Neuhoff Bros., Packers, Inc.

438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other privileges, and make them whole for any loss of pay they may have suffered by reason of their discharge, together with interest at the rate of 6 percent. WE WILL make Bright Dietz whole for any loss of pay he may have suf- fered by reason of his discharge, together with interest at the rate of 6 percent. All our employees are free to become or remain members of any labor organi- zation. EARL LATSHA LUMBER CO., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE-We will notify Donald Rheinchenbach, Clair Swartz, Elwood Dietz, Willis Weaver, and Owen Gephart if serving in the ? rmed Forces of the United States of their right to full reinvestment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania, Telephone No. 735-2612. Neuhoff Bros., Packers, Inc. and United Packinghouse, Food and Allied Workers of America, AFL-CIO. Case No. 16-CA-2392. August 12,1965 DECISION AND ORDER On June 17, 1965, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, granting the motion of the General Counsel for judgment on the pleadings, canceling the hearing scheduled herein, finding the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCul- loch and Members Fanning and Brown]. The Board has considered the Trial Examiner's Decision, the excep- tions, the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the additions indicated below.' 'Respondent contends that the bargaining unit improperly excludes certain employee categories and is therefore Inappropriate. As that Issue was considered and fully litigated in the representation proceeding, Respondent is precluded, under established Board policy, from relitigating this matter in the unfair labor practice case, and we hereby find the unit set forth in the Trial Examiner's Decision to constitute the appropriate unit for purposes of collective bargaining herein. 154 NLRB No. 40. NEUHOFF BROS., PACKERS, INC. 439 In agreement with the Trial Examiner, we find that the Charging Union was properly certified as exclusive bargaining representative for employees in the appropriate unit. In addition to the grounds set forth by the Trial Examiner for rejecting Respondent's argument that it is entitled to a hearing on its objections to the election of February 18, 1965, we rely upon the following factors. Respondent contends, inter alia, that Board agents improperly interfered with the second election by denying ballots to 13 individ- uals, and that a hearing is necessary to determine this matter. Respondent concedes, however, that, in the first election, the eligibility of these individuals was challenged on grounds that they are super- visors within the meaning of the Act, and that the Regional Director, on January 12, 1965, prior to the second election, issued his Supple- mental Decision and Order, finding, inter alia, that they are supervisors and sustaining the challenges. Respondent's request for review there- from was subsequently denied by the Board. It is apparent that the conduct of which Respondent complains comported with the Regional Director's prior ruling, as affirmed by the Board, and was in accord with established procedure; for the Board has held that its agents have authority to refuse "to issue ballots, even subject to challenge, for obviously ineligible persons." 2 As the allegedly objectionable conduct constitutes wholly insufficient grounds for voiding the elec- tion, it is plain that no further action is appropriate at this stage of the proceeding. Equally without merit is Respondent's claim that due process of law requires us to direct a hearing to relitigate the eligibility status of these 13 individuals. That issue was resolved in the aforementioned Supplemental Decision and Order on the basis of uncontroverted facts relating to the duties of the individuals in question, with adequate disclosure of the evidentiary source of these findings. Respondent, though having had ample opportunity, both during the investigatory stage and in its petition for review, to present evidence contesting the facts on which the Regional Director relied, elected instead to with- hold countervailing factual assertions until after the unfair labor practice complaint had issued. Assuming the truth of the Respondent's present factual allegations, it is apparent that error, if any, in either the Regional Director's disposition of the challenges or his denial of a hearing thereon, was directly attributable to Respondent's unwilling- ness to produce relevant evidence, of which it had firsthand knowledge, at the appropriate stage of the proceeding. It is well settled that we are not, in the unfair labor practice proceeding, required to consider new factual allegations in an offer of proof which were available for 9 Cooper Supply Company, 120 NLRB 1023, 1024. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presentation during the representation case.3 To disregard this prin- ciple and now grant Respondent's request for a hearing to relitigate the eligibility issue would place a premium upon the withholding of evidence in representation proceedings, and encourage practices de- signed to cause protracted delay in such cases 4-a result which conflicts with the statutory policy that "questions preliminary to the establish- ment of the bargaining relationship be expeditiously resolved." a For all of these reasons, we find no basis for a formal hearing at this time, and agree with the Trial Examiner that Respondent violated Section 8 (a) (5) and (1) of the Act by refusing to bargain with the Union as the duly certified bargaining representative of employees in the appropriate units ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, Neuhoff Bros., Packers, Inc., Dallas, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 3 Rockwell Manufacturing Company, Kearney Division v. N.L.R.B., 330 F. 2d 795, 797 C.A. 7) ; Allis-Chalmers Manufacturing Company v . N.L.R.B., 162 F. 2d 435 , 440-441 (C.A. 7) ; N.L.R.B. v. The Joclin Manufacturing Company, 314 F. 2d 627, 631, footnote 1 (C.A. 2). 4 N.L.R.B. v. Air Control Products of St. Petersburg, Inc., 335 F. 2d 245, 252 (C.A. 5). 5 N.L.R.B. v. 0. K. Van Storage, Inc., 297 F. 2d 74, 76 (C.A. 5). 6In so finding, we neither pass upon nor adopt the Trial Examiner 's reasoning which suggests that, even if the Board lacked power to certify the Union on the basis of the second election , an unlawful refusal to bargain could be predicated upon the results of that election. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The complaint in this matter, issued April 29, 1965, pursuant to a charge filed April 20, 1965, alleges that Respondent, herein called the Company, violated Sec- tion 8(a)(S) and (1) of the Act by refusing to bargain with the Charging Party, herein called the Union. Following the filing of the answer, the case came before Trial Examiner Frederick U. Reel on General Counsel's motion for judgment on the pleadings. Upon consideration thereof, of the Company's "Offer of Proof, Demand for Hearing, and Alternative Motion for Summary Judgment," and of the other pleadings on file herein, as well as upon consideration of the entire record in the related representation proceeding in Case No. 16-RC-3720, I hereby cancel the notice of hearing heretofore issued in this matter, grant General Counsel's motion, and make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The pleadings establish and I find that the Company, a Texas corporation engaged at Dallas in slaughtering livestock, annually ships to points outside the State meat products valued in excess of $50,000, and is therefore engaged in commerce within the meaning of the Act. I further find that as stipulated in the prior representation case the Union is a labor organization within the mean- NEUHOFF BROS., PACKERS, INC. 441 ing of the Act. Insofar as the Company in its answer to the complaint neither admits nor denies that the Union is a labor organization and demands strict proof thereof, the answer is stricken as sham and frivolous. II. THE UNFAIR LABOR PRACTICE On March 2, 1965, the Regional Director for Region 16 certified the Union as the exclusive bargaining representative of the employees in the following unit: All production and maintenance employees at Neuhoff Bros., Packers, Inc.'s Alamo Street plant and its hotel and restaurant department Wood Street plant, Dallas, Texas, including porters and intraplant truckdrivers, but excluding em- ployees in the feed lot department, product delivery truckdrivers (loading depart- ment, shipping department, sausage department, and hotel and restaurant depart- ment), truckdrivers in the livestock department, salesmen, office clerical employees, technical and professional employees, guards, and supervisors as defined in the Act. The Board, on March 26, 1965, denied the Company's request for review of this certification. The Union on March 4 and 31, 1965, and continuing to the date of the complaint requested the Company to bargain with it pursuant to that certification, but the Company has refused to do so, maintaining that the certification was invalid' The charge, complaint, answer, and motion for judg- ment on the pleadings followed. In determining whether to grant such a motion in cases of this nature, the critical question is whether the certification rests on "crucial factual determinations made after ex parte investigation and without hearing" or rests on conclusions of law or on facts found after hearing. N.L.R B. v. Air Control Products of St. Petersburg, Inc., 335 F. 2d 245, 249 (C.A. 5). For this reason, upon receipt of the motion, I issued an order to show cause directing the Company to indicate what factual issues it intended to raise. A fair appraisal of the Company's response, captioned "Offer of Proof, Demand for Hearing, and Alternative Motion for Summary Judgment," requires some description of the preceding representa- tion case. In the first election in that case, held September 22, 1964, a majority of the valid votes cast were against the Union. The Union filed objections which the Regional, Director in part sustained, so he set the election aside and the Board denied the Company's request for review of this action. A second election was held February 18, 1965, in which the Union received a majority of the votes. This time the Company filed objections to the election, but the Regional Director overruled the objections and the Board denied review. In its response to the order to show cause, as well as in previous pleadings in this matter, the Company indicated its continuing position that the first election was improperly set aside (which position, if sustained, would invalidate the second election under the 1-year rule prescribed by Section 9(e) (2) of the Act), and that in any event the second election should have been set aside. The Regional Director in setting aside the first election relied on two grounds: (1) The Company prevented three persons from entering the company premises to cast ballots, and (2) supervisory employees in the period between the filing of the petition and the election engaged in individual interviews with employees, on some occasions away from the employee's work station, urging employees to vote against the Union. The first matter concerns the Company's refusal to let Franklin, Willie, and Salters into the plant even to cast challenged ballots. All three had been em- ployed by the Company and had been discharged, Franklin and Willie prior to the payroll date for voting eligibility, and Salter in the period between that date and the election. Unfair labor charges alleging discriminatory discharge were filed on behalf of Franklin and Willie before the election, and in Salter's behalf thereafter. Franklin's discharge has since been held unlawful (Neuhoff Bros., Packers, Inc., 151 NLRB 916); Willie's case was dismissed, and Salter's charge withdrawn. The Regional Director ruled that the three men should have been permitted to cast challenged ballots and set aside the election, not because their ballots were sufficient in number to have affected the outcome (they were 'The answer does not admit the refusal to bargain , but on the entire record , including the exhibits attached to the motion for judgment on the pleadings and the failure of the Company to take further issue with this matter in its offer of proof, I am satisfied that the refusal to bargain is established. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not), but because in excluding potential voters from the premises and not letting them cast challenged ballots, the Company violated Section 8(a)(1) of the Act (citing Macon Textiles, Inc., 80 NLRB 1525, 1549-1550), thereby invalidating the election (citing Dal-Tex Optical Company, 137 NLRB 1782, 1786-1787). Aster so stating, the Regional Director added, "Neither can it be said that the above activity [excluding the potential voters] was isolated, as the action was taken in the presence of other voters and in an area clearly visible to employees on their way to vote." The Company in its "Offer of Proof" argues that Macon is distinguishable in various respects, primarily in the differences between the consent-election agree- ment in Macon and eligibility provisions in the instant case. These are issues of law as to which the instant record is sufficiently developed to permit full review by the Board and a court of appeals without the need for a further evidentiary hearing. The Company also urges that the episode occurred at the main .-ate, not visible from the polling place, and that "in all probability no employees would have been aware" of the episode but for the commotion caused by the union representatives and Board agent. This allegation does not directly contradict the factual finding of the Regional Director , quoted above , that the action oc- curred in the presence of other voters and in an area visible to employees on their way to vote. A hearing on that aspect of the matter is therefore not required. Indeed the affidavit proffered by the Company in its "Offer of Proof" recites that the episode occurred "in obious view of everyone." The Regional Director relied on The Great Atlantic & Pacific Tea Co., Inc., 150 NLRB 133 , in holding that the employee interviews justified setting aside the election . In that case the Board set aside the election although only 5 employees out of 119 eligible voters were interviewed away from their work- place by a supervisor, whose antiunion remarks in the interviews were not coercive. In the instant case the Regional Director found that the Company instructed its supervisors "to talk individually to all employees outlining company benefits and requesting the employees to vote against the [Union]." The Company has never taken issue with this finding , which apparently rests on an admission the Company made to the Regional Director in the course of his investigation. The Regional Director went on to state , again without any subsequent contradiction by the Company, that "The supervisors were instructed to talk to the employees at their work stations wherever possible, the only exception being in areas where the voice level was such that they could not talk to individual employees." Finally, the Regional Director found that the supervisors stated "that in certain instances they talked to employees as they would go from one job to another, called some employees to a loading dock outside of their department, talked to employees in the cafeteria, and talked to others in the courtyard . . . and in a corridor...." In context, this can only mean that the supervisors talked to the employees about the Union ; the Company's statement in its "Offer of Proof" that the finding is deficient for failure to state which supervisors talked to which employees and what was said is nothing but a quibble as there is no suggestion that the interviews were coercive or otherwise violated Section 8(a)(1). Similarly the contention in the offer of proof that the Regional Director speaks of "work station" whereas the A & P case, supra, refers to "work place" is quibbling; plainly a corridor or a courtyard is neither a "work place " nor a "work station" for the employees involved. It is true that in A & P the Board found that the number interrogated could have changed the result of the election , and there is no such finding here, but no hearing is required to establish that no such finding was made. What the Company is arguing, in essence, is that such noncoercive interviews of an undertermined number, even though away from the work station, should not lead to setting aside an election . No hearing is required to establish the facts upon which the Company predicates its argument. In sum, with respect to the first election , the facts on which the Regional Di- rector set it aside are not in dispute, and the question whether he erred in so doing may be reviewed without any need for an evidentiary hearing. Turning to the second election which the Union won, 388 to 295 with 58 votes challenged , the Company claims that the election should be set aside because the Board agent refused to let 13 persons cast ballots . The 13 in question were per- sons who the Regional Director had determined , in ex parse investigation after the first election, were supervisors ineligible to vote. Their ballots, even if added to the 58 challenged ballots and all 71 counted against the Union , could not have NEUHOFF BROS., PACKERS, III C. 443 affected the result of the election. Hence, no hearing need be held to establish the eligibility of these employees to vote. The Company contends that the action of the Board agent in denying these alleged supervisors the right to cast challenged ballots destroyed the "laboratory conditions" of the second election at least as much as the Company's action in excluding three persons from the premises destroyed the "laboratory conditions" of the first election. Although the Company speaks in its "Offer of Proof" of the "manner" in which the Board refused ballots, this bare allegation without particulars raises no issue of fact, and the issue of law (whether a different result obtains where it is the Board agent rather than the employer who declines to permit a person to cast a chal- lenged ballot) can be litigated at higher levels without additional facts. I there- fore conclude that no hearing need be held to establish the facts upon which the Company predicates its argument that the second election was invalid. On the issues of law raised in the first and second elections, I consider myself bound by the Board's refusal to review the Regional Director. The Company is, of course, free to ask the Board to reconsider, or to ask a court of appeals to reverse the Board, but as a Trial Examiner I am bound by the rulings thus far made. It follows that I find the Union properly certified, and the refusal to bargain unlawful. In addition it may be pointed out that Union won the most recent election, receiving 388 votes out of 741 cast, and 758 eligible. Even if the 13 supervisors be considered eligible, the Union received 388 out of 771, a "constitutional majority." Even assuming, arguendo, that the Board lacked power to certify the Union, the Company after the election knew that the Union received such a "constitutional majority," and the refusal to bargain would appear unlawful in the light of such cases as United Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 71-72, and cases cited at footnote 8: Snow, et al. d/b/a Snow & Sons v. N.L.R B., 308 F. 2d 687, 692, 693 (C.A. 9). M. THE REMEDY I shall recommend the customary order for cases in which an employer has refused to bargain because he desired to challenge the validity of the certification, namely that the Company cease and desist from so refusing , that it bargain upon request, and that it post an appropriate notice. See N.L.R.B. v. Express Publish- ing Company , 312 U.S. 426, 439. CONCLUSIONS OF LAW The Company by refusing to bargain with the Union as the representative of the employees in the above-described unit has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. RECOMMENDED ORDER Accordingly, upon the foregoing findings and conclusions and upon the entire record in the case, I recommend that Respondent, Neuhoff Bros., Packers, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith concerning wages, hours, and other terms and conditions of employment with the United Packinghouse, Food, and Allied Workers of America, AFL-CIO, as the exclusive representative of the employees in the following appropriate unit: All production and maintenance employees at Neuhoff Bros., Packers, Inc.'s Alamo Street plant and its hotel and restaurant department Wood Street plant, Dallas, Texas, including porters and intraplant truckdrivers, but excluding em- ployees in the feed lot department, product delivery truckdrivers (loading depart- ment, shipping department, sausage department, and hotel and restaurant depart- ment), truckdrivers in the livestock department, salesmen, office clerical em- ployees, technical and professional employees, guards, and supervisors as defined in the Act. (b) In any manner interfering with the efforts of the above-named Union to bargain collectively with the above-named Company on behalf of the employees in the above-described unit. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union as the exclusive representative of all employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its plant in Dallas, Texas, copies of the attached notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for Region 16, shall, after being signed by an authorized representative of the Respondent, be posted immediately upon the 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 Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the said Regional Director, in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith .3 2 In the event that this Recommended Order be adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" In the notice. In the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order". 3 In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read: "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner 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 the United Packinghouse, Food and Allied Workers of America, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit described below. WE WILL NOT in any manner interfere with the efforts of United Packing- house, Food and Allied Workers of America, AFL-CIO, to bargain collec- tively as the exclusive representative of the employees in the bargaining unit described below. WE WILL, upon request, bargain with the United Packinghouse, Food and Allied Workers of America, AFL-CIO, as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such an under- standing in a signed agreement. The bargaining unit is- All production and maintenance employees at Neuhoff Bros., Pack- ers, Inc.'s Alamo Street plant and its hotel and restaurant department Wood Street plant, Dallas, Texas, including porters and intraplant truckdrivers, but excluding employees in the feed lot department, product delivery truckdrivers (loading department, shipping department, sausage department, and hotel and restaurant department), truckdrivers in the livestock department, salesmen, office clerical employees, technical and professional employees, guards, and supervisors as defined in the Act. NEUHOFF BROS., PACKERS, INC., Employer. 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No. Edison 5-4211, Extension 2131.