Milgram Food Stores, Inc.

National Labor Relations Board - Board Decisions

Sep 17, 1969

178 N.L.R.B. 454 (N.L.R.B. 1969)

454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meyer Dairy , Inc., a subsidiary of Milgram Food
Stores, Inc. and Meyer Dairy Distributors
Association . Case 17-CA-3946
September 17, 1969
DECISION AND ORDER
BY CHAIRMAN MCCUL. LOCH AND MEMBERS
BROWN AND ZAGORIA
Upon a charge filed by Meyer Dairy Distributors
Association, herein called the'he Union, the General
Counsel of the National Labor Relations Board by
the Regional Director for Region 17, issued a
complaint. dated June 25. 1969,' against Meyer
Dairy. Inc., a subsidiary of Milgram Food Stores,
inc., herein called the Respondent. alleging that the
Respondent had engaged in and was engaging in
unfair labor practices 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 a Trial Examiner were duly served upon the
Respondent.
With respect to the unfair labor practices, the
complaint alleges. in substance, that on or about
April 4, the Union was duly certified by the Acting
Regional Director for Region 17 as the exclusive
bargaining representative of the Respondent's
employees in the unit found appropriate' and that
since on or about June 10. the Respondent has
refused and is refusing to recognize or bargain with
the Union as such exclusive bargaining
representative, although the Union had requested
and is requesting it to do so. On July 7, the
Respondent filed its answer, admitting in part, and
denying in part, the allegations of the complaint and
asserting that the unit found by the Regional
Director to he appropriate was inappropriate
because the retail distributors were not and are not
employees of Respondent within the meaning of the
Act and because no petition was ever filed
requesting that the retail employee route drivers be
part o1' any unit.
On J ulv 11. the General Counsel filed with the
Board a motion for summary judgment and motion
to transfer proceeding to the Board, contending that
the pleadings, considered together with the official
Board record in the underlying representation
proceeding, Case 17-RC-5887, raised no issues
requiring a hearing, that Respondent's defense set
forth in its answer raised no litigable questions of
fact. and that as a matter of law, the Respondent
has no valid defense to the complaint. Thereafter,
on .July 15, the Board issued an order transferring
proceeding to the Board and notice to show cause.
On July 28. the Respondent filed a Response to
'Unless otherwise stated , all dates herein are in 1969
'Decision and Certification of Representative in Case 17-RC-5887 (not
published in NLRB volumes)
notice to show cause, contending that, the Regional
Director had improperly found that the appropriate
unit was all retail distributors and retail employee
route drivers on a petition which sought a unit of
only retail distributors excluding all other
employees, and that under these circumstances,
neither the employee route drivers nor the Employer
had an opportunity to present evidence as to
whether there was a sufficient similarity of interest
to warrant their inclusion in the appropriate unit. In
addition, Respondent denies that the retail
distributors are employees of Respondent within the
meaning of the Act. It maintains, therefore, that
substantial and material issues of fact are raised on
which the Board should order a hearing.
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.
RULINGS ON THE MOTION FOR SUMMARY
JUDGMENT
The Respondent's contention that it is entitled at
this time to an evidentiary hearing on the inclusion
of Respondent's retail employee route drivers in the
appropriate unit is without merit for the following
reasons,
On November 6, 1968, the Union filed a petition
in Case 17-RC-5887 seeking an election in a unit of
retail distributors of the Respondent at its Basehor.
Kansas, facility. A hearing was conducted on
December 4, 1968, by a Hearing Officer of the
Board on the issues raised by the Union's petition in
which Respondent participated. At this hearing
evidence was taken relating to Respondent's other
employees. and the Petitioner in the alternative
indicated a willingness to represent a unit which
included retail employee route drivers. Thereafter,
on February 28, 1969, the Regional Director for
Region 17 issued his Decision and Direction of
Election, in which he found that all retail
distributors and retail employee route drivers of the
Respondent at its Basehor, Kansas, facility,
constituted an appropriate unit for purposes of
collective bargaining. Respondent subsequently
requested review by the Board of the Regional
Director's Decision and Direction of Election on
substantially the same grounds urged in
Respondent's response to notice to show cause By
telegraphic communication on March 21. the Board
denied the Respondents request for review on the
ground that it raised no substantial issues
warranting review.
It is established Board policy, in the absence of
newly discovered 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'
178 NLRB No 74
MEYER DAIRY, INC.
litigated in a prior related representation proceeding.'
Inasmuch as the Respondent has had in the
representation case the opportunity to litigate the
issues raised in its Response to Notice to Show
Cause and as 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 find that
the Respondent has not raised any issue which is
properly litigable in this unfair labor practice
proceeding.
All material issues having been either decided by
the Board or admitted in the answer to the
complaint, there are no matters requiring a hearing
before a Trial Examiner. Accordingly, the General
Counsel's motion for summary judgment is granted.
On the basis of the record before it, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINI-SS OF THE RESPONDENT
The Respondent is, and at all times material
herein has been, a Kansas corporation having a
place of business at Basehor, Kansas, the facility
involved herein, where it is engaged in the
processing and distribution of fluid milk products
and related items. In the course and conduct of its
business operations, the Respondent annually sells
and distributes products valued in excess of $50,000
outside the State of Kansas, and its annual gross
sales exceed $00,000 in value.
The Respondent admits, and we find, that it 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.
11. THE LABOR ORGANIZATION INVOLVED
Meyer Dairy Distributors Association is a labor
organization w ithin the meaning of Section 2(6) and
(7) of the Act.
III. THE UNFAIR LABOR PRACTICES
1. The unit
A The Representation Proceeding
At all times material herein the following
employees have constituted and now constitute a
unit appropriate for purposes of collective
bargaining within the meaning of the Act:
All retail distributors and retail employee route
drivers working out of the Basehor, Kansas.
'See Pittsburgh Plate Glaes Co v A L R B, 313 U S 146, 162, Rules
and Regulations of the Board , Sec 102 67(I) and 102 69(c)
455
facility of Meyer Dairy, Inc., a subsidiary of
Milgram Food Stores, inc., EXCLUDING
office-clerical employees: plant employees;
wholesale route drivers; automotive maintenance
employees: retail distributors working out of the
Independence, Missouri, distributing center; the
Atchison, Kansas, retail distributor, professional
employees, guards. and supervisors within the
meaning of the Act; and, all other employees.
2. The certification
On or about March 26, a majority of
employees of the Respondent in said unit, voting in
a secret election conducted under the supervision of
the Regional Director for Region 17, designated the
Union as their representative for the purpose of
collective bargaining with the Respondent. and on or
about April 4, the Acting Regional Director
certified the Union as the exclusive
collective-bargaining representative of the employees
in said unit , and the Union continues to be such
representative.
B. The Request To Bargain and the
Respondent's Refusal
Following the Certification of Representative
described above, the Union has requested, and is
continuing to request, the Respondent to recognise
and bargain with the Union as the representative of
the employees in the aforesaid unit . By letter, dated
June 10, the Respondent acknowledged the Union's
request for recognition and bargaining and informed
the Union that it did not wish to meet for the
purpose of discussing a collective-bargaining
agreement for the reason that it did not believe the
distributors were employees within the meaning of
the National Labor Relations Act, as amended.
C. Conclusions
Accordingly, we find that the Union was duly
certified as the collective-bargaining representative
of the employees of the Respondent in the
appropriate unit described above; that the Union at
all times since April 4. has been and now is the
exclusive bargaining representative of all the
employees in the aforesaid unit within the meaning
of Section 9(a) of the Act: and that the Respondent
has since June 10, refused to bargain collectively
with the Union as the exclusive bargaining
representative of its employees in the appropriate
unit. By such refusal, the Respondent has engaged
in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(5) and (I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCI'
The acts of the Respondent set forth in section
III, above, occurring in connection with its
operations as described in section 1, above, have a
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
close, intimate, and substantial relation 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.
THE REMEDY
Having found that the 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,
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.
CONCLUSIONS OF Low
1. Meyer Dairy, Inc., a subsidiary of Milgram
Food Stores, inc., is an Employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act
2. Meyer Dairy Distributors Association is a
labor organization within the meaning of Section
2(5) of the Act.
3. All retail distributors and retail employee route
drivers working out of the Baschor, Kansas, facility
of Meyer Dairy. Inc.. a subsidiary of Milgram Food
Stores, inc , excluding office-clerical employees;
plant employees; wholesale route drivers; automotive
maintenance employees, retail distributors working
out of independence, Missouri, distributing center;
the Atchison, Kansas. retail distributor: professional
employees, guards. and supervisors within the
meaning of the Act, and all other employees,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since April 4, 1969. the above-named labor
organization has been the certified and exclusive
representative of all employees in the aforesaid
appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about June 10, 1969, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all its employees in the
appropriate unit, the Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
6. By the aforesaid refusal to bargain, the
Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing, employee-, in the exercise of the rights
guaranteed to them in Section 7 of the Act, and has
thereby 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
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. For the purpose of determining the duration of'
the certification , the initial year of the certification
shall be deemed to begin on the day that
Respondent commences to bargain in good faith
with the Union as the recognized exclusive
bargaining representative in the appropriate unit.'
B. Meyer Dairy. Inc.. a subsidiary of Milgram
Food Stores, Inc., 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 Meyer Dairy
Distributors Association, as the exclusive and duly
certified bargaining representative of its employees
in the following appropriate unit.
All retail distributors and retail employee route
drivers working out of the Basehor, Kansas,
facility of Meyer Dairy, Inc.. a subsidiary of
Milgram Food Stores, Inc., EXCLUDING
office-clerical employees: plant employees;
wholesale route drivers; automotive maintenance
employees, retail distributors working out of
Independence, Missouri, distributing center: the
Atchison, Kansas, retail distributor: professional
employees, guards, and supervisors within the
meaning of the Act, and all other employees.
(h) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed to 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) 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
understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its Basehor, Kansas. facility, copies of
the attached notice marked -Appendix."' Copies of
said notice, on forms provided by the Regional
Director for Region 17, shall, after being duly
signed by the Respondent's representative, be posted
'The purpose of this provision is 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 See Mar-Jac Poultry Co . Inc , 136
NLRB 785, Commerce Co, d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd 328 N 2d 600 (C A 5), sett denied 379 U S 817, Burnett
Construction Co , 149 Ni RB 1419, 1421, enfd 350 N 2d 57 (C A 10).
'in the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Derision and
Order" the words "a Deuce of the United States Court of Appeals
Enforcing an Order"
MEYER DAIRY, INC.
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 to ensure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify said Regional Director for Region 17,
in writing, within 10 days from the date of this
Decision and Order, what steps Respondent has
taken to comply herewith.
APPENDIX
NOTICE 10 ALL EMPLOYEES
Pursuant to the Decision and Order 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
Meyer Dairy Distributors Association, as the exclusive
representative of the employees in the bargaining unit
described below.
WE Wli I 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 representative of
all employees in the bargaining unit described below
457
with respect to wages. hours, and other terms and
conditions of employment and, if an understanding is
reached , embody such understanding in a signed
agreement . The bargaining unit is.
All retail distributors and retail employee route
drivers working out of the Basehor, Kansas, facility
of Meyer Dairy, Inc.. a subsidiary of Milgram Food
Stores, Inc., excluding office-clerical employees, plant
employee,,; wholesale route drivers ; automotive
maintenance employees , retail distributors working
out of Independence , Missouri , distributing center,
the Atchison. Kansas, retail distributor ; professional
employees , guards, and supervisors within the
meaning of the Act ; and all other employees.
MEYER DAIRY , INC., A
SUBSIDIARY OF MiI.GRAM
FOOD STORES, INC.
(Employer)
Dated By
(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 provision,. they may communicate
directly with the Board's Regional Office, 610 Federal
Building, 601 East 12th Street, Kansas City, Missouri
64106, Telephone 816-374-5181