S. Prayer & Co.

National Labor Relations Board - Board Decisions

Sep 28, 1977

232 N.L.R.B. 495 (N.L.R.B. 1977)

S. PRAWER & COMPANY
S. Prawer & Company and Industrial Union of
Marine and Shipbuilding Workers of America,
AFL-CIO. Case l-CA-12871
September 28, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge filed on March 14, 1977, by
Industrial Union of Marine and Shipbuilding Work-
ers of America, AFL-CIO, herein called the Union,
and duly served on S. Prawer & Company, herein
called Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 1, issued a complaint and notice
of hearing on April 12, 1977, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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 Adminis-
trative Law Judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the
record shows that on September 17, 1976, following a
Board election in Case 1-RC-14287, the Union was
duly certified as the exclusive collective-bargaining
representative of Respondent's employees in the unit
found appropriate;l and that, commencing on or
about October 5, 1976, 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
April 25, 1977, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On May 25, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on June 9, 1977, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. Respondent thereafter filed a response to
Notice To Show Cause, entitled "Opposition of
Respondent to Motion for Summary Judgment and
for Transfer to Board for Decision."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
I Official notice is taken of the record in the representation proceeding,
Case I-RC-14287, as the term "record" is defined in Sees. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosvsrems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
232 NLRB No. 78
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 denies the
validity of the certification based on its election
objections, seeking a hearing thereon (1) to present
an employee affidavit and investigatory statement
which the Board previously refused to consider in the
underlying representation case because untimely
filed and (2) to present evidence showing a 70-
percent turnover in the bargaining unit since the
election. In the Motion for Summary Judgment,
counsel for the General Counsel contends that
Respondent has raised no litigable issue in this
proceeding and that summary judgment is warrant-
ed. We agree.
Review of the record herein, including that in the
underlying representation proceeding, Case l-RC-
14287, shows that, pursuant to a Stipulation for
Certification Upon Consent Election, an election was
held on March 19, 1976, which the Union won eight
to six with no challenged ballots. Respondent filed
timely objections to the election alleging material
misrepresentations by the Union, including (1) a last-
minute rumor that Respondent was moving its
business, (2) an allegation that Respondent had
discharged an employee for union activities, and (3)
statements in a newsletter to employees regarding
increased wages and benefits negotiated by the
Union with another employer. After an investigation,
the Regional Director issued his Report on Objec-
tions on June 7, 1976, finding that (1) the rumor of
Respondent's moving was initiated and discussed at
an informal employee meeting and none of the
employees interviewed indicated that the rumor
controlled their votes; (2) the evidence did not
support Respondent's contention that the Union had
made misrepresentations as to the discharge of an
employee for union activity, which discharge was the
subject of an unfair labor practice charge, filed 2
days before the election and subsequently dismissed;
and (3) Respondent had sufficient time to respond to
the statements in the newsletter circulated 9 days
before the election and, in any event, the statements
were not material misrepresentations, if misrepresen-
tations at all. Based on the foregoing, the Regional
Director recommended that the objections be over-
ruled and a certification be issued.
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, as amended.
495
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent filed exceptions and a brief in support
contending that (1) the rumor that Respondent was
going to move was tantamount to a prediction of
discharge and had destroyed laboratory conditions
and influenced votes; (2) employees could not
evaluate union statements regarding the alleged
discharge and filing the unfair labor practice charge
2 days before the election was a campaign "gim-
mick"; and (3) Respondent did not have time to
respond to the material misrepresentations contained
in the newsletter. Respondent also contended that a
hearing was warranted on its objections to resolve
credibility issues relating to its first and second
objections, particularly with respect to the Regional
Director's finding that no employee interviewed had
indicated that the rumor of the move had controlled
his vote. Subsequently, by letters dated July 6 and 16
and August 20, 1976,2 Respondent sought to file with
the Board (1) an employee affidavit allegedly
controverting the Regional Director's finding that no
votes were controlled by the rumor that Respondent
would move and (2) a copy of an unsigned statement
to the same effect taken from the same employee by
a Board agent during the investigation of Respon-
dent's objections. By letters dated July 13 and 21 and
August 25, 1976, the Assistant Executive Secretary
rejected these submissions on the grounds that such
material, being supplemental, supportive, or redun-
dant, was untimely submitted.3 On September 17,
1976, the Board issued its Decision and Certification
of Representative, adopting the Regional Director's
findings and recommendations and specifically
finding that Respondent's exceptions raised no
material or substantial issues of fact or law warrant-
ing reversal of the Regional Director's findings or
requiring a hearing. Accordingly, the Union was
certified. It thus appears that Respondent is raising
issues, including that of a hearing to present its
objections and the untimely filed documents submit-
ted in support thereof, which had been raised and
determined in the underlying 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
2 These letters and the replies thereto from the Board are attached to
Respondent's response as Exhs. I through 7.
3 In its letter dated July 16, 1976, Respondent acknowledged that the
affidavit was postmarked after June 30, 1976, the date its exceptions were
due, but requested that it be made a part of the record because it "adds no
new evidence nor raises any new issue beyond those reflected in said
exceptions and brief." In any event, we note that, with respect to this
affidavit and to the unsigned investigatory statement, it is welt established
that the "record" in the representation case or in this related unfair labor
practice case as defined in Sees. 102.68 and 102.69(g) of the Board's Rules
and Regulations, Series 8, as amended, does not include either such affidavit
or statement. Prestolile Wire Division, Eltra Corporation, 226 NLRB 327
(1976).
to relitigate issues which were or could have been
litigated in a prior representation proceeding.4
Except as follows, all issues raised by Respondent
in this proceeding were or could have been litigated
in the prior representation proceeding, and Respon-
dent 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.5
We also reject Respondent's contention that it is
entitled to a hearing to present previously unavail-
able evidence of employee turnover which allegedly
would establish that 70 percent of the employees
currently employed in the bargaining unit did not
participate in the election. It is well established that
Respondent's obligation to bargain extends for 1
year from the date of the certification and that,
contrary to Respondent, employee turnover does not
constitute "unusual circumstances" within the mean-
ing of Ray Brooks v. N.LR.B., 348 U.S. 96 (1954),6
and therefore a hearing on employee turnover is not
warranted. Further, it is presumed that new employ-
ees desire representation in the same proportions as
other employees. We therefore find that Respondent
has not raised any issue which is properly litigable in
this unfair labor practice proceeding. We shall,
accordingly, grant the Motion for Summary Judg-
ment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Maine corporation with its principal
place of business in Bath, Maine, is now and
continously has been engaged at said location in the
wholesaling, sale, and distribution of food products.
Respondent in the course and conduct of its business
causes, and continously has caused at all times herein
mentioned, large quantities of foodstuffs and food
products used by it in the wholesaling, sale, and
distribution of food products to be purchased and
transported in interstate commerce from and through
various States of the United States other than the
4 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
5 In its answer Respondent admits that the Union had requested
bargaining on September 29, 1976, and that it had refused on October 5,
1976, and continues to do so. Its affirmative contention that the Union
failed to renew its initial request prior to the filing of the charge herein is
without merit. It is obvious that after Respondent's initial refusal any
further requests for bargaining would have been futile and are therefore
unnecessary. Williams Energy Company, 218 NLRB 1080 (1975).
6 Diamond Crystal Salt Company, 222 NLRB 714 (1976); Nichols-
Homeshield. Inc., 214 NLRB 682 (1974).
496
S. PRAWER & COMPANY
State of Maine. Respondent in the course and
conduct of its business annually receives goods
valued in excess of $50,000 directly from points
outside Maine.
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
Industrial Union of Marine and Shipbuilding
Workers of America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
I11. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All truckdrivers and warehousemen employed
by Respondent at its 120 Commercial Street,
Bath, Maine location, but excluding office clerical
employees, professional employees, salesmen,
student summer employees, guards and supervi-
sors as defined in the Act.
2. The certification
On March 19, 1976, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 1, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on September 17, 1976, 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 29, 1976, and
at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about October 5, 1976, and continu-
ing at all times thereafter to date, 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 October 5, 1976, 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(a)(5) and (I) 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 com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate 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. S. Prawer & Company is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Industrial Union of Marine and Shipbuilding
Workers of America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
497
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. All truckdrivers and warehousemen employed
by Respondent at its 120 Commercial Street, Bath,
Maine location, but excluding office clerical employ-
ees, professional employees, salesmen, student sum-
mer 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 September 17, 1976, 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 October 5, 1976, 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(aX5) 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(a)(l) 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
Relations Board hereby orders that the Respondent,
S. Prawer & Company, Bath, Maine, 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 Industrial Union of
Marine and Shipbuilding Workers of America, AFL-
CIO, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All truckdrivers and warehousemen employed
by Respondent at its 120 Commercial Street,
Bath, Maine location, but excluding office clerical
employees, professional employees, salesmen,
student summer employees, guards and supervi-
sors 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 Bath, Maine, location copies of the
attached notice marked "Appendix." 7 Copies of said
notice, on forms provided by the Regional Director
for Region 1, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable 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 i, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
7 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 Indus-
trial Union of Marine and Shipbuilding Workers
of America, AFL-CIO, as the exclusive represen-
tative 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:
498
S. PRAWER & COMPANY
All truckdrivers and warehousemen em-
ployed by Respondent at its 120 Commercial
Street, Bath, Maine location, but excluding
office clerical employees, professional em-
ployees, salesmen, student summer employ-
ees, guards and supervisors as defined in the
Act.
S. PRAWER & COMPANY
499