Knickerbocker Foods, Inc., a Division of Knickerbocker Meats, Inc.

National Labor Relations Board - Board Decisions

Mar 17, 1982

260 N.L.R.B. 987 (N.L.R.B. 1982)

KNICKERBOCKER FOODS. INC
Knickerbocker Foods, Inc., a division of Knicker-
bocker Meats, Inc. and Teamsters, Chauffeurs,
Warehousemen & Helpers, Local No. 385, af-
filiated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Help-
ers of America. Case 12-CA-9849
March 17, 1982
DECISION AND ORDER
BY MEMBEI RS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on September 17, 1981, by
Teamsters, Chauffeurs, Warehousemen & Helpers
Local No. 385, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, herein called the
Union, and duly served on Knickerbocker Foods,
Inc., a division of Knickerbocker Meats, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 12, issued a complaint
and notice of hearing on October 2, 1981, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Na-
tional 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 July 2, 1981,
following a Board election in Case 12-RC-5972,
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 July 20, 1981, 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 October 14, 1981, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On November 19, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November
27, 1981, the Board issued an order transferring the
'Offilcai nolltc is taken of the reco rd ill the reprcntailtllIon proecding.
Case 12 RC 5972. as, the term "record" is defilnid i Sae. 1()2 h8 lid
102 69(g) of he BoHeard', Rule, and RegulltonIls. Seris 8. a, amcndedi Sec
LIVU Elrctmrolrteml, /n,1 Ihh NL RIB 9381 (1 7), c111 id 31 1 2d th)8 (4lh
Cir 1968): Glden . R, l' A (,'ii . 1(h7 NI R I 151 (1h17) cnt'dm 415
F2d 26 (5th Cir 1 ! --,9 -l h irt (' P. ftl,. 2t1') I Supp ls
(D.CVa 1967): b2olltt Cor., 1664 NI RH 178 1llt7). cntd 117 1 2i Q1
t7th Cir 1968): See t}(d) fm thie NI RA, as .a1meitndeld
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 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, Respondent
admits its refusal to bargain but challenges the
union certification on the basis that the Board
erred in certifying the Union as the exclusive bar-
gaining representative of Respondent's employees.
In the Motion for Summary Judgment, counsel for
the General Counsel alleges that Respondent seeks
to relitigate issues previously considered in the un-
derlying representation case, and, also, that no fac-
tual issues warranting a hearing are presented in
this case.
Our review of the record herein, including the
record in Case 12-RC-5972, discloses, inter alia,
that pursuant to a Stipulation for Certification
Upon Consent Election, an election was conducted
among the employees of the stipulated unit on Jan-
uary 9, 1981, and that the tally of ballots furnished
the parties showed 10 votes cast for and 9 votes
cast against the Union. There were three chal-
lenged ballots, a number sufficient to affect the re-
sults of the election. On February 9. 1981, the Re-
gional Director issued his report on challenged bal-
lots and recommendations to the Board in which
he recommended that the ballots of Leroy Cros-
land and Frank W. Harper, Jr., be opened and
counted but that the challenge to the ballot of J.
Alton Horning be sustained. In so recommending,
the Regional Director concluded that Horning,
though not a supervisor as suggested in the chal-
lenge to his ballot, did not share a community of
interest with the other employees in the unit.
Respondent filed both a request for reconsider-
ation of the report on challenged ballots with the
Regional Director and a request for remand with
the Board. On February 25, 1981, the Regional Di-
rector issued a supplemental report on challenged
ballots and recommendation to the Board. The sup-
plemental report, based in part on the Regional Di-
rector's consideration of an affidavit from Horning
submitted by Respondent, again sustained the chal-
lenge to Horning's ballot. Respondent filed excep-
tions to the supplemental decision. On June 10,
1981, the Board issued its Decision and Direction,
260 NLRB No. 121
987
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adopting the Regional Director's recommendations
with regard to the challenged ballots. Accordingly,
on June 22. 1981, the ballots of Crosland and
Harper were opened and counted.
The revised tally of ballots then issued showing
a majority of votes cast for the Union. On July 2,
1981, the Regional Director issued a Certification
of Representative to the Union.
In July 14, 1981, by letter, the Union requested
that Respondent meet and bargain collectively with
it. On July 20, 1981, Respondent refused to bargain
with the Union. On August 31, 1981, again by
letter, the Union renewed its request that Respond-
ent meet and bargain with it. Respondent again re-
fused on September 10, 1981.
In its answer to the complaint, Respondent
admits that it has refused to bargain collectively
with the Union whose certification it disputes. In
addition, Respondent offers three affirmative de-
fenses. First, it argues that it was denied due pro-
cess of law when it was not afforded a full hearing
concerning the challenged ballots. Respondent
maintains that it raised material and substantial
issues of fact not addressed by the Board. Second-
ly, Respondent maintains that the Board departed
from precedent in adopting the Regional Director's
findings and recommendations which were based
on an investigation that was itself arbitrary and ca-
pricious. Finally, Respondent claims that the Board
abused its discretion in failing to review a record
containing all evidence received and generated by
the Regional Director. Respondent reiterates these
arguments in its response to the order transferring
the proceeding to the Board and Notice To Show
Cause.
We find no merit in Respondent's claim of denial
of due process. The record before the Board in
Case 12-RC-5972 raised no material issue of fact
or law to warrant a hearing. The affidavit submit-
ted by Respondent with its request for reconsider-
ation similarly raises no issue which would warrant
a hearing. In this regard Horning's affidavit merely
set forth facts primarily concerning nonwork-relat-
ed casual contacts with unit employees, and failed
to give any evidence that Horning's work was suf-
ficiently related to that of unit employees so as to
warrant Horning's inclusion in the unit.
After thorough examination of Respondent's ex-
ceptions and exhibits attached thereto, we find, in
agreement with the Regional Director, that Re-
spondent has presented insufficient evidence to es-
tablish a prima facie case that J. Alton Horning is
eligible to vote. Reichart Furniture Company v.
N.L.R.B., 649 F.2d 397 (6th Cir. 1981); Revco D. S.
Inc. v. N.L.R.B., 653 F.2d 264 (6th Cir. 1981).
As for Respondent's contention concerning the
failure to review all evidence received and generat-
ed by the Regional Director, we stress that state-
ments of witnesses which were before the Regional
Director in his disposition of election objections
and challenged ballots were expressly excluded
from the definition of "documentary evidence" in
Section 102.69(g)(1)(ii) of the Board's Rules and
Regulations, as amended on September 14, 1981.
The exclusion of such statements accords with our
policy of protecting investigatory affidavits from
disclosure when the witnesses have not testified at
a hearing. The Supreme Court upheld this policy
in N.L.R.B. v. Robbins Tire Co., 437 U.S. 214
(1978). Therefore, a party which wants the Board
to consider statements of witnesses must append
them to its submission to the Board pursuant to
Section 102.69(g)(3) of the Board's Rules.
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-
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 RESPONDENT
Knickerbocker Foods, Inc., a division of Knick-
erbocker Meats, Inc., is a Florida corporation and
is engaged in the wholesale sale and distribution of
meats from its office and place of business located
at 2292 Sand Lake Road, Orlando, Florida. During
the past 12 months, a representative period, Re-
spondent has purchased and received goods and
supplies valued in excess of $50,000 directly from
points located outside the State of Florida.
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
See Pithsburgh Plateur' Gos ({v. .\ 1i R R. 31: U S 146. Ih2 (1941);
Rulcr and Rcgulallnol of Ihe Hoard. Secs 10)2 t7(f) and 10)2 69(c
988
KNIC'KERI1OCKI.R F()()I)S. INC
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.
II. THE L.ABOR ORGANIZAT1ION INVOI.VED
Teamsters, Chauffeurs, Warehousemen & Help-
ers Local No. 385, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
111. 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 delivery drivers and warehousemen em-
ployed by Respondent at its Orlando, Florida,
warehouse; but excluding office clerical em-
ployees, casual employees, mechanics, dis-
patchers, technical employees, guards and su-
pervisors as defined in the Act.
2. The certification
On January 9, 1981, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 12, 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 July 2, 1981, 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 July 14, 1981, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about July 20, 1981, and continuing
at all times thereafter to date, Respondent has re-
fused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
July 20, 1981, 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 (I)
of the Act.
IV. THE FFFECT OF THE UNFAIR I.ABOR
PRACTICES UPON COMMERCE
The activities of Knickerbocker Foods, Inc., a
division of Knickerbocker Meats, Inc., 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 ob-
structing commerce and the free flow of
commerce.
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 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:
CONCLUSIONS OF LAW
I. Knickerbocker Foods, Inc., a division of
Knickerbocker Meats, Inc., is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Teamsters, Chauffeurs, Warehousemen &
Helpers Local No. 385, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, War-
ehousemen & Helpers of America, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
989
DI)C (ISI()NS ()F NA'I IO()NAI. IAII()R REILATI()NS BO()ARI)
3. All delivery drivers and warehousemen em-
ployed by the Employer at its Orlando, Florida
warehouse; but excluding office clerical employees,
casual employees, mechanics, dispatchers, technical
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. Since July 2, 1981, 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 July 20, 1981, 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,
Knickerbocker Foods, Inc., a division of Knicker-
bocker Meats, Inc., Orlando, Florida, 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 Teamsters, Chauf-
feurs, Warehousemen & Helpers Local No. 385, af-
filiated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All delivery drivers and warehousemen em-
ployed by the Employer at its Orlando, Flor-
ida, warehouse; but excluding office clerical
employees, casual employees, mechanics, dis-
patchers, technical employees, guards and su-
pervisors as defined in the Act.
(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.
(b) Post at its Orlando, Florida, warehouse
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 12, 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 Re-
spondent to insure that copies of said notices are
not altered, defaced, or covered by any other mate-
rial.
(c) Notify the Regional Director for Region 12,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
In the cvxcl, that Ihi, Order is enforced by a Judgment of a United
Stlates Court of Appeals. the 'Aords ill the nltice reading "Posted by
Order ,of the National Labor Relations Board" shall read "Posted Pursu-
anl to i, Judgment of the United States Court of Appeals Enfoircing an
()rder of the National .ahbor 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 Teamsters, Chauffeurs, Warehousemen &
Helpers Local No. 385, affiliated with the In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America,
as the exclusive representative of the employ-
ees in the bargaining unit described below.
WE WILl NOT in any like or related manner
interfere with, restrain, or coerce our employ-
't9()
KNICKt'RB()'KI R F()))S, IN('
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain w ith the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to 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 is:
All delivery drivers and warehousemen em-
ployed by the Employer at its Orlando,
Florida, warehouse; but excluding office
clerical employees, casual employees, me-
chanics, dispatchers, technical employees,
guards and supervisors as defined in the Act.
KNICKERBOCKI R FOOi)S, INC., A 1)1-
VISION OF KNICKERBOCKER M ArIS,
INC.