Singleton Packing Corp.

National Labor Relations Board - Board Decisions

Aug 31, 1967

167 N.L.R.B. 304 (N.L.R.B. 1967)

304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Singleton Packing Corp . and Local 104 , Hotel & TRIAL EXAMINER'S DECISION
Restaurant Employees & Bartenders International
Union , AFL-CIO. Case 12-CA-3774
August 31, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On June 27, 1967, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision.
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
powers in connection with this case to a three-
member panel.
The Board has considered the Trial Examiner's
Decision, the Respondent's exceptions,' and the
entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Singleton Packing Corp.,
Tampa, Florida, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as modified
herein:
Delete from paragraph 2(b) that part thereof
which reads "to be furnished" and substitute
therefor "on forms to be provided ...."
' In his Decision, the Trial Examiner erroneously states that the
Respondent, in its answer to the notice to show cause, did not dispute the
facts in the representation proceeding The Respondent denies paragraph
6 of the complaint, contends that the Board's determination in the
representation case was based on insufficient facts, and requests the
Board to reconsider such determination and direct a hearing at which it of-
fers to prove the facts alleged in an affidavit executed by its vice president
However, we find, in agreement with the Trial Examiner, that all the is-
sues raised herein by the Respondent have been previously considered by
the Board, and the facts alleged in the affidavit are not newly discovered
or previously unavailable Accordingly, the Respondent's requests for
reconsideration and for a hearing are denied
STATEMENT OF THE CASE
THE REPRESENTATION PROCEEDING'
CHARLES W. SCHNEIDER , 1 rial Examiner . Upon peti-
tion for certification as collective -bargaining representa-
tive filed by Local 104, Hotel & Restaurant Employees
& Bartenders International Union , AFL-CIO, herein
called the Union , the Regional Director for Region 12 of
the Board on April 18, 1966, approved a stipulation for
certification upon consent election executed by Singleton
Packing Corporation , Tampa, Florida, herein called the
Respondent , and by the Union . The appropriate bargain-
ing unit was stipulated to be the unit set out hereinafter.
An election pursuant to the stipulation was held on
May 9, 1966, which the Union lost . Upon objections to
the conduct of the election filed by the Union , and after
investigation thereof, and over the opposition of the
Respondent , the election was set aside by the Board on
August 24 , 1966, and a second election directed. Pur-
suant thereto , a second election by secret ballot was con-
ducted on October 13, 1966, under the direction and su-
pervision of said Regional Director, in which the Union
received a majority of the valid votes cast . The Respond-
ent filed timely objections to the election , in which it
requested that the May 9, 1966, election be certified as
expressing the true wishes of the employees , or in the al-
ternative that the October 1966 election be set aside and
a new election directed , and that in the event of a dispute
a hearing be held to resolve any substantial issues raised.
On November 25, 1966, the Regional Director, after in-
vestigation , issued a report on objections in which he
found the Respondent's objections without merit, and
recommended that they be overruled and that the Union
be certified as bargaining representative of the employees
involved . Thereafter , the Respondent filed timely excep-
tions to the Regional Director's report on objections. On
February 24, 1967, the Board issued its Supplemental
Decision and Certification of Representative in which it
found the Respondent 's exceptions raised "no material or
substantial issues of fact or law warranting reversal of the
Regional Director 's findings, conclusions, and recom-
mendations ." Accordingly , the Board adopted the Re-
gional Director 's report and certified the Union as the
bargaining representative under the Act.
THE COMPLAINT CASE
On March 3, 1967, the Union filed the unfair labor
practice charge involved in the instant case, in which it al-
leged that since on or about March 1, 1967, the Respond-
ent has refused to bargain with the Union.
On March 31, 1967, the General Counsel, by the Re-
gional Director of Region 12, issued a complaint alleging
that since on or about February 28, 1967, Respondent
had committed unfair labor practices in violation of Sec-
tions 8(a)(1) and (5) and 2(6) and (7) of the Act by refus-
ing to bargain with the Union upon request. In due course
the Respondent filed its answer to the complaint in which
certain allegations of the complaint were admitted and
others denied.
' Official notice is taken of the representation proceeding, Case
12-RC-2460 See Section 9(d) of the National Labor Relations Act
167 NLRB No. 36
SINGLETON PACKING CORP.
In its answer the Respondent admits the following al-
legations of the complaint: (1) jurisdictional, (2) that the
Union is labor organization, (3) that the unit is ap-
propriate, (4) that the Union requested Respondent on or
about February 28, 1967, to bargain collectively, and (5)
that the Respondent on or about March 2, 1967, and
thereafter refused and continues to refuse to bargain col-
lectively with the Union. Respondent denied the allega-
tions contained in paragraphs 6, 7, and 10 of the com-
plaint wherein it is alleged that (1) the employees
designated and selected the Union in the October 13,
1966, election as their bargaining representative, (2) the
Board certified the Union, and (3) the Union has been
and is the representative of a majority of the employees
in the appropriate unit. The Respondent further denied
every allegation in the complaint relating the facts of the
representation proceeding in Case 12-RC-2460 and the
allegation that the Respondent committed unfair labor
practices.
Thereafter, the General Counsel filed a motion to
strike certain portions of Respondent's answer to the
complaint along with a motion for summary judgment
wherein he contends that the Respondent's answer, in-
sofar as it denies all allegations relating to the representa-
tion proceeding, is a sham and was interposed for purpose
of delay, and that the facts of the official records and
other facts submitted with the motion establish the allega-
tions of the complaint as a matter of law, and that there-
fore there is no necessity for a hearing.
On April 26, 1967, 1 issued an order to show cause on
the motion for summary judgment, in which the parties
were directed to show cause on or before May 10, 1967,
as to whether or not the motion should be granted.
Responses were thereafter filed by the Respondent and
the General Counsel.
In its brief in response and in opposition to the motion
for summary judgment, the Respondent denied that its
answer was sham or given with any intent to delay.
Respondent further contended that its denial of those por-
tions of the complaint relating to the representation
proceeding did not dispute the facts of that proceeding,
but rather the conclusions arrived at by the Board and the
Regional Director. As affirmative defense to the allega-
tions contained in the complaint and motion for summary
judgment, Respondent alleges that the Board improperly
and unlawfully set aside the election of May 9, 1966, in
which a majority of the employees voted against the
Union, improperly conducted a second election, and has
failed to provide Respondent with a hearing at any time
during the representation proceeding despite Respond-
ent's several requests . In support of its answer and
response, Respondent submitted an affidavit of its vice
president, John E. Duggan, deposing certain facts relating
to the representation proceeding.
RULING ON MOTION TO STRIKE CERTAIN PORTIONS OF
RESPONDENT'S ANSWER
In view of Respondent's assertion in its brief that it
does not contest the facts of the representation proceed-
ing, but merely denies the validity of the result, the allega-
t Macomb Pottery Company, et al v N L R B , 376 F 2d 450 (C A 7);
Howard Johnson Company, 164 N LRB 801,-Metropolitan Life Insur-
and Company, 163 NLRB 579. See Pittsburgh Plate Glass Co v.
N L R B, 313 U S 146, 162, National Labor Relations Board Rules and
Regulations , Series 8, as amended, Sec 102 67(f)
305
tions of paragraph 6 of the complaint are now deemed ad-
mitted. The Respondent's answer may stand, however,
insofar as it asserts the invalidity of the certification. Ab-
sent a pleaded denial to that effect, the Respondent would
have no issue to contest before the courts-if it desires
such.
RULING ON MOTION FOR SUMMARY JUDGMENT
The Respondent opposes the General Counsel's mo-
tion for summary judgment. The Respondent contends
that the May 9, 1966, election, which the Union lost, was
erroneously set aside, and that the October 13, 1966,
election should have been nullified on the basis of
Respondent's objections, and that the certification is con-
sequently invalid. Additionally, the Respondent contends
that it was improperly deprived of a hearing on its objec-
tions to the October 13, 1966, election and urges that its
answer to the complaint raises substantial and material is-
sues of fact which cannot be resolved without a hearing.
The questions as to the validity of the two elections,
the merit of the Respondent's contentions with respect to
each, and whether the Union should be certified, were
raised by Respondent in its objections to conduct affect-
ing outcome of second election, and in its exceptions to
the Regional Director's reports on objections to the elec-
tions, and were decided by the Board in the representa-
tion proceeding. It is thus clear that the Respondent seeks
to relitigate those issues here. This the Respondent may
not do before the Trial Examiner.
It is established Board policy, in the absence of newly
discovered or previously unavailable evidence, not to
permit litigation before a Trial Examiner, in a complaint
case, of issues which were or could have been litigated in
a prior related representation proceeding.2 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 and material issues are
raised;3 and that there are not such issues here has been
effectively decided by the Board.
The Trial Examiner has no authority to review the
Board's final disposition of the representation issues or to
question its conclusions based on the existing record. The
Respondent is free, in exceptions to this Decision, to
request the Board to reconsider the determinations in the
representation case, and, in the event of an unfavorable
final order by the Board the Respondent may request
review of those determinations in an appropriate court of
appeals. At this stage of the proceedings, however, absent
newly discovered or previously unavailable evidence, the
Board's disposition of the representation matters is the
law of the case and binding on the Trial Examiner. No
newly discovered or previously unavailable evidence is
offered by the Respondent. None of the facts asserted in
Vice President Duggan's affidavit are claimed to be such.
The refusal to bargain being conceded there are no is-
sues litigable before a Trial Examiner, and therefore no
matter requiring hearing. Accordingly, the General Coun-
sel's motion for summary judgment is granted, and I
hereby make the following further:
3 O K Van and Storage, Inc, 127 NLRB 1537, enfd. 297 F.2d 74
(C A 5) And see N L R.B v Air Control Products of St Petersburg,
Inc , 335 F.2d 245, 249 (C.A. 5) "If there is nothing to hear, then a hear-
ing is a senseless and useless formality " Cf United States Rubber Com-
panyv N L R B, 373 F 2d 602 (C A 5)
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Florida corporation with its principal
office and place of business in Tampa , Florida , where it
is engaged in the business of operating a seafood products
processing plant . In the course and conduct of its busi-
ness, Respondent has an annual gross volume of business
in excess of $500 ,000 and annually ships products valued
in excess of $50,000 directly to points outside the State
of Florida. Respondent annually sells seafood products
valued in excess of $50,000 to one or more branches of
the Armed Forces of the United States.
Respondent is an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now , and has been at all times material
herein , 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 employed
by the Respondent at the Tampa, Florida, plant located
at 50th Street and ACL Railroad; excluding all office
clerical employees, guards, watchmen, professional em-
ployees, and supervisors as defined in the Act.
On October 13, 1966, a majority of Respondent's em-
ployees 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 12 of the National Labor Relations
Board.
On February 24, 1967, the National Labor Relations
Board, after consideration of Respondent's objections to
the above-described election certified the Union as the
exclusive collective-bargaining agent of the employees in
the said unit.
At all times since February 24, 1967, and continuously
to the present, the Union has been the representative for
the purpose of collective bargaining of the employees in
the said unit, and, by virtue of Section 9(a) of the Act, has
been and is now the exclusive representative of all the
employees in said unit for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment.
Since on or about February 28, 1967, and specifically
by telegram dated February 28, 1967, the Union
requested and continues to request Respondent to bar-
gain collectively with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment.
4 The purpose of this provision is to ensure that the employees in the
appropriate unit will be accorded the statutorily prescribed services of
their selected bargaining agent for the period provided by law. See Mar-
Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company dl bl a
Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C A. 5); Burnett
Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A.
10).
On or about March 2, 1967, Respondent refused and
continues to refuse the Union's requests for bargaining.
By such action the Respondent has refused to bargain
collectively in violation of Section 8(a)(5) of the Act and
has interfered with, restrained, and coerced 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.
Upon the foregoing findings and conclusions and the
entire record in the case, pursuant to Section 10(c) of the
Act, I recommend that the Board issue the following:
ORDER
A. For purposes of determining the effective period of
duration of the certification , e initial year of certifica-
tion 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.4
B. Singleton Packing Corp., Tampa , Florida, its of-
ficers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 104,
Hotel & Restaurant Employees & Bartenders Interna-
tional Union , AFL-CIO, as the exclusive collective-bar-
gaining representative of the employees in the following
appropriate bargaining unit:
All production and maintenance employees em-
ployed by the Respondent at the Tampa , Florida,
plant , located at 50th Street and ACL Railroad, ex-
cluding all office clerical employees , guards,
watchmen, professional employees , and supervisors
as defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent the employees in said ap-
propriate unit as the exclusive bargaining representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request , bargain collectively with Local 104,
Hotel & Restaurant Employees & Bartenders Interna-
tional Union , 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 agree-
ment any understanding reached.
(b) Post at its Tampa, Florida, plant , copies of the at-
tached notice marked "Appendix."5 Copies of said
notice , to be furnished by the Regional Director for Re-
gion 12 , after being duly signed by Respondent's author-
ized representative , shall be posted by the Respond-
ent 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 al-
tered , defaced , or covered by any other material.
' 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
SINGLETON PACKING CORP. 307
(c) Notify, the Regional Director for Region 12, in Tampa, Florida, plant, located at 50th Street and
writing, within 20 days from the receipt of this Decision, ACL Railroad, excluding all office clerical em-
what steps have been taken to comply herewith.6 ployees, guards, watchmen, professional employees,
6 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 12, 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 Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act , as amended , we hereby notify you that:
WE WILL NOT refuse to bargain collectively with
Local 104 , Hotel & Restaurant Employees & Bar-
tenders International Union , AFL-CIO as the ex-
clusive bargaining representative of all the following
employees:
All production and maintenance employees at our
and supervisors as defined in the Act.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce employees in the exer-
cise of their rights under the Act.
WE WILL bargain collectively with the Union as
exclusive bargaining representative of the employees
in the bargaining unit, and if an understanding is
reached we will sign a contract with the Union.
Dated By
SINGLETON PACKING CORP.
(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, 706 Federal
Building, 500 Zack Street, Tampa, Florida 33602,
Telephone 228-7711.
310-5410-70-21