Street, Kansas City. Missouri 64106, Telephone
374-5181