Turnbull Cone Baking Co.

National Labor Relations Board - Board Decisions

Apr 28, 1977

229 N.L.R.B. 313 (N.L.R.B. 1977)

TURNBULL CONE BAKING CO.
Turnbull Cone Baking Company of Louisiana and
Bakery and Confectionery Workers' International
Union of America, AFL-CIO-CLC, Local No. 35.
Case 15-CA-6303
April 28, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a charge filed on November 19, 1976, by
Bakery and Confectionery Workers' International
Union of America, AFL-CIO-CLC, Local No. 35,
herein called the Union, and duly served on Turnbull
Cone Baking Company of Louisiana, herein called
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 15, issued a complaint on December 15, 1976,
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 and complaint were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on October 27,
1976, following a Board election in Case 15-RC-
5770 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 November 2, 1976, the
Union requested, and is continuing to request,
Respondent to furnish it with certain information
and to recognize the Union and to meet and bargain
collectively with the Union as the exclusive collec-
tive-bargaining representative of the employees in
the unit found appropriate in Case 15-RC-5770, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to furnish said informa-
tion and to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
December 28, 1976, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On January 19, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February 10,
1977, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
I Official notice is taken of the record in the representation proceeding,
Case 15-RC 5770, as the term "record" is defined in Sees. 102.68 and
102.6 9(g) of the Board's Rules and Regulations, Series 8. as amended. See
LTV Electro.rvstems. Inc., 166 NL.RB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
229 NLRB No. 7
Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent thereafter filed a response to Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in 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 only issue raised by Respondent's answer to
the complaint is the validity of the election and
subsequent certification in Case 15-RC-5770, the
underlying representation proceeding. In view of that
fact, the General Counsel asserts that Respondent is
attempting to test the validity of the Regional
Director's certification through relitigation of issues
determined, or which could have been determined, in
the representation case, and that there are no factual
issues which would necessitate an evidentiary hear-
ing. We agree with the General Counsel.
Review of the record herein, including that in Case
15-RC-5770, discloses that on November 21, 1975,
Respondent filed objections to conduct affecting
results of the election in that case. On February 18,
1976, the Regional Director issued a Report on
Objections in which he recommended that Respon-
dent's objections be overruled in their entirety, and
on March 9, 1976, Respondent filed with the Board
its exceptions to the Regional Director's report. On
May 26, 1976, the Board issued a Decision and Order
remanding the case to the Regional Director and
directing a hearing on Respondent's Exception 7.
The Board adopted the remainder of the Regional
Director's findings and recommendations. After a
hearing was held before a duly designated Hearing
Officer, the Hearing Officer issued his report with a
recommendation that the objection be overruled.
Respondent filed exceptions to the Hearing Officer's
recommendation. Finally, on October 27, 1976, the
Board issued a Supplemental Decision and Certifica-
tion of Representative, adopting the Hearing Offi-
cer's rulings, findings, and recommendations. The
Board further certified the Union as the exclusive
collective-bargaining representative of the employees
in the appropriate unit. It thus does appear that
Respondent is endeavoring here to relitigate matters
considered and determined in the representation
proceeding.
1968); Golden Age Beverage Co. 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Inrertype Co. v. Penello. 269 F.Supp. 573 (D.C.Va., 1967);
FolletI Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (C.A. 7. 1968): Sec.
9(d) of the NLRA. as amended.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances 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.2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and 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 Respondent 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:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Tennessee corporation, licensed to
do, and doing, business in the State of Louisiana, is
engaged in the manufacture of baking goods and
related items at its 523 First Street, New Orleans,
Louisiana, location. During the past 12 months, a
representative period, Respondent purchased goods
and materials valued in excess of $50,000 which were
shipped directly to it from points outside the State of
Louisiana. During the same 12-month period, Re-
spondent sold and shipped goods and materials
valued in excess of $50,000 directly to customers
located outside the State of Louisiana.
We find, on the basis of the foregoing, that
Respondent 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.
1!. THE LABOR ORGANIZATION INVOLVED
Bakery and Confectionery Workers, International
Union of America, AFL-CIO-CLC, Local No. 35, is
a labor organization within the meaning of Section
2(5) of the Act.
2 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() and 102.69(c).
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production and maintenance employees
employed by Respondent at its 523 First Street,
New Orleans, Louisiana, location; excluding all
office clerical employees, guards, watchmen and
supervisors (including foremen) as defined in the
Act.
2. The certification
On November 14, 1975, a majority of the employ-
ees of Respondent in said unit, in a secret ballot
election conducted under the supervision of the
Regional Director for Region 15, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining representa-
tive of the employees in said unit on October 27,
1976, 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 November 2, 1976, and
at all times thereafter, the Union has requested
Respondent to furnish it with certain information
and to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about November 12, 1976, and continuing at all
times thereafter to date, 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 Respondent has, since
November 12, 1976, 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, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(I) of the Act.
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TURNBULL CONE BAKING CO.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions 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 com-
merce.
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, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order 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, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Turnbull Cone Baking Company of Louisiana
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Bakery and Confectionery Workers' Interna-
tional Union of America, AFL-CIO-CLC, Local
No. 35, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees
employed by Respondent at its 523 First Street, New
Orleans, Louisiana, location; excluding all office
clerical employees, guards, watchmen and supervi-
sors (including foremen) as defined in the Act,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since October 27, 1976, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about November 12, 1976,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Turnbull Cone Baking Company of Louisiana, New
Orleans, Louisiana, 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 Confec-
tionery Workers' International Union of America,
AFL-CIO-CLC, Local No. 35, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees
employed by the Employer at its 523 First Street,
New Orleans, Louisiana, location; excluding all
office clerical employees, guards, watchmen and
supervisors (including foremen) as defined in the
Act.
(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
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
315
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its 523 First Street, New Orleans,
Louisiana, facility copies of the attached notice
marked "Appendix." 3 Copies of said notice, on
forms provided by the Regional Director for Region
15, after being duly signed by Respondent's represen-
tative, shall be posted by Respondent 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 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 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 conditions of employment with Bakery
and Confectionery Workers' International Union
of America, AFL-CIO-CLC, Local No. 35, 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
Section 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
described below, with respect 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. The bargaining unit is:
All production and maintenance employees
employed by Respondent at its 523 First
Street, New Orleans, Louisiana location;
excluding all office clerical employees,
guards, watchmen and supervisors (includ-
ing foremen) as defined in the Act.
TURNBULL CONE BAKING
COMPANY OF LOUISIANA
316