Newly Weds Foods

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 357 (N.L.R.B. 1984)

NEWLY WEDS FOODS
Newly Weds Foods, Inc. and Local 348, Bakery,
Confectionery and Tobacco Workers Interna-
tional Union, AFL-CIO. Case 1-CA-21427
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge filed by the Union 29 September
1983, the General Counsel of the National Labor
Relations Board issued a complaint 31 October
1983 against the Company, the Respondent, alleg-
ing that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act.
The complaint alleges that on 9 September 1983,
following a Board election in Case 1-RC-17754,
the Union was certified as the exclusive collective-
bargaining representative of the Company's em-
ployees in the unit found appropriate. (Official
notice is taken of the "record" in the representation
proceeding as defined in the Board's Rules and
Regulations, Secs. 102.68 and 102.69(g), amended
Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier
Hotel, 265 NLRB 343 (1982).) The complaint fur-
ther alleges that since 14 September 1983 the Com-
pany has refused to bargain with the Union. On 14
November 1983 the Respondent filed its answer ad-
mitting in part and denying in part the allegations
in the complaint.
On 16 December 1983 the General Counsel filed
a Motion for Summary Judgment. On 22 Decem-
ber 1983 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Respondent filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
In its answer to the complaint the Respondent
admits the Union's request to bargain and the Re-
spondent's refusal, but attacks the validity of the
Union's certification on the basis of its continuing
disputation of the eligibility of challenged voter
Donald McPherson. In addition, the Respondent
urges that a hearing is necessary to determine
whether the employee turnover since the 2 Decem-
ber 1982 election presents special circumstances re-
lieving the Respondent of its bargaining obligation.
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
270 NLRB No. 65
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations.
All issues raised by the Respondent were or
could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that 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 that is properly
litigable in this unfair labor practice proceeding.
Accordingly we grant the Motion for Summary
Judgment.2
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Respondent is a Delaware corporation
which manufactures food coatings and related
products at its facility in Watertown, Massachu-
setts, where it annually purchases goods valued in
excess of $50,000 directly from points located out-
side the Commonwealth of Massachusetts. We find
that the Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
1. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held 2 December 1982
the Union was certified 9 September 1983 as the
collective-bargaining representative of the employ-
ees in the following appropriate unit:
All regular full-time and all regular part-time
production and maintenance employees at the
Employer's 80 Grove Street, Watertown, Mas-
sachusetts facility, including panko, blending,
bread line, sanitation, janitors, shipping, receiv-
ing, and truck drivers, but excluding all other
Employee turnover since the election does not affect the validity of
the certification. Gunton Co., 227 NLRB 1875. 1876 (1977). Member
Hunter rejects the Respondent's contention that a hearing is warranted
based on its assertion of employee turnorver in the unit. In so doing, he
finds that even accepting the Respondent's assertion as true, the turnover
here would not constitute extraordinary circumstances sufficient to war-
rant the witholding of a bargaining order based on the Union's certifica-
tion. See Vitek Electronics, 268 NLRB 522 fn. 4 (1984).
1 Chairman Dotson did not participate in the underlying representation
proceeding.
357
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, including office clerical employees,
guards and supervisors as defined in the Act.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since 12 September 1983 the Union has request-
ed the Respondent to bargain and since 14 Septem-
ber 1983 the Respondent has refused. We find that
this refusal constitutes an unlawful refusal to bar-
gain in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSIONS OF LAW
By refusing on and after 14 September 1983 to
bargain with the Union as the exclusive collective-
bargaining representative of employees in the ap-
propriate unit, the Respondent has engaged in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order it
to cease and desist, to bargain on request with the
Union, and, if an understanding is reached, to
embody the understanding in a signed agreement.
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial period of the certification as beginning the date
the Respondent begins to bargain in good faith
with the Union. 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 Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that
the Respondent, Newly Weds Foods, Inc., Water-
town, Massachusetts, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Local 348, Bakery,
Confectionery and Tobacco Workers International
Union of America, AFL-CIO, as the exclusive bar-
gaining representative of the employees in the bar-
gaining unit.
(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 neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All regular full-time and all regular part-time
production and maintenance employees at the
Employer's 80 Grove Street, Watertown, Mas-
sachusetts facility, including panko, blending,
bread line, sanitation, janitors, shipping, receiv-
ing, and truck drivers, but excluding all other
employees, including office clerical employees,
guards and supervisors as defined in the Act.
(b) Post at its facility in Watertown, Massachu-
setts, copies of the attached notice marked "Appen-
dix." 3 Copies of the notice, on forms provided by
the Regional Director for Region I, after being
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 the Respondent
to ensure that the 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.
a 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
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
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Local 348,
Bakery, Confectionery and Tobacco Workers
International Union, AFL-CIO, as the exclusive
representative of the employees in the bargaining
unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
358
NEWLY WEDS FOODS
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit:
All regular full-time and all regular part-time
production and maintenance employees at the
Employer's 80 Grove Street, Watertown, Mas-
sachusetts facility, including panko, blending,
bread line, sanitation, janitors, shipping, receiv-
ing, and truck drivers, but excluding all other
employees, including office clerical employees,
guards and supervisors as defined in the Act.
NEWLY WEDS FOODS, INC.
359