Amalgamated Meatcutters, Etc., Local No. 576

876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to hire or tenure of employment , or any term or condition of employment, against any employee because of membership in or activity on behalf of any labor organization. SALINAS VALLEY BROADCASTING CORPORATION AND/OR CENTRAL VALLEY COMMUNICATIONS CORPORATION, D/B/A KSBW-TV, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) NoTE.-We will notify any of the above-named emloyees presently serving in the Armed Forces of the United States of the right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. 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. Employees may communicate directly with the Board's Regional Office, 830 Market Street, San Francisco 2, California, Telephone No. Yukon 6-3500, Extension 3191, if they have any question concerning this notice or compliance with its provisions. Amalgamated Meatcutters and Butcher Workmen of North America, Local #576 and Kansas City Chip Steak Co., Inc. Case No. 17-CB-347. January 25, 1963 DECISION AND ORDER Upon a charge filed on July 19, 1962, by Kansas City Chip Steak Co., Inc., herein called the Company, the General Counsel, by the Re- gional Director for the Seventeenth Region, issued a complaint dated August 30, 1962, against Amalgamated Meatcutters and Butcher Workmen of North America, Local #576, herein called the Respond- ent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sec- tions 8(b) (3) and 2(6) and (7) of the Act. Copies of the charge, the complaint, and the notice of hearing before a Trial Examiner were duly served upon the Respondent. With respect to the unfair labor practices, the complaint alleged that by striking against the Company without notifying the Kansas State labor commissioner concerning the labor dispute between Re- spondent and the Company, as required by Section 8(d) (3) of the Act, the Respondent violated Section 8 (b) (3) of the Act. Thereafter, on September 4, 1962, the Respondent filed an answer denying the ma- terial allegations of the complaint. On October 16, all parties to this proceeding entered into a stipula- tion of facts, and requested that the proceeding be transferred directly to the Board for findings of fact, conclusions of law, and a decision and order. The request states that the parties have waived their rights to a hearing before a Trial Examiner and to the issuance of an Inter- mediate Report and Recommended Order. The parties also agreed that their stipulation and certain specified documents shall constitute the entire record in the case. 140 NLRB No. 80 AMALGAMATED MEATCUTTERS, ETC., LOCAL NO. 576 877 On October 17, the Board granted the parties' request to transfer the case to the Board. Briefs were thereafter filed by the General Counsel and the Respondent. Upon the basis of the parties' stipulation, the briefs, and the entire record in the case, the Board 1 makes the following : FINDINGS OF FACT I. TILE BUSINESS OF THE COMPANY The Company, a Missouri corporation, with its principal office and place of business in Kansas City, Kansas, is engaged in the packing, distribution, and sale of meat and meat products, and it ships meat and meat products valued in excess of $50,000 annually to points outside the State of Kansas. The Company admits, and we find, that it is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Amalgamated Meatcutters and Butcher Workmen of North Amer- ica, Local #576, is, and has been at all times material herein, a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES All meat department employees of the Company employed at its Kansas City, Kansas, plant, but excluding office clerical and all other employees, guards, professional employees, 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. At all times material herein, the Respondent has been and is now the ex- clusive representative of all employees in the aforesaid unit for the purposes of collective bargaining. On Marcli 25, 19601 the Respondent and the Company entered into a collective-bargaining agreement, covering employees in the above- described appropriate unit. The contract, by its terms, was effective from December 31, 1959, to December 31, 1961. On October 19, 1961, Respondent served timely notice to the Company of its desire to modify the contract. At the same time, the Respondent notified the Federal Mediation and Conciliation Service of the existence of a labor dispute between the Respondent and the Company. The Respondent and the Company failed to reach an agreement, and, on July 5, 1962, the Re- spondent struck against the Company. The Respondent served no notice on the Kansas State labor commissioner of the existence of the labor dispute until August 13, 1962, 5 weeks after the strike had begun and 3 weeks after the charge herein was filed. 'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman McCulloch and Members Leedom and Brown]. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint alleges that the Kansas State labor commissioner is a State agency "established to mediate and conciliate disputes" within the meaning of Section 8 (d) (3) of the Act,' and that by failing before striking to notify the Kansas State labor commissioner of the existence of the labor dispute, as required by Section 8(d) (3) of the Act, the Respondent refused to bargain collectively with the Company in viola- tion of Section 8(b) (3) of the Act.' The Respondent contends, first, that there is no mediation and conciliation service in the State of Kan- sas within the meaning of Section 8 (d) (3) and, second, that, because of certain facts described more fully below, the State of Kansas is estoppe4 from alleging that there exists a mediation and conciliation service in that State. For the reasons stated below, we find no merit in these contentions. The Respondent contends initially that there is no agency in Kansas "established to mediate and conciliate disputes" within the meaning of Section 8(d) (3) of the Act. We disagree. The Kansas Labor- Management Act, which was in effect at all material times herein, provides in pertinent part as follows : 44-817. Mediators : appointment : functions : compensation. The state labor commissioner shall have the power to appoint any competent, impartial, disinterested person to act as mediator in any labor dispute either upon his own initiative or upon the re- quest of one of the parties to the dispute. It shall be the function of such mediator to bring the parties together under such favor- able auspices as will tend to effectuate settlement of the dispute, but neither the mediator nor the state labor commissioner shall have any power of compulsion in mediation proceedings. The state labor commissioner shall provide necessary expenses for such mediators as he may appoint, order reasonable compensation not 2 Section 8(d), in pertinent part, provides as follows: (d) . . That where there is in effect a collective -bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification- (1) serves a written notice upon the other party to the contract of the pro- posed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification ; (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of existence of a dispute , and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred , provided no agreement has been reached by that time . . . . awhile we have been advised that after this case was transferred to the Board the Respondent terminated its strike against the Company, this fact does not materially affect our findings or remedial order herein United Mine Workers of America , District 50, and United Mine Workers of America, Local Union No 12915 ( West Virginia Pulp & Paper Co ), 118 NLRB 220, 221, footnote 1 AMALGAMATED MEATCI TTERS, ETC., LOCAL NO. 576 879 exceeding fifty dollars ($50) per day for each such mediator, and prescribe reasonable rules of procedure for such mediators. Thus, under Kansas law, the State labor commissioner is empowered to appoint mediators in labor disputes; these mediators are directed "to bring the parties together" for the purpose of settling the dispute; and the State labor commissioner is authorized to compensate and to provide for the expenses of these mediators and to prescribe rules of procedure governing mediations. In addition, the parties stipulated that in 1956, and yearly thereafter, the State of Kansas has appropri- ated funds for the purpose of paying fees for mediators and attorneys. The parties also stipulated that when the parties to a dispute agree to formal mediation, the State labor commissioner appoints a mediator who meets with the parties and mediates the dispute and that, between 1956 and 1958, three disputes were formally mediated in this manner; and that at the request of one of the parties to a dispute, the State labor commissioner or his assistant engage in "informal" mediation, and that a "large number" of labor cases are mediated informally each year. The purpose of Section 8(d) (3) of the Act is to afford Federal and State mediation authorities an opportunity to settle labor disputes before they reach strike stage. The State of Kansas has set up a mediation authority; it has provided it with funds and personnel; and the Kansas mediation service has exercised its authority to mediate disputes. In view of these circumstances, and in order to implement the purpose of Section 8(d) (3),4 we find that there exists in Kansas a State agency "established to mediate and conciliate disputes" within the meaning of Section 8 (d) (3) of the Act.' The Respondent further contends that the State of Kansas is estopped from asserting that a mediation and conciliation service exists in that State. According to the Respondent, it did not file a notice of 4In this connection, we regard as particularly significant the fact that after the Re- spondent filed a notice with the State labor commissioner on August 13, 1962, of the existence of the instant dispute, the State labor commissioner appointed a mediator and, as of the time of the stipulation of the parties , the mediation between the Company and the Respondent was still pending . It is therefore apparent that Kansas has a function- ing mediation service and that if the Respondent had filed a timely notice with the Kansas mediation service as required by Section 8(d) (3) of the Act, there is a possibility that no strike would have taken place. O Brotherhood of Locomotive Firemen and Enginemen ; and Brotherhood of Railroad Trainmen ( Phelps Dodge Corporation, Morenci Branch ), 130 NLRB 1147 . While the Court of Appeals for the Ninth Circuit set aside the Board's order in part ( 50 LRRM 2015 [ 302 F. 2d 198]) and found that no mediation and conciliation service existed in Arizona within the meaning of Section 8(d) (3), we believe that the factual situation in Kansas is distinguishable . The court of appeals in Phelps Dodge, in finding, despite the fact that the State labor department was authorized to promote mediations , that there was no mediation agency in Arizona , relied principally on the fact that no personnel had been appointed or funds appropriated to the Arizona State Labor Department for the pur- pose of mediation and that there was no history of the State labor department having performed any mediation. In the instant case, however , as we have pointed out, the Kansas Legislature had provided the State labor commissioner with both personnel and funds with which to mediate disputes and the State labor commissioner has exercised his authority on a number of occasions to mediate labor disputes. 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dispute with the Kansas State labor commissioner in this case because the State labor commissioner in 1955 and 1956 told various persons, including the Respondent, that he would refuse to act under the Kansas statute to mediate labor disputes because of the failure of the State legislature to appropriate funds for that purpose. We find no merit in this contention. Whether there might be circumstances where oral statements of State officials, respecting the lack of enforcement of applicable State statutes, would relieve a party of the State notice requirements of Section 8(d) (3), we are satisfied that this is not such a case. In our view, the statements of the State labor commissioner relied on by the Respondent afforded the Respondent no reasonable basis for believing that in 1962 the State labor commissioner would not act to mediate a labor dispute. In this connection, we note that the statements relied on by the Respondent were made 6 years prior to the instant proceeding; that the State labor commissioner who made the statements is no longer in office; that despite the State labor commissioner's statements that he would not mediate disputes, he arranged for three formal mediations during his term of office; that the State labor commissioner's statement of policy was predicated on the fact that at that time no money had been appropriated for admin- istration of the State mediation law, but, subsequently, the Kansas Legislature appropriated money for this purpose, and has continued to do so each year until the present; and that the incumbent State labor commissioner has in no way reaffirmed his predecessor' s statement of policy that the State mediation act would not be enforced. In view of these circumstances, and in light of the congressional intent in enacting Section 8(d) (3), referred to above, we find that the Respondent was not excused for failing to file a notice with the Kansas State labor commissioner as required by Section 8(d) (3) of the Act. As we have found that the Kansas State labor commissioner is an agency established for the purpose of mediation and conciliation within the meaning of Section 8 (d) (3) of the Act, and as we have found that the Respondent failed, before striking, to give notice to the State labor commissioner of its labor dispute with the Company, as required by Section 8(d) (3), we find that the Respondent has refused to bargain collectively with the Company, in violation of Section 8(b) (3) of the Act.' °Local No. 156, United Packinghouse Workers of America, AFL-CIO; District #4 Council , et at. ( Du Quoin Packing Company ), 117 NLRB 670; Broward County Car- penters' District Council and Local Unions Nos . 1394, 1947, 3206, and 1766, United Brotherhood of Carpenters and Joiners of America , AFL-CIO (Broward Builders' Ex- change, Inc.), 122 NLRB 1008, 1016. AMALGAMATED MEATCUTTERS, ETC., LOCAL NO. 576 881 IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The aforesaid activities of the Respondent, having occurred in con- nection with the Company's business, set forth above, have a close, intimate, and substantial relation 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 certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Respondent, Amalgamated Meatcutters and Butcher Workmen of North America, Local #576, is a labor organization within the meaning of Section 2 (5) of the Act. 2. Kansas City Chip Steak Co., Inc., a Missouri corporation, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By striking for the purpose of modifying its collective- bargaining agreement with the Company without serving the notice required by Section 8 (d) (3) of the Act upon the Kansas State labor commis- sioner, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (3) of the Act. ORDER Upon the above findings of fact, the stipulation of the parties, and the entire record,in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Amalgamated Meat- cutters and Butcher Workmen of North America, Local #576, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Kansas City Chip Steak Co., Inc., a Missouri corporation, concerning the termination or modi- fication of the collective-bargaining agreement with said Company, by failing, before striking, to notify the Kansas State labor commis- sioner of the existence of a labor dispute, as required by Section 8 (d) (3) of the Act. (b) Engaging in, or causing or instructing the employees of Kansas City Chip Steak Co., Inc., to engage in, a strike for the purpose of 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD modifying or terminating a collective-bargaining contract, without first having complied with the requirements of Section 8 (d) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its offices and meeting halls in Kansas City, Kansas, copies of the attached notice marked "Appendix A." 7 Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for the Seventeenth Region for posting by Kansas City Chip Steak Co., Inc., it being willing, at all locations upon its or other premises where notices to its employees are customarily posted. (c) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. T 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 "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX A NOTICE TO ALL MEMBERS OF AMALGAMATED MEATCUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL #576, AND TO ALL EMPLOYEES OF KANSAS CITY CHIP STEAK CO., INC. 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 you that: WE WILL NOT refuse to bargain collectively with Kansas City Chip Steak Co., Inc., concerning the termination or modification of a collective-bargaining agreement with said Company, by failing before striking to notify the Kansas State labor commissioner of the existence of a labor dispute, as required by Section 8 (d) (3) of the Act. WE WILL NOT engage in, or cause, or instruct the employees of Kansas City Chip Steak Co., Inc., to engage in, a strike for the purpose of modifying or terminating a collective-bargaining con- RAYTHEON COMPANY 883 tract, without first having complied with the requirements of Section 8 (d) of the Act. AMALGAMATED MEATCUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL #576, Labor Organization. Dated---------------- By------------------------------------- (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. Employees may communicate directly with the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City 6, Missouri, Telephone No. Baltimore 1-7000, Extension 731, if they have any question concerning this notice or compliance with its provisions. Raytheon Company and Jane Reikard. Case No. 1-CA-3580. January 08, 1963 DECISION AND ORDER On March 26, 1962, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Interme- diate Report. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief, and the General Counsel filed a brief in support of the Intermediate Report.' The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and, briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations to the extent consistent with our Decision herein 2 1 The Respondent's request for oral argument is denied inasmuch as the positions of the parties are adequately set forth in the record , exceptions, and briefs. 2 We do not agree with the Trial Examiner that interest on backpay should not be awarded. Interest at the rate of 6 percent per annum shall be added to the backpay to be computed in the manner set forth in Isis Plumbing & Heating Co ., 138 NLRB 716. For purposes of this decision , Member Rodgers has agreed to be bound by the majority decision in Isis. 140 NLRB No. 84. 681-492-63-vol. 140-57