Kline's Potato Chips, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 628 (N.L.R.B. 1985)

628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kline's Potato Chips, Inc. and General Truck Driv-
ers & Helpers Union Local 92, affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Case 8-CA-16189
28 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Union 22 October
1982, the General Counsel of the National Labor
Relations Board issued a complaint on 29 Novem-
ber 1982 against the Company, the Respondent, al-
leging that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act.
The complaint alleges that on 22 July 1982, fol-
lowing a Board election in Case 8-RC-12405, the
Union was certified as the exclusive collective-bar-
gaining representative of the Company's employees
in the unit found appropriate. (Official notice is
taken of the "record" in the representation pro-
ceeding as defined in the Board's Rules and Regu-
lations, Secs. 102.68 and .102.69(g), amended Sept.
9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel,
265 NLRB 343 (1982).) The complaint further al-
leges that since 14 September 1982 the Company
has refused to bargain with the Union. On 9 De-
cember 1982 the Respondent filed its answer admit-
ting in part and denying in part the allegations in
the complaint.
On 27 January 1983 the General Counsel filed a
Motion for Summary Judgment. On 10 February
1983 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Respondent filed a response. The Respondent
thereafter filed a response to Notice to Show
Cause and the Respondent moved the Board to
make certain documents a part of the record.' The
General Counsel opposed the motion arguing that
those documents relating to the instant case are al-
ready a part of the record, and that the remaining
documents consist of material from the Region's in-
' Briefly they are the charge and the following documents in the un-
derlying representation proceeding, Case 8-RC-12405, the Excelsior list
with a covering letter from Respondent's counsel, the counsel's notice of
intention to file exceptions to the Regional Director's report of 28 April
1981, and request to transfer the entire case filed to the Board, counsel's
letter requesting a ruling relative to the request to transfer and the Re-
gional Director's letter denying the request, the transcript of the hearing
in the representation case with the motion to correct the transcript, the
posthearing brief for the employer in the representation case, the Re-
gion's letter informing the Respondent that the challenged ballots would
be opened, and the affidavits of Lee Dalton, Edward McDonnell, and
Linda Willard
Member Hunter notes that he did not participate in the underlying rep-
resentation case
vestigative case filed in Case 8-RC-12405. The
General Counsel also argues that the Respondent is
attempting to relitigate in this unfair labor practice
case matters litigated in the underlying representa-
tion case, and is attempting collaterally to attack
the certification. The General Counsel argues that
these documents are not relevant to the issue pres-
ently before the Board and, therefore, the Re-
spondent's motion should be denied.
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to
the Notice to Show Cause, the Respondent admits
its refusal to bargain with the Union. The Respond-
ent denies, however, that it violated Section 8(a)(5)
and (1) of the Act, arguing that the Board improp-
erly certified the Union. The Respondent asserts
that the Board erroneously overruled its challenges
to certain voters, erroneously refused to direct a
hearing on the ballot of Allen Veigel, that the
Board erroneously overruled its objections, that the
Board's ruling on the Report on Objections and
Challenged Ballots was made in deliberate disre-
gard of the mandate of the court in NLRB v. North
Electric Co., 644 F.2d 580 (6th Cir 1981), and that
the Board, in considering the merits of exceptions
to the Regional Director's report, must consider all
evidence on which the Regional Director relied.
The General Counsel contends that the Respondent
is attempting to relitigate issues it raised in the re-
lated representation proceeding. We agree with the
General Counsel.
Review of the record herein, including the
record in Case 8-RC-12405, shows that pursuant
to a Stipulation for Certification Upon Consent
Election approved by the Regional Director on 18
February 1981, an election was conducted on 13
March 1981. The tally was three for, and three
against, the Union; there were two challenged bal-
lots, a number sufficient to affect the results of the
election. Thereafter, the Respondent filed timely
objections to conduct affecting the results of the
election and to the conducting of the election, al-
leging that Don Mullett, a member of management,
improperly assisted the Union and aided and assist-
ed the Union by fraternizing with its business agent
before and during the times the polls were open in
the presence of eligible voters. On 28 April 1981
the Regional Director for Region 8 issued his
Report on Objections and Challenged Ballots in
Case 8-RC-12405 recommending that Respond-
ent's Objections 1(a), (b), and (c) be overruled and
that the challenged ballots be opened and counted.
On 22 May 1981 the Respondent filed timely ex-
ceptions to the Regional Director's report contend-
ing that the Regional Director should have sus-
274 NLRB No. 88
KLINE'S POTATO CHIPS
tanned Objections 1(a), (b), and (c) and the chal-
lenges to the ballots of Allen Veigel and Elden
Mullet or, in the alternative, directed a hearing to
resolve the material and substantial issues of fact
raised by those objections and challenged ballots.
On 1 March 1982 the Board issued its Decision and
Direction (not reported in Board volumes) finding
that Respondent's Objections 1(a), (b), and (c) and
the challenge to the ballot of Elden Mullett raised
substantial issues of fact and law, and directed that
a hearing be held thereon. A hearing was held and
subsequently, on 16 April 1982, the hearing offi-
cer's Report on Objections and Challenged Ballot
issued, wherein he recommended that the Respond-
ent's objections be overruled, that the challenge to
the ballot of Elden Mullett be overruled, and that
Mullett's ballot be opened and counted.
Thereafter, the Respondent filed exceptions to
the hearing officer's report. The Board, on 2 July
1982, issued a Supplemental Decision and Direc-
tion (not reported in Board volumes) adopting the
hearing officer's findings and recommendations,
overruling the objections, and directing that the
ballots of Mullett and Veigel be opened and count-
ed. The ballots were opened and counted and a re-
vised tally of ballots was issued 15 July 1982,
showing that, of approximately eight eligible
voters, five cast ballots for, and three against, the
Union. On 22 July 1982 the Regional Director for
Region 8 issued a Certification of Representative.
In view of the foregoing, despite the Respondent's
denial in its answer, there are no issues of fact
raised herein which would require an evidentiary
hearing in this matter. It thus appears that the Re-
spondent is attempting to raise issues which were
raised and determined in the underlying representa-
tion case.
The Board has addressed the issues raised by
NLRB v. North Electric Co., supra, concerning the
matter of the completeness of the record in repre-
sentation cases in Frontier Hotel, 265 NLRB 343
(1982), in which we cited our newly revised regu-
lation providing,
[T]he record in objections cases where no
hearing is held consists of the objections
which were filed, the regional director's report
or decision, all documentary evidence, except
statements of witnesses, relied upon by the re-
gional director in his report or decision, any
briefs, other legal memorandums submitted by
the parties, and any other motions, rulings, or
orders of the regional director. Section 102.69
(g)(1)(ii).
Section 102.69(g)(1)(i), applicable in this case in
which a hearing was held, provides as follows:
629
In a proceeding pursuant to this section in
which a hearing is held, the record in the case
shall consist of the notice of hearing, motions,
rules, orders, stenographic report of the hear-
ing, stipulations and exhibits, together with the
objections to the conduct of the election or to
conduct affecting the results of the election,
any report on such objections, any report on
challenged ballots, exceptions to any such
report, any briefs or other legal memoranda
submitted by the parties, the decision of the re-
gional director, if any, and the record previ-
ously made as defined in section 102.68. Mate-
rials other than those set out above shall not be a
part of the record. [Emphasis added.]
Based on the foregoing, we conclude that the
failure of the Regional Director to transmit state-
ments of witnesses to the Boatd does not invalidate
the Certification of Representative herein. Accord-
ingly, we deny the Respondent's motion to add
certain documents to the record, as they are not a
part of the record and are not relevant to the issue
presently before the Board.2
Moreover. in the instant case, the Respondent, in
the underlying representation proceeding, was
granted a hearing, wherein it participated fully on
its objections and on the challenge to the ballot of
Elden Mullett, but not on challenge to the ballot of
Allen Veigel. However, the revised tally of ballots
indicated five ballots were cast for the Petitioner
and three against, with no remaining challenged
ballots. Thus, the failure to hold a hearing on the
challenge to the ballot of Allen Veigel could not
have had any effect on the outcome of the election
or on the validity of the resulting Certification of
Representative.
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations.
All issues raised by the Company were or could
have been litigated in the prior representation pro-
ceeding. The Company does not offer to adduce at
a hearing any newly discovered and previously un-
available evidence, nor does it allege any special
circumstances that would require the Board to re-
examine the decision made in the representation
2 In denying the Respondent's motion, Member Dennis finds it unnec-
essary to rely on Frontier Hotel and relies instead an the alternate a ra-
tionale set forth in the paragraph that follows
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceeding. We therefore find that the Company
has not raised any issue that is properly litigable in
this unfair labor practice proceeding. Accordingly
we grant the Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is an Ohio corporation with an
office and place of business in Bolivar, Ohio. At all
times material it had been engaged in the manufac-
ture and wholesale sale of potato chips. Annually,
in the course and conduct of its business operation,
the Respondent purchases and receives at its Boli-
var, Ohio facility products, goods, and materials
valued in excess of $50,000 directly from points
outside the State of Ohio.
We find that the Company is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act and that the Union is a
labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held 13 March 1981 the
Union was certified 22 July 1982 as the collective-
bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part-time truck driv-
ers and driver salesmen at the Respondent's fa-
cility in Bolivar, Ohio, but excluding packers,
peelers, cooks, mechanics and groupleaders,
janitors, on-call employees, office clerical and
professional employees, guards and supervisors
as defined in the Act.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since 12 August 1982 the Union has requested
the Company to bargain, and since 14 September
1982 the Company has refused. We find that this
refusal constitutes an unlawful refusal to bargain in
violation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after 14 September 1982 to
bargain with the Union as the exclusive collective-
bargaining representative of employees in the ap-
propriate unit, the Company has engaged in unfair
labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order it
to cease and desist, to bargain on request with the
Union, and, if an understanding is reached, to
embody the understanding in a signed agreement.
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial period of the certification as beginning the date
the Respondent begins to bargain in good faith
with the Union. Mar-Jac Poultry Co., 136 NLRB
785 (1962); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that
the Respondent, Kline's Potato Chips, Bolivar,
Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with General Truck
Drivers & Helpers Union Local 92 affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America as
the exclusive bargaining representative of the em-
ployees in the bargaining unit.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time truck driv-
ers and driver salesmen at Respondent's facili-
ty in Bolivar, Ohio, but excluding packers,
peelers, cooks, mechanics and groupleaders,
janitors, on-call employees, office clerical and
professional employees, guards and supervisors
as defined in the Act.
KLINE'S POTATO CHIPS
(b) Post at its facility in Bolivar, Ohio, copies of
the attached notice marked "Appendix."3 Copies
of the notice, on forms provided by the Regional
Director for Region 8, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
3 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
631
WE WILL NOT refuse to bargain with General
Truck Drivers & Helpers Union Local 92, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, as the exclusive representative of the employ-
ees in the bargaining unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit:
All full-time and regular part-time truck driv-
ers and driver salesmen at our facility in Boli-
var, Ohio, but excluding packers, peelers,
cooks, mechanics and groupleaders, janitors,
on-call employees, office clerical and profes-
sional employees, guards and supervisors as
defined in the Act.
KLINE'S POTATO CHIPS, INC.
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.