Koon Food Sales, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1974

211 N.L.R.B. 1047 (N.L.R.B. 1974)

KOON FOOD SALES, INC. 1047
Koon Food Sales, Inc. and General Drivers, Ware-
housemen and Helpers , Local Union No. 89,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America . Case 9-CA-8094
June 25, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charge filed on October 24, 1973, by
General Drivers, Warehousemen and Helpers, Local
Union No. 89, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union, and
duly served on Koon Food Sales, Inc., herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Acting Regional
Director for Region 9, issued a complaint on
November 14, 1973, 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 September 28,
1973, following a Board election in Case
9-RC-10151 the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate;'
and that, commencing on or about October 11, 1973,
and at all times thereafter, Respondent has refused,
and. continues to date to refuse, to bargain collective-
ly with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On November 21, 1973,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint, and on January 10, 1974, filed
directly with the Board a Motion for Summary
Judgment, with exhibits attached, requesting dismiss-
al of the complaint. The General Counsel, by
counsel, filed a motion in response thereto on
January 17, 1974, and a supplemental response
thereto on February 7, 1974. Thereafter, on March 4,
1974, the Respondent filed a memorandum in
support of its Motion for Summary Judgment.
Subsequently, on March 27, 1974, the Board issued
an order transferring the proceeding to the Board
and a Notice To Show Cause why the Respondent's
Motion for Summary Judgment should not be
granted. No party filed a 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
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
The Respondent's central contention in its Motion
for Summary Judgment is that it cannot be ordered
to bargain with the Union because, by offering to
lower its initiation fee only to employees joining
prior to the election, the Union engaged in conduct
prejudicial to a free and fair election under N. L. R. B.
v. Savair Manufacturing Co., 414 U.S. 270 (1973), and
therefore the Union's certification is invalid.
Our review of the record, including the record in
Case 9-RC-10151, reveals an election conducted on
June 28, 1973, pursuant to a Stipulation for Certifica-
tion Upon Consent Election which resulted in four
votes for, and four votes against the Union, with two
challenged ballots. The Respondent filed timely
objections to conduct affecting the results of the
election, alleging, inter alia, that the Union had
offered to charge employees $5 if they joined the
Union prior to the election, which fee would be $100
if they joined after the election, and that this
statement was coercive of the employees' free
exercise of their rights, citing N.L.R.B. v. Savair
Manufacturing Co., 470 F.2d 305 (C.A. 6, 1972), cert.
granted 411 U.S. 964 (1973). The Acting Regional
Director, following an administrative investigation,
issued his Report and Recommendations on Objec-
tions and Challenged Ballots on August 3, 1973, in
which he found, inter alia, that the Union did not
dispute that its agents told employees that during the
campaign the entrance fee for joining was $5, but
that after the election the normal entrance fee of
$100 would apply. Deeming himself bound by the
Board's DIT-MCO precedent,2 the Acting Regional
Director recommended overruling this objection,
opening one challenged ballot and, depending on the
circumstances revealed thereby, opening the remain-
ing challenged ballot. The Respondent filed timely
exceptions to this report, basically reasserting its
I Official notice is taken of the record in the representation proceeding , Golden Age Beverage Co., 167 NLRB 151, enfd . 415 F.2d 26 (C.A. 5, 1969);
Case 9-RC-1051, as the term "record" is defined in Secs . 102.68 and Intertype Co. v. Penello, 269 F.Supp . 573 (D.C.Va., 1967); Follett Corp., 164
102.69(f) of the Board 's Rules and Regulations, Series 8, as amended . See NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968 ); Sec. 9(d) of the NLRA.
LTV Electrosystems, Inc., 166 NLRB 938, enfd . 388 F .2d 683 (C.A. 4, 1968); 2 DIT-MCO, Inc., 171 NLRB 1458, enfd . 428 F.2d 775 (C.A. 8, 1970).
211 NLRB No. 153
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objections. The Board, on September 13, 1973, issued
a Decision and Order adopting the Acting Regional
Director's findings, conclusions, and recommenda-
tions and directing the opening and counting of the
challenged ballots as recommended. While noting
the decision of the United States court of appeals in
Savair, supra, the Board decided to adhere to its DIT-
MCO decision until the issue was resolved by the
Supreme Court. The Acting Regional Director
opened and counted the two challenged ballots. As
the revised tally of ballots showed a 6-to-4 union
majority, on September 28, 1973, he certified the
Union.
Thereafter, on October 8, 1973, the Union request-
ed the Respondent to commence collective bargain-
ing with it, which the Respondent admittedly refused
on October 11, 1973.
After the Supreme Court handed down its decision
in Savair, holding a waiver of initiation fees limited
to employees joining a union prior to the election
was prejudicial to employee free choice,3 the Respon-
dent filed the present Motion for Summary Judg-
ment, asserting that the facts alleged in its waiver
objection were undisputed and that under the
Court's decision the Union's conduct interfered with
employee free choice in the election. The General
Counsel, by counsel, in his opposition argued that
the Union presented no evidence on this objection,
and that, in reliance on the DIT-MCO precedent, no
effort was made to determine whether there was any
dispute as to the waiver allegation, and whether the
employee-solicitor making the offer was in fact an
agent of the Union. He argued, therefore, that until
these factual matters are resolved, Savair cannot be
said to be controlling. As set forth above, no party
has responded to the Notice To Show Cause issued
by the Board.
We are not convinced by the General Counsel's
argument, in his supplemental response, that a
hearing is warranted to resolve "any factual issue
that may exist in the instant case." The General
Counsel does not claim that a factual issue in fact
exists and the Union does not now deny the
Respondent's assertions. The request for an evidenti-
ary hearing is not accompanied by any offer of any
evidence, whether or not newly discovered or
previously unavailable. Nor is there any allegation of
special circumstances which might now warrant such
a hearing. Accordingly, we must accept as true the
facts as set forth by Respondent, and we shall grant
the Respondent's Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
During the past 12 months, a representative period,
Respondent purchased goods valued in excess of
$50,000 directly from suppliers located outside the
State of Kentucky and caused such goods to be
shipped in interstate commerce directly to its place of
business in Bowling Green, Kentucky.
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
General Drivers, Warehousemen and Helpers,
Local Union No. 89, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
CONCLUSION OF LAW
The conduct of the Respondent as alleged in the
complaint does not violate Section 8(a)(5) and (1) of
the Act, as amended.
ORDER
It is hereby ordered that the Respondent's Motion
for Summary Judgment be, and it hereby is, granted.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed in its entirety.
IT IS ALSO FURTHER ORDERED that the Certification
of Representative issued on September 28, 1973, in
Case 9-RC-10151, be, and it hereby is, revoked.
3 N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270 ( 1973); see NLRB No . 42(1974).
Irwindale Division, Lau Industries, A Division of Phillips Industries, Inc., 210