Golden Age Beverage Co.

National Labor Relations Board - Board Decisions

Aug 21, 1967

167 N.L.R.B. 151 (N.L.R.B. 1967)

GOLDEN AGE BEVERAGE CO.
Golden Age Beverage Company and General
Drivers, Warehousemen and Helpers Local Union
No. 968 , Affiliated with International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and
Helpers of America . Case 23-CA-2600
August 21, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On May 1, 1967, Trial Examiner Charles W.
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, the Respondent filed excep-
tions to the Trial Examiner's Decision and a sup-
porting brief.
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 connection with this case to a three-
member panel.
The Board has considered the Trial Examiner's
Decision, the exceptions and supporting brief, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and recom-
mendations, except as modified herein. I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Golden Age Beverage
Company, Houston, Texas, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, as
herein modified.
Delete from paragraph 2(b) that part whch reads
"to be furnished" and substitute "provided."
i We do not adopt the Trial Examiner's direction to the Regional
Director to forward to the Executive Secretary in Washington, D C , for
the official file of Case 23-RC-2730 any material, in the nature of letters,
statements, or affidavits related to the representation case, which was a
part of the record before him in his disposition of the Respondent's objec-
tions to the election and which is not already in the official file of such
case See LTV Electrosystems, Inc , 166 NLRB 938, fn 2, where the
Board overruled essentially the same direction of the same Trial Ex-
aminer In the latter case, the Board stated "The documents requested by
Respondent in its Supplemental Motion are not part of the record in either
the Representation Case I I -RC -2223, or the instant unfair labor practice
proceeding within the meaning of Sections 102 68 and 102 45(b) of the
Rules and Regulations of the Board, nor are such documents encom-
passed within the requirements of Section 9(d) of the Act "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THE REPRESENTATION PROCEEDING[
151
CHARLES W. SCHNEIDER, Trial Examiner: Upon a peti-
tion for certification as collective-bargaining representa-
tive filed by General Drivers, Warehousemen and Help-
ers Local Union No. 968, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (the Union), the Regional
Director for Region 23 of the Board on June 27, 1966,
approved a stipulation for certification upon consent elec-
tion executed by Golden Age Beverage Company,
Houston, Texas (the Respondent), and by the Union on
the same day. The appropriate bargaining unit was stipu-
lated to be the unit set out hereinafter.
On August 9, 1966, an election by secret ballot was
conducted in the appropriate unit under the supervision
of said Regional Director, in which election the Union
received a majority of the valid ballots cast. On August
15, 1966, the Respondent filed timely objections to the
election, based on asserted conduct by the Union affect-
ing the results of the election. The Respondent did not
request a hearing upon the objections. On September 29,
1966, the Regional Director, after investigation, issued a
report on objections and recommendations, in which he
recommended to the Board that the objections be over-
ruled and that a certification of representative issue. The
Respondent filed timely exceptions to the Regional
Director's report, in which it alleged that the Regional
Director erred in his factual and legal conclusions and in
not ordering a hearing on-the objections. The Respondent
requested the Board to sustain its objections or in the al-
ternative to order a hearing thereon. On December 9,
1966, the Board issued its Decision and Certification of
Representative in which it found that the Respondent's
exceptions raised "no material or substantial issues of
fact or law which would warrant reversal of the Regional
Director's findings and recommendations." Accordingly
the Board adopted the Regional Director's report and
certified the Union as the bargaining representative under
the Act.
'Official notice is taken of the representation proceeding, Case
23-RC-2730 See Sec 9(d) of the Act
The Respondent has requested that if the General Counsel's motion for
summary judgment be granted, I make part of the record all the pleadings,
briefs, exceptions, letters, statements and affidavits contained in the offi-
cial file of the Regional Office in Case 23-RC-2730 The official file in
Washington, D C in such case contains either the originals or copies of
the following documents the petition, the stipulation for certification
upon consent election, the tally of ballots, the certification on conduct of
the election, the employer's objections to the election, the Regional
Director's report and recommendations on objections, the employer's ex-
ceptions to the Regional Director's report and brief in support thereof,
and copies of correspondence between counsel for the Respondent and
the office of the Executive Secretary of the Board in connection with the
filing of the exceptions to the Regional Director's report
I n order that there be a complete record for review, if such is sought, the
Regional Director is requested to forward to the Executive Secretary in
Washington, D C , for inclusion in the official file any material other than
the above, in the nature of pleadings, briefs, letters, statements, or af-
fidavits related to the case, which was a part of the record before him in
his disposition of the Respondent's objections to the election
167 N LRB No. 24
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Complaint Case
On January 27, 1967, the Union filed the unfair labor
practice charge involved in the instant case, in which it al-
leged that since the certification the Respondent had
refused to bargain with the Union.
On February 9, 1967, the General Counsel, by the Re-
gional Director, issued a complaint 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. I n due course the Respondent filed its answer to
the complaint.
In its answer the Respondent admitted only the allega-
tions relating to jurisdiction. It alleged insufficient
knowledge as to the allegation that the Union is a labor
organization within the meaning of the Act, and denied
the following allegations of the complaint that: (1) the
unit is appropriate, (2) a majority of Respondent's em-
ployees selected the Union as their representative, and
that said Union was certified, (3) the Union requested
Respondent to bargain collectively, and (4) Respondent
refused to recognize and bargain collectively with the
Union. The answer further denied the commission of any
unfair labor practices, and alleged various affirmative
defenses in sum reiterating the Respondent's objections
to the election
On or about February 25, 1967, the General Counsel
filed a motion for summary judgment contending that
there is no genuine or disputed issue as to any material
fact. In support thereof the General Counsel submits that
Respondent has advanced no facts which would con-
stitute a basis for it to relitigate in the instant unfair labor
practice proceeding the issues which were considered by
the Regional Director and the Board and overruled in the
prior representation case.
On March 2, 1967, 1 issued an Order to Show Cause
on the motion for summary judgment postponing the
scheduled hearing indefinitely, and directing the parties
to show cause as to whether the motion for stimmary
judgment should be granted. In due course the Respond-
ent and the General Counsel filed responses to the
Order to Show Cause.
On April 19, 1967, 1 issued a further telegraphic order
directing the filing of further statements concerning
whether certain letters from the Union to the Respondent
relating to demands to bargain were sent to and received
by the Respondent. Responses establishing receipt by the
Respondent of such letters have been received.
Ruling on Motion for Summary Judgment
The Respondent opposes the General Counsel's mo-
tion for summary judgment
The Respondent's brief is devoted substantially to ar-
gument on the merit of its assertions in the representation
case, namely, that its objections to the election should
have been sustained, that the Union is thus not the legal
representative, and that in any event the Respondent was
2 Pittsburgh Plate Glass Company v N L R B, 313 U S 146, 162,
Collins & Aikman Corporation, 160 NLRB 1750
3 0 K Van and Storage, Inc , 127 N LRB 1537, E-Z Davies Chevrolet,
161 NLRB 1380 And see Air Control Products of St Petersburg, Inc,
335 F 2d 245, 249 "If there is nothing to hear, then a hearing is a sense-
improperly deprived of a hearing upon the objections.
The Respondent requests the Trial Examiner to sustain
its objections and set aside the election, or in the alterna-
tive to find a hearing necessary upon the allegations of the
complaint in which the Respondent's objections to the
election shall be litigated In addition the Respondent
presses other procedural objections to summary
judgment: It is entitled as a matter of law to a hearing
under Section 10(b) of the Act; the objections raised sub-
stantial and material factual issues requiring hearing; it is
entitled to cross-examine all witnesses who gave state-
ments or affidavits to the Regional Director in connection
with his investigation of the Respondent's objections to
the election; lacking access to the record of investigation,
the Respondent is without knowledge of the facts ascer-
tained in the investigation; and finally, if a hearing were
held on the complaint the Respondent "could prove nu-
merous other illegal and improper acts" by the Union. I
find none of these objections to judgment sustained.
It has been seen that the Respondent's exceptions to
the Board, with respect to the Regional Director's action
in finding the Respondent's objections to the election un-
substantiated, were considered by the Board and found to
raise no substantial or material issues warranting rever-
sal. The Board thereupon certified the Union as the bar-
gaining representative in the appropriate unit It is there-
fore clear that the Respondent seeks to litigate in this un-
fair labor practice proceeding issues which have been
finally decided by the Board in the representation
proceeding This the Respondent may not do before the
Trial Examiner. It is established Board policy, in the
absence of newly discovered or previously unavailable
evidence, not to permit litigation in a complaint case of is-
sues which were or could have been litigated in a prior re-
lated representation proceeding.2
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. The Board has decided there
are no such issues here."
The Trial Examiner has no authority to review the
Board's final disposition of the representation issues or to
question its conclusions. The Respondent is free, in ex-
ceptions to this Decision, to request the Board to recon-
sider the determinations made in the representation case
and, in the event of an unfavorable final order by the
Board, the Respondent may request review of the deter-
minations in an appropriate court of appeals At this stage
of the proceedings, however, absent newly discovered
evidence, the Board's disposition of the representation
matters is the law of the case and binding on the Trial Ex-
aminer . Krieger-Ragsdale & Company, Inc., 159 NLRB
490; The Puritan Sportswear Corp., 162 NLRB 13;
Metropolitan Life Insurance Company, 163 NLRB 579.
While the Respondent asserts in its Response to The
Order to Show Cause that at a hearing it "could prove nu-
merous other illegal and improper acts" by the Union, the
Respondent offers no specification as to these acts, nor
does it state that any such evidence is newly discovered
less and useless formality " Cf United States Rubber Company, 373 F 2d
602 (C A 5, 1967), where the court disagreed with the Board's conclu-
sion that the objections raised no substantial and material issues requiring
hearing The court is authorized to reverse the Board's conclusions if it
deems them incorrect The Trial Examiner is not
GOLDEN AGE BEVERAGE CO. 153
or previously unavailable. The assertion therefore does
not provide adequate foundation for a hearing upon the
complaint.
Since there is no right to a hearing unless there are sub-
stantial and material issues, and there are no such issues
here, the Respondent is not entitled as a matter of routine
to cross-examine all witnesses who gave statements or af-
fidavits to the Regional Director during the course of in-
vestigation of the objections. As to the Respondent's
point concerning the absence of a record of the investiga-
tion, I have requested the Regional Director to provide
for the official file the material sought by the Respondent,
insofar as it is related to the case, was before the Regional
Director in disposing of the election objections, and is not
already in the file. Compliance with that request will pro-
vide a complete record.
All material issues having been decided by the Board
there are no issues litigable before a Trial Examiner, and
therefore no matter requiring an evidential hearing. Ac-
cordingly the General Counsel's motion for summary
judgment is granted, and I hereby make the following
further findings:
1. THE BUSINESS OF THE RESPONDENT
Golden Age Beverage Company is a Texas corporation
with its principal office and place of business at 700 Cul-
len Boulevard, Houston, Texas, where it is engaged in the
production and sale of soft drinks. For the 12-month
period ending February 9, 1967, a representative period,
Respondent in the course of its business operations
purchased products and materials valued in excess of
$50,000, which were shipped directly to its Houston
plant from points outside the State of Texas. During the
same period Respondent purchased products within the
State of Texas valued in excess of $50,000 from suppliers
who purchased these products directly from points
located outside the State of Texas. The Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times material
herein , a labor organization within the meaning of Section
2(5) of the Act.4
111. THE UNFAIR LABOR PRACTICES
The following employees of Respondent constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All truck drivers at the Employer's Houston, Texas,
plant, excluding all other plant employees, office clerical
employees, inside and outside salesmen, guards,
watchmen , and supervisors as defined in the Act.5
On August 9, 1966, a majority of Respondent's em-
ployees in the said unit selected the Union as their collec-
tive-bargaining representative in a secret-ballot election,
and on September 29, 1966, the Regional Director
recommended to the Board that it overrule objections to
the election filed by the Respondent.
On December 9, 1966, the Board, after consideration
of the Respondent's exceptions to the Regional
Director's recommendations, found the exceptions to be
without merit and certified the Union as the exclusive
collective-bargaining agent of the employees in the said
unit.
At all times since August 9, 1966, the Union has been
the representative for the purpose of collective bargaining
of the employees in the appropriate unit and, by virtue of
Section 9(a) of the Act, has been and is now the exclusive
representative of all the employees in the said unit for the
purpose of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
On or about December 13, 1966, the Union by letter
requested the Respondent to provide the Union with in-
formation concerning conditions of employment within
the appropriate unit and, on December 30, 1966, and
January 12, 1967, the Union by letter requested the
Respondent to meet with it for the purpose of contract
negotiations involving the appropriate unit.
On or about December 27, 1966, Respondent refused,
and continues to refuse , such requests.
By such action the Respondent has refused to bargain
collectively in violation of Section 8(a)(5) of the Act and
has interfered with, restrained, and coerced 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, pursuant to Section 10(c) of the
Act I recommend that the Board issue the following:
ORDER
A. For the purpose of determining the effective period
of duration of the certification the initial year of certifica-
tion shall be deemed to begin on the date the Respondent
commences to bargain in good faith with the Union as the
recognized bargaining representative in the appropriate
unit.6
B. Golden Age Beverage Company, Houston, Texas,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with General
Drivers, Warehousemen and Helpers Local Union No.
968, affiliated with Internaticnal Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, as the exclusive collective-bargaining representative
4 In view of the Respondent 's execution of the stipulation for certifica-
tion on consent election, no substantial issue exists as to the Union's
status as a labor organization . In any event , in its Decision and Certifica-
tion of Representative the Board found the Union to be a labor organiza-
tion.
5 The Respondent 's answer denies the appropriateness of the certified
unit. In the representation stipulation the Respondent stipulated that this
unit was appropriate and in its Decision the Board found it to be so. No
reason is assigned or discernible for the Respondent 's shift in position In
these circumstances the denial in the answer is deemed spurious and
sham See National Labor Relations Board Rules and Regulations , Series
8, as revised January 1, 1965, Sec. 102.21, Haney Aluminum (Inc.), 335
F.2d 749 (C A. 9)
6 The purpose of this provision is to ensure that the employees in the
appropriate unit will be accorded the statutorily prescribed services of
their selected bargaining agent for the period provided by law. See Mar-
Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company dlbla
Lamar Hotel, 140 NLRB 226, 229, enfd 328 F 2d 600 (C.A. 5); Burnett
Construction Company, 149 NLRB 1419, 1421, enfd. 350 F 2d 57 (C A.
10).
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the employees in the following appropriate bargaining
unit:
All truck drivers at the Employer's Houston, Texas,
plant, excluding all other plant employees, office clerical
employees, inside and outside salesmen, guards,
watchmen, and supervisors as defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent the employees in said ap-
propriate unit 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 General
Drivers, Warehousemen and Helpers Local Union No.
968, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, as the exclusive representative of the employees in
the appropriate unit with respect to rates of pay, wages,
hours of work, and other terms and conditions of employ-
ment, and embody in a signed agreement any understand-
ing reached.
(b) Post at its Houston, Texas, plant, copies of the at-
tached notice marked "Appendix."7 Copies of said
notice, on forms to be furnished by the Regional Director
for Region 23, after being duly signed by Respondent's
authorized representative, shall be posted by the Respond-
ent 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 al-
tered, 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,
what steps have been taken to comply herewith.8
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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
8 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 23, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
Dated By
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT refuse to bargain collectively with
General Drivers, Warehousemen and Helpers Local
Union No. 968; affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining
representative of all the following employees:
All truck drivers at our Houston, Texas,
plant, excluding all other plant employees, office
clerical employees, inside and outside salesmen,
guards, watchmen and supervisors as defined in
the Act.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce employees in the exer-
cise of their rights under the Act.
WE WILL bargain collectively with the Union as
the exclusive representative of the employees in the
bargaining unit and, if an understanding is reached,
we will sign a contract with the Union.
GOLDEN AGE BEVERAGE
COMPANY
(Employer)
APPENDIX
(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 228-4271.