Tobacco Processors, Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1970

187 N.L.R.B. 519 (N.L.R.B. 1970)

TOBACCO PROCESSORS, INC. 519
Tobacco Processors , Incorporated and Tobacco Work-
ers International Union, AFL-CIO. Case
I1-CA-4297
December 29, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On September 21, 1970, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
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 Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and brief, and the entire record in the
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 Recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, Tobacco Processors, Incorporated, Wil-
son, North Carolina, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.'
I Substitute "20" for "10" in fn 8 of the Trial Examiner's Decision
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Issue
CHARLES W. SCHNEIDER, Trial Examiner: The case arises
on a Motion for Summary Judgment filed by counsel for
the General Counsel upon an admitted refusal by the
Respondent to bargain with the certified charging Union,
I Administrative or official notice is taken of the record in the
representation proceeding, Case lI-RC-2983, as the term "record" is
defined in Section 102 68 and 102 69(f) of the Board' s Rules (Rules and
Regulations and Statements of Procedure, National Labor Relations
Board , Series 8 , as amended) See LTV Electrosystems, Inc, 166 NLRB
the Respondent contending that it was improperly denied a
hearing on its objections to the election in the related
representation case and that the certification of the Union
is invalid.
The Representation Proceeding i
Pursuant to a Stipulation for Certification Upon Consent
Election executed by Tobacco Processors, Incorporated,
the Respondent, and Tobacco Workers International
Union, AFL-CIO, the Union, and approved by the
Regional Director for Region 11 of the Board on October 2,
1969, an election by secret ballot was conducted in a
stipulated unit in the above-entitled proceeding on October
23, 1969, under the direction and supervision of the
Regional Director. At the conclusion of the election, the
parties were furnished a tally of ballots which showed that
of approximately 587 eligible voters, 223 cast valid ballots
for the Union, 217 cast valid ballots against, and 15 ballots
were challenged; 12 ballots were found void.
On October 28, 1969, the Respondent filed timely
objections to the election, on the ground, in sum, that the
Board agent in charge of the election had conducted it
improperly and had additionally incorrectly ruled on
challenged ballots.
On January 22, 1970, the Regional Director issued his
Report on Challenges and Objections in which he
recommended that some of the challenges be sustained and
that others be overruled. As to the remainder of the
challenges and objections, the Regional Director deferred a
recommendation for the reason that counting of the ballots
to be opened might determine the outcome of the election.
On January 30, 1970, the Respondent filed with the
Board in Washington, D.C., its exceptions to part of the
Regional Director's Report on Challenges and Objections.
On March 13, 1970, the Board adopted the Regional
Director's recommendations and ordered that the ballots
found valid by the Regional Director be opened and that a
Revised Tally of Ballots be issued.
On March 20, 1970, the valid challenged ballots were
opened and a Revised Tally issued revealing the final tally
to be 226 votes for the Union and 223 against.
On April 13, 1970, the Regional Director issued his
Supplemental Report on Objections recommending to the
Board that the Respondent's objections to the conduct of
the election be overruled and a certification of representa-
tive issue.
On April 17, 1970, the Regional Director filed an
Addendum to Supplemental Report on Objections, correct-
ing the Supplemental Report, but adhering to the
recommendation made therein.
On April 22 and 27, respectively, the Respondent filed
timely Exceptions to the Regional Director's Supplemental
Report and Addendum. The Respondent urged the Board,
in sum, to set aside the election on the basis of its objections
to the election and its contentions as to the challenges, or,
938, enfd 388 F 2d 683 (C.A 4), cert denied 393 U S 843, Golden Age
Beverage Co, 167 NLRB 151, enfd 415 F 2d 26 (C A 5), Intertype Co v
Penello, 269 F Supp 573 (D C Va ), Intertype Co v N L R B, 401 F 2d 41
(C A 4), cert denied 393 U S. 1049, Follett Corp, et a!, 164 NLRB 378,
enfd 397 F 2d 91 (C A 7), Section 9(d) of the National Labor Relations
Act
187 NLRB No. 80
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the alternative, that a hearing be held on the
Respondent's objections and exceptions.
On June 10, 1970, the Board issued a Decision and
Certification of Representative in which the Board adopted
the Regional Director's findings, conclusions, and recom-
mendations, and certified the Union as the bargaining
representative.2
The Unfair Labor Practice Case
On June 25, 1970, the Union filed the instant charge
alleging , inter alia, that since the certification the Respon-
dent had refused to bargain with the Union.
On June 30, 1970, the General Counsel issued a
complaint and notice of hearing alleging that the Respon-
dent had committed unfair labor practices in violation of
Section 8(a)(1) and (5) of the Act by by refusing to meet
and to negotiate with the Union with respect to the
employees in the appropriate unit.
On July 9, 1970, the Respondent filed its answer to the
complaint in which it admitted most of the material
allegations of the complaint, but denied the commission of
unfair labor practices. The answer admitted that on or
about June 18, 1970, the Respondent had refused to meet
with and negotiate with the Union, though requested by the
Union to do so. Affirmatively the Respondent alleged that
the certification was invalid on the grounds, in sum,
previously urged in the representation proceeding.
On July 13, 1970, counsel for the General Counsel filed a
Motion for Summary Judgment and supporting Memoran-
dum Brief , on the ground, in sum , that the Respondent's
answer admitted all material facts, and that the Respon-
dent's affirmative defenses raised matter previously
decided in the representation case. On July 15, 1970, I
issued an Order to Show Cause on the Motion for Summary
Judgment returnable on or before July 28, 1970. On July 20,
1970, Respondent filed its Response to General Counsel's
Motion for Summary Judgment, and on July 27, 1970, its
Response to the Order to Show Cause. No other responses
to the order to show cause have been received.
Ruling on Motion for Summary Judgment
The Respondent opposes the Motion for Summary
Judgment on grounds raised, or which could have been
raised , in the representation proceeding
It is established-Board policy, in the absence of newly
discovered or previously unavailable evidence or special
2 With respect to the Respondent 's objections to the election the Board
said
The Board , having duly considered the Regional Director's
Supplemental Report and Addendum , the Employer 's exceptions, and
the entire record in this case, hereby adopts the Regional Director's
recommendations that the objections be overruled We further find
that the Employer 's exceptions do not raise material and substantial
issues of fact warranting that a hearing be held , and, accordingly, deny
the Employer 's request for a hearing As the tally of ballots shows that
the Petitioner has received a majority of the valid ballots cast in the
election , we shall certify it as the exclusive bargaining representative of
the employees in the appropriate unit
3 Krieger-Ragsdale & Co, Inc, 159 NLRB 490, enfd 379 F 2d 517 (C A
7), cert denied 389 U S 1041 , N L R B v Macomb Pottery, 376 F 2d 450
(C A 7), Howard Johnson Company, 164 NLRB No 121, Metropolitan Life
Insurance Company, 163 NLRB 579 See Pittsburgh Plate Glass Co v
N L R B, 313 U S 146, 162, NLRB Rules and Regulations , Sections
circumstances not to permit litigation before a trial
examiner in an unfair labor practice case of issues which
were or could have been litigated in a prior related
representation proceeding.3 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.4 Respondent
does not claim to present any newly discovered or
previously unavailable evidence.
In these circumstances summaryjudgment is appropriate
and is hereby entered.5
Upon the basis of the record before me, I make the
following further:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Virginia corporation engaged in the
processing of leaf tobacco at a plant at Wilson, North
Carolina, which is the only plant involved in this
proceeding.
During the past 12 months, which period is representative
of all times material herein, Respondent received raw
materials valued in excess of $50,000 at its Wilson, North
Carolina, plant, from points directly outside the State of
North Carolina. During the same period of time, Respon-
dent finished, sold, and shipped from its plant in Wilson,
North Carolina, finished products valued in excess of
$50,000 directly to points outside the State of North
Carolina.
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
The following employees of Respondent constitute a unit
appropriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees, includ-
ing truckdrivers, at the Respondent's Wilson, North
Carolina, plant, excluding salaried employees, assistant
102 67(f) and 102 69(c)
4 O K Van and Storage, Inc, 127 NLRB 1537, enfd 297 F 2d 74 (C A
5) See Air Control Window Products, Inc, 335 F 2d 245, 249 (C A 5) "If
there is nothing to hear, then a hearing is a senseless and useless
formality " See also N L R B v Bata Shoe Co, 377 F 2d 821, 826 (C A 4),
cert denied 389 U S 917 " there is no requirement , constitutional or
otherwise , that there be a hearing in the absence of substantial and
material issues crucial to determination of whether NLRB election results
are to be accepted for purposes of certification "
5 On July 9, 1970, the Respondent filed motions requesting, inter also,
advice with respect to the scope of the hearing on the complaint, then
scheduled for August 4, 1970, but since indefinitely postponed By order of
the Trial Examiner dated July 15, 1970, ruling on that request was held in
abeyance pending disposition of the General Counsel's motion for
summary judgment The General Counsel' s motion now having been
granted , the Respondent 's request for advice as to the scope of the hearing
on the complaint is moot
TOBACCO PROCESSORS, INC.
foremen, foremen, office clericals, supervisors and
guards as defined in the Act.
On June 10, 1970, the Board certified the Union as the
exclusive collective-bargaining representative of the em-
ployees in the appropriate unit.
On June 15, 1970, the Union requested the Respondent to
bargain in the appropriate unit and on June 18, 1970, the
Respondent refused to do so. By such refusal to bargain
Respondent engaged in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(l),(5) and
2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER
A. For the purpose of determining the duration of the
certification , the initial year of certification shall be deemed
to begin on the date the Respondent commences to bargain
in good faith with the Union as the recognized exclusive
bargaining representative in the appropriate unit.6
B. Tobacco Processors, Incorporated , its officers,
agents, successors , and assigns shall:
I Cease and desist from:
(a) Refusing to bargain collectively with Tobacco
Workers International Union , AFL-CIO, as the exclusive
collective -bargaining representative of the employees in the
following appropriate unit*
All production and maintenance employees , including
truckdrivers , at the Respondent ' s Wilson, North
Carolina, plant , excluding salaried employees , assistant
foremen , foremen, office clericals , supervisors and
guards as defined in the Act.
(b) Interfering with the efforts of said Union to negotiate
for or represent employees as exclusive collective bargain-
ing representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively with Tobacco
Workers International Union, AFL-CIO, as the exclusive
representative of all the employees in the appropriate unit
with respect to rates of pay, wages , hours of employment,
and other terms and conditions of employment, and
embody in a signed agreement any understanding reached.
(b) Post at its place of business in Wilson, North
Carolina , copies of the attached notice marked
"Appendix ." 7 Copies of said notice on forms provided by
the Regional Director for Region 11, shall, after being duly
signed by an authorized representative of the Respondent,
be posted by the Respondent immediately upon receipt
thereof , and be maintained by the Respondent for a period
of 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 altered,
defaced , or covered by any other material.
(c) Notify the Regional Director for Region 11, in
writing, within 20 days from receipt of this recommended
521
Order what steps the Respondent has taken to comply
herewith.8
6 The purpose of this provision is 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 See MarJac Poultry Co, 136 NLRB
785, Commerce Co, d/b/a Lamar Hotel, 140 NLRB 226, 229, 328 F 2d 600
(C A 5), cert denied 379 U S 817, Burnett Construction Co, 149 NLRB
1419, 1421, 350 F 2d 57 (C A 10)
I In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations and recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's 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 "
8 In the event these recommendations are adopted by the Board, this
provision shall be modified to read "Notify the Regional Director for
Region 11 , in writing, within 10 days from receipt of this Order , what steps
the Respondent has taken to comply herewith "
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 with
Tobacco Workers International Union, AFL-CIO, as
the exclusive collective -bargaining representative of all
our following employees:
All production and maintenance employees, including
truckdrivers, employed at our Wilson, North Caroli-
na, plant , excluding salaried employees, assistant
foremen , foremen , office clericals , supervisors and
guards as defined in the Act.
WE WILL NOT interfere with the efforts of the Union
to negotiate for or represent employees as exclusive
collective -bargaining representative.
WE WILL bargain collectively with the Union as the
exclusive collective -bargaining representative of the
employees in the appropriate unit , and, if an under-
standing is reached , we will sign a contract with the
Union.
TOBACCO PROCESSORS,
INCORPORATED
(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, 1624
Wachovia Building, 301 North Main Street , Winston-
Salem , North Carolina 27101, Telephone 919-723-2300.