American Ham Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Ham Company, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 545, AFL-CIO. Case 14-CA- 11648 December 5, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on July 12, 1978, by Amalga- mated Meat Cutters and Butcher Workmen of North America, Local No. 545, AFL-CIO, herein called the Union, and duly served on American Ham Compa- ny, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 14, issued a com- plaint and notice of hearing on August 28, 1978, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Sec- tion 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 be- fore an Administrative Law Judge were duly served on the parties to this proceeding. Respondent failed to file an answer to the complaint. On September 25, 1978, counsel for General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on October 6, 1978, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judg- ment should not be granted. Respondent failed to file a response to Notice To Show Cause and there- fore the allegations in the Motion for Summary Judgment stand uncontroverted. 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 Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides as follows: The respondent shall, within 10 days from the service of the complaint, file and answer thereto. The respondent shall specifically admit, deny, or explain each of the facts alleged in the com- plaint, unless the respondent is without knowl- edge, in which case the respondent shall so state, such statement operating as a denial. All allega- tions in the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be ad- mitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. The complaint and notice of hearing served on the Respondent specifically stated that unless an answer was filed to the complaint within 10 days from the service thereof "all of the allegations of the com- plaint shall be deemed to be admitted to be true and may be so found by the Board." Further, according to the uncontroverted allegations of the Motion for Summary Judgment, the Regional Director for Re- gion 14, pursuant to Section 102.22 of the Board's Rules and Regulations, warned Respondent in writ- ing that unless an answer was filed by September 14, 1978, a motion would be made before the Board for entry of an order based on the undenied allegations of the complaint. Respondent has failed to file an answer to the complaint or to respond to the Notice To Show Cause. Thereafter, on September 25, 1978, no answer having been filed, counsel for the General Counsel filed the instant Motion for Summary Judg- ment. As Respondent has filed no answer within 10 days from the service of the complaint, or within the ex- tended time afforded it by the Regional Director, and as no good cause for the failure to do so has been shown, in accordance with the rule set forth above, the allegations of the complaint herein stand undenied and are deemed to be admitted to be true and are so found to be true, and we shall grant the General Counsel's Motion for Summary Judgment.' On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent, American Ham Company, Inc., is, and has been at all times material herein, a Mis- souri corporation with an office and place of busi- ness at Allen Street and DeSoto Road in the city of Bonne Terre, Missouri, and is engaged in the manu- facture, sale, and distribution of ham, meat, and re- lated products. Respondent's plant located at Bonne Eagle Truck and Trailer Rental Dirtision Ef E T Y T Leasing, Inc., 211 NLRB 804 (1974). 578 AMERICAN HAM COMPANY, INC. Terre, Missouri, is the only facility involved in this proceeding. During the fiscal year ending June 1978, which period is representative of its operations dur- ing all times material herein, Respondent, in the course and conduct of its business operations, per- formed services valued in excess of $40,000, of which services valued in excess of $40,000 were performed for various enterprises located in States other than the State of Missouri. Also during the fiscal year end- ing June 1978, which period is representative of its operations during all times material herein, Respon- dent, in the course and conduct of its business opera- tions, caused to be manufactured, sold, and distrib- uted at its Bonne Terre, Missouri, plant products valued in excess of $10,000, of which products valued in excess of $10,000 were furnished to enterprises, each of which, in turn, meets other than a solely indi- rect standard for the assertion of the Board's jurisdic- tion. 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters and Butcher Work- men of North America, Local No. 545, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES At all times material herein, Kenneth Byington has been and is now a supervisor and agent of Respon- dent, within the meaning of Section 2(11) of the Act. On April 11, 1978, a majority of Respondent's em- ployees designated and selected the Union as their representative for the purposes of collective bargain- ing with Respondent in the following described ap- propriate unit: All production employees, all plant scalers and clerks, clean-up personnel, dock workers, truck loading and receiving employees, maintenance and labor, and all delivery truckdrivers, em- ployed by Respondent at its Allen Street and DeSoto Road, Bonne Terre, Missouri, facility; excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. The Union is now, and at all material times since April 11, 1978, has been, the exclusive bargaining representative of the employees in the unit within the meaning of Section 9(a) of the Act. Respondent on April 11, 1978, recognized the Union as the exclusive collective-bargaining representative in the unit de- scribed above. Thereafter, on May 2, 1978, Respon- dent and the Union mutually agreed upon rates of pay, wages, hours of employment, and other terms and conditions of employment affecting employees in the above unit. At all times material herein since May 5, 1978, and continuing to date, the Union has requested that Respondent execute the above-de- scribed written collective-bargaining agreement. However, since May 11, 1978, and continuing to date, Respondent has failed and refused, and contin- ues to fail and refuse, to execute the written agree- ment agreed upon between the Respondent and the Union. Accordingly, we find that Respondent has, since May 11, 1978, 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, Respondent has en- gaged 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 Respondent set forth in section 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 take cer- tain affirmative action designated to effectuate the policies of the Act. To remedy Respondent's violation of Section 8(a)(5) and (1) of the Act, we shall order that it exe- cute, sign, and give effect to all the terms and condi- tions of said contract or, if the Union does not re- quest such execution, we shall order that Respondent be ordered to bargain collectively in good faith, upon request, with the Union, as the exclusive collective- bargaining representative of its employees in the said appropriate unit, and, if an understanding is reached, embody such understanding in a signed contract. 579 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We shall further order that Respondent make whole the employees, in the unit found appropriate herein, for any loss of benefits they may have suf- fered from May 11, 1978, by reason of Respondent's failure to give effect to said contract, to the date of compliance with the Order herein. All moneys to be paid to such employees shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon to be com- puted in the manner prescribed in Florida Steel Cor- poration, 231 NLRB 651 (1977).2 We shall also order, if required by their contract, that Respondent reimburse the Union for all mem- bership dues which, since May 11, 1978, Respondent has failed to withhold and transmit to the Union pur- suant to signed dues-deduction authorizations and in accordance with a checkoff provision of the collec- tive-bargaining agreement, with interest computed thereon in the manner prescribed in Florida Steel Corporation, supra. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. American Ham Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Meat Cutters and Butcher Work- men of North America, Local No. 545, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production employees, all plant scalers and clerks, clean-up personnel, dock workers, truck load- ing and receiving employees, maintenance and labor, and all delivery truckdrivers, employed by Respon- dent at its Allen Street and DeSoto Road, Bonne Terre, Missouri, facility; excluding office clerical em- ployees, professional employees, guards and super- visors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since April 11, 1978, the above-named labor or- ganization has been and now is the exclusive repre- sentative of all employees in the aforesaid appropri- ate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about May 11, 1978, 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 and by refusing to execute and implement provisions of the agreed- 2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). upon written agreement with the said labor organiza- tion, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act, as amended. 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)(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 Re- lations Board hereby orders that the Respondent, American Ham Company, Inc., Bonne Terre, Mis- souri, 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 Amalgamated Meat Cut- ters and Butcher Workmen of North America, Local No. 545, AFL-CIO, as the exclusive bargaining rep- resentative of all its employees in the appropriate unit. (b) Refusing to sign or execute, in writing, the written agreement reached with the Union or any other collective-bargaining representative of its em- ployees. (c) 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 organization as exclusive representative of all em- ployees in the aforesaid appropriate unit by execut- ing forthwith the agreed-upon contract and by honoring and complying with the provisions thereof or, if the Union does not request such execution, bar- gain collectively in good faith, upon request, with the Union, as the exclusive representative of its employ- ees in the unit found appropriate, and, if an under- standing is reached, embody such understanding in a signed contract. The appropriate bargaining unit is: All production employees, all plant scalers and clerks, clean-up personnel, dock workers, truck loading and receiving employees, maintenance and labor, and all delivery truckdrivers, em- 580 AMERICAN HAM COMPANY, INC. ployed by Respondent at its Allen Street and DeSoto Road, Bonne Terre, Missouri, facility; excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. (b) Make whole the employees in the unit found appropriate herein for any loss of benefits they may have suffered from May 11, 1978, by reason of Re- spondent's failure to execute and give effect to said contract, in the manner set forth in the section of this Decision entitled "The Remedy." (c) If provided by their contract, reimburse the Union for all membership dues which, since May I 1, 1978, Respondent has failed to withhold and trans- mit to the Union pursuant to signed dues-deduction authorizations and in accordance with the checkoff provisions of the agreed-upon collective-bargaining agreement, in the manner set forth in the section of this Decision entitled "The Remedy." (d) Post at its place of business at Allen Street and DeSoto Road in the city of Bonne Terre, Missouri, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Re- gional Director for Region 14, after being duly signed by Respondent's representative, shall be post- ed 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. (e) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Judg- ment of the United States Court of Appeals Enforcing and 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 with Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 545, AFL-CIO as the exclusive bargaining represen- tative of all our employees in the appropriate unit. WE WILL NOT refuse to sign or execute, in writ- ing, collective-bargaining agreements reached with the Union or any other collective-bargain- ing representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. WE WILL. upon request of the aforesaid Union, execute and give retroactive effect to the collec- tive-bargaining contract on which agreement was reached on May 5, 1978, or, if the Union does not request such execution, WE WILL bar- gain collectively in good faith, upon request, with the aforesaid Union as the exclusive collec- tive-bargaining representative of our employees in the unit found appropriate, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and embody in an agreement any understanding reached. The bar- gaining unit is: All production employees, all plant scalers and clerks, clean-up personnel, dock workers, truck loading and receiving employees, main- tenance and labor, and all delivery truckdriv- ers, employed by us at our Allen Street and DeSoto Road, Bonne Terre, Missouri, facil- ity; excluding office clerical employees, pro- fessional employees, guards and supervisors as defined in the Act. WE WILL reimburse our employees in the unit found appropriate herein, for any loss of bene- fits they may have suffered because we failed to sign, execute, and give effect to such contract on May 11, 1978, with interest. WE WILL reimburse said Union for all mem- bership dues which, since May 11, 1978, were authorized by our employees to be deducted but which we failed to deduct and transmit to said Union, with interest. AMERICAN HAM COMPANY. INC. 581