J. H. Filbert, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1967

165 N.L.R.B. 648 (N.L.R.B. 1967)

648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. H. Filbert , Inc. and Local 434, American
Bakery & Confectionery Workers'
International Union , AFL-CIO. Case
10-CA-6898.
June 19,1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND ZAGORIA
Upon a charge filed by Local 434, American
Bakery & Confectionery Workers' International
Union , AFL-CIO, herein called the Union, the
General Counsel for the National Labor Relations
Board , by the Regional Director for Region 10,
issued a complaint and notice of hearing dated
April 6, 1967, against J. H. Filbert, Inc., herein
called the Respondent , alleging that the Respondent
had engaged in and was engaging in unfair labor
practices 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,
complaint , and notice of hearing were duly served on
the Respondent and the Union.
With respect to the unfair labor practices, the
complaint alleges, in substance , that on January 11,
1967 , the Union was duly certified by the Regional
Director for Region 101 as the exclusive collective-
bargaining representative of Respondent's
employees in the unit found appropriate by the
Board , and that , since on or about January 12, 1967,
Respondent has refused to recognize or bargain with
the Union as such exclusive bargaining
representative, although the Union has requested it
to do so.
On April 21, 1967, the General Counsel filed with
the Board a Motion for Summary Judgment
requesting, in view of the admissions contained in
the Respondent 's answer , that the allegations of the
complaint be found to be true, and that the Board
make findings of fact and conclusions of law in
conformity with the allegations of the complaint. On
April 25, 1967, Respondent filed with the Board a
Response to General Counsel' s Motion for Summary
Judgment.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in
connection with this case to a three - member panel.
Upon the entire record in this case , the Board
makes the following:
RULING ON THE MOTION FOR SUMMARY JUDGMENT
In its Response to General Counsel's Motion for
Summary Judgment, Respondent contends that the
unit found to be appropriate in Case 10-RC-6858 is
in fact inappropriate. This contention is without
' Supplemental Decision and Certification of Representative
issued January 11, 1967, in Case 10-RC-6858 (not published in
NLRB volumes).
merit. The Respondent's answer to the complaint
and its Response to General Counsel's Motion for
Summary Judgment establish that the Respondent is
seeking to relitigate matters decided by the Board in
the prior representation proceeding.
The record before us establishes , that on
October 20, 1966, following a hearing, the Regional
Director for Region 10 of the National Labor
Relations Board issued a Decision and Direction of
Election in Case 10-RC-6858. The Respondent
thereafter filed a request for review with the Board,
in which it challenged the Regional Director's
finding of the appropriateness of the unit. On
November 14, 1966, the Board issued an order
denying Respondent's request for review on the
ground that it raised no substantial issue warranting
review.
On November 18,1966, in a secret ballot election
conducted under the direction of the Regional
Director for Region 10, a majority of the employees
of the Respondent designated and selected the
Union as their representative for the purposes of
collective bargaining with the Respondent. The
Respondent thereafter filed timely objections to the
election, relating solely to matters not here in issue.
On January 11, 1967, the Regional Director issued a
Supplemental Decision and Certification of
Representative which overruled the objections and
certified the Union as the exclusive collective-
bargaining representative of the employees in the
unit found to be appropriate.
Respondent admits in its answer to the complaint
that the Petitioner has requested it to bargain
collectively with respect to rates of pay, wages,
hours of employment, and other terms and
conditions of employment. While Respondent does
not deny that it has failed and refused to bargain
with the Petitioner upon request as alleged in the
complaint, it does allege in its answer that it has no
legal obligation to do so.
In its answer to the complaint, the Respondent
alleged as affirmative defenses that the unit was not
appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act in that
the unit includes over-the-road truckdrivers; that
their inclusion was erroneous because they lack a
community of interest with the production and
maintenance employees, have different functional
and operational duties, and because the said drivers
are a homogeneous, identifiable, nonintegrated
group of personnel with entirely different working
conditions and locations from the production and
maintenance personnel.
In the absence of newly discovered or previously
unavailable evidence, issues which were or could
have been raised in the representation proceeding
may not be relitigated in the related unfair labor
practice proceeding.' Admittedly, the issues which
i Pittsburgh Plate Glass Co. v. N L R B , 313 U.S 146, Collins
& Aikman Corporation, 160 NLRB 1750, and United States
Rubber Company, 155 NLRB 1298
165 NLRB No. 57
J. H. FILBERT, INC.
Respondent seeks to raise in -the instant proceeding
relate to the correctness of the Regional Director's
findings as to the appropriateness of the unit. There
is no allegation that special circumstances exist
herein which require the Board to reexamine the
determination which was made in the representation
proceeding. Inasmuch as the Respondent has
already litigated these issues, it has not raised any
issue which is properly triable in the instant unfair
labor practice proceeding.
All material issues thus having been decided by
the Board or admitted in the answer to the
complaint, there are no matters requiring a hearing
before a Trial Examiner. Accordingly, the General
Counsel's Motion for Summary Judgment is granted.
On the basis of the record before it, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein , a corporation duly organized and existing by
virtue of the laws of the State of Maryland and is
engaged at Macon , Georgia , in the manufacture,
distribution , and sale of mayonnaise and salad
dressing . During the past year , which period is
representative of all material times herein, the
Respondent shipped directly to points located
outside of the State of Georgia goods valued in
excess of $50,000.
Respondent admits, and we find , 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 th' Act.
H. THE LABOR ORGANIZATION INVOLVED
Local 434, American Bakery & Confectionery
Workers' International Union, AFL-CIO, 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
At all times material herein the following
employees of the Respondent have constituted a unit
appropriate for collective bargaining within the
meaning of the Act:
All production and maintenance employees at
the Employer's Macon, Georgia, plant,
including shipping employees, over-the-road
truckdrivers, and the laboratory technician-
nurse, but excluding office clerical employees,
salesmen, professional employees, guards, and
supervisors as defined in the Act.
2. The certification
649
On November 18, 1966, a majority of the
employees of the Respondent in said unit, in a secret
election conducted under the supervision of the
Regional Director for Region 10, designated the
Union as their representative for the purposes of
collective bargaining with the Respondent; and on
January 11, 1967, the Regional Director for
Region 10 certified the Union as the collective-
bargaining representative of the employees in said
unit and the Union continues to be such
representative.
B. The Request to Bargain and the Respondent's
Refusal
Commencing on or about January 12, 1967, and
continuing to date, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit.
Commencing on or about January 18, 1967, and
continuing to date, the Respondent did refuse, and
continues to refuse, to bargain collectively with the
Union as the exclusive collective-bargaining
representative of all employees in said unit.
Accordingly, we find that the Union was duly
certified as the collective-bargaining representative
of the employees of the Respondent in the
appropriate unit described above, and that the
Union, at all times since January 11, 1967, has been
and now is the exclusive bargaining representative
of all the employees in the aforesaid unit , within the
meaning of Section 9(a) of the Act. We further find
that the Respondent has, since January 18, 1967,
refused to bargain collectively with the Union as the
exclusive bargaining representative of its employees
in the appropriate unit , and that, by such refusal, the
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 the Respondent has engaged 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
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of all employees in the appropriate
unit, and embody in a signed agreement any
understanding reached.
CONCLUSIONS OF LAW
1. J. H. Filbert, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Local 434, American Bakery & Confectionery
Workers International Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees at
the Respondent's Macon, Georgia, plant, including
shipping employees, over-the-road truckdrivers, and
the laboratory technician-nurse, but excluding office
clerical employees, salesmen, professional
employees, guards, and supervisors 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. On January 11, 1967, and at all times
thereafter, the above-named labor organization has
been and is the certified and exclusive
representative of all employees in the aforesaid
appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about January 18, 1967, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclusive
bargaining representative of all the employees of the
Respondent in the appropriate unit, the Respondent
has engaged in and is engaing in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
6. By the aforesaid refusal to bargain, the
Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing, employees in the exercise of the rights
guaranteed to them in Section 7 of the Act, and has
thereby engaged 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
Relations Board orders that the Respondent, J. H.
Filbert, Inc., Macon, Georgia, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment with Local 434, American Bakery &
Confectionery Workers' International Union,
AFL-CIO, as the exclusive and duly certified
bargaining representative of its employees in the
above-described appropriate unit.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
the rights guaranteed to them by 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 embody in
a signed agreement any understanding reached.
(b) Post at its Macon, Georgia, facilities, copies of
the attached notice marked "Appendix."3 Copies of
said notice, on forms provided by the Regional
Director for Region 10, after being duly signed by
Respondent's representative, 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 the
Company 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 10 days from the date of this Order,
what steps have been taken to comply herewith.
S In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 employees that:
WE WILL NOT refuse to bargain collectively
with Local434 , American Bakery &
Confectionery Workers' International Union,
AFL-CIO, 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
representative of all employees in the
bargaining unit described below with respect to
wages, hours, and other terms and conditions of
employment , and embody in a signed
agreement any understanding reached.
J. H. FILBERT, INC.
The bargaining unit is:
All production and maintenance employees
at the Employer's Macon, Georgia, plant,
including shipping employees, over-the-
road truckdrivers, and the laboratory
technician-nurse, but excluding office
clerical employees, salesmen, professional
employees, guards, and supervisors as
defined in the Act.
J. H. FILBERT, INC.
(Employer)
Dated By
651
(Representative) (Title)
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.
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 St., N.E., Room 701, Atlanta,
Georgia 30308, Telephone 526-5741.