Squibb-Beechnut, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1971

191 N.L.R.B. 64 (N.L.R.B. 1971)

64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dobbs Houses, Inc.-Division of Squibb-Beechnut,
Inc. and Bakery and Confectionery Workers Inter-
national Union of America , AFL-CIO, Local 111.
Case 16-CA-4135
June 11, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a charge filed on October 2, 1970, by Bakery
and Confectionery Workers International Union of
America, AFL-CIO, Local 111, herein called the
Union, and duly served on Dobbs Houses, Inc.-Divi-
sion of Squibb-Beechnut, Inc., herein called the Re-
spondent, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
16, issued a complaint on January 21, 1971, against
Respondent, alleging that Respondent had engaged in
and was engaging 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, com-
plaint, and notice of hearing before a Trial Examiner
were duly served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on December 22, 1970,
following a Board election in Case 16-RC-5196 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about August 19, 1970, and at all times there-
after, 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
January 28, 1971, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint and alleging the invalidity
of the Union's certification and its subsequent amend-
ment.
On February 18, 1971, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February 26,
1971, the Board issued an order transferring the pro-
ceeding 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.
' Official notice is taken of the record in the representation proceeding,
Cases 16-RC-5196 and 16-AC-24, as the term "record" is defined in Secs
102.68 and 102.69(1) of the Board's Rules and Regulations , Series 8, as
amended See LTVElectrosystems, Inc., 166 NLRB 938, enfd 388 F 2d 683
(C.A. 4, 1968), Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v.
Penello, 269 F Supp 573 (D C Va., 1967), Follett Corp., 164 NLRB 378,
enfd 397 F 2d 91 (C.A 7, 1968); Sec. 9(d) of the NLRA
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 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
The record establishes that pursuant to a Stipulation
for Certification Upon Consent Election executed on
May 22, 1969, in Case 16-RC-5196, an election was
conducted on July 2, 1969, in which a majority of the
employees of the Respondent in the stipulated appro-
priate unit selected the Union as its representative for
purposes of collective bargaining. Respondent there-
after filed timely objections to the conduct of the elec-
tion. After an administrative investigation, the Re-
gional Director, on October 8, 1969, issued his Report
on Objections in which he recommended to the Board
that all of the Respondent's objections be overruled and
that the Union be certified as the exclusive collective-
bargaining representative of the employees in the stipu-
lated unit. Respondent filed exceptions with respect to
Objections 3 through 7. Objections 3 through 6 alleged,
in substance, (1) that the Union issued false statements
and raised issues of racial discrimination in its preelec-
tion campaign; (2) that it urged employees to file un-
meritorious charges against the Respondent; (3) that its
agents defaced election notices and forged names to
authorization cards; (4) that Board agents' handling of
the ballot box between polling periods was questiona-
ble; and (5) that the eligible voters were unrepresenta-
tive because of increases in the Respondent's work
force. Objection 7 was an omnibus objection. Consider-
ing said exceptions as a motion for reconsideration, the
Regional Director reopened the investigation to con-
sider the issues raised by the Respondent's Objection 7,
which related to threats by the Union against the per-
son and property of employees and their families.
After further investigation the Regional Director, on
January 13, 1970, issued his Supplemental Report on
Objections, reaffirming all recommendations contained
in his original report. On Jnauary 26, 1970, the Re-
spondent filed with the Board exceptions to the Re-
gional Director's Supplemental Report, with a support-
ing statement. On March 25, 1970, the Board
remanded the proceeding for a hearing only on part of
Objection 7. A hearing was held on April 29, 1970,
before a Hearing Officer who recommended in his re-
port that the part of Objection 7 before him be over-
ruled. Respondent filed exceptions to the Hearing Offi-
cer's Report and a supporting brief. On August 14,
1970, the Board issued its Decision and Certification of
191 NLRB No. 13
DOBBS HOUSES, INC.
Representative in Case 16-RC-5196,2 wherein it found
that the objections raised no material issues of fact or
law warranting reversal of the Hearing Officer's and
Regional Director's findings and recommendations.
Accordingly, it adopted these findings and recommen-
dations and certified the Union as the collective-bar-
gaining representative of Respondent's employees in
the stipulated unit.
The certification named the Bakery and Confection-
ery Workers International Union AFL-CIO, Local
111, as exclusive bargaining agent of Respondent's em-
ployees in the stipulated unit. On October 20, 1970, as
a result of a merger of two bakery internationals, the
Union filed with the Regional Director a petition in
Case 16-AC-24 in which it sought the amendment of
the certification by substituting the name of Bakery and
Confectionery Workers International Union of
America, AFL-CIO, Local 111, in lieu of American
Bakery and Confectionery Workers International
Union, AFL-CIO, Local 111. Respondent opposed the
Union's petition on the grounds that it was an attempt
to raise a question concerning representation; that Re-
spondent's employees did not participate in the merger
decision; that the merger resulted in the complete loss
of identity of the certified union; and that changes re-
sulting from the merger brought about a confusion in
the minds of its employees as to the indentity of their
bargaining representative. After a hearing, the Re-
gional Director, on December 22, 1970, issued a Deci-
sion and Amendment of Certification in which he
found, inter alia, that after the consolidation, the orga-
nization and operation of the Union remained the same
for all practical purposes as the organization and opera-
tion of the certified union. Accordingly, he granted the
amendment sought by the Union to reflect the change
in name . Respondent requested review of the Regional
Director's Decision and Amendment of Certification
and in a telegraphic communication dated January 19,
1971, the Board denied the request on the ground that
it raised no substantial issues warranting review.
In its answer to the complaint, and in its response to
the Notice To Show Cause herein, Respondent denies
not only that its employees in the appropriate unit
designated the Union as their collective-bargaining rep-
resentative but also that the Union's certification is
invalid because the objections to the election should
have been sustained, or alternatively a hearing should
have been held thereon as they allegedly raised material
and substantial issues affecting the results of the elec-
tion.
Respondent's contentions present the same represen-
tation issues which had been considered and deter-
mined by the Board in antecedent representation pro-
ceedings in Cases 16-RC-9156 and 16-AC-24.
' Not published in the bound volumes of the Board's decisions.
65
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances a respondent in a proceeding alleging a
violation of Section 8(a)(5) is not entitled to relitigate
issues which were or could have been litigated in a prior
representation proceeding.'
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the pripr repre-
sentation proceeding, and 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 therefore find that
the Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
We shall, accordingly, grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Tennessee corporation, with its prin-
cipal office in Memphis, Tennesse, is engaged through-
out the United States in the operation of restaurants,
snackbars, and airline catering services. During the
past 12 months it received gross revenue in excess of
$500,000. During the same period, it purchased and
received at its Love Field, Dallas, Texas, location, the
airline catering facility involved herein, goods and
products valued in excess of $50,000 directly from
States of the United States other than the State of
Texas.
We find, on the basis of the foregoing, that Respond-
ent 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
Bakery and Confectionery Workers International
Union of America, AFL-CIO, Local 111, is a labor
organization within the meaning of Section 2(5) of the
Act.
' See Pittsburgh Plate Glass Co. v N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board , Sees. 102.67(f) and 102. 69(c).
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All production and maintenance employees, in-
cluding loaders, helpers, dispatchers, floor leaders,
dishroom, snacks, silver, cream, salad, hot and
cold food employees, but excluding all other em-
ployees, office clerical employees, guards, watch-
men and supervisors as defined in the Act, em-
ployed at the Respondent's facility located at Love
Field in the city of Dallas, Texas.
2. The certification
On July 2, 1969, a majority of the employees of
Respondent in said unit, in a secret ballot election con-
ducted under the supervision of the Regional Director
for Region 16, designated the Union as their represent-
ative for the purpose of collective bargaining with the
Respondent. The Union was certified as the collective-
bargaining representative of the employees in said unit
on August 14, 1970, 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 August 19, 1970, and at all
times thereafter, the Union has requested the Respond-
ent to bargain collectively with it as the exclusive col-
lective-bargaining representative of all the employees in
the above-described unit. Commencing on or about
August 25, 1970, 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.
Accordingly, we find that the Respondent has, since
August 25, 1970, 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, Respondent 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 the Respondent set forth in section
III, above , occurring in connection with its operations
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 commerce.
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 (1) of the Act, we shall order that
it cease and desist therefrom, and, upon request, bar-
gain, collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached, embody such under-
standing in a signed agreement.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial period of certification as begin-
ning on the date Respondent commences 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; Commerce
Company d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421, enfd. 350 F.2d 57 (C.A. 10).
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. Dobbs Houses, Inc.-Division of Squibb-Beech-
nut, Inc ., is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Bakery and Confectionery Workers International
Union of America, AFL-CIO, Local 111, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees, in-
cluding loaders, helpers, dispatchers, floor leaders,
dishroom, snacks, silver, cream, salad, hot and cold
food employees, but excluding all other employees,
office clerical employees, guards , watchmen and super-
visors as defined in the Act, employed at the Respond-
ent's facility located at Love Field in the city of Dallas,
Texas, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since August 14, 1970, the above-named labor
organization has been and now is the certified and ex-
clusive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing on or about August 25, 1970, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
DOBBS HOUSES, INC. 67
gaining representative of all the employees of Respond-
ent in the appropriate unit, Respondent has engaged 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 in-
terfering with, restraining , and coercing , employees in
the exercise of the rights guaranteed to them in Section
7 of the Act, and thereby has engaged in and is engag-
ing 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.
pies_of said notice, on forms provided by the Regional
Director for Region 16 after being duly signed by Re-
spondent's representative, shall be posted by Respond-
ent immediately upon receipt thereof, and be main-
tained 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 Respondent to insure that said notices
are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Dobbs Houses,
Inc.-Division of Squibb-Beechnut, 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 Bakery and Confectionery Work-
ers International Union of America, AFL-CIO, Local
111, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All production and maintenance employees, in-
cluding loaders, helpers, disptachers, floor leaders,
dishroom , snacks, silver , cream, salad , hot and
cold food employees, but excluding all other em-
ployees, office clerical employees, guards, watch-
men and supervisors as defined in the Act, em-
ployed at the Respondent's facility located at Love
Field in the city of Dallas, Texas.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the rights guaran-
teed 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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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.
(b) Post at its Love Field, Dallas, Texas, facility
copies of the attached notice marked "Appendix."4 Co-
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 be changed
to 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 conditons of employment with Bakery
and Confectionery Workers International Union
of America, AFL-CIO, Local 111, as the exclu-
sive representative of the employees in the bar-
gaining 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 Sec-
tion 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 de-
scribed below, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody
such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance employees,
including loaders, helpers, dispatchers, floor
leaders, dishroom , snacks, silver, cream,
salad, hot and cold food employees, but ex-
cluding all other employees, office clerical
employees, guards, watchmen and super-
visors as defined in the Act, employed at the
Respondent's facility located at Love Field in
the city of Dallas, Texas.
DOBBS HOUSES, INC.,-
DIVISION OF SQUIBB -
BEECHNUT, INC.
(Employer)
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dated By days from the date of posting and must not be altered,
(Representative) (Title) defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
This is an official notice and must not be defaced by Office, Room 8A24, Federal Office Building, 819 Tay-
anyone. for Street, Fort Worth, Texas 76102, Telephone 817-
This notice must remain posted for 60 consecutive 334-2921.