Gardner Baking Co.

National Labor Relations Board - Board Decisions

Jan 5, 1971

187 N.L.R.B. 684 (N.L.R.B. 1971)

684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gardner Baking Company and Bakery and Confection-
ery Workers' International Union of America,
Local # 180 , AFL-CIO. Case 30-CA-1410
January 5, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
Upon a charge filed on October 12, 1970, by Bakery
and Confectionery Workers' International Union of
America, Local # 180, AFL-CIO, herein called the
Union, and duly served on Gardner Baking Compa-
ny, herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 30, issued a
complaint on October 19, 1970, 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
complaint alleges in substance that on or about
September 30, 1970, following a Board election in
Case 30-RC-1266 the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate; i
and that, commencing on or about October 4, 1970,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represent-
ative, although the Union has requested and is
requesting it to do so. On October 28, 1970, Respon-
dent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint. The Respondent admits all of the allega-
tions of the complaint, except the conclusionary
paragraph which alleges that the Respondent refused
to bargain in violation of Section 8(a)(5) and (1) of the
Act. As an affirmative defense, the Respondent in its
answer contends that the Union's certification is
invalid, basing this contention on the same matters
that it raised in the underlying representation case.
On November 6, 1970, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment in which he contends that the
Respondent's answer to the complaint raises no issues
i Official notice is taken of the record in the representation proceeding,
Case 30-RC-1266 as the term "record" is defined in Sees 10268 and
102,69(f) of the Board's Rules and Regulations , Serves 8, as amended See
LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (CA 4,
1968), Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello,
of fact to warrant a hearing, and prays the Board to
grant the Motion for Summary Judgment. Subse-
quently, on November 10, 1970, 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 Cross-Motion
for Summary Judgment, which we shall also consider
herein as its response to the Notice To Show Cause.
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.
Upon the entire record in this proceeding, the Board
makes the following:
Ruling on the Motion for Summary Judgment
As reflected above, the Respondent admits all of the
factual allegations of the complaint, but affirmatively
alleges that it is not obligated to bargain with the
Union because of the invalidity of the certification. In
its response, the Respondent also admits all of the
averments in the General Counsel's Motion for
Summary Judgment, including the admission that it is
attempting in this unfair labor practice case to
relitigate the identical issues that it raised in the
representation matter in Case 30-RC-1266, and
which the Board considered and decided in its review
of the Respondent's exceptions to the Regional
Director's Report and Recommendation on the
Objections to the Election.
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.2
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and the 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 the 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, and deny the Respondent's
Cross-Motion.
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
2 See Pittsburgh Plate Glass Co v. N L R B, 313 U S. 146, 162 (1941),
Rules and Regulations of the Board , Sees 102 67(f) and 102 69(c)
187 NLRB No. 97
GARDNER BAKING COMPANY 685
On the basis of the entire record, the Board makes
the following:
such exclusive representative within the meaning of
Section 9(a) of the Act.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Wisconsin corporation, is
engaged in manufacturing, wholesaling, and distrib-
uting bakery goods in Madison, Wisconsin, where it
maintains its principal plant and corporate offices.
During the past calendar year, a representative period
of time, the Respondent purchased and received
goods and materials, in interstate commerce, from
outside the State of Wisconsin, valued in excess of
$50,000.
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
Bakery and Confectionery Workers' International
Union of America , Local # 180 , AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the
Act.
III. UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act: All production and maintenance employees at
the Employer's Madison, Wisconsin, location, includ-
ing thrift store employees, vehicle mechanics, ship-
ping department employees, working foremen; but
excluding salesmen, driver salesmen, semi-drivers,
office clerical employees, professional employees,
guards and supervisors, as defined in the Act.
2. The certification
On June 3, 1970, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted, pursuant to a Stipulation for Certification
Upon Consent Election, under the supervision of the
Regional Director for Region 30 designated the
Union as their representative 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
September 30, 1970, and the Union continues to be
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about October 4, 1970, and at all
times thereafter, the Union has requested the Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about October 4, 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
bargaining of all employees in said unit.
Accordingly, we find that the Respondent has, since
October 4, 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 the Respondent set forth in section
III, above, occurring in connection with its operations
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 com-
merce 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, 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.
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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed 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
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U.S. 817; Burnett Construction Company, 149 NLRB
1419,142 1, 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. Gardner Baking Company is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Bakery and Confectionery Workers' Interna-
tional Union of America, Local # 180, AFL-CIO, is
a labor organization within the meaning of Section
2(5) of the Act.
3. All production and maintenance employees at
the Employer's Madison, Wisconsin, location, includ-
ing thrift store employees, vehicle mechanics, ship-
ping department employees, working foremen, but
excluding salesmen, driver salesmen, semidrivers,
office clerical employees, professional 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 September 30, 1970, 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 October 4, 1970, 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, Respondent had
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
interfering 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 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Gardner Baking Company, its officers, agents, succes-
sors , 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 Bakery and Confectionery
Workers' International Union of America, Local #
180, AFL-CIO, as the exclusive bargaining represent-
ative of its employees in the following appropriate
unit: All production and maintenance employees at
the Employer's Madison, Wisconsin, location, includ-
ing thrift store employees, vehicle mechanics, ship-
ping department employees, working foremen, but
excluding salesmen, driver salesmen, semidrivers,
office clerical employees, professional employees,
guards and supervisors, as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in 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 Madison, Wisconsin, location copies
of the attached notice marked "Appendix." 3 Copies
of said notice, on forms provided by the Regional
Director for Region 30, 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 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 30, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 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
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours , and other
terms and conditions of employment with Bakery
and Confectionery Workers' International Union
of America , Local # 180, AFL-CIO, as the
GARDNER BAKING COMPANY
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 guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the above-
named Union, as the exclusive representative 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 under-
standing in a signed agreement . The bargaining
unit is: All production and maintenance employ-
ees at the Employer's Madison, Wisconsin, loca-
tion , including thrift store employees, vehicle
mechanics, shipping department employees, work-
ing foremen , but excluding salesmen , driver
salesmen , semidrivers, office clerical employees,
687
professional employees, guards and supervisors as
defined in the Act.
GARDNER BAKING
COMPANY
(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, Commerce Building , Second Floor, 744 North
Fourth Street, Milwaukee, Wisconsin 53203, Tele-
phone 414-272-8600, Ext. 3861.