Amalgamated Meat Cutters

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, and Iowa Beef Packers , Inc. Case 17-CC-386 FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER2 May 13, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING, BROWN, AND JENKINS On January 13, 1970, Trial Examiner Jerry B. Stone issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in certain unfair labor practices alleged in the complaint and recommend- ing that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party and the General Counsel filed exceptions to the Decision and supporting briefs; Respondent filed a brief in support of the Decision. The National Labor Relations Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Deci- sion, the exceptions, briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendation of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the' Recommended Order of the Trial Examiner, and hereby orders that the com- plaint be, and is hereby is, dismissed in its entirety. ' The Trial Examiner's Decision is hereby corrected to include the finding that Conveyor Systems, Inc , is an employer engaged in commerce within the meaning of the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JERRY B. STONE, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as 'amended, was tried pursuant to due notice on October 15 and 16, 1969, at South Sioux City, Nebras- ka. All parties were afforded full opportunity to participate in the proceeding and briefs filed by all of the parties have been considered. Upon the entire record in the case and from my observation of the witnesses, I hereby make the follow- ing:' ' The General Counsel's motion to correct the transcript, dated November 21, 1969, is marked as TX Exh I and is received into the record. Duplicate exhibits thereof are waived Said motion is hereby granted Additionally, there are several minor, inadvertent errors in the transcript which are hereby corrected On p 23 of the transcript Iowa Beef Packers , Inc., is an Iowa corporation engaged in the slaughter and processing of beef at its plants in several States including its plant at Dakota City, Nebraska , the only facility involved in this proceed- ing. In the operation of its business , its purchases from suppliers outside the State of Nebraska and its sales to customers outside the State of Nebraska each annually exceed $50,000, and its gross annual sales are in excess of $500,000. The instant case involves the question of certain union activity at a gate (on Iowa Beef Packers, Inc., property in Dakota City, Nebraska) reserved for use of certain subcontractors . At the time of such activity and since July 1968 , Iowa Beef Packers , Inc., by use of its own construction division and by use of subcontrac- tors (Conveyor Systems, Inc., Casler Electric Company, and Kalin 's Heating and Air Conditioning Company), was in the process of building a new addition to its Dakota City plant. Conveyor Systems , Inc., is a Chicago , Illinois, con- cern , and its contractual obligations with Iowa Beef Packers, Inc., pertained to the installation of a conveyor system at the new addition . The contract work currently being performed and to be performed is valued approxi- mately at $3,500,000. Casler Electric Company is a Sioux City, Iowa, con- cern , and its current contractual obligations with Iowa Beef Packers , Inc., pertained to certain electrical installa- tions at the Dakota City site . In 1969 Casler Electric Company performed , under a time and material contract, work at the Iowa Beef Packers ,- Inc., plant in Emporia, Kansas, for approximately $ 145,000. At the Dakota City, Nebraska, site Caster Electric Company , on a time and material contract for the current new addition, has performed work for approximately $34,000 . A reasonable estimate for the time and material contract for the total electrical subcontract to be performed at Dakota City, Nebraska, is $100,000. Kalin's Heating & Air Conditioning Company is a Sioux City, Iowa , concern , and its current contractual obligations with Iowa Beef Packers , Inc., pertained to certain heating and sheet metal work to be performed on the new addition at the Dakota City site. In the fiscal year preceding this case , Kalin 's Heating & Air Conditioning Company performed services in the State of Nebraska in excess of $150 ,000, and is engaged as a contractor in the building and construction industry. A reasonable estimate of the services performed and to be performed by Kalin 's Heating & Air Conditioning at 1 7, the word "get" is substituted for the word "let." On p 48 of the transcript, at 1 10, the sentence is corrected to read, "You may go ahead, if necessary, I will stop you " On p.112 of the transcript, at 1 19, the sentence is corrected to read: "I will give little value to . " On p 166 of the transcript, at 1 17, the word "talk" is deleted and substituted therefor is the word "walk " 2 The facts are based upon the pleadings and admissions therein, stipulations, and the credited testimony of Nymann and Groeneveld 182 NLRB No. 60 AMALGAMATED MEAT CUTTERS Company on Iowa Beef Packers, Inc 's new addition at Dakota City, Nebraska is $32,000 Considering all of the foregoing, it is concluded and found that Iowa Beef Packers, Inc , Casler Electric Company, and Kalin's Heating & Air Conditioning Com- pany , are, and each are, employers engaged in commerce or an industry affecting commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act 3 II THE LABOR ORGANIZATION INVOLVED4 Amalgamated Meat Cutters & Butcher Workmen of North America , AFL-CIO, is now , and at all times material herein has been , a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES The General Counsel and the Charging Party in effect contend that the Charging Party established a "reserve" gate on August 26, 1969, and that thereafter the Union engaged in picketing activity at such gate entrance in violation of Section 8(b)(4)(i) and (n)(B) of the National Labor Relations Act There are some factual issues and a number of legal issues involved However, it is only necessary to consider one issue for the disposition of this case The facts5 are clear that the Respondent and the Charging Party (Iowa Beef Packers, Inc) had a labor dispute, and that the Respondent and subcontractors involved in work on the Charging Party's premises did not have a labor dispute On August 24, 1969, the Respondent commenced permissible primary picketing at various gates used as entrances to he Charging Party's premises On August 26, 1969, the Charging Party posted signs reserving one of these gates, the north gate, for exclusive use by the subcontractors on the new addition project The guidelines set forth and applicable for the determi- nation of whether picketing at a "reserve " gate at the primary employer's premises, such as this, is primary (and legal) or secondary (and illegal) are those set out in Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO [General Electric Co I v N L R B, 366 U S 667 R These are that (1) there 3 At the hearing a statement by Respondent indicates no real issues with this finding The facts are based upon the pleadings and admissions therein Although there is conflict in contention as to the legal meaning of certain facts there is not great dispute as to the basic facts The dispute as to basic facts is mainly limited to the character of union activity on and after August 26 1969 Resolution of such dispute as to basic facts although of a limited nature is not necessary for the disposition of this case The facts herein are based upon pleadings and admissions therein stipulations and the credited aspects of the testimony of Nymann Jacobs Hughes Dinges Groeneveld Jenson and Anson " The General Counsel s argument that Moore Dry Dock Company 92 NLRB 547 549 sets forth the criteria to consider in this case and that the General Electric criteria is inapplicable is rejected As I read the General Electric case the Court considered the fundamental principles and problems arising from common site situations and approved of criteria to accomplish a similar result as intended by 411 must be a separate gate marked afad set apart from other gates, (2) the work done by the men who use the gate must be unrelated to the normal operations of the primary employer, and (3) the work must be of a kind that would not, if done when the primary employer were engaged in its regular operations , necessi- tate curtailing their operations In this case it is only necessary to consider criteria 2 The evidence presented by the General Counsel and the Charging Party is insufficient to establish that the work done by the men (the subcontractor's employees) is unrelated to the normal operations of the Charging Party In the General Electric case the Supreme Court revealed that the reference to "normal operations" was meant to be specific as well as general Thus the case was remanded to the Board for a consideration as to whether the employees of independent contractors, using the reserve gates, performed conventional maintenance work necessary to the normal operations of General Electric The Board has so construed the Court's decision and has evaluated the specifics of the work done by employees of independent contractors as compared to the primary employer's employee work in determining the question of whether the work is "unrelated " In the instant case only scant evidence was presented toward this issue , Essentially, the General Counsel and the Charging Party established that Iowa Beef Packers, Inc , was essentially in the business of slaughtering, processing, and selling beef and beef products, that it also had a construction division which engaged in construction work on its own plants, including building new plants, refurbishing old plants, and in building addi- tions to plant faciliites Also established was the fact that on some of the jobs the construction division subcon- tracted out some of such work The evidence submitted establishes that in connection with its business of slaughtering, processing , and sale of beef and beef products that the Iowa Beef Packers, Inc , employs employees in a bargaining unit of produc- tion and maintenance employees Essentially no evidence was submitted to establish what maintenance work such employees performed However, one of Respondent's witnesses did testify to the effect that he was an "instru- ment maintenance man ," that he was in the bargaining unit, that he repaired scales and the intercom systems, the Moore Dry Dock criteria In cases of the type involved herein the Board has rejected the applicability of the specific criteria of Moore Dry Dock and instead has utilized the General Electric criteria See International Chemical Workers Union AFL-CIO and Local No 557 International Chemical Workers Union AFL-CIO (Crest Inc) 179 NLRB No 26 The Charging Party indicates agreement that the General Electric criteria is applicable to this case As an alternative argument relating to the question of related work of the employees who use the reserve gate and the Iowa Beef Packers Inc construction division employees the Charging Party argues that if such type of comparison were proper then the work relationship test in General Electric would not be applicable I ryect this contention The facts in my opinion do not reveal Iowa Beef Packer Inc to be in the construction industry but merely to be engaged in construction related to its own facilities As one of Respondent s officials testified in effect its conduct in construction was similar to that of any individual home or business owner doing ms own building or contracting I 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that he was 'more or less in the electronic end of the work Evidence was also submitted that the Charging Party construction division employees did not do any of the routine production and maintenance work of the packing house plant The evidence submitted with respect to the work of employees in the construction division of Iowa Beef Packers, Inc , was essentially that the employees did exclusively construction work, blockwork, concrete work, plumbing work, and electrical work The facts reveal that the construction division had block laying crews, plumbers, mechanical crews, and electricians The facts as to the work performed by the subcontrac- tors is limited to the effect that contracts had been let for the installation of a conveyor system, for heating and sheet metal work, ancj for certain electrical installa- tions Concerning the record as a whole and the foregoing, it is concluded and found that the General Counsel has failed to establish that the employees who used the "reserve" gate after August 26, 1969, were engaged in work unrelated to the work performed by employees in Iowa Beef Packers, Inc 's normal operations 8 Thus without knowing the specifics of the work performed by maintenance employees in Iowa Beef Packers, Inc 's production and maintenance unit or the work performed by the employees of the subcontractors involved who use the reserve gate, it is impossible to ascertain whether the work is related or unrelated within the meaning of the General Electric criteria For substantially the same reason it is impossible to ascertain whether the work performed by the employees of the subcontractors involved who use the reserve gate is related or unrelated to work performed by the construction division employ- ees of Iowa Beef Packers, Inc It follows thus that the General Counsel has failed to carry the burden of proof on an essential issue in this case Accordingly, it is found and concluded that the evidence does not establish that the Respondent has violated Section 8(b)(4)(i) and (ii)(B) of the Act by conduct on and after August 26, 1969, in regard to alleged picketing at the "reserve" gate 9 RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, it is recommended that the complaint in this matter be dismissed in its entirety ' This does not establish that construction division employees did not do nonroutine production and maintenance work of the packing house plant " Local 761 International Union of Electrical Radio and Machine Workers AFL-CIO [General Electric Company] v N L R B 366 U S 667 remanding 123 NLRB 1547 supplemental decision by Board on remand 138 NLRB 342 9 Local No I International Brotherhood of Electrical Workers AFL-CIO (Mallinckrodt Chemical Works) 148 NI,RB 340