Superior Feed Mills

National Labor Relations Board - Board Decisions

Jun 21, 1971

191 N.L.R.B. 358 (N.L.R.B. 1971)

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD-
Superior Feed Mills and General Drivers, Chauffeurs,
Teamsters and Helpers affiliated with the Interna-
tional Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, Local Union 886.
Case , 16-CA -4170
June 21, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
,Upon an original charge and first amended charge
filed on November 2 and December 28, 1970, respec-
tively, by General Drivers, Chauffeurs, Teamsters and
Helpers affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local Union 886, herein called the Union,
and duly served on Superior Feed Mills, herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 16, issued a complaint on December 30, 1970,
as amended by Board Order of March 19, 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 August 18, 1970,
following a Board Election in Case 16-RC-5219 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 October 16, 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 11 and March 25, 1971, the Respondent filed
its answer and amended answer, respectively, to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On February 4, 1971, counsel for the General Coun-
sel filed directly with the Board a Motion To Strike
Portions of Respondent's Answer to Complaint and
' Official notice is taken of the record in the representation proceeding,
Case 16-RC-5219, as the term "record" is defined in Secs. 102.68 and
102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystems, 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 (CA. 7, 1968); Sec. 9(d) of the NLRA
Motion for Summary Judgment.' Subsequently, on
February 11, 1971, the Board issued an order transfer
ring 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 there,
after filed replies to said motions.'
Pursuant to the provisions of, Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Boardhas detegated.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
In its replies the Respondent contends, in substance,
that it be permitted to relitigate the issues in Case
16-RC-5219 on the ground that there are special cir-
cumstances herein which require the Board to reexam-
ine the determination which it made in the prior repre-
sentation proceeding. These alleged special cir-
cumstances, the Respondent argues, arise from the
Board's allegedly erroneous legal determinations of the
following issues raised before the Board in Case 16-
RC-5219, viz- whether Trucking and Maintenance
Supervisor G. B. Lawson was a supervisor within the
meaning of the Act; whether Lawson's preelection
union activities coerced, intimidated, and prevented the
employees from expressing their free choice in the elec-
tion, thereby destroying the Board's required "labora-
tory conditions"; and whether Respondent's alleged
initial knowledge of Lawson's union activities pre-
cluded the Respondent from objecting to the election in
view of the fact that the Respondent warned Lawson
on two occasions, and had no knowledge, of Lawson's
continued union activities during the 6-week period
prior to the election.
Upon the record before us, including the record in
Case 16-RC-5219, we find no merit in the Respond-
ent's contention. The election in the representation case
By Order of March 19, 1971, the Board granted the General Counsel's
motion to withdraw its Motion To Strike Portions of the Respondent's
Answer to Complaint. In addition, the Board granted the General Counsel's
motion to amend the complaint, delete the name "Superior Feed Mills, Inc."
and to substitute therefor "Superior Feed Mills" and make allegations con-
cerning the status and business operation of the Respondent, Superior Feed
Mills, based upon information furnished by the Respondent's attorney. The
Board also permitted the Respondent to file an amended answer to the
complaint and any supplemental or amended relies to the Motion for Sum-
mary Judgment it deemed appropriate. The Respondent filed an amended
answer to the complaint on March 25 which did not controvert the changes
made in the complaint by the Board Order of March 19, 1971.
' In its answer to the complaint and in its reply to the General Counsel's
Motion To Strike, the Respondent raised the issue that the complaint al-
leged as Respondent the wrong legal entity. However, in view of the allega-
tions of the amended complaint that Superior Feed Mills is the proper
Respondent and of the admissions thereof by the Respondent in its amended
answer to the complaint, the issue of the legal entity is mooted
191 NLRB No. 70
SUPERIOR FEED MILLS
was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election between the Respondent,
Superior Feed Mills, and the Unions Upon .conclusion
of the election the parties were furnished with.atally ,
of,=ballots which reflected that there were approxi-
mately 49 eligible voters and that 50 ballots were cast,
of which 37 were for, and 11 were against, the Union
and 2 were challenged. The challenged ballots were
insufficient in number to affect the results of the elec-
tion. Thereafter, the Respondent filed objections to
conduct affecting the results of the election. The Re-
gional Director conducted an investigation and, on Oc-
tober 21, 1969, issued and duly served upon the parties
his Report on Objections, in which he recommended
that the Respondent's objections be overruled and that
the Union be certified. On November 14, 1969, the
Respondent filed timely exceptions with the Board to
the Regional Director's Report, and on January 12,
1970, the Board ordered that an evidentiary hearing be
held to resolve the issues raised by the objections.
Pursuant to the Board's Order a hearing was held,
and on April 23, 1970, the Hearing Officer issued and
duly served on the parties his Report on Objections in
which he recommended that the Respondent's objec-
tions be overruled in their entirety and that the Union
be certified. The Respondent filed exceptions to the
report and a supporting brief. On August 18, 1970, the
Board adopted the Hearing Officer's findings and
recommendations and certified the Union as the exclu-
sive collective-bargaining representative of the em-
ployees in the appropriate unit.
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.4
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior 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 any
such special circumstances herein which would require
the Board to reexamine the decision made in the repre-
sentation proceeding. We therefore find that the Re-
spondent has not raised any issue which is properly
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:
4 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146 , 162 (1941);
Rules and Regulations of the Board, Secs 102.67(f) and 102.69(c)
FINDINGS OF FACT
I. THE ,BUSINESS OF THE RESPONDENT
359
The Respondent, Superior Fbed,Mills,- has'been; at
all times material herein, a division of Anderson, Clay-
ton and Company, a corporation duly organized under,
and existing by virtue of, the laws of the State of Dela-
ware. Superior Feed Mills, at all times material herein,
has maintained and is maintaining an office and place
of business in Oklahoma City, Oklahoma, at 2100
South Robinson, herein called its plant, where it is
engaged in the business of manufacturing and distribut-
ing feed and related products.
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 effectu-
ate the policies of the Act to assert jurisdiction herein.
IL THE LABOR ORGANIZATION INVOLVED
General Drivers, Chauffeurs, Teamsters and Helpers
affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, Local Union 886, is a labor organization
within the meaning of Section 2(5) of the Act.
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 warehousemen, truckdrivers, and lead-
men, employed by Superior Feed Mills at its plant
located at 2100 South Robinson, Oklahoma City,
Oklahoma, but excluding all seasonal and/or tem-
porary employees, guards, watchmen and super-
visors as defined in the Act, as amended.,
2. The certification
On August 22, 1969, a majority of the employees of
Respondent in said unit, in a secret ballot election con-
ducted pursuant to a Stipulation for Certification Upon
Consent Election, under the supervision of the Re-
gional Director for Region 16, designated the Union as
their representative for the purpose of collective bar-
gaining with the Respondent.
The Union was certified as the collective-bargaining
representative of the employees in said unit on August
18, 1970, and the Union continues to be such exclusive
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative within the meaning of Section 9(a) of the
Act.
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
B. The Request To Bargain and
Respondent's Refusal
Commencing on or about October 2, 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
October 16, 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
October 16, 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).
CONCLUSIONS OF LAW
1. Superior Feed Mills is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. General Drivers, Chauffeurs, Teamsters and Help-
ers affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union 886, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees, in-
cluding warehousemen, truckdrivers, and leadmen,
employed by Superior Feed Mills at its plant located at
2100 South Robinson, Oklahoma City, Oklahoma, but
excluding all seasonal and/or temporary employees,
guards, watchmen and supervisors as defined in the
Act, as amended, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since August 18, 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 October 16, 1970, 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 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.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act , as amended, the National Labor Relations
Board hereby orders that Respondent, Superior Feed
Mills, 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 General Drivers, Chauffeurs,
Teamsters and Helpers affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
SUPERIOR FEED MILLS 361
men and Helpers of America, Local Union 886, as the
exclusive bargaining representative of its employees in
the following appropriate unit:
All production and maintenance employees, in-
cluding warehousemen, truckdrivers, and lead-
men, employed by Superior Feed Mills at its plant
located at 2100 South Robinson, Oklahoma City,
Oklahoma, but excluding all seasonal and/or tem-
porary employees, guards, watchmen and super-
visors as defined in the Act, as amended.
(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 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 Oklahoma City, Oklahoma, plant co-
pies of the attached notice marked "Appendix."5 Co-
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 notice 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.
' 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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with General
Drivers, Chauffeurs , Teamsters and Helpers affi-
liated with the International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Help-
ers of America, Local Union 886, as the exclusive
representative 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 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 warehousemen, truckdrivers, and
leadmen , employed by Superior Feed Mills at
its plant located at 2100 South Robinson,
Oklahoma City , Oklahoma, but excluding all
seasonal and/or temporary employees,
guards, watchmen and supervisors as defined
in the Act, as amended.
SUPERIOR FEED
MILLS
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Room 8A24, Federal Office Building, 819 Tay-
lor Street, Fort Worth, Texas 76102, Telephone 817-
334-2921.
WE WILL NOT refuse to bargain collectively