Swift & Co., Inc.

SWIFT & COMPANY, INC. 7 Swift & Company, Inc. and Local 529, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 3-CA-3256 October 31, 1967 DECISION AND ORDER By MEMBERS FANNING,JENKINS, AND ZAGORIA Upon a charge filed by Local 529, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, the General Counsel of the Na- tional Labor Relations Board, by the Regional Director for Region 3, issued a complaint dated July 25, 1967, against Swift & Company, Inc., herein called Respondent, alleging that the Respond- ent had engaged in and was engaging in unfair labor practices within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the National Labor Relations Act, as amended. Copies-of the charge, complaint, and notice of hearing before a Trial Examiner were duly served upon the Re- spondent. With respect to the unfair labor practices, the complaint alleges, in substance, that on or about May 18, 1967, the Union was duly certified by the Board' as the exclusive bargaining representative of Respondent's employees in the appropriate unit as stipulated by the parties and that, since on or about March 14 and June 9, 1967, and thereafter, Respondent has refused and is refusing to recognize or bargain with the Union as such exclusive bar- gaining representative, although the Union has requested and is requesting it to do so. Pursuant to an extension of time in which to file its answer, the Respondent did so on August 17, 1967, and therein denied the commission of the unfair labor practices alleged. On August 22, 1967, the General Counsel filed with the Board a motion for summary judgment, as- serting, in view of admissions by the Respondent contained in its answer and the lack of any allega- tion of newly discovered evidence or the existence of evidence which would justify the relitigation of issues determined in the prior representation proceeding in Case 3-RC-3992, that there are no issues of fact or law requiring a hearing, and praying the issuance of a Decision and Order finding the violations as alleged in the complaint. Thereafter, on August 28, 1967, the Board issued an order transferring proceeding to the Board, and, on the same date, a notice to show cause on or before Sep- tember 11, 1967, why the General Counsel's Mo- tion for Summary Judgment should not be granted. On September 12, 1967, the Respondent filed its memorandum in reply to Board's Order transferring proceeding to the Board and 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 powers in connection with this case to a three- member panel. Upon the entire record in this case, the Board makes the following: RULING ON THE MOTION FOR SUMMARY JUDGMENT In its reply memorandum Respondent contends that it is entitled to an evidentiary hearing to insure full litigation of the facts. This contention is without merit. The truth of the allegations of the complaint has either been expressly admitted by the Respond- ent in its answer, or stands admitted by virtue of the uncontroverted factual averments in the General Counsel's motion. The record before us establishes that on August 1, 1966, the Union filed a petition in Case 3-RC-3992, seeking to represent all truckdrivers at the Employer's place of business in Elmira, New York. On August 11, 1966, the Regional Director approved a stipulation for certification upon con- sent election, to which the Respondent and Union were parties, and in which the appropriate bargain- ing unit of employees was defined as follows: All truck drivers employed at the Employer's Elmira, New York, place of business, exclud- ing all office clerical employees, professional employees, guards and supervisors as defined in the Act and all other employees. On August 29, 1966, a secret ballot election was conducted- under the supervision of the Regional Director pursuant to said stipulation. In the elec- tion, with five voters eligible, two votes were cast for the Union, one vote against the participating labor organization, and one vote was challenged. Thereafter, the Union filed timely objections to the election. The Regional Director, on October 5, 1966, issued his report on challenged ballot and ob- jection in which he recommended that the challenge be overruled and the ballot counted, and found merit to the Union's objection based on the Respondent's failure to submit an eligibility list in accordance with the Board's rule in Excelsior Un- derwear Inc., 156 NLRB 1236; he further recom- mended that if as a result of the Board's determina- tion of the challenge, the majority of the valid votes be cast for the Union, that it be certified as the bar- gaining representative but if the Union did not at- tain a majority that the said election of August 29 be set aside and a new election directed. On Oc- tober 20, 1966, Respondent filed exceptions to the ' Certification of Representative in Case 3-RC-3992 168 NLRB No. 2 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said report and a brief in support, and the Board, on December 9, 1966, issued a Decision and Direction reserving decision as to the objections and directing that the challenged ballot be opened and counted and revised tally of ballots be issued. On December 14, 1966, pursuant to said Deci- sion and Direction, the Regional Director counted the challenged ballot, and the revised tally of ballots served on the parties reflected two votes cast for the Union and two votes cast against the participat- ing labor organization. Then, on December 16, 1966, the Regional Director issued an Order return- ing the case to the Board. The Board, on February 17, 1967, issued a Sup- plemental Decision and Direction of Election' ordering that the election conducted on August 29, 1966, be set aside, adopting the Regional Director's findings, conclusions, and recommendations, and thereby finding merit in the Union's objection based on Respondent's failure to furnish an eligibility list in accordance with the Board's decision in Excelsior Underwear, supra.3 The rerun election, with six voters eligible, was conducted by the Regional Director on March 14, 1967, among the employees in the appropriate unit. The tally of ballots reflected four votes cast for the Union and two votes cast against the participating labor organization. Thereafter, on or about March 21, 1967, the Respondent filed timely objections to the conduct of the rerun election, and on March 28, 1967, the Acting Regional Director issued a supple- mental report on objections, finding that Respond- ent's objections did not raise substantial or materi- al issues with respect to conduct affecting the results of the election, and recommending that the objections be overruled and a certification of representative be issued. On April 7, 1967, Respondent filed exceptions to said supplemental report on objections, and on May 18, 1967, the Board issued a Second Supplemental Decision and Certification of Representative, adopting the Acting Regional Director's findings, conclusions, and recommendations, thereby finding no merit to Respondent's objections and certifying the Union as the collective-bargaining representa- tive of the employees in said appropriate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Commencing on or about March 14, 1967, and more particularly on May 23 and June 2, 1967, the certified Union requested that the Respondent bar- gain collectively with it. Since March 14, 1967, and more particularly on or about June 9, 1967, Respondent refused to bargain with the Union, and on June 26, 1967, the Union filed the charge upon which these proceedings are predicated. In its memorandum in reply to the motion, the Respondent contends in substance that a hearing should be held so that it may have a chance "to show the error of the Board in a per se application of Excelsior ." Based upon our decision in the re- ported representation case as quoted in footnote 3 above, we find this contention lacking in merit. As all material issues have been previously de- cident by the Board, are admitted by the Respond- ent's answer to the complaint, or stand admitted by the failure of Respondent to controvert the aver- ments of the General Counsel's motion, there are no matters requiring a hearing before a Trial Ex- aminer. Accordingly, the General Counsel's motion for summary judgment is granted. On the basis of the record before it, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under, and ex- isting by virtue of, the laws of the State of Illinois, maintaining its principal office and place of business in Chicago, Illinois, and various other plants, places of business, warehouses, and other facilities in vari- ous States, including the plant at Elmira, New York, the only facility here involved. At these vari- ous facilities it is engaged in the packing, processing, sale, and distribution of meat, meat products, and related products. During the past year, Respondent in the course and conduct of its business operations purchased, transferred, and delivered to its plants located in New York State, meat, meat products, and other goods and material valued in excess of $100,000, of which goods and materials valued in excess of $100,000 were trans- ported to said plant directly from States other than the State of New York. We find that Respondent is, and has been at all times material herein, an em- ployer in commerce within the meaning of Section 2(6) and (7) of the Act: II. THE LABOR ORGANIZATION INVOLVED Local 529, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. Published in NLRB volumes at 163 NLRB 17 With respect to Respondent's contention that the Union had ample means of communicating with the few employees in the unit so that there was no need for the list, the Board disagreed, stating "As the Board stated in Excelsior, 'even assuming the availability of other avenues by which a union might be able to communicate with employees, we may properly require employer disclosure of employee names and addresses so as to insure the opportunity of all employees to be reached by all parties in the period immediately preceding a representation election ' Moreover, we see no justification for permitting employers to decide for themselves in each case whether a 'need' for the list exists Such a policy could result only in confusion and delay in the conduct of representation proceedings" SWIFT & COMPANY, INC. 9 III. THE UNFAIR LABOR PRACTICES A. The Representative Proceeding 1. The unit The following employees at the Respondent's El- mira, New York, plant constitute a unit appropriate for collective bargaining within the meaning of the Act: All truck drivers, exclusive of all other em- ployees, all office clerical employees , profes- sional employees , guards, and supervisors as defined in the Act. 2. The certification On or about March 14, 1967, a majority of the employees of Respondent in said unit, in a secret election conducted under the supervision of the Re- gional Director for Region 3, designated the Union as their representative for the purpose of collective bargaining with Respondent, and on May 18, 1967, the Board certified the Union as the collective-bar- gaining representative of the employees in said unit, and the Union continues to be such representative. B. The Request to Bargain and the Respondent's Refusal Commencing on or about March 14, 1967, and continuing to date, and more particularly on May 23 and June 2, 1967, the Union has requested, and is requesting, Respondent to bargain collectively with it as the exclusive collective- bargaining representative of all the employees in the above- described unit. Since March 14, 1967, and continu- ing to date, and more particularly on or about June 9, 1967, Respondent, by its officers, agents, and representatives including Patrick W. Kempsey, did refuse, and continues to refuse, to bargain collec- tively with the Union as the exclusive collective- bargaining representative of all employees in said unit. Accordingly, we find that the Union was duly certified by the Board as the collective-bargaining representative of the employees of the Respondent in the appropriate unit described above, and that the Union at all times since May 18, 1967, has been and now is the exclusive bargaining representative of all the employees in the aforesaid unit within the meaning of Section 9(a) of the Act. We further find that Respondent has, since on or about March 14, 1967, refused to bargain collectively with the Union as the exclusive bargaining representative of its em- ployees in the appropriate unit, and that, by such refusal, the Respondent has engaged in, and is en- gaging 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 acts of the Respondent set forth in section III, above, occurring in connection with its opera- tions as 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 commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bar- gain collectively with the Union as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. CONCLUSIONS OF LAW 1. Swift & Company, Inc., is an Employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 529, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All truckdrivers employed at the Employer's Elmira, New York, place of business, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since May 18, 1967, the above-named labor organization has been the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about March 14, 1967, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing em- ployees in the exercise of the rights guaranteed to them in Section 7 of the Act, and has thereby en- gaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. The aforesaid unfair 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 Relations Board hereby orders that the Respond- ent, Swift & Company, Inc., Elmira, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of em- ployment, with Local 529, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargain- ing representative of its employees in the following appropriate unit: All truck drivers employed at the Employer's Elmira, New York, place of business, exclud- ing all office clerical employees, professional employees, guards, and supervisors as defined in the Act and all other employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaranteed to them by 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 un- derstanding is reached, embody such understanding in a signed agreement. (b) Post at its Elmira, New York, place of busi- ness , copies of the attached notice marked "Appen- dix."' Copies of said notice, to be furnished by the Regional Director for Region 3, after being duly signed by Respondent's representative, shall 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 Re- 4 1n the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order." spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 3, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES 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 Local 529, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive represent- ative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees 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 represent- ative of all employees in the bargaining unit described below with respect to wages, 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 truck drivers employed at the Em- ployer's Elmira, New York, place of busi- ness, excluding all office clerical em- ployees, professional employees, guards, and supervisors as defined in the Act and all other employees. SWIFT & COMPANY, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive 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, 4th Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Telephone 842-3100.