American Seaway Foods, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1980

253 N.L.R.B. 322 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Seaway Foods, Inc. and Office and Pro-
fessional Employees International Union-Local
No. 17, AFL-CIO. Case 8-CA-13938
November 30, 1980
DECISIONS AND ORDER
BY MEMBERS JENKINS, PENEI.LO, AND
ZIMM.RMAN
Upon a charge filed on June 19, 1980, by Office
and Professional Employees International Union-
Local No. 17, AFL-CIO, herein called the Union,
and duly served on American Seaway Foods, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 8, issued a complaint
and notice of hearing on July 28, 1980, against Re-
spondent, 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 and notice of hearing before
an administrative law judge were duly served on
the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on May 2, 1980,
following a Board election in Case 8-RC-12051,
the Union was duly certified as the exclusive col-
lective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about June 26, 1980, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representa-
tive, although the Union has requested and is re-
questing it to do so. On August 7, 1980, Respond-
ent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On September 8, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on September
10, 1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to Notice To Show
Cause entitled "Cross Motion to the National
I Official notice is taken of the record in the represnatiion pro-ceed-
ing, Case 8-RC-12051. as the term "record" is defined i Sees 102.68
and 102.h9(g) of the Board's Rules and Regulations, Series 8, as amended
See 1.1V Elctrosyotems. Inc., 166 NLRBH 938 (197), enfd 388 F 2d 683
(4th Cir 1968); Golden 4ge Beverage (Co. 167 NI.RH 151 (14967), nfd 418
F2d 26 (5th Cir. 1969); InlertYpe Co. v. Pncllo, 2h9 F.Supp. 573
(D.CVa 17); Follrtt Corp. 164 NIRH 378 (19h67). enfd 397 F2d 91
(7th Cir 1968); Sec. 9(d) of the NLRA. ais amended
253 NLRB No. 42
Labor Relations Board for Summary Judgment."
Respondent also filed a memorandum in support of
its cross-motion and in response to the Notice To
Show Cause.
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 au-
thority 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
In its answer to the complaint and its response to
the Notice To Show Cause, Respondent essentially
contests the validity of the Union's certification.
Although Respondent admits its refusal to bargain,
Respondent denies that it thereby violated Section
8(a)(5) and (1) of the Act. Specifically, Respondent
contends that the Union should not have been cer-
tified because the Regional Director directed an
election in an inappropriate unit. In the Motion for
Summary Judgment, the General Counsel main-
tains that Respondent is attempting to relitigate the
issues it raised in the related representation pro-
ceeding. We agree with the General Counsel.
Review of the record herein, including the
record in Case 8-RC-12051, reveals that on Febru-
ary 27, 1980, after a hearing and the submission of
briefs by the parties, the Regional Director issued a
Decision and Direction of Election. On March 12,
1980, Respondent filed with the Board a request
for review of the Decision and Direction of Elec-
tion contending that the unit was inappropriate in
that it improperly excluded office clerical workers
at Respondent's Bedford Heights facilities. On
March 24, 1980, the Board denied the request for
review. An election was conducted on April 2,
1980, which resulted in a vote of 41 for, and 5
against, the Union. There were three challenged
ballots, an insufficient number to affect the results
of the election. On April 9, 1980, Respondent filed
objections to the conduct of the election contend-
ing, in essence, that acts of union representatives
and supporters had interfered with the exercise of
the employees' freedom of choice. Respondent also
contended that the election was conducted in an in-
appropriate unit. On May 2, 1980, the Regional Di-
rector issued a Supplemental Decision and Certifi-
cation of Representative overruling Respondent's
objections and certifying the Union. It thus appears
that Respondent is attempting to raise herein issues
which were raised and determined in the underly-
ing representation case.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
322
AMERICAN SEAWAY FOOD)S. INC.
leging 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 proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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. Accordingly, we 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 RESPONI)ENT
Respondent is, and has been at all times material
herein, an Ohio corporation with an office and
place of business located at Bedford Heights, Ohio,
where it is engaged in the business of wholesale
distribution of grocery and related products. Annu-
ally, during the course and conduct of its business
operations, Respondent ships goods valued in
excess of $50,000 directly from its Bedford Heights
facility to points located outside the State of Ohio.
We find, on the basis of the foregoing, that Re-
spondent 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.
:i. THE I.ABOR ORGANIZATION INVOI.VED
Office and Professional Employees International
Union-Local No. 17, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All plant clerical employees employed by the
Respondent at its Bedford Heights, Ohio facili-
See Pittsburgh Pla Gbls, Co . .L.R.1, 311 t S 14h, 162 (1941);
Rules and Rgulations of the oard. Scee 12 7(f) and 102 (c)
ty, including freezer clerks, transportation
clerks, collection and will call clerks, receiving
office clerks, food service warehouse clerks,
and Station I and Station 3 clerks, but exclud-
ing all office clerical employees, confidential
employees, managerial employees, and all pro-
fessional employees, guards, and supervisors as
defined in the Act, and all other employees.
2. The certification
On April 2, 1980, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 8, designated the Union as
their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on May 2, 1980, 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 April 7, 1980, again on
May 6, 1980, and at all times thereafter, the Union
has requested Respondent to bargain collectively
with it as the exclusive collective-bargaining repre-
sentative of all the employees in the above-de-
scribed unit. Commencing on or about June 26,
1980, and continuing at all times thereafter to date,
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the exclu-
sive representative for collective bargaining of all
employees in said unit.
Accordingly, we find that Respondent has, since
June 26, 1980, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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 Respondent, set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
323
DE.CISI)NS OF NATIONAL. LAB()R RELAI'IONS BO()ARI)
V. HI- REMiI)Y
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (I) 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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCL.USIONS OF LAW
1. American Seaway Foods, Inc., is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Office and Professional Employees Interna-
tional Union-Local No. 17, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All plant clerical employees employed by Re-
spondent at its Bedford Heights, Ohio, facility, in-
cluding freezer clerks, transportation clerks, collec-
tion and will call clerks, receiving office clerks,
food service warehouse clerks, and Station I and
Station 3 clerks, but excluding all office clerical
employees, confidential employees, managerial em-
ployees, and all professional employees, guards,
and supervisors as defined in the Act, and all other
employees, constitute a unit appropriate for the
purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. Since May 2, 1980, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about June 26, 1980, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging 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
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
American Seaway Foods, Inc., Bedford Heights,
Ohio, 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 Office and Profes-
sional Employees International Union-Local No.
17, AFL-CIO, as the exclusive bargaining repre-
sentative of its employees in the following appro-
priate unit:
All plant clerical employees employed by the
Respondent at its Bedford Heights, Ohio facili-
ty, including freezer clerks, transportation
clerks, collection and will call clerks, receiving
office clerks, food service warehouse clerks,
and Station I and Station 3 clerks, but exclud-
ing all office clerical employees, confidential
employees, managerial employees, and all pro-
fessional employees, guards and supervisors as
defined in the Act, and all other employees.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
324
(b) Post at its facilities located at !edford
Heights, Ohio. copies of the attached notice
marked "Appendix." " Copies of said notice, on
forms provided bN the Regional l)irector for
Region 8. after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places. including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respoindent to insure thlat
said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional D)irector for Region 8, in
\writing, within 20 days from the date of this Order,
what steps have been taken to comply hre, ith.
t' I the e,er l ihat hlli ()rd r is ,t'rcdl tbh I Jtldrillt'IuiI of I L 'll 1
States Court f Appeal. thu rd i the notic rdilig 'Tlud h
Order or he N;ltional Lahor Relation, i0.rd" hl'.hil Icad ''ttcd I'ursil-
alnt to a Judgmenti I the Unired States Court f Appeals illfortill In
Order of te Nationa.l Iahor Relations loard
APPENDIX
No I t i To 1,MI ti O i s
!()S' II) IY ()Rl)lIR t- 'I l:
N ION \I L. XIOR R it ,V iONS 3o RI)
An Agency of the Unlited States (ioririnnrt
WV wit i1 NOt refuse to bargain collectively
concerning rates otf pay. \wages, hours. and
other terms and conditions of employlment
,,ith ()ffice Professionall Emploces Interrla-
tional Union- Local No. 17, AFl--CI(, as the
exclusive representative of the employees in
the bargaining unit described below.
W'li Wit I N ill allny like or related manner
interfere with, restrain, or coerce our eploy-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
W wi t Ill, upon request, bargain with the
above-named Union, as the exclusive repre-
senitative of all employees in the bargaining
unit described below , with respect io rates of
pay, \wages. hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit i:
All plant clerical employees employed by
the Employer at its Bedford Heights. Ohio
facility, including freezer clerks, transporta-
tion clerks, collection and ill call clerks.
receiving office clerks, food service rare-
house clerks, and Station I and Station 3
clerks, but excluding all office clerical em-
ployees, confidential employees, managerial
employees, and all professional employees.
guards and supervisors as defined in the Act,
and all other employees.
AMIIRICAN SAWA FOO)S, INC.
AVILRKICA:N SI:IA%\ A) I ((n)1). I( 325