Flowers Baking Co.

National Labor Relations Board - Board Decisions

Jun 27, 1977

230 N.L.R.B. 532 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Flowers Baking Company of Gadsden/a Division of
Flowers Industries and Service Employees Interna-
tional Union Local No. 579, AFL-CIO. Case 10-
CA-12564
June 27, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Upon a charge and amended charge filed on
February I and 3, 1977, respectively, by Service
Employees International Union Local No. 579,
AFL-CIO, herein called the Union, and duly served
on Flowers Baking Company of Gadsden/a Division
of Flower Industries, herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region
10, issued a complaint and notice of hearing on
March 2, 1977, 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 an Administrative Law
Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on January 12,
1977, following a Board election in Case 10-RC-
10834 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; 1 and that,
commencing on or about January 28, 1977, 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 March 15, 1977, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On April 1, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on April 15, 1977, 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
response to Notice To Show Cause.
' Official notice is taken of the record in the representation proceeding,
Case 10-RC-10834, 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 Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
230 NLRB No. 79
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 response to the
Notice To Show Cause, Respondent basically attacks
the validity of the Union's majority status and
certification because of the issues raised by the
challenges to the determinative ballots cast in the
representation election and by Respondent's election
objections upon which Respondent is entitled to a
hearing. On the other hand, the General Counsel
argues that there are no litigable issues of fact or law
requiring a hearing. We agree with the General
Counsel.
Review of the record herein, including that in the
representation proceeding, Case 10-RC-10834,
shows that the election conducted on October 13,
1976, pursuant to a Stipulation for Certification
Upon Consent Election, resulted in a vote of six for
and four against the Union, with three challenged
ballots which were sufficient in number to affect the
results of the election. Both Respondent and Union
filed timely objections to the election. Respondent's
objections alleged, in substance, that union represen-
tatives and agents (1) intimidated, coerced, and
harassed employees and their relatives who openly
supported Respondent; and (2) threatened employ-
ees with loss of jobs if the Union were not voted in.
After investigation, the Regional Director issued on
November 19, 1976, his report on objections and
challenged ballots in which he recommended that the
challenges to the three ballots be overruled; that the
ballots be opened and counted; and that Respon-
dent's objections be overruled in their entirety
because they did not raise material or substantial
issues affecting the results of the election. He also
recommended that the Union be certified if the
revised tally of ballots showed a majority for the
Union and that, if the Union did not receive a
majority of the valid votes, a hearing be held on two
of the three union objections.
Respondent filed timely exceptions to the Regional
Director's report, with a supporting brief, reiterating
its objections and specifically excepting to the
recommendation overruling the Board agent's chal-
lenge to the ballot of Virginia Mashburn who was
not on the eligibility list and who the evidence
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
532
FLOWERS BAKING COMPANY OF GADSDEN
indicated, according to the Regional Director, was
on maternity leave during the relevant eligibility
period and therefore eligible to vote. On January 4,
1977, the Board issued a Decision and Direction of
Election in which it adopted the Regional Director's
findings and recommendations and directed that he
open and count the three challenged ballots, issue a
revised tally, and, as appropriate, either issue a
certification of representative to the Union or direct
a hearing on the Union's objections. On January 6,
1977, a revised tally of ballots was issued showing
that, of the 13 eligible voters, 7 cast votes for and 6
against the Union. On January 12, 1977, absent
objection to the revised tally, the Regional Director
certified the Union.
In its response to the Notice To Show Cause,
Respondent contends that it is entitled to a hearing
on the issues raised by the challenged ballots and its
objections. We find no merit in this contention. By
its January 4, 1977, adoption of the Regional
Director's findings and recommendations with re-
spect to the challenges and the objections, the Board
necessarily found that there were no substantial or
material issues warranting a hearing. Where, as here,
Respondent failed to raise substantial or material
issues in the representation case below, the Board has
held, with judicial approval, that an evidentiary
hearing is not required.2
It is well settled that in the absence of newly
discovered 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.3
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and Respondent does not
offer to adduce at a hearing any newly discovered or
previously 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 properly litigable in this unfair labor practice
proceeding. We shall, accordingly, grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
2 Handy Hardware Wholesale, Inc., 222 NLRB 373 (1976); Janler Plastic
Mold Corporation, 191 NLRB 662 (1971); Crest Leather Manufacturing
Corporation, 167 NLRB 1085 (1967), and cases cited therein.
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation with an
office and place of business in Gadsden, Alabama,
where it is engaged in the production of bakery
goods. During the past calendar year, Respondent
has sold and shipped goods valued in excess of
$50,000 directly to customers located outside the
State of Alabama.
We find, on the basis of the foregoing, that
Respondent 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. THE LABOR ORGANIZATION INVOLVED
Service Employees International Union Local No.
579, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. 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 office clerical employees employed by the
Employer at its Gadsden, Alabama, facility, but
excluding all production and maintenance em-
ployees, shipping employees, sales employees,
professional employees, guards and supervisors as
defined in the Act.
2. The certification
On October 13, 1976, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 10, 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 January 12, 1977, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
3 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(0 and 102.69(c).
533
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about January 14, 1977, 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 and to provide it
the last, first, and middle names of employees in the
unit with addresses, telephone numbers, rates of pay,
hiring dates, and job classifications and other
information concerning benefits, wages, and related
matters. Commencing on or about January 28, 1977,
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 collective bargaining of
all employees in said unit and to provide such
information.
Accordingly, we find that Respondent has, since
January 14, 1977, 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, Respon-
dent 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,
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 com-
merce.
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, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement
and to provide the Union, upon request, information
relevant to and necessary for collective bargaining.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected 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);
Burnett 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. Flowers Baking Company of Gadsden/a Divi-
sion of Flowers Industries is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Service Employees International Union Local
No. 579, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All office clerical employees employed by the
Employer at its Gadsden, Alabama, facility, but
excluding all production and maintenance employ-
ees, shipping employees, sales employees, profession-
al 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 January 12, 1977, the above-named labor
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 28, 1977, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, and to provide it
with information relevant to or necessary for the
purpose of collective bargaining, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(aX5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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
meaning 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.
534
FLOWERS BAKING COMPANY OF GADSDEN
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Flowers Baking Company of Gadsden/a Division of
Flowers Industries, Gasden, Alabama, 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 Service Employees
International Union Local No. 579, AFL-CIO, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All office clerical employees employed by the
Employer at its Gadsden, Alabama, facility, but
excluding all production and maintenance em-
ployees, shipping employees, sales employees,
professional employees, guards and supervisors as
defined in the Act.
(b) Refusing to provide the above-named labor
organization, upon request, information relevant to
and necessary for the purpose of collective bargain-
ing.
(c) 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 and provide the above-named
labor organization, upon request, information rele-
vant to and necessary for the purpose of collective
bargaining.
(b) Post at its Gadsden, Alabama, facility copies of
the attached notice marked "Appendix."4 Copies of
said notice, on forms provided by the Regional
Director for Region 10, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices 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 10, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 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."
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 Service
Employees International Union Local No. 579,
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described below.
WE WILL NOT refuse to provide Service Em-
ployees Union Local No. 579, AFL-CIO, upon
request, information relevant to and necessary for
the purpose of collective bargaining.
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
described 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 agree-
ment and provide (names), upon request, infor-
mation relevant to and necessary for the purpose
of collective bargaining. The bargaining unit is:
All office clerical employees employed by
the Employer at its Gadsden, Alabama,
facility, but excluding all production and
maintenance employees, shipping employ-
ees, sales employees, professional employees,
guards and supervisors as defined in the Act.
FLOWERS BAKING
COMPANY OF GADSDEN/A
DIVISION OF FLOWERS
INDUSTRIES
535