Lynden Frosted Foods, Inc.

National Labor Relations Board - Board Decisions

Feb 7, 1975

216 N.L.R.B. 508 (N.L.R.B. 1975)

508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lynden Frosted Foods, Inc. and General Teamsters
Union Local No. 231 , affiliated with the Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, Inde-
pendent . Case 19-CA-7307
February 7, 1975
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
Upon a charge filed on September 12, 1974, by
General Teamsters Union Local No. 231, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Independent, herein called the Union, and duly
served on Lynden Frosted Foods, Inc., herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 19, issued a complaint on October 8, 1974,
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 May 29, 1974,
following a Board election in Case 19-RC-6624, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about May 29, 1974, and at all times
thereafter, Respondent has refused, and continues to
date to refuse, to bargain collectively with the Union
as the exclusive bargaining representative, although
the Union has requested and is requesting it to do so.
On October 18, 1974, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint, and asserting
affirmative defenses thereto.
On November 11, 1974, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 20,
1974, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for
i Official notice is taken of the record in the representation proceeding,
Case 19-RC-6624, as the term "record" is defined in Secs. 102.68 and
102.69(f) of the Board's Rules and Regulations , Series 8 , as amended. See
LTV Electrosystems, Inc, 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C A 4,
1968). Golden Age Beverage Co, 167 NLRB 151 (1967). enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co v Penello, 269 F.Supp 573 (D.C Va., 1957);
Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C.A. 7, 1968); Sec.
Summary Judgment should not be granted. Respon-
dent thereafter filed an answer to Notice To Show
Cause, and a request for oral argument.2
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
In its answer to the complaint and response to the
Notice To Show Cause, Respondent asserts that it is
not obligated to bargain with the Union as the
certification thereof is invalid because the Board
erred in overruling its objections to the election in the
underlying representation proceeding, and denied it
due process by not conducting an evidentiary
hearing thereon. The General Counsel argues that
the issues raised by Respondent in this unfair labor
practice proceeding were raised and litigated in the
underlying representation proceeding and thus may
not be relitigated herein, including the necessity of a
hearing on Respondent's objections.
We have reviewed the record herein, including that
of the representation proceeding, Case 19-RC-6624,
to the extent necessary to rule on this motion. It
reveals that following the October 16, 1973, election
ordered by the Regional Director, which the Union
won, Respondent filed with the Regional Director 10
objections to the election. Summarized, Respon-
dent's objections alleged preelection misrepresenta-
tions, promises of benefit and an offer to lower
initiation fees by the Union, defaced election notices,
and misconduct by a Board agent in the course of the
voting. Following investigation, the Regional Di-
rector issued a Supplemental Decision and Certifica-
tion of Representative on January 31, 1974, in which
he discussed at length the evidence regarding the
objections and concluded that they should be
overruled and the Union certified. Respondent filed
some 99 exceptions to this report, together with a
brief and affidavits in support thereof, in which it
assigned error to the Regional Director's findings
and conclusions and reasserted most of its objections
before the Board and requested a hearing thereon.
On March 19, 1974, the Board granted review of
Respondent's Objection 4, dealing with the Union's
offer to reduce its initiation fees, ordered a hearing
9(d) of the NLRA.
2 We find the issues raised in this proceeding are adequately set forth in
the Motion for Summary Judgment and answer to the Notice To Show
Cause, as well as the record of this and the representation proceeding
incorporated by the parties . Accordingly , Respondent's request for oral
argument is denied.
216 NLRB No. 87
LYNDEN FROSTED FOODS, INC.
thereon , and denied review of the remainder of the
objections . Respondent then requested reconsidera-
tion by the Regional Director of his supplemental
decision on the objections , which was denied on
March 29 , 1974, as raising no issue not previously
considered . After a hearing on Respondent 's Objec-
tion 4, the Hearing Officer issued his report on May
9, 1974, in which he found the Union 's offer to lower
its initiation fee to be unconditional , thus unobjec-
tionable , under the Supreme Court ruling in
N. L. R. B. v. Savair Mfg. Co., 414 U.S. 270 (1973), and
accordingly recommended that the objection be
overruled and the Union certified . Respondent filed
with the Regional Director exceptions to this report,
basically attacking the findings and conclusions of
the Hearing Officer and his refusal to admit evidence
pertaining to objections other than Objection 4. On
May 29 , 1974, the Regional Director issued his
Second Supplemental Decision on Objections to the
Election and Certification of Representative , adopt-
ing the recommendations of the Hearing Officer and
certifying the Union . On June 7, 1974, Respondent
filed a request for review of this decision , essentially
reasserting before the Board the contentions it had
previously raised before the Regional Director
concerning the Hearing Officer 's report, and again
arguing that due process necessitated a hearing on all
of its objections . On June 27 , 1974, the Board denied
this request for review as it raised no substantial
issues warranting review.
It thus appears from the foregoing review that we
have previously considered Respondent's present
contentions , including the necessity of a hearing to
satisfy due process , in the preceding representation
case.
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.3
All issues raised by the Respondent in this
proceeding 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 issue4 which is properly litigable in this unfair
s See Pittsburgh Plate Ghw Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
4 Although not alleged in the complaint , Respondent in its answer
thereto admits the Union's requests to bargain on June 3 and August 14,
509
labor practice proceeding. We shall, accordingly,
grant the 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
Respondent is a Washington corporation engaged
in the business of processing, packaging, warehous-
ing, and shipping frozen vegetables, with its office
and place of business located at Lynden, Washing-
ton. During the past 12 months, a representative
period for all times material herein, Respondent sold
and shipped from its' Lynden, Washington, facility
finished products valued in excess of $50,000 to
points outside the State of Washington.
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 Teamsters Union Local No. 231, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Independent, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees,
including busy-season employees, employed by
the Employer at its plant at Lynden, Washington,
but excluding office clerical employees, guards
and supervisors as defined in the Act.
2. The certification
On October 16, 1973, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
1974, and its refusals to bargain on June 12 and August 28, 1974, which
dates are supported by correspondence attached as exhibits to its answer. In
view of these admissions , we shall find the request and refusal to bargain to
have occurred on the dates set forth herein.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director for Region 19 designated the Union as their
representative for the purpose,of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on May 29, 1974, 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 Respondent's
Refusal
Commencing on or about June 3 and again on
August 14, 1974, and at all times thereafter, the
Union has requested the Respondent to bargain
collectively with it as the exclusive collective-bar-
gaining representative of all the employees in the
above-described unit. Commencing on or about June
12 and again on August 28, 1974, 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 representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since June 12, 1974, 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, Respon-
dent 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 Respondent set forth in section
III, above, occurring in connection with its opera-
tions 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 com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(aX5) 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 certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Lynden Frosted Foods, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. General Teamsters Union Local No. 231,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, Independent, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
including busy-season employees, employed by the
Employer at its plant at Lynden, Washington, but
excluding office clerical 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 May 29, 1974, 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 June 12 and August
28, 1974, 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 has 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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(ax 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.
LYNDEN FROSTED FOODS, INC.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that Respondent,
Lynden Frosted Foods, Inc., Lynden, Washington,
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 General Teamsters
Union Local No. 231, affiliated with the Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Independent, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All production and maintenance employees,
including busy-season employees, employed by
the Employer at its plant at Lynden, Washington,
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 exercise of
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 under-
standing is reached , embody such understanding in a
signed agreement.
(b) Post at its Lynden, Washington, facility copies
of the attached notice marked "Appendix." 5 Copies
of said notice, on forms provided by the Regional
Director for Region 19, 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 thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted . Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
511
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 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 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 Gener-
al Teamsters Union Local No. 231, affiliated with
the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Independent, as the exclusive represent-
ative 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 representa-
tive 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 understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employees,
including busy-season employees, employed
by the Employer at its plant at Lynden,
Washington, but excluding office clerical
employees, guards and supervisors as de-
fined in the Act.
LYNDEN FROSTED
FOODS, INC.