Peter Paul, Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1976

222 N.L.R.B. 1128 (N.L.R.B. 1976)

1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peter Paul, Inc. and Local 512, Retail , Wholesale and
Department Store Union, AFL-CIO. Case
25-CA-7467 .
February 27, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
Upon a charge filed on October 28, 1975, by Local
512, Retail, Wholesale and Department Store Union,
AFL-CIO, herein called the Union, and duly served
on Peter Paul, Inc., herein called the Respondent, the
Acting General Counsel, herein called the General
Counsel, of the National Labor Relations Board, by
the Regional Director for Region 25, issued a com-
plaint on November 7, 1975, against Respondent, al-
leging that Respondent had engaged in and was en-
gaging 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 pro-
ceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on September 19,
1975, following a Board election in Case
25-RC-5877, the Union was duly certified as the ex-
clusive collective-bargaining representative of
Respondent's employees in the unit found appropri-
ate;' and that, commencing on or about September
24, 1975, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so. On November 18, 1975,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On November 26, 1975, counsel for the General
Counsel filed directly with the Board a "Motion to
Strike Portions of Respondent's Answer and Motion
for Summary Judgment." Subsequently, on Decem-
ber 12, 1975, the Board issued an order transferring
the proceeding to the Board and a Notice To Show
'Official notice is taken of the record in the representation proceeding,
Case 25-RC-5877, 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, 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., 1967),
Follett Corp., 164 NLRB 378 (1967), enfd . 397 F.2d 91 (C A. 7, 1968), Sec.
9(d) of the NLRA
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a "Motion for Summary Judgment
and Response to the Board's Notice to Show Cause."
In response thereto, on January 6, 1976, counsel for
the General Counsel filed his "Renewal of General
Counsel's Motions and General Counsel's Opposi-
tion to Respondent's Motion for Summary Judg-
ment."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motions for Summary Judgment
In its answer to the complaint and its response to
the Notice To Show Cause, Respondent basically at-
tacks the Union's certification on the basis of its elec-
tion objections relating to waiver of union fees and
misrepresentations with respect thereto.
Review of the record herein, including the record
in Case 25-RC-5877, reveals that, pursuant to a Stip-
ulation for Certification Upon Consent Election, an
election was held on December 12, 1974, which the
Union won. Respondent filed timely objections to
conduct affecting the results of the election, alleging,
in substance, (1) the Union, by supplying fee waiver
"Certificates" to employees signing union applica-
tion cards prior to the election, represented that fi-
nancial benefit would be conferred on such employ-
ees and would be withheld from employees who
refrained from signing cards and from supporting the
Union prior to the election; (2) the Union's offer to
waive initiation fees , other fees, and dues was viola-
tive of the right of free choice inherent in the princi-
ples of Section 9(c)(1)(A) of the Act; (3) union repre-
sentatives told employees that, if they did not sign
union application cards prior to the election, they
would have to pay "extra money" if the Union won
the election; and (4) the Union coerced employees
who had not signed application cards by implying
that union support for employees would be selective
and that employees must "sign up" or face a wrathful
union regime if the Union won the election. After
investigation, the Regional Director issued his report
on Respondent's objections in which he ordered that
a hearing be held on Objections 1 and 2, relating to
the Union's initiation fee waiver, and recommended
that Objections 3 and 4 be overruled. Respondent
excepted to the Regional Director's recommendation
overruling Objections 3 and 4, and filed a brief in
support thereof. On March 31, 1975, the Board is-
222 NLRB No. 178
PETER PAUL, I1`TC. 1129
sued its Decision and Order Directing Hearing in
which it directed a hearing on Objections 1 and 2
and adopted the Regional Director's recommenda-
tion overruling Objections 3 and 4.
On June 13, 1975, following a hearing on
Respondent's fee waiver objections, the Hearing Of-
ficer issued his Report on Objections, in which he
recommended overruling such objections and certify-
ing the Union. Respondent, thereafter, filed timely
exceptions to the Hearing Officer's report with the
Board, and a brief in support thereof in which it re-
argued its fee waiver objections and, in addition,
contended that the issuance of the fee waiver "Certif-
icates" constituted a material misrepresentation of
fact which warranted setting aside the election. After
consideration of Respondent's exceptions and sup-
porting brief, the Board, on September 19, 1975, is-
sued its Supplemental Decision and Certification of
Representative in which it adopted the Hearing
Officer's findings and recommendations, and certi-
fied the Union.
It thus appears that, by reiterating herein its mis-
representation and fee waiver election objections,
Respondent is attempting to raise issues which were
raised and decided in the underlying representation
case.2 It is well settled that in the absence of newly
discovered or previously unavailable evidence or spe-
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 liti-
gated in a prior representation proceeding.'
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does it
allege that any special circumstances exist herein
which would require the Board to reexamine the de-
cision made in the representation proceeding. We
therefore find that the Respondent has not raised
any issue which is properly litigable 4 in this unfair
2 We note Respondent's contention that the Board failed to consider or
resolve Respondent's election objection that the fee waiver "Certificates"
constituted a material misrepresentation of fact warranting setting aside the
election As stated above, this issue was raised by Respondent in its brief in
support of its exceptions to the Hearing Officer's Report on Objections, and
was, therefore , before the Board for its consideration In adopting the Hear-
ing Officer's findings and recommendations, the Board reviewed the entire
record in Case 25-RC-5877, including Respondent's brief in which the mis-
representation objection was raised Thus, in certifying the Union after re-
view of the record before it, the Board necessarily found that issuance of the
"Certificates" did not constitute a material misrepresentation which would
warrant setting aside the election.
3 See Pittsburgh Plate Glass Co v N.LR.B, 313 US. 146, 162 (1941),
Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c)
4 Respondent's answer contends that the failure of the Board to grant
Respondent a hearing on its Objections 3 and 4 constitutes a denial of due
process and a violation of Respondent's right to prove every material un-
lawful aspect of the Union's campaign. In adopting the Regional Director's
labor practice proceeding.' We shall, accordingly,
deny Respondent's Motion for Summary Judgment
and grant the General Counsel's Motion for Summa-
ry Judgment 6
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation, has main-
tained facilities in several States of the United States,
including a facility at Frankfort, Indiana, and is, and
has been at all times material herein, engaged in the
manufacture, sale, and distribution of candy and re-
lated products. During the past year, a representative
period, Respondent, in the course and conduct of its
business operations, purchased, transferred, and de-
livered to its Frankfort facility goods and materials
valued in excess of $50,000, which were transported
to said facility directly from States other than the
State of Indiana. During the past year, a representa-
tive period, Respondent, in the course and conduct
of its business operations, manufactured, sold, and
distributed at said facility products valued in excess
of $50,000, which were shipped from said facility di-
rectly to States other than the State of Indiana.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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 juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local 512, Retail, Wholesale and Department
recommendation that such objections be overruled , the Board's March 31,
1975, Decision specifically found that Respondent 's exceptions to the Re-
gional Director 's recommendation in this regard raised no substantial issues
of fact or law which would warrant reversal of the Regional Director or
require a heanng Therefore , we find no merit in Respondent's contention,
as it is established that parties do not have an absolute right to a hearing on
objections , and that denial of a hearing where, as here, the objections raise
no substantial and material issues does not constitute denial of due process
or a violation of Respondent's rights GTE Lenkurt, Incorporated, 218
NLRB No 139 ( 1975); Abbott Laboratories, Ross Laboratories Division, 217
NLRB No 117 (1975), Heavenly Valley Ski Area, a California Corporation,
and Heavenly Valley, a Partnership , 215 NLRB No 129 ( 1974).
5 Respondent's answer contends that the Hearing Officer's report failed
to provide a reasoned analysis supporting his refusal to apply prior control-
ling Supreme Court and Board decisions , and that the Board incorporated
his inadequate findings in its Supplemental Decision , resulting in a denial of
due process of law. We reject this contention as the Hearing Officer's de-
tailed review of the evidence and articulation of his legal analysis , which the
Board adopted as its own , was fully adequate to satisfy the requirements of
due process . Cf Lake Odessa Machine Products, Inc, 210 NLRB 90 (1974)
6 In view of our decision herein , we find it unnecessary to rule on counsel
for the General Counsel's motion to strike portions of Respondent 's answer
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Store Union , AFL-CIO, is a labor organization with-
in the - meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
Accordingly, we find that the Respondent has,
since October 22, 1975, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of
the Act.
The following employees of the Respondent con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9 (b) of the
Act:
All full-time and regular part- time production
and maintenance employees of Respondent's
Frankfort, Indiana,-facility, including lead peo-
ple; maintenance department; shipping and re-
ceiving department; processing department,
kitchen, cutting, extruding, enrobing, and nut
roasting; packaging department, wrap and pack,
case pack, box department and line mechanics;
sanitation department; cafeteria; and third shift
cleanup; exclusive of all office clerical employ-
ees, all professional employees, and all guards
and supervisors as defined in the Act.
2. The certification
On December 12, 1974, a majority of the employ-
ees of Respondent in said unit, in a secret ballot elec-
tion conducted under the supervision of the Regional
Director for Region 25, 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, September 19, 1975, 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 September 24, 1975, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about October 22, 1975, 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 bargaining of all employees in said unit.'
7 In its answer, Respondent denies the allegation in the complaint that it
has refused to bargain with the Union on and after September 24, 1975
However, Respondent admits that it sent a letter to its employees, dated
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 1, above, have a close, inti-
mate, 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 mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected 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); Bur-
nett Construction Comany, 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. Peter Paul, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
October 22, 1975, a copy of which is attached to the complaint herein, in
which Respondent made clear its refusal to bargain and its intent to seek
judicial review of the Union's certification Accordingly , we find that, com-
mencing on or about October 22, 1975, Respondent has refused, and contin-
ues to refuse , to bargain collectively with the Union.
PETER PAUL, INC.
2. Local 512, Retail, Wholesale and Department
Store Union, AFL-CIO, is a labor organization with-
in the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time production
and maintenance employees of Respondent's Frank-
fort, Indiana, facility, including lead people; mainte-
nance department; shipping and receiving depart-
ment; processing department, kitchen, cutting,
extruding, enrobing, and nut roasting; packaging de-
partment, wrap and pack, case pack, box department
and line mechanics; sanitation department; cafete-
ria; and third shift cleanup; exclusive of all office
clerical employees, all professional employees, and
all guards and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act.
4. Since September 19, 1975, the above-named la-
bor 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 October 22, 1975, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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, Respondent
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 mean-
ing of Section 8(a)(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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board hereby orders that Respondent, Peter
Paul, Inc., Frankfort, Indiana, 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 con-
ditions of employment with Local 512, Retail,
Wholesale and Department Store Union, AFL-CIO,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
1131
All full-time and regular part-time production
and maintenance employees of Respondent's
Frankfort, Indiana, facility, including lead peo-
ple; maintenance department; shipping and re-
ceiving department; processing department,
kitchen, cutting, extruding, enrobing, and nut
roasting; packaging department, wrap and pack,
case pack, box department and line mechanics;
sanitation department; cafeteria; and third shift
cleanup; exclusive of all office clerical employ-
ees, all professional employees, and all 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 Frankfort, Indiana, facility copies of
the attached notice marked "Appendix." B Copies of
said notice, on forms provided by the Regional Di-
rector for Region 25, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices 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.
(c) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
8In 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
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terms and conditions of employment with Local
512, Retail, Wholesale and Department Store
Union, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the 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 represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, 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 full-time and regular part-time produc-
tion and maintenance employees of
Respondent's Frankfort, Indiana, facility, in-
cluding lead people; maintenance depart-
ment; shipping and receiving department;
processing department, kitchen, cutting, ex-
truding, enrobing, and nut roasting; packag-
ing department, wrap and pack, case pack,
box department and line mechanics; sanita-
tion department; cafeteria; and third shift
cleanup; exclusive of all office clerical em-
ployees, all professional employees, and all
guards and supervisors as defined in the Act.
PETER PAUL, INC.