Leavitt Corp.

National Labor Relations Board - Board Decisions

Dec 15, 1983

268 N.L.R.B. 370 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Leavitt Corporation and Local No. 592, United
Food & Commercial Workers Union, AFL-
CIO. Case l-CA-21079
15 December 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge filed on 6 June 1983' by Local
No. 592, United Food & Commercial Workers
Union, AFL-CIO (the Union), and duly served on
The Leavitt Corporation (the Respondent), the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 1,
issued a complaint on 23 June, against the Re-
spondent, alleging that the Respondent had en-
gaged 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 Na-
tional Labor Relations Act. Copies of the charge
and complaint and notice of hearing before an ad-
ministrative 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 31 March,
following a Board election in Case 1-RC-17572,2
the Union was duly certified as the exclusive col-
lective-bargaining representative of the Respond-
ent's employees in the unit found appropriate; and
that, commencing about 6 April, and at all times
thereafter, the Respondent has refused, and contin-
ues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representa-
tive, although the Union has requested and is re-
questing it to do so. On 8 July, the Respondent
filed its answer, and on 19 July its amended
answer, to the complaint admitting in part, and de-
nying in part, the allegations in the complaint.
On 1 August, the General Counsel filed directly
with the Board a Motion for Summary Judgment.
Subsequently, on 4 August, the Board issued an
order transferring the proceeding to the Board and
a Notice to Show Cause why the General Coun-
sel's Motion for Summary Judgment should not be
Unless otherwise indicated, all dates refer to 1983.
2 Official notice is taken of the record in the representation proceed-
ing, Case I-RC-17572, as the term "record" is defined in Secs. 102.68
and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended.
See LTV Electrosystems, 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th
Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va.
1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir.
1968); Sec. 9(d) of the NLRA, as amended.
Chairman Dotson notes that he was not a member of the panel that
issued the initial Decision and Certification of Representative in these
proceedings. However, he accepts the Board's findings and conclusions
therein for purposes of passing on the instant motion.
268 NLRB No. 56
granted. The Respondent thereafter filed a re-
sponse to the Notice to Show Cause.
The National Labor Relations Board has delegat-
ed 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
In its amended answer and response to the
Notice to Show Cause, the Respondent admits that
it has refused to bargain with the Union, but al-
leges that the Board's certification of the Union
was improper. Specifically, the Respondent submits
that the Board erred in overruling its objections to
the election and in voiding a ballot which had been
signed by the employee. The Respondent further
submits that it was denied due process by the
Board's failure to order an evidentiary hearing and
to consider the entire record in the underlying rep-
resentation case.
Our review of the record herein, including Case
l-RC-17572, reveals that, on 23 April 1982, an
election was held pursuant to a Stipulation Upon
Consent Election and a majority of the employees
in the designated unit cast votes for the Union.
Thereafter, the Respondent filed timely objections
to the conduct of the election alleging, inter alia,
that a signed ballot voided by the Board agent
should have been counted,3 and that employee
Steve Giordano, a member of the Union's organiz-
ing committee and a union observer at the polls,
deprived the Respondent of its right to campaign
and coerced employees by tearing down the Re-
spondent's "Have A Nice Day-Vote No" posters
on the morning of the election. In this connection,
the Respondent contends that Giordano was an
agent of the Union and, further, that his wearing a
union button while acting as an observer implied
Board sanction of his conduct.
Following his investigation on 23 June 1982, the
Regional Director issued his Report on Objections
recommending that the objections be overruled in
their entirety. The Respondent then filed with the
Board its exceptions to the report. On 31 March
1983, the Board issued its Decision and Certifica-
tion of Representative in Case l-RC-17572 4 adopt-
ing the Regional Director's recommendations and
certifying the Union as the exclusive bargaining
representative of the employees in the appropriate
3 The tally of ballots reveals that 43 votes were cast for, and 34
against, the Union. There were eight challenged ballots and three were
void. Had the signed ballot, which contained a "no" vote, been counted
the number of challenged ballots would be sufficient to affect the results
of the election.
Not published in volumes of Board Decisions.
370
LEAVITT CORP.
unit, and thus finding that the Respondent's objec-
tions did not raise substantial and material issues
warranting a hearing.
Thereafter, on 6 April, the Union requested in
writing that the Respondent recognize and bargain
collectively with it as the exclusive bargaining
agent of the Respondent's employees. For the rea-
sons set forth in its objections to the election and
exceptions to the Regional Director's report, the
Respondent refused, and continues to refuse, to
bargain with the Union. It appears, therefore, that
the Respondent is attempting now to raise issues
which have been specifically considered and re-
solved by the Board in the underlying representa-
tion case.
The Respondent now also contends that the
Board abused its discretion by failing to review the
entire record in the underlying representation case.
We find no merit in this contention. Pursuant to
Section 102.69(g)(1)(ii) of the Board's Rules and
Regulations, on the filing of exceptions to his
report, the Regional Director transmitted to the
Board his Report on Objections with exhibits at-
tached. Filed with the Respondent's exceptions was
its brief with affidavits attached. Together, these
documents comprised the record considered by the
Board in Case l-RC-17572. Not transmitted by the
Regional Director, and therefore not considered by
the Board, was the affidavit of Giordano obtained
by the Regional Director in the course of his inves-
tigation, in which Giordano admitted the conduct
alleged but denied acting on the Union's instruc-
tions.5 It is the failure to consider this statement in
adopting the Regional Director's recommendations
which the Respondent submits was a denial of due
process.
Contrary to the Respondent's contention, Gior-
dano's affidavit would not properly have been part
of the record. In accord with our policy of protect-
ing investigatory affidavits from disclosure when
the witnesses who gave them have not testified at a
hearing, statements of witnesses are expressly ex-
cluded from the record. Frontier Hotel, 265 NLRB
343 (1982), citing NLRB v. Robbins Tire & Rubber
Co., 437 U.S. 214 (1978). s Thus, the affidavit was
properly excluded from the record, and the
Board's attendant failure to consider it was not an
abuse of discretion or a denial of due process.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
6 The Respondent also contends that the affidavit could prove that
Giordano acted as an agent of the Union in tearing down the Respond-
ent's posters. In its decision in Case I-RC-17572 at fn. 2, however, the
Board explicitly found it unnecessary to pass on the agency issue since
Giordano's conduct was isolated and "would not tend substantially to
interfere with the election even if attributable to [the Union]."
a See also Decibel Products, 267 NLRB 1053 (1983).
cial circumstances a respondent in a proceeding al-
leging 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.s
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the
prior representation proceeding, and the Respond-
ent does not offer to adduce at a hearing any
newly discovered or previously unavailable evi-
dence, nor does it allege that any special circum-
stances exist herein which would require the Board
to reexamine the decision made in the representa-
tion proceeding. We therefore find that the Re-
spondent has not raised any issue which is properly
litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board
makes the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Leavitt Corporation is a Massachusetts cor-
poration with its principal place of business in Ev-
erett, Massachusetts, where it is engaged in the
manufacture and sale of peanut food products. The
Employer annually purchases and receives at its
Everett facility goods and materials valued in
excess of S50,000 directly from points outside the
Commonwealth of Massachusetts and annually
ships from its Everett facility goods valued in
excess of $50,000 to points outside the Common-
wealth of Massachusetts.
We find, on the basis of the foregoing, that the
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
Local No. 592, United Food & Commercial
Workers Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
II1. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
7 See Pittsburgh Plate Glass Co v. NLRB. 313 U.S. 146, 162 (1941):
Rules and Regulations of the Board, Secs. 102.67(f1 and 102.69(c).
371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees,
lab technicians, shipping and receiving em-
ployees and truck drivers employed by the
Employer at its Everett, Massachusetts facility,
but excluding office clerical employees, guards
and supervisors as defined in the Act.
2. The certification
On 23 April 1982, a majority of the employees of
the Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 1, designated the Union
as their representative for the purpose of collective
bargaining with the Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on 31 March 1983 and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
B. The Request to Bargain and the Respondent's
Refusal
Commencing about 6 April 1983, and at all times
thereafter, the Union has requested the Respondent
to bargain collectively with it as the exclusive col-
lective-bargaining representative of all the employ-
ees in the above-described unit. Commencing about
6 April 1983, 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 bar-
gaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since 6 April and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit and that, by such refusal, the Respond-
ent 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 Leavitt Corporation 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 commerce 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,
on 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 ensure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date the Respondent
commences to bargain in good faith with the
Union as the recognized bargaining representative
in the appropriate unit. See 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 Construc-
tion Co., 149 NLRB 1419, 1421 (1964), enfd. 350
F.2d 57 (10th Cir. 1965).
The Board, on the basis of the foregoing facts
and the entire record, makes the following
CONCLUSIONS OF LAW
1. The Leavitt Corporation is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local No. 592, United Food & Commercial
Workers Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
lab technicians, shipping and receiving employees
and truck drivers employed by the Employer at its
Everett, Massachusetts facility, but excluding office
clerical employees, guards and supervisors as de-
fined 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 31 March 1983, 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 6 April 1983, 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, the Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
372
LEAVITT CORP.
6. By the aforesaid refusal to bargain, the Re-
spondent has interfered with, restrained, and co-
erced, and is interfering with, restraining, and co-
ercing, employees in the exercise of the rights
guaranteed them by 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
meaning of Section 2(6) and (7) of the Act.
ORDER
The National Labor Relations Board hereby
orders that the Respondent, The Leavitt Corpora-
tion, Everett, Massachusetts, its officers, agents,
successors, 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 Local No. 592,
United Food & Commercial Workers Union, AFL-
CIO, as the exclusive bargaining representative of
its employees in the following appropriate unit:
All production and maintenance employees,
lab technicians, shipping and receiving em-
ployees and truck drivers employed by the
Employer at its Everett, Massachusetts facility,
but excluding office clerical employees, guards
and supervisors as defined in the Act.
(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 which
the Board finds will effectuate the policies of the
Act.
(a) On 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Everett, Massachusetts facility
copies of the attached notice marked "Appendix." 8
s 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
Copies of the notice, on forms provided by the Re-
gional Director for Region 1, after being duly
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
ensure that said 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.
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
WE WILL NOT refuse to bargain collectively con-
cerning rates of pay, wages, hours, and other terms
and conditions of employment with Local 592,
United Food & Commercial Workers Union, AFL-
CIO, as the exclusive representative of the employ-
ees 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 Sec-
tion 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 employees,
lab technicians, shipping and receiving em-
ployees and truck drivers employed by the
Employer at its Everett, Massachusetts facility,
but excluding office clerical employees, guards
and supervisors as defined in the Act.
THE LEAVITT CORPORATION
373