Frito-Lay, Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1966

161 N.L.R.B. 950 (N.L.R.B. 1966)

950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its plant in Houston , Texas, the attached notice marked "Appendix." 24
Copies of said notice to be furnished by the Regional Director for Region 23,
after being duly signed by an authorized representative of Respondent , shall be
posted by 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 Respondent to insure that said notices are not altered , defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 23, in writing , within 20 days from
the receipt of this Decision ,25 what steps it has taken to comply herewith.
91 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."
In the event that this Recommended Order Is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the 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 Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL , if requested by United Steelworkers of America , AFL-CIO, sign
the written contract incorporating the terms of the agreement reached with
that Union , said contract to be retroactive to December 31, 1965 . If no such
request is made, WE WILL, upon request , bargain collectively with that Union
for the unit described herein with respect to rates of pay, wages , hours of
work, 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 production and maintenance employees employed by us at our
Houston , Texas, warehouse establishment , including truckdrivers and
plant clericals , excluding office clerical employees , professional employ-
ees, guards , watchmen , and supervisors as defined in the Act.
WE WILL NOT, in any like or related manner, interfere with, restrain, or
coerce employees in the exercise of rights guaranteed them in Section 7 of
the Act.
SCHILL STEEL PRODUCTS, INC.,
Employer.
Dated------------------- By-------------------------------------------(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 directly with the Board 's Regional Office, 6617
Federal Office Building , 515 Rusk Avenue , Houston, Texas 77002, Telephone
228-4722.
Frito -Lay, Inc. and International Union of District 50, United
Mine Workers of America . Case 3-CA-2957. November 14,
1966
DECISION AND ORDER
Upon a charge filed by International Union of District 50, United
Mine Workers of America (hereinafter referred to as the Charging
161 NLRB No. 90.
FRITO-LAYI , INC. 951
Party), the General Counsel of-the National Labor Relations Board,
by the Regional Director for Region 3, issued his complaint, dated
June 23, 1966, against Frito-Lay, Inc. (hereinafter referred to as the
Respondent), alleging that the Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the
meaning of Sections 8(a) (5) and (1) and 2(6) and (7) of the Na-
tional Labor Relations Act, as amended. Copies of the charge, com-
plaint, and notice of hearing before a Trial Examiner were duly served
upon the Respondent and the Charging Party. On July 5, 1966, the
Respondent filed its answer admitting every allegation of the com-
plaint but that which alleged that its single truck distributors are
employees within the meaning of the Act.
On July 22, 1966, the General Counsel moved to have this proceed-
ing transferred to the Board for issuance of a Decision and Order on
the basis of the pleadings without a hearing on the ground that no
material issue of law or fact was in dispute since the employee status
of the single truck distributors had been determined in a representa-
tion proceeding and reviewed by the Board. On July 26, 1966, the
National Labor Relations Board, having duly considered the matter,
ordered that the proceeding be transferred to and continued before it,
and that cause be shown why the General Counsel's motion for sum-
mary judgment should not be granted. On August 30, 1966, Respond-
ent filed its response to the Board's Order, contending that the motion
for summary judgment was inappropriate since the Board had never
considered the record of the representation hearing nor made its own
findings of fact. For the reasons set forth below, the Board 1 finds no
merit in the Respondent's position, and grants the motion for sum-
mary judgment.
Upon the basis of the aforementioned pleadings and the entire rec-
ord in this case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation engaged in the manufacture,
sale, and distribution of food products with its principal office and
place of business in Dallas, Texas, and with various other places of
business in the, State of New York. The Respondent's Buffalo, New
York, facility is the only place of business involved in this proceed-
ing. In the operation of its business, Respondent, during the year end-
ing December 31, 1965, transferred and delivered to its Buffalo, New
York, facility, food products and other goods and materials valued in
'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 [Chairman McCulloch and Members Jenkins and
Zagoria].
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excess of $50,000 of which goods and material valued in excess of
$50,000 were transported to the said place of business directly from
States of the United States other than the State of New York. We find
as the Respondent concedes, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the Act.
The Charging Party is a labor organization within the meaning of
Section 2 (5) of the Act, admitting to membership the Respondent's
employees.
III. THE UNFAIR LABOR PRACTICES
On December 21, 1965, the Charging Party-filed a petition for an
election in a unit of all single truck distributors employed by the
Respondent at its Buffalo, New York, operation. On January 19, 1966,
a hearing was conducted in this matter before a duly designated Hear-
ing Officer, and the parties were afforded full opportunity to intro-
cluce evidence bearing on the disputed issue of whether these dis=
tributors were employees or independent contractors. On February 16,
1966, the Regional Director issued a Decision and Direction of Elec-
tion 2 finding, contrary to Respondent's contention, that the single
truck distributors were employees within the meaning of the Act, and
not independent contractors. On March 14, 1966, after a 2-week exten-
sion of time, the Respondent filed with the Board a request for review
of the Regional Director's decision on the issue of the status of the
truck distributors, contending that his finding was clearly erroneous
on the record. The Board, however, after due consideration of the evi-
dence noted by the Respondent as sustaining its contention, denied
the request for review.
Thereafter, on April 20, 1966, the election was conducted in which
a majority of the single truck distributors in the appropriate unit S
designated the Charging Party as their representative for the pur-
poses of collective bargaining, and, the Charging Party was so certi-
fied by the Regional Director on April 28, 1966. On May 26, 1966, the
Charging Party requested that the Respondent meet and bargain with
it with respect to the wages,' hours, and working conditions of the
employees in the appropriate unit. The Respondent admittedly de-
clined, and has continued to decline, to bargain with the Charging
Party since that, time.
It is well settled that, in the absence of any evidence unavailable at
the time of the representation proceeding or any newly discovered
evidence, the Board will not reconsider in a subsequent, refusal-to-
2 3-RC-3826 , not published in printed volumes of Board decisions.
2 The Respondent conceded that if its single truck distributors were found to be em-
ployees, they would constitute a unit appropriate for collective bargaining within the
meaning of Section 9 (a) of the Act.
FRITO-LAY, INC. 953
bargain proceeding matters which have been disposed of in a prior,
related representation case 4 This is equally true where the representa-
tion proceeding was processed under Section 3(b) of the Act, espe-
cially where the Board has denied a request for review of the
Regional Director's decision.5 The Regional Director's finding in this
case that the truck distributors were employees was reached after full
litigation by the parties, and review was thereafter denied by the
Board. The Respondent has admitted in its response to the Order to
Show Cause that it does not seek to adduce any newly discovered or
previously unavailable evidence. It is therefore clear that, under
established rules, the status of the disputed employees cannot be relit-
igated in the instant proceeding. Accordingly, we find, on the basis
of the Regional Director's decision, that all the single truck distribu-
tors are employees within the meaning of the Act. Since it is thus
apparent that Respondent was obligated to meet and bargain with
the Charging Party, upon request, we find that the Respondent's
refusal on or about May 26, 1966, to bargain collectively with the
Charging Party as the exclusive bargaining representative of the
employees in the appropriate unit was and is violative of Section
8(a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, supra,
occurring in connection with the operations of the Respondent de-
scribed in section I, supra, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCLUSIONS OF LAW
1. Frito-Lay, Inc., is an employer within the meaning of Section
2(2) of the Act and is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. International Union of District 50, United Mine Workers of
America, is a labor organization within the meaning of Section 2(5)
of the Act.
3. All single truck distributors employed by the Respondent at its
facility located in Buffalo, New York, and vicinity, excluding all
office clerical employees, guards, professional employees, and super-
" See, e.g., Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146, 158-162 ; Wilson
& Co., Inc., 159 NLRB 485; Texas Pipeline Company, 129 NLRB 705, 707-708; Clark Shoe
Co., 88 NLRB 989, footnote 1. See also N.L . R.B. v. Air Control Products , 335 F . 2d 245,
249-250 (C.A. 5).
5 Capital Bakers, Inc., 148 NLRB 438, 441-442.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visors as defined in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act.
4. At all times since April 28, 1966, the Charging Party has been
the representative for the purpose of collective bargaining of a
majority of the Respondent's employees in the appropriate unit.
5. By refusing to bargain collectively with the Charging Party as
the exclusive representative of the employees in the appropriate unit
on and after May 26, 1966, the Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of Section
9(b) of the Act.
6. 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 Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Frito-Lay, Inc., its officers, agents, successors, and
assigns , shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union of
District 50, United Mine Workers of America, as the exclusive bar-
gaining representative of the employees in the following appropriate
unit :
All single truck distributors employed by the Respondent at its
operation located in Buffalo, New York, and vicinity, excluding all
office clerical employees, guards, professional employees, and super-
visors as defined in the Act, as amended.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the right to bargain collectively
through said Union.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with International Union
of District 50, United Mine Workers of America, as the exclusive
representative of the employees in the appropriate unit as found
above and, if an understanding is reached, embody such understand-
ing in a signed agreement.
(b) Post at its Buffalo, New York, operation, copies of the
attached notice marked "Appendix." 6 Copies of said notice, to be
6 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals Enforcing an Order."
FRITO-LAY, INC. 955
furnished by the Regional Director for Region 3, after being duly
signed by Respondent's representative, shall be posted by it immedi-
ately 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 Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 3, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 bargain collectively, upon request, with International
Union of District 50, United Mine Workers of America, as the
exclusive bargaining unit described below concerning rates of
pay, wages, hours of employment, and other conditions of
employment and, if an understanding is reached, embody the
same in a signed agreement. The bargaining unit consists of :
All single truck distributors employed at our operation lo-
cated in Buffalo, New York, and vicinity, excluding all office
clerical employees, guards, watchmen, and supervisors as de-
fined in the National Labor Relations Act.
WE WILL NOT refuse to bargain collectively as aforesaid, nor
will we, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of the right to bargain
collectively through said Union.
FRITO-LAY, INC.,
Employer.
Dated---------------- By-------------------------------------
(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 compli-
ance with its provisions, they may communicate directly with the
Board's Regional Office, Fourth Floor, The 120 Building, 120 Dela-
ware Avenue, Buffalo, New York 14202, Telephone 472-2215.