Maine Sugar Industries, Inc.

National Labor Relations Board - Board Decisions

Feb 19, 1969

174 N.L.R.B. 652 (N.L.R.B. 1969)

65 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maine Sugar Industries, Inc. and American Bakery
and Confectionery Workers International Union,
Local 264, AFL-CIO, Petitioner. Cases
1-CA-6359 and 1-RC-9697'
February 19, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On August 7, 1968, 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
alleged in the complaint and recommending that it
cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. On August 28, 1968,
Employer-Respondent filed exceptions and a
supporting brief to the Trial Examiner's Decision in
the unfair labor practice proceeding herein. On
September 16, 1968, Employer-Respondent filed a
Request for Reconsideration in the representation
proceeding in which it seeks to reopen the record to
introduce new evidence. We therefore shall treat the
Request for Reconsideration as a motion to reopen
the record.
Pursuant to the provisions of Section 3(b) of the
National "Labor Relations Act, as amended, the
National 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 briefs, and the entire
record in the complaint proceeding, and hereby
adopts the findings, conclusions, and
recommendations of the Trial Examiner. In
addition, we also deny the Respondent's Request for
Reconsideration. 2
'These cases are consolidated for purposes of this Decision only
'By its Request for Reconsideration , Respondent seeks to reopen the
underlying representation proceeding for the purpose of offering evidence
to establish that seasonal employees should be included in the unit.
Respondent argues that if it is able to prove the propriety of the inclusion
of seasonals , the Board must then reverse the Trial Examiner's finding of a
violation of Section 8(a)(5), since the unit found in the complaint case
would be inappropriate for bargaining . Aside from the proper reasons
assigned by the Trial Examiner for concluding that no further evidentiary
hearing is warranted in this case , which analysis is equally applicable to the
representation proceeding , it is also clear that Respondent 's unit contention
lacks merit . While seasonal employees may appropriately be included in a
production unit, it may also be appropriate to exclude them . The evidence
before the Board at the time of its review of the representation case
indicated that the force of year-round employees constituted an appropriate
bargaining unit, in all of the circumstances of the case Since the unit as
found is appropriate , no substantial argument may be based upon the
possibility that, in other circumstances , an appropriate unit might include
seasonals.
ORDER
Pursuant to Section 10(c) of the . National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent , Maine Sugar Industries,
Inc., Easton , Maine, its officers , agents, successors,
and assigns , shall take the action set forth in the
Trial Examiner ' s Recommended Order.
IT IS FURTHER ORDERED that the
Employer- Respondent ' s Request for
Reconsideration be, and it hereby is, denied.
TRIAL-EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding'
Upon the petition filed on August 4, 1967, by American
Bakery and Confectionery Workers, International Union,
Local 264, AFL- CIO, herein called the Union, concerning
employees of Maine Sugar Industries , Inc., Easton,
Maine , herein called the Respondent , a hearing was held
on August 24, 1967, before a Hearing Officer of the
National Labor Relations Board. On January 16, 1968,
the Board issued a Decision and Direction of Election
among the employees of the Respondent in an appropriate
unit hereinafter described.'
Pursuant to the Decision and Direction of Election, an
election by secret ballot was conducted under the direction
and supervision of the Regional Director on February 21,
1968. Of approximately 102 eligible voters, 97 cast valid
ballots; 65 of these were cast for the Union, 32 were cast
against it. There were no void or challenged ballots.
On February 28, 1968, the Respondent filed timely
objections to the election alleging ( 1) that shortly before
the election , at a time when the Respondent could not
reply, the Union distributed to the employees certain false
and misleading information or otherwise engaged in
campaign trickery as to substantial and material issues
germane to the election interfering with the laboratory
atmosphere required of Board elections, and (2 ) that by
these and other acts the Union interfered with the free
choice of the employees eligible to vote in the election. On
March 18, 1968, the Regional Director issued a
Supplemental Decision and Certification of Representative
in which he stated that he had conducted an investigation
of the Respondent ' s objections ' and found no merit in
'Administrative or official notice is taken of the record in the
representation proceeding , Case J-RC-9697, as - the term "record" is
defined in Section 102.68 and 102 69(f) of the Board ' s Rules (Rules and
Regulations and Statements of Procedure, National Labor Relations
Board , Series 8, as revised January 1, 1965)
In addition, the material attached - to the Respondent's Response to the
Order to Show Cause on the General Counsel's Motion for Summary
Judgment (consisting of copies of evidence submitted by the Respondent
to the Regional Director in the course of investigation of the objections to
the election , and referred to by the Respondent as exhibits A, B, and C) is
admitted into evidence and made a part of the record in the instant
proceeding.
The Respondent ' s request to present oral argument is denied , inasmuch
as, in my opinion, the record and the Respondent 's Response to the Order
to Show Cause adequately present the issues and the Respondent's
position.
'Mane Sugar Industries , Inc, 169 NLRB No 31.
'The Respondent did not assert any additional matters under the general
allegation numbered paragraph 2 of the Objections
174 NLRB No. 96
MAINE C5-tom., IN0USTRJ9 , INC. 653
them. Accordingly, the Regional Director ovtuled lha
objections and certified the Union as the bargaining
representative of the employees in the appropriate unit.
On March 28, 1968, Respondent filed with the Board in
Washington, D.C., a Request for Review of the
Supplemental Decision and Certification of
Representative, and a brief in support of said Request in
which it contended that the election should be set aside
and a new election conducted. The sole issue, raised by
Respondent's Request for Review relates to a: letter
mailed by the Union to the Respondent's employees prior
to the election, constituting evidence in support of the
Respondent's objections to the election referred to above.
Respondent contended that when evaluated in the context
of other union campaign material and upon the record
considered as a whole, said letter constituted interference
with the laboratory atmosphere required of Board
elections, necessitating setting the election aside . On April
3, 1968, the Board issued an Order denying Respondent's
Request for Review, in which the Board said that
Respondent's Request raised no substantial issue
warranting review.
The Unfair Labor Practice Case
On June 6, 1968, the Union filed a charge of violation
of Section 8(a)(1) and (5) of the Act alleging that the
Respondent had refused to bargain with the Union. On
June 17, 1968, the General Counsel issued a complaint
and notice of hearing in which he alleged that on or about
April 18, 1968, the Union requested the Respondent to
bargain collectively with the Union, and that on or about
May 1, 1968, the Respondent refused to bargain
collectively. On June 28, 1968, Respondent filed its answer
to the complaint in which it admitted certain allegations
of the complaint and denied others. The Respondent
admitted the allegations respecting jurisdiction, its
engagement in commerce, the Union as a labor
organization, the Board's denial of the Respondent's
Request for Review, the Union's request to bargain
collectively, and the Respondent's refusal. Respondent
further admitted the fact of the election and certification,
but denied the validity of the election and certification,
asserting that the unit is not appropriate for the purpose
of collective bargaining in that it improperly excludes
seasonal employees, and that the refusal to bargain is for
the purpose of securing judicial review of the Regional
Director's Supplemental Decision and Certification _ of
Representative and of any continued adherence to the
Board's unit finding Respondent consequentlydenies the
appropriateness of the unit, the Union's representative
status, and the commission of unfair labor practices
affecting commerce. The Respondent's answer also asserts
that previously unavailable or newly discovered evidence
establishes the validity of its contention respecting
seasonal employees.
Under date of July 16, 1968, counsel for the General
Counsel filed a Motion for Summary Judgment, stating in
effect that there is no genuine issue of material fact and
opposing, on the ground of untimeliness, Respondent's
contention in its Answer that Respondent has new
evidence supporting its opposition to the Board's unit
determination.
On July 17, 1968, 1 issued an Order to Show Cause
directing all parties to show cause on or before July 29,
496$, at to,wbetler the` Motion for Summary Judgment
should be granted. On July 26, 1968, Respondent filed a
Response to the Order to Show Cause stating contentions
more specifically referred to hereinafter. No other
responses have been received.
RULING of MOTION FQa SUMMARY JUDGMENT
Tice Respondent's basac contention, as stated in its
Answer and in its Response to the ,Order to Show Cause
on Motion for Summary Judgment, is that the unit is
unappropriate, the election and certification are invalid,
and it is therefore under no obligation to bargain with the
Union. The questions as to the appropriateness of the
unit, the validity of the election, the merit of Respondent's
objections to the ele do-n, and whether the Union should
have been certified as., the collective-bargaining
representative, were deckled by the Board in the
representation proceeding. It is established Board policy in
the absence of newly discovers or- previously unavailable
evidence or special circumstances not to permit litigation
before a Trial Examiner in an unfair labor practice case
of issues which were or could have been litigated in a
prior related representation proceeding.' 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 or material issues are
raised by the objections.' The authorities cited by the
Respondent do not refute this proposition. They merely
hold ,that where there arr substantial and material issues a
hearing is required.
In its Answer to the complaint and in its Response to
the Order to Show -Cause, the Respondent also asserts
that previously unavailable or newly discovered evidence
clearly establishes -that the seasonal employees have a
reasonable expectation of future employment and that as
such, and on the basis of their overall community of
interest with the year-round employees, must be included
in the appropriate bargaining unit. This evidence relates to
the experience of the Respondent in fulfilling its employee
requirements for the 1967 beet processing season, which
commenced on October 27, 1967, and ran through the
week ending December 16, 1967. Specifically, the
Respondent states in its Response to the Order to Show
Cause that 80 percent ar more of the seasonal employees
employed during the 1967 beet processing season had been
employed by the Respondent in the 1966 season and had
been recalled for the 1967 asgn, and, further, that 90
percent of the peak ',work 'force in the 1967 season
consisted of such recalled employees.
This evidence was not, ofemployees. available at the time
of the August 24, 1967 hearing on the Union's
representation petition. If it is in fact newly discovered or
previously unavailable as of this time, its nature is such as
to require opportunity to produce it for consideration
upon the unit issue. However, I am of the view, and find,
that the evidence is not newly discovered or previously
unavailable as of this time. It seems clear from the facts
that it must have been available in substantial part prior
to the Board's Decision and Direction of Election on
'Howard Johnson Company. 164 NLRB No. 121; Metropolitan Life
Insurance Company, 163 NLRB No. 71. See Pittsburgh Plate Glass Co. v.
N.L.R.B, 313 U.S. 146 (1941 Board Rules, Sections 102.67(f) and
102.69(c).
'O,K. Van & Storage, Inc., 127 NLRB 1537, 297 F.2d 74 (C.A 5,
.1961). See also N.L.R R.. v. Air Control Window Products , Inc.. 335 F.2d
245, 249 (C.A. 5, 1964) "If there is nothing to hear, then a hearing is a
senseless and useless formality."
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 19, 1968, and the whole of it available before
March 18, 1968, the date of the Regional Director's
Supplemental Decision and Certification of
Representative. The Respondent's request for review of
the Supplemental Decision and Certification contains no
reference to the matter. The first intimation from the
Respondent revealed by the record that such evidence
existed is in the Respondent's answer dated June 28, 1968.
Though the Respondent states in its Response to the
Order to Show Cause that "a number" of the seasonal
employees remained on the payroll for a period of time
beyond the actual end of the processing season in the
week ending December 16, 1968, and that it was not until
"at least February" that an "accurate analysis" of the
recall history could be determined (Response p. 6), the
trend must have been evident before January 1968. Surely
the Respondent maintained payroll records of day to day
employment and kept them on a current basis. Moreover,
the Respondent's brief to the Board after the
representation hearing stated that the peak of employment
in the 1967 beet processing season would be in
mid-November. (Brief of Employer, p. 6). Since the
Respondent asserts that 90 percent of the 1967 peak beet
processing work force consisted of recalled employees, it
must have known that fact before December 1967.
Nor could the significance of the evidence have been
overlooked. The Respondent contended throughout the
representation proceeding that the temporary seasonal
employees should be included in the appropriate unit on
the ground that they had a substantial expectation of
recall, and the Respondent in the representation hearing
submitted the evidence available at that time supporting
its contention - evidence which the Board deemed
inadequate to establish the Respondent's point. The 1967
beet processing season was completed before the issuance
of the Decision and Direction of Election. The
Respondent could not have been unaware of the
importance of any significant evidence of reemployment
during the 1967 season. In these circumstances not only
would due diligence have required, but self-interest would
have impelled, the Respondent to submit that evidence to
the Board without delay - unless the Respondent
consciously chose to await a possible favorable
determination by the Board on the existing record. If so,
the Respondent cannot now claim prejudice because of its
own tactical decision.
In any event, whatever the reason, the Respondent did
not use due diligence in presenting the experience of the
1967 season to the Board, the evidence is thus no longer
newly discovered or previously unavailable, and its proffer
at this time is untimely.'
There thus being no newly discovered or previously
unavailable evidence proffered, or special circumstances
alleged, the findings and disposition made by the Board in
the representation proceeding are final, constitute the law
of the case, and are binding on the trial examiner. This is
not to say that the Respondent is precluded from testing
the validity of the Board's conclusions. That it may do in
an enforcement or review action before the Circuit Court
of Appeals in the event the Board issues an order in this
complaint proceeding requiring the Respondent to bargain
with the Union. The record made before the Board here
and in the representation proceeding will be before the
Court for evaluation. See Section 9(d) of the Act. The
IN L.R.B. v Sagamore Shirt Co., 401 F .2d 925 (C.A.D.C. 1968);
Red-Mor Corp , d/b/a Disco Fair, 164 NLRB No. 93; Westinghouse
Electric Corp., 171 NLRB No. 164.
Respondent may also request the Board to reconsider and
review its determination in the representation case -
either independently or in connection with any exceptions
which may be filed to this Decision.
There are thus no issues litigable before a Trial
Examiner, and therefore no matter requiring an evidential
hearing. Accordingly the General Counsel's Motion for
Summary Judgment is granted, and I hereby make the
following further:
F INDINGS
L THE BUSINESS OF THE RESPONDENT
The Respondent, Maine Sugar Industries, Inc., is now
and has been at all times material herein, a Maine
corporation, with its principal office and place of business
located at Easton, Maine, where it is engaged in the
manufacture, sale and distribution of sugar and related
products. Respondent annually ships directly from its
principal place of business in Easton, Maine, to points
outside the State of Maine products valued in excess of
$50,000.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The following employees constitute a unit appropriate
for purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All production and maintenance employees at the
Respondent's plant at Easton, Maine, including
laboratory, shipping, and , receiving employees, but
excluding powerhouse, seasonal, part time (students),
and office clerical employees, farm laborers, guards and
supervisors as defined in the Act.
On February 21, 1968, a majority of Respondent's
employees in the appropriate unit selected the Union as
their collective-bargaining representative in a secret-ballot
election conducted under the supervision of the Regional
Director for Region 1 of the National Labor Relations
Board, and on March 18, 1968, the Union was certified as
such representative by the Regional Director.
At all times since on or about February 21, 1968,
continuously to the present, the Union, by virtue of
Section 9(a) of the Act, has been and is now the exclusive
representative of all the employees in the appropriate 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 April 18, 1968, the Union requested
Respondent to bargain collectively with respect to rates of
pay, wages, hours of employment and other terms and
conditions of employment of employees in the appropriate
unit. On or about May 1, 1968, and at all times thereafter
Respondent refused to bargain collectively with the Union
concerning such employees, thereby engaging in unfair
labor practices in violation of Section 8(a)(5) of the Act
and interfering with, restraining and coercing 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.
MAINE SUGAR INDUSTRIES, INC. 655
Upon the foregoing findings and conclusions and the
entire record in the case, I recommend that the Board
issue the following:
ORDER
A. For the purpose of determining the effective period
of the certification the initial year of certification 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.'
B. Maine Sugar Industries , Inc., Easton , Maine, its
officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with American
Bakery and Confectionery Workers International Union,
Local 264, AFL-CIO, as the exclusive
collective -bargaining representative of the employees in
the following appropriate unit:
All production and maintenance employees at the
Respondent ' s plant at Easton, Maine, including
laboratory , shipping , and receiving employees, but
excluding power-house, seasonal , part time (students),
and office clerical employees , farm laborers , guards and
supervisors as defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent the employees in said
appropriate 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 American
Bakery and Confectionery Workers International Union,
Local 264, AFL-CIO, 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 employment , and embody in a signed
agreement any understanding reached.
(b) Post at its Easton , Maine, plant copies of the
attached notice marked "Appendix ."8 Copies of said
notice, on forms to be furnished by the Regional Director
for Region 1, after being duly signed by an authorized
representative of the Respondent , shall be posted by the
Respondent 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 altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 1, in
writing, within 20 days from receipt of this recommended
Order, what steps if has taken to comply herewith.'
'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 1, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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
employees that:
WE WILL NOT refuse to bargain collectively with
American Bakery and Confectionery Workers
International Union, Local 264, AFL-CIO, as the
exclusive collective-bargaining representative of all the
following employees.
All production and maintenance employees at
our plant at Easton, Maine, including laboratory,
shipping, and receiving employees, but excluding
power-house, seasonal, part time (students), and
office clerical employees, farm laborers, guards
and supervisors as defined in the Act.
WE WILL NOT interfere with the efforts of said Union
to negotiate for or represent the employees in the
appropriate bargaining unit as exclusive
collective-bargaining representative.
WE WILL bargain collectively with the Union as
exclusive bargaining representative of the employees in
the appropriate unit and if an understanding is reached
we will sign a contract with the Union.
'The purpose of this provision is to ensure that the employees in the
appropriate unit will be accorded the services of their selected bargaining
agent for the period provided by law. See Mar-Jac Poultry Co., Inc., 136
NLRB 785; Commerce Co., d/b/a Lamar Hotel, 140 NLRB 226, 229, 328
F.2d 600 (C.A. 5, 1964), Burnett Construction Co, 149 NLRB 1419, 1421,
350 F. 2d 57 (C. A. 10, 1965). -
'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
Appeals enforcing an Order" shall be substituted for the words "a Decision
and Order"
Dated By
MAINE SUGAR
INDUSTRIES, INC.
(Employer)
(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, John F.
Kennedy Federal Building, Cambridge & New Sudbury
Streets, Boston, Massachusetts, Telephone 223-3300.