Tom Taylor Foods, Inc.

National Labor Relations Board - Board Decisions

Feb 12, 1976

222 N.L.R.B. 863 (N.L.R.B. 1976)

TOM TAYLOR FOODS 863
Tom Taylor Foods, Inc. and Chauffeurs, Teamsters,
Warehousemen and Helpers Local Union No. 135,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 25-CA-7320
February 12, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed on August 26, 1975, by Chauf-
feurs,-Teamsters, Warehousemen and Helpers Local
Union No. 135, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America herein called the Union, and duly served
on Tom Taylor-Foods, Inc., herein called the Re-
spondent, the Acting General Counsel, hereinafter
referred to as the General Counsel, of the National
Labor Relations Board, by the Regional Director for
Region 25, issued a complaint and notice of hearing
on September 30, 1975, 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, complaint, and no-
tice of hearing before an Administrative Law Judge
were duly served on the parties to this proceeding.
With respect to the unfair labor practices, the rec-
ord reflects that on June 10, 1975, with an effective
date of December 16, 1974, following a Board elec-
tion in Case 25-RC-5603, the Union was duly certi-
fied as the exclusive collective-bargaining representa-
tive of Respondent's employees in the unit found
appropriate;' and -that, commencing on or about
June 13, 1975, and at all times thereafter, Respon-
dent has refused, and continues to date to refuse, to
bargain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do SO .2 On October
i Official notice is taken of the record in the representation proceeding,
Case 25-RC-5603, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations , Series 8, as amended. See
LTV'Electrosystems, Inc, 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415 F 2d 26
(C.A. 5, 1969); Intertype Co.-v. Penello, 269 F.Supp' 573 (D.C. Va, 1967);
Follett Corp, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA.
2 The complaint alleges that the Union requested Respondent to bargain
commencing on or about February 26, 1975, and continuing to date, and
more particularly on June 13, July 1, and 10, 1975, and that Respondent
refused to bargain on or about February 26, 1975, and continuing to date
and more particularly on or about July 3, 1975. In its answer to the com-
plaint, Respondent admits that the Union requested bargaining on or about
June 13, 1975, to date, and in its response to Notice To Show Cause, Re-
8, 1975, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On October 20, 1975, counsel for the General
Counsel filed directly with the Board a motion to
strike portions of Respondent's answer and to grant
the Motion for Summary Judgment. Subsequently,
on November 10, 1975, the Board issued an order
transferring the proceeding to the Board and a No-
tice To Show Cause why the General Counsel's Mo-
tion for Summary Judgment should not be granted.
Respondent 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 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
As reflected above, footnote 2, Respondent admits
that it had not affirmatively responded to the
Union's request to bargain .' In its answer, the Re-
spondent attacks the appropriateness and scope of
the unit and the resulting certification. In its response
to Notice To Show Cause, Respondent admits that it
had "objected to certain conduct involving the April
18, 1974 election," and that "[s]ubsequent to the is-
suance of various supplemental opinion[s]" by the
Board, "those objections were renewed in light of the
circumstances then present." 4 The Respondent fur-
ther submits in its response to Notice To Show Cause
that, "[I]nasmuch as [its] contentions and supporting
memoranda have already been placed before the
Board," Respondent incorporates by reference here-
in those issues and its position with respect thereto.
By this assertion, and more specifically by its denials,
in whole or in part, of the allegations of the com-
plaint and the arguments propounded in its response
to Notice To Show Cause, the Respondent is at-
tempting to relitigate the same issues which it raised
in the representation proceeding, Case 25-RC-5603.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
spondent concedes that it had not affirmatively responded to the Union's
request. Accordingly, we find that the Union requested and Respondent
refused to bargain on June 13 , 1975, and thereafter.
3 The record before us also reveals that the Respondent, by letter dated
September 24, 1975, stated that "we intend to contest the certification issued
in 25-RC-5603, effective December 16, 1974."
4 The Board, on December 16, 1974, denied the Respondent 's Request for
Review of the Acting Regional Director 's Third Supplemental Decision and
Order as it raised no substantial issues warranting review.
222 NLRB No. 137
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gate issues which were or could have been litigated in
a prior representation proceeding.'
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the 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 de-
cision made in the representation proceeding. We
therefore find that the 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 6
On the basis of the entire record, the Board makes
the following:
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9(b) of the
Act:
All truckdrivers and warehousemen employed
by the Respondent at its Bloomington, Indiana,
establishment, excluding all salesmen, all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is now, and has been at all times
material herein, an Indiana corporation, with a place
of business at Bloomington, Indiana. It is engaged in
the business of the distribution and sale of restaurant
and institutional supplies, including food products
and paper supplies. During the past 12 months, a
representative period, the Respondent, in the course
and conduct of its business operations, purchased,
transferred, and delivered to its facility goods and
materials valued in excess of $50,000 which were
transported to said facility directly from States other
than the State of Indiana. During the past 12 months,
a representative period, the Respondent, in the
course and conduct of its business operations, sold
and distributed products, the gross value of which
exceeded $500,000.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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 juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Teamsters, Warehousemen and Help-
ers Local Union No. 135, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
5See Pittsburgh Plate Glass Co v. NL.R.B, 313 U.S 146, 162 ( 1941);
Rules and Regulations of the Board , Secs 102.67(f) and 102.69(c).
6 Having granted the Motion for Summary Judgment, we find it unneces-
2. The certification
On April 18, 1974, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 25, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on June 10, 1975, with an effec-
tive date of December 16, 1974, and the Union con-
tinues 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 June 13, 1975, and at all
times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about June 13, 1975, and continuing at all
times thereafter to date, the 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 the Respondent has,
since June 13, 1975, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate 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
sary to pass upon the motion to strike portions of Respondent's answer The activities of Respondent set forth in section
TOM TAYLOR FOODS 865
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, inti-
mate, 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 Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected 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); Bur-
nett 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. Tom Taylor Foods, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Chauffeurs, Teamsters, Warehousemen and
Helpers Local Union No. 135, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All truckdrivers and warehousemen employed
by the Respondent at its Bloomington, Indiana, es-
tablishment, excluding all salesmen, all office clerical
employees, professional employees, guards and su-
pervisors as defined in the Act constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since June 10, 1975, with an effective date of
December 16, 1974, the above-named labor organi-
zation has been and now is the certified and exclu-
sive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bar-
gaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about June 13, 1975, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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, 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 thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
7. The aforesaid 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,
Tom Taylor Foods, Inc., Bloomington, Indiana, 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 con-
ditions of employment with Chauffeurs, Teamsters,
Warehousemen and Helpers Local Union No. 135,
a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All truckdrivers and warehousemen employed
by the Respondent at its Bloomington, Indiana,
establishment, excluding all salesmen, all office
clerical employees, professional employees,
guards and supervisors 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-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Bloomington, Indiana, facility, cop-
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ies of the attached notice marked "Appendix." I Cop-
ies of said notice, on forms provided by the Regional
Director for Region 25, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted., Reason-
able 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 25, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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
7 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."
terms and conditions of employment with
Chauffeurs, Teamsters, Warehousemen and
Helpers Local Union No. 135, a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclu-
sive representative of the -employees in the bar-
gaining 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 represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All truckdrivers and warehousemen em-
ployed by the Respondent at its Bloomington,
Indiana, establishment, excluding all sales-
men, all office clerical employees, profession-
al employees, guards and supervisors as de-
fined in the Act.
TOM TAYLOR FOODS, INC.