Wilson & Co., Inc.

WILSON & CO., INC. 485 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Neither Rudnick nor Kern, jointly or severally, has engaged in unfair labor practices as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is hereby recommended that the complaint be dismissed in its entirety. Wilson & Co., Inc. and United Packinghouse, Food and Allied Workers, AFL-CIO. Case 11-CA-2981. June 16, 1966 DECISION AND ORDER On May 17, 1966, Trial Examiner Sidney Lindner issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices 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 National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. The Board has reviewed the rulings of the Trial Examiner, includ- ing his granting of the General Counsel's motion for judgment on the pleadings, and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] TRIAL EXAMINER'S DECISION ON MOTION FOR JUDGMENT ON THE PLEADINGS STATEMENT OF THE CASE Upon a charge filed February 28, 1966, by United Packinghouse , Food and Allied Workers, AFL-CIO, herein called the Union , against Wilson & Co., Inc., herein called the Respondent, the General Counsel of the National Labor Rela- tions Board , by the Regional Director for Region 11, issued a complaint dated March 9, 1966, alleging the Respondent's refusal to bargain with the Union in violation of Section 8(a)(5) and ( 1) of the Act. The complaint alleges the Union's certification following a secret-ballot election conducted by the Regional Director among the employees of Respondent's Wilson, North Carolina, branch 159 NLRB No. 58. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD installation, in accordance with the Decision and Direction of Election issued in Case 11-RC-2263. In the said Decision and Direction of Election the unit found appropriate for the purposes of collective bargaining was: all production and maintenance employees, including truckdrivers, shipping clerk, assistant shipping clerk, and regular part-time employees employed at the Wilson, North Carolina, branch installation of the Respondent, excluding office clerical employees, sales- men, buyers, guards, and supervisors as defined in the Act. The complaint also sets forth that on November 3, 1965, in the secret-ballot election there were 20 valid ballots cast. Of this number, 11 votes were cast for the Union and 9 votes were cast against the Union; there were no challenged ballots. On November 30, 1965, the Regional Director issued a Supplemental Decision and Certification of Representative in Case 11-RC-2263 certifying the Union as the exclusive collective-bargaining representative of the employees in the above-described appropriate unit. On December 7, 1965, Respondent filed a request for review of the Regional Director's Supplemental Decision and Certification of Repre- sentative. On December 16, 1965, the Regional Director issued a second Supplemental Decision and Certification of Representative in which the Union's certification of November 30, 1965, was revoked and Respondent's request for review was treated as a motion for reconsideration. It appears further from the complaint that the Regional Director reconsidered Respondent's contentions raised in its request for review and on December 16, 1965, again certified the Union as the exclusive collective-bargaining representative of the employees in the above-described appropriate unit in a document entitled Second Supplemental Decision and Certification of Representative. On December 21, 1965, Respond- ent filed with the Board in Washington, D.C., its Supplemental Request for Review of the Regional Director's Second Supplemental Decision and Certification of Representative. On January 28, 1966, the Board issued its Order denying Respondent's Supplemental Request for Review. The complaint further alleges that on or about February 25, 1966, the Union requested Respondent to meet with it for the purposes of conducting collective-bargaining negotiations and Respondent refused to meet. The Respondent's answer admits all the complaint allegations except those pertaining to the Union's designation as majority repre- sentative of the employees in the appropriate unit following the secret-ballot election, and also denies violation of the Act by the Respondent's admitted refusal to comply with the Union's bargaining request. The General Counsel thereupon filed a Motion for Judgment on the Pleadings, contending that the Respondent's answer does not show any material factual matter to be in dispute such as would constitute subject matter of testimony to be taken and received at a hearing and further contending that the matters in dispute between the parties are of a legal nature. The Motion for Judgment on the Pleadings was referred to Trial Exam- iner Sidney Lindner for ruling. On April 20, 1966, I caused an order to be served on the Respondent directing it to show cause why the General Counsel's motion should not be granted. The Respondent was further directed in said order to state whether there was any issue which required a hearing for resolution and whether it intended to litigate any issue other than those already decided by the Board when it denied the Respondent's request for review in Case 11-RC-2263; and in the event it stated there was such new issue which it proposed to litigate, it was further ordered to summarize the general nature of the facts to be adduced and to set forth whether such evidence was newly discovered or was not available to it during the pro- ceeding in Case 11-RC-2263. Responding thereto, the Respondent contended that a certain conversation between one of its employees and an employee of a nearby Swift and Co. plant, who was a union member, had an "impact" not only on the particular Respond- ent employee involved in the conversation but also on other employees who may have heard about the conversation. Further, if Respondent was afforded a hear- ing it could develop that what the Swift and Co. employee told the Respondent employee, "was false and inherently coercive and that he took it into considera- tion in determining how he would vote in the election." Respondent conceded that this very "issue" was raised in the representation case, in its objections to the conduct of the election when it declared "the Petitioner through its agents' and representatives, made threatening and coercive statements to employees about the Union and what would happen to them if they did not vote for the Union." WILSON & CO., INC. 487 As heretofore noted, the record in Case 11-RC-2263, of which I take official notice, reveals that the "issue" raised by Respondent in its response to the order, to show cause is identical with the objections to the conduct of the election filed by the Respondent with the Regional Director to the November 3, 1965, election. The Regional Director, following investigation of the objections, found them to be without merit, overruled the same, and issued his Certification of Representa- tive. Thereafter, the Regional Director reconsidered his decision and again over- ruled Respondent's objections and issued a Second Supplemental Decision and Certification of Representative. On January 28, 1966, the Board denied Respond- ent's Supplemental Request for Review of the Regional Director's Second Supple- mental Decision and Certification of Representative as it raised no substantial issues warranting review. It is clear from Respondent's answer and its responses to the order to show cause that Respondent's only defense involves an attack upon the validity of the Regional Director's Certification of Representative. I further find that the Respondent is seek- ing to relitigate issues already decided by the Board in the representation proceed- ing. This it may not do. In the absence of newly discovered or previously unavailable evidence, issues which were or could have been raised in a related representation case may not be relitigated in an unfair labor practice proceeding.' The Board has said: It is well settled that such issues which were raised in the representation case may not be litigated in the subsequent unfair labor practice case.2 The validity of the Respondent's objections as a bar to the Union's certification was finally disposed of by the Board in the representation proceeding. All the issues raised by the Respondent in its objections and exceptions, now have been decided by the Board either expressly or by implication; whether correctly is not for me to say. A Trial Examiner has no authority to examine the accuracy of the Board's determination or to question its conclusions. The Board's disposition constitutes, at this stage of the proceedings, the law of the case. As was said by Trial Examiner Nachman in a similar situation in Schapiro and Whitehouse, Inc., 148 NLRB 958, 960: "If, as the Respondent contends, these findings of the Board are in error, then only the Board, or some' court of competent jurisdiction, can correct such error. Accordingly the General Counsel's Motion for Judgment on the Pleadings is. granted. On the basis of the record before me, I make the following: FINDINGS OF FACT I. JURISDICTION The Respondent, Wilson & Co., Inc., is a Delaware corporation with its main office in Chicago, Illinois, and it is engaged in the wholesale meat business. In the, course of its business operations the Respondent annually causes goods and raw materials of a value in excess of $50,000 to be directly shipped into the State of North Carolina to its Wilson, North Carolina, branch from points and places out- side the State of North Carolina. I find and Respondent's answer admits that it.is engaged in interstate commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to membership the Respondent's employees. IR. THE UNFAIR LABOR PRACTICES On November 3, 1965, the Union was selected by a majority of the Respondent's employees in the appropriate unit described below as their exclusive bargaining rep- resentative in a secret-ballot election conducted by the Regional Director for Region 11. i Pittsburgh Plate Glass Co v . N L R B , 313 U S 146, Acme Industrial Products, 'In- corporated, 158 NLRB 180. 2 National Survey Service, Inc, 151 NLRB 783, enfd . 361 F2d 199 (CA 7). 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On November 16, 1965, the Regional Director in a Second Supplemental Deci- sion and Certification of Representative certified the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit. On January 28, 1966, the Board issued its order denying Respondent's Supplemental Request for Review of the Regional Director's Second Supplemental Decision and Certification of Representative. On or about February 25, 1966, the Union requested Respondent to bargain with it for the purpose of conducting collective-bargaining negotiations. Commencing on or about February 25, 1966, and at all times thereafter Respondent did refuse and continues to refuse to meet with the Union for the pur- pose of conducting collective-bargaining negotiations and continues to refuse to bargain collectively with the Union as the exclusive collective-bargaining representa- tive of all the employees in the appropriate unit. The appropriate unit consists of all production and maintenance employees includ- ing truckdrivers, shipping clerk, assistant shipping clerk, and regular part-time employees employed at the Respondent's Wilson, North Carolina, branch installa- tion, excluding office clerical employees, salesmen, buyers, guards, and supervisors as defined in the Act. By its refusal on or about February 25, 1966, and thereafter to bargain collec- tively with the Union as the exclusive representative of the employees in the fore- going appropriate unit, the Respondent violated Section 8 (a) (5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, 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 com- merce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Wilson & Co., Inc., is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Packinghouse, Food and Allied Workers, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. At all times since November 3, 1965, the Union has been the representative for the purposes of collective bargaining of the majority of the Respondent's employees in the appropriate unit hereinabove described. Said unit is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By refusing to bargain collectively with the Union as the exclusive representa- tive of the employees in the appropriate unit on or about February 25, 1966, and thereafter, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and upon the entire record in this proceeding, I recommend that Wilson & Co., Inc., at its Wilson, North Carolina, branch installation , its officers, agents, successors and assigns , shall: 1. Cease and desist from refusing to bargain collectively with United Packing- house, Food and Allied Workers, AFL-CIO, as the exclusive collective-bargaining representative of its employees in the appropriate unit hereinabove described. WILSON & CO., INC. 489 2. Take the following affirmative action which I find will effectuate the policies of the Act. (a) Upon request bargain collectively with United Packinghouse, Food and Allied Workers, AFL-CIO, as the exclusive representative of all the employees in the appropriate unit hereinabove described with respect to rates of pay, wages, hours of employment, and other conditions of employment , and, if an understand- ing is reached , embody such understanding in a signed agreement. (b) Post at its Wilson, North Carolina, branch installation, copies of the attached notice marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for Region 11, shall , after being duly signed by Respondent's representa- tive, 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 Respondent to insure that notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 11, in writing , within 20 days from the receipt of this Decision , what steps have been taken to comply herewith .4 8In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "a Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is 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" 4In the event that this Recommended Order is 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 United Packinghouse, Food and Allied Workers, AFL-CIO, as the exclusive representative of employees in the bargain unit described below. WE WILL NOT interfere with the effort of United Packinghouse Food and Allied Workers, AFL-CIO, to negotiate for or represent as exclusive bargain- ing agent the employees in the bargaining unit described below. WE WILL upon request, bargain with the above-named Union, as exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embodying such an under- standing in a signed agreement. The bargaining unit is: All production and maintenance employees including truckdrivers, ship- ping clerk, assistant shipping clerk and regular part-time employees employed at the Wilson, North Carolina, branch installation, excluding office clerical employees, salesmen, buyers, guards, and supervisors as defined in the Act. WILSON & CO., 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 pro- visions, they may communicate directly with the Board's Regional Office, 1831 Nissen Building 310 West Fourth Street, Winston-Salem, North Carolina 27101. Telephone 723-2911, Extension 302.