Trade Winds Co.

National Labor Relations Board - Board Decisions

Apr 3, 1969

175 N.L.R.B. 224 (N.L.R.B. 1969)

224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trade Winds Company and American Bakery &
Confectionery Workers' Union , AFL-CIO, Local
Union No. 110 . Case 10-CA-7434-1
April 3, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On October 31, 1968, Trial Examiner Charles W
Schneider issued his Decision in the above
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
Trial Examiner's Decision with 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 considered the Trial Examiner's
Decision, the exceptions and supporting briefs, 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
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Trade Winds
Company, Thunderbolt, Georgia, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
MEMBER ZAGORIA, dissenting:
In my opinion, the Respondent's objection to the
election with respect to electioneering in the polling
area raises substantial issues which warrant a
hearing I dissent, accordingly, from the granting of
the Motion for Summary Judgment at this time.
The Respondent has requested oral argument The request is hereby
denied , as the pleadings herein , the official Board record in the underlying
representation proceeding , the exceptions , and the brief adequately reflect
the issues and positions of the parties
TRIAL EXAMINER ' S DECISION
THE REPRESENTATION PROCEEDING'
Upon petition filed under Section 9 (c) of the National
Labor Relations Act (29 U S C A. 159(c)) on August 24,
'Official notice is taken of the record in the representation proceeding,
Case 10-RC-7193, as the term "record" is defined in Section 102 68 and
102 69( 1) of the Board ' s Rules (Rules and Regulations and Statements of
Procedure, National Labor Relations Board, Series 8, as revised January
1, 1965) This includes the documents of which Counsel for the General
1967, by American Bakery and Confectionery Workers,
International Union, AFL-CIO, Local 482, herein called
the Union, a hearing was held which resulted in the
issuance on October 11, 1967, by the Regional Director
for Region 10, of a Decision and Direction of Election in
an appropriate bargaining unit, described hereinafter, of
the employees of Trade Winds Company, herein called the
Respondent.
Pursuant to the Decision and Direction of Election an
election by secret ballot was conducted on November 3,
1967, among the employees in the appropriate unit to
determine the question concerning representation Upon
conclusion of the balloting, the parties were furnished a
tally of ballots which showed that of approximately 249
eligible voters, 126 cast valid votes for and 90 cast valid
votes against the Union, I cast a void ballot and 32 cast
challenged ballots. The challenged ballots were insufficient
in number to affect the results of the election. On
November 9, 1967, the Respondent filed timely objections
to conduct affecting the results of the election in which
Respondent requested that the election be set aside and a
new election directed, or in the alternative that a hearing
be held on the objections.
On January 24, 1968, the Regional Director issued a
Supplemental Decision and Certification of Representative
in which he stated that he had conducted an investigation
of the objections, found that they did not raise any
material or substantial issues affecting the results of the
election, and overruled them in their entirety Finding that
the tally of ballots showed that a majority of the valid
votes had been cast for the Union, the Regional Director
certified it as the exclusive bargaining representative of the
employees in the appropriate unit On January 29, 1968,
Respondent filed a Motion to Reconsider Supplemental
Decision and Certification of Representative. This motion
was denied by the Regional Director on February 8, 1968
Thereafter, on February 12, 1968, Respondent timely filed
with the Board in Washington, D.C , a Request for
Review of the Regional Director's Supplemental Decision
and Certification of Representative On February 26,
1968, the Board issued an order denying the Respondent's
request for review on the ground that it raised no
substantial issues warranting review On April 11, 1968,
Respondent filed with the Board a Motion for
Reconsideration of its denial of the request for review On
May 24, 1968, the Board issued an Order denying the
motion for reconsideration as lacking in merit
THE COMPLAINT CASE
On July 30, 1968, American Bakery & Confectionery
Workers' Union, AFL-CIO, Local Union No. 110 filed
Counsel, in his Motion for Summary Judgment , requested official notice to
be taken See LTV Electrosystemr, Inc , 166 NLRB No 81, enfd 388
F 2d 683 (C A 4, 1968 ), Golden Age Beverage Co, 167 NLRB No 24,
Intertype Co v Penello, 269 F Supp 573 (D C Va , 1967), Intertype Co
v N L R B, 401 F 2d 41 (C A 4, 1968), Follett Corp, 164 NLRB No 47,
enfd 397 F 2d 91 (C A 7, 1968), Section 9(d) of the NLRA
In his Response to the Order to Show Cause, Counsel for the
Respondent over objection by Counsel for the General Counsel, requests
inclusion in the record of affidavits (attached to the Response) of certain
employees , relating to the subject matter of the Respondent ' s objections to
the election (referred to hereinafter ) Though it is not specifically stated, I
assume that these are the affidavits, or copies thereof, submitted by the
Respondent to the Regional Director, under date of December 18, 1967, in
support of the Respondent's objections to the election In such a
circumstance their inclusion in the record is essential to any judicial review
of the materiality or substantiality of the Respondents ' objections The
affidavits are therefore made part of the record
175 NLRB No 37
TRADE WINDS COMPANY 225
the unfair labor practice charge involved in the instant
case, in which it alleged that since on about March 14,
1968, and at all times thereafter, the Respondent has
refused to recognize and bargain with the Union.
On August 13, 1968, the General Counsel, by the
Regional Director for Region 10, issued a Complaint and
Notice of Hearing alleging that the Respondent had
committed unfair labor practices in violation of Section
8(a)(1) and (5) and Section 2(6) and (7) of the Act by
refusing to bargain with the Union upon request In due
course, on August 22, 1968, the Respondent filed its
answer to the complaint in which certain allegations of the
complaint were admitted and others denied.
In its Answer, the Respondent admits the following
allegations of the complaint: (1) filing and service of the
charge, (2) certain jurisdictional facts, (3) that the Union
is a labor organization within the meaning of Section 2(5)
of the Act, and (4) that the unit is appropriate
Respondent denies the allegations contained in paragraphs
7, 8, 9, 10, 11 and 12 of the complaint wherein it is
alleged that. (1) by secret ballot election on November 3,
1967, a majority of employees in the appropriate unit
selected the Union as their representative for collective
bargaining purposes but admits that an "election" was
held among certain of its employees on November 3,
1967; (2) the Union was validly certified by the Regional
Director for Region 10 on January 24, 1968, as the
exclusive collective bargaining representative of all the
employees in the appropriate unit, while admitting the act
of issuance of the certification, (3) the Union has been and
is now the collective bargaining representative of a
majority of the employees in the appropriate unit, (4) on
or about January 30, 1968, and at all times thereafter, the
Union requested the Respondent to bargain collectively
with respect to rates of pay, wages, hours of employment
and other terms and conditions of employment; (5) on or
about March 14, 1968, Respondent refused and at all
times thereafter has continued to refuse, to bargain with
the Union as the exclusive representative of all the
employees in the appropriate unit, and (6) the refusal to
bargain constituted unfair labor practices affecting
commerce within the meaning of the Act
Respondent affirmatively asserts in its answer in
paragraph 13 that the notice of certification issued by the
Regional Director for Region 10 on January 24, 1968, is
void since the Regional Director abused his discretion by
refusing Respondent's request for a hearing on the
substantial and material factual issues raised by the
evidence in support of Respondent's objection to conduct
affecting the results of the election in contravention of
Section 102 69(c) of the Board's Rules and Regulations,
and Respondent's right to due process of law under the
Constitution of the United States. Further, since it asserts
that it is not required to bargain collectively with a union
that has been unlawfully certified, Respondent alleges that
it has not violated Section 8(a)(1) and (5) of the Act in
failing to do so.
Under date of September 4, 1968, counsel for General
Counsel filed a Motion for Summary Judgment in which
he contends that the pleadings, considered together with
the official Board record in the underlying representation
proceeding, Case 10-RC-7193, raise no issues requiring a
hearing; that Respondent's defense set forth in its answer
raises no litigable questions of fact, and that, as a matter
of law, Respondent has no valid defense to the complaint
On September 6, 1968, 1 issued an Order directing the
parties to show cause as to whether or not General
Counsel's Motion should be granted. On October 4, 1968,
counsel for Respondents filed a Response to Trial
Examiner's Order to Show Cause and on October 11,
1968, counsel for General Counsel filed a Response to the
Respondent's Response to the Trial Examiner's Order to
Show Cause
RULING ON MOriON FOR SUMMARY JUDGMENT
Respondent opposes the Motion for Summary
Judgment and contends that the election should be set
aside, or in the alternative that it is entitled to a hearing
in which it can present its position by cross-examination
and subpoena of witnesses. It alleges that there are
substantial and material factual and legal issues involved
which should be litigated.
It is established Board policy, in the absence of newly
discovered or previously unavailable evidence or special
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 2 Such a hearing is not a matter
of right unless substantial and matenal issues are raised
by the objections ' That there are no such issues here has
been decided by the Board, and the Respondent offers no
new evidence or proof of special circumstances. At this
stage of the proceedings the Board's determination is
therefore the law of the case.
There thus being no unresolved issues requiring an
evidential hearing the motion of the General Counsel for
summary judgment is granted, and I hereby make the
following further
FINDINGS AND CONCLUSIONS
1. TIIE BUSINESS 01 THE RESPONDENT
Trade Winds Company is, and has been at all times
material herein, a Georgia corporation, with its principal
office and place of business at Thunderbolt, Georgia,
where it is engaged in the processing and sale of seafood
products.
In the course and conduct of business, Respondent,
during the past calendar year, which period is
representative of all times material herein, sold and
shipped seafood products valued in excess of $50,000
directly to customers located outside the State of Georgia.
Respondent is, and has been at all times material herein,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
If. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act
'Howard Johnson Company, 164 NLRB No 121, Metropolitan Life
Insurance , 163 NLRB No 71 See Pittsburgh Plate Glass Co v N L R B.
313 U S 146, 162 ( 1941), NLRB Rules and Regulations , Section 102 67(f)
and 102 69(c)
'O K Van and Storage Co. Inc, 127 NLRB 1537, 297 F 2d 74 (C A 5,
1961), and see Air Control Window Products. Inc , 335 F 2d 245, 249
(C A 5, 1964) " If there is nothing to hear , then a hearing is a senseless
and useless formality "
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
111. THE UNFAIR LABOR PRACTICES
The following employees of the Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees of the
Respondent at its Thunderbolt, Georgia plants,
including the plant clerical employee, but excluding
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
On November 3, 1967, in an election by secret ballot.
conducted under the supervision of the Regional Director
for Region 10 of the National Labor Relations Board, a
majority of the employees in the appropriate unit
designated and selected the Union as their
collective-bargaining representative On January 24, 1968,
the Union was certified by the Regional Director as, and
at all times since the Union has been, the collective
bargaining representative of a majority of the employees
in the said unit and by virtue of Section 9(a) of the Act,
has been, and is, the exclusive representative of all the
employees in said unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of
employment.
Though the Answer formally denies that the Union
requested the Respondent to bargain and that- the
Respondent refused to do so, documents attached to the
Motion for Summary Judgment, the authenticity of which
is not contested, establish that on January 30, 1968, the
Union by telegram requested the Respondent to bargain
in the appropriate unit and on March 14, 1968 the
Respondent replied by letter to the effect that it felt the
certification to be erroneous and therefore declined to
bargain "in order to obtain judicial review."
It is therefore found that on January 30, 1968, and at
all times thereafter the Union requested Respondent to
bargain collectively with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment with the Union as the exclusive representative
of all the employees in the aforesaid unit, and that on
March 14, 1968, Respondent refused and at all times
thereafter has continued to refuse to bargain collectively
with the Union.
By thus refusing to bargain collectively, the Respondent
has engaged in unfair labor practices 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, I recommend that the Board
issue the following:
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'
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 Mar lac Poultry Co , Inc , 136
NLRB 785, Commerce Co d/b/a Lamar Hotel. 140 NLRB 226, 229,
B. Trade Winds Company, its officers , agents,
successors, and assigns , shall:
I Cease and desist from
(a) Refusing to bargain collectively with American
Bakery & Confectionery Workers International Union,
AFL-CIO, Local 482 , as the exclusive representative of
the employees in the following appropriate bargaining
unit
All production and maintenance employees of the
Respondent at its Thunderbolt , Georgia plants,
including the plant clerical employee, but excluding
office clerical employees , professional employees,
guards and supervisors as defined in the Act.
(b) Interfering with the efforts of said union to
negotiate for or represent employees as such exclusive
collective bargaining representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Upon request bargain collectively with American
Bakery & Confectionery Workers' Union , AFL-CIO,
Local 482, as the exclusive representative of all 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 office and places of business at
Thunderbolt , Georgia, copies of the attached notice
marked "Appendix . "' Copies of said notice , on forms to
be furnished by the Regional Director for Region 10,
shall, after being duly signed by an authorized
representative of the Respondent , be posted by the
Respondent immediately upon receipt and be maintained
by it 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 10, in
writing , within 20 days from receipt of this Decision, what
steps the Respondent has taken to comply herewith."
enfd 328 F 2d 600 (C.A. 5), cert denied 379 US 817 (1964); Burnett
Construction Co. 149 NLRB 1419, 1421, enfd. 350 F 2d 57 (C A 10,
1965)
'in the event this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words
"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
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
'In the event this Recommended Order is adopted by the Board, this
provision shall be modified to read "Notify the Regional Director for
Region 10, in writing, within 10 days from receipt of this Order, what
steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
emplo ees that:
WE WILL NOT refuse to bargain collectively with
American Bakery and Confectionery Workers' Union,
AFL-CIO , Local 482, as the exclusive collective
TRADE WINDS COMPANY 227
bargaining representative of all our following
employees-
All production and maintenance employees at our
Thunderbolt , Georgia plants, including the plant
clerical employee , but excluding office clerical
employees , professional employees , guards and
supervisors 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
exclusive collective bargaining representative of the
employees in the appropriate unit and, if an
understanding is reached we will sign a contract with
the Union.
Dated By
TRADE WINDS COMPANY
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 con§ecutive 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, 730 Peachtree
Street, N.E , Atlanta, Georgia 30308, Telephone
526-5760.