Glover Packing Co.

454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glover Packing Company and Amalgamated Meat Cutters & Butcher Workmen of North America, (AFL-CIO). Case 28-CA-2136 December 24, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On September 28, 1970, Trial Examiner George H. O'Brien issued his Decision in the above-entitled proceeding, granting General Counsel's Motion for Summary Judgment, finding no merit in various contentions made by Respondent in its Answer to Notice To Show Cause and Request for Hearing, and finding on the pleadings that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. The Trial Examiner recommended that Respondent cease and desist from such unfair labor practices and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions, and a brief in support thereof, to the Trial Examiner's Decision. General Counsel has filed a brief in answer to Respondent's exceptions. A brief in answer to the General Counsel's motion to strike portions of Respondent's brief has also been filed by Respondent.' 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. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Glover Packing Company, Roswell, New Mexico, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order.2 I We hereby grant General Counsel's motion to strike certain portions of Respondent's brief and argument in support of Respondent's exceptions and its opposition to the Trial Examiner's Decision granting summary judgment on the grounds that no substantial evidence has been offered or submitted to support the alleged statements of fact contained in specific portions of the brief 2 In footnote 6 of the Trial Examiner's Decision substitute "20" for "10" days TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE H. O'BRIEN , Trial Examiner : The case arises on a Motion for Summary Judgment filed by counsel for the General Counsel upon an admitted refusal by the Respondent to bargain with the certified Charging Union, the Respondent contending that the certification of the Union in the related representation case is invalid. The Representation Proceeding' Upon a petition filed under Section 9 (c) of the National Labor Relations Act on September 26, 1969 , by Amalga- mated Meat Cutters & Butcher Workmen of North America, AFL-CIO, herein called the Union, the Union and Glover Packing Company , the Respondent herein, entered into a Stipulation for Certification Upon Consent Election on October 17, 1969, which was approved by the Regional Director for Region 28 of the Board on October 20, 1969. Pursuant to the stipulation an election by secret ballot was conducted on November 7, 1969 , under the direction and supervision of the Regional Director for Region 28, among the employees in the unit agreed upon by the parties . At the conclusion of the election the parties were furnished with a tally of ballots which showed that of approximately 200 eligible voters, 188 cast ballots, of which 105 were for the Union, 67 were against, and 16 were challenged. On November 17, 1969, Respondent filed timely objections to the election and to conduct affecting the results of the election, alleging: B. The following acts and activities of the Petitioner, its agents, ostensible agents, and Employer's employees substantially interfered with reasonable and realistic standards necessary for a fair election. The violation of these standards prevented a free and untrammelled choice in the selection or rejection of a collective- bargaining representative by the employees noted above in the "Included :" unit.2 1. Employees of Employer threatened employees with physical harm if they did not vote for or support Petitioner. 2. Agents of Petitioner threatened employees with bodily injury if they did not vote for or support Petitioner. 3. Agents of Petitioner induced and coerced employees to vote for Petitioner by stating to employees that only way additional benefits could be achieved i Administrative or official notice is taken of the record in the representation proceeding , Case 28-RC-1966, as the term "record" is defined in Secs 102.68 and 102 69(f) of the Board's Rules and Regulations and Statements of Procedure 397 F 2d 91 (C A 7, 1968); Section 9(d) of the NLRA 2 All conduct complained of herein occurred between the filing of the petition which was September 26, and the close of the election voting period which was 12 p in (MST), November 7 187 NLRB No. 64 GLOVER PACKING COMPANY would be through Petitioner as employees' bargaining agent 4 Agents of Petitioner coerced employees to vote for Petitioner by relating to employees either orally or by hand billing that they would have to vote for Petitioner in order to retain any benefits they now have 5 Agents of Petitioner intimidated employees into voting for Petitioner by telling them their jobs would be lost if they did not vote for Petitioner 6 Agents of Petitioner intimidated, induced and coerced employees by misrepresenting to them that those who signed union cards had to vote for Petitioner 7 Employees were threatened with physical vio- lence if Petitioner won and they did not honor a picket line if said picket line was thrown up 8 Material misrepresentations were made to em- ployees by agents of Petitioner regarding benefits paid to other employees at a plant for which Petitioner is the bargaining agent by (a) Either producing or reproducing a purported check in the amount of $28 00 as representing a weeks wages before Petitioner became the "bargaining agent" and (b) Either producing or reproducing a purported check which purported to show approximately an increase of six hundred (600) % in wages alone, by virtue of its initial contract with said plant after Petitioner had become "bargaining agent" (c) Relating "puffed" benefits acquired as "bargaining agent" These and other gross misrepresentations of benefits were made in order to induce, incense and coerce employees into believing that this 600% increase was solely because the employees had voted in Petitioner who then became the causal factor for said increases and benefits (d) Guaranteeing the "Big Four"3 contract would be their reward for voting for Petitioner and further stating that Employer could pay these rates if the "Big Four" could, since the price of their products at the consumers' level were the same and irrespective of the "Big Four" being in the "so called" conglomerate grouping (e) Grossly understating and misleading employ- ees as to benefits given by the Employer 9 Agents of Petitioner induced, coerced and intimidated employees by misrepresenting to employees that Employer had violated the Wage and Hour law in many respects Further, Petitioner lured employees into believing they would receive two years back wages for the said violations and that Petitioner should be rewarded for this byyes votes 10 Employees were induced and coerced into voting for Petitioner by statements of misrepresentation in that the Employer had violated other laws and that Petitioner would rectify these inequities I1 Employees were induced and coerced by Petitioner's agents by misrepresentations that only Petitioner could initiate proceedings to enforce regula- The Big Four is a common expression in the meat packing business 3 and refers to the four largest meatpackers in the United States which but 455 tions that were supposed to have been violated by the Employer 12 Other gross misrepresentations were made to the employees by agents of Petitioner which were (a) Enoi mous profits were and are being made by the Employer (b) The enormous profits were made during the past five years of Employer's operations (c) This past year's profits reaped by the Employer amounted to thirty million ($30,000,000) dollars (d) Similar false documentary devices were used by agents of Petitioner in inducing employees to vote for Petitioner by telling them that Employer had (1) Claimed at least one million ($1,000,000) dollars worth of depreciation during the past year at its plant, but (2) Employer had only reinvested a quarter of a million ($250,000) dollars during this same year, and (3) told, induced and coerced employees that Employer reaped a windfall of seven hundred fifty thousand ($750,000) dollars just this past year alone (e) Agents of Petitioner stated to employees that Employer had never had any losses at any time in its operational history 13 Agents of Petitioner grossly and totally misre- presented to employees that Glover and Harris, officers of Employer, were owners of Roswell's two largest banks The gross misrepresentations listed in paragraphs 12 and 13 were related in words articulately and clearly maneuvered to induce employees into believing that these misrepresentations were backed by infallible documentary evidence which was obtained from governmental or some other sources of reliability 14 Agents of Petitioner induced employees to vote for it by stating to employees that Employer only wished their services for one more year in order to exploit them further, then the Employer was going to leave them "high and dry" and the only protection against this exploitation and cessation of business was by voting for Petitioner 15 Agents of Petitioner induced and coerced employees by telling the employees that Glover and Hams had acquired ownership of these banks by exploiting its employees 16 Agents of Petitioner induced, coerced and intimidated employees from exercising their unfettered choice by telling employees that Petitioner could and would require the Employer as a matter of law, to sign an illegal "closed shop" agreement which would thereby preclude those who wanted no part of the union and, therefore, they had better vote yes not necessarily in exact order as to bigness are Swift Morrel Wilson, and Armour 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 17. Agents of Petitioner induced employees to vote for Petitioner by telling them that they , the employees, had the absolute right to , and Petitioner could and would dictate to Employer whom the supervisors and other managerial employees would be and for whom the "bargaining unit" employees would work for. 18. Stating that dues would be increased for those who did not vote for Petitioner , notwithstanding the guarantee of a secret ballot , and that Petitioner would know who did not vote for the Petitioner. The conduct complained of was made to a group of employees who were not knowledgable and lacked the faculties necessary to evaluate said conduct and to place them in their proper perspective. The statements rendered and handbills distributed was not the type of "puffing" that is easily recognized by the employees. The conduct complained of was made to a group of people at a plant where there are high turnovers in employment. This is a group of employees who have never been faced with , let alone became accustomed to, such electioneering broadsides of misrepresentative magnitude. The misrepresentations stated herein occurred within a period when the Employer did not have such informa- tion in order to timely rebut same. The conduct complained of created a general atmos- phere of fear, coercion, apprehension and commotion so as to render invalid the employees choice of a free election. Considering the above, this afforded the employees ample reasons to be apprehensive about their future if they did not vote for Petitioner. As a result of the actions complained of herein as well as other conduct the employees were not able to vote a free choice under the "laboratory conditions" so sought by the Board. On March 6, 1970, the Regional Director issued a Report on Objections. In the report the Regional Director stated that an investigation of the Respondent's objections had been conducted during which all parties were afforded an opportunity to submit evidence bearing on the issues. After discussion of the evidence, the Regional Director conclud- ed in his report that Respondent's objections raised no substantial or material issues with respect to the election results. The Regional Director consequently recommended to the Board that the Respondent's objections be overruled in their entirety and that the Union be certified as the bargaining representative in the appropriate unit. On March 30, 1970, Respondent filed with the Board in Washington, D.C., timely exceptions to the Regional Director's report. In its brief in support of said exceptions the Respondent specifically prayed that the election be set aside and a second election directed, and specifically in the alternative that the Board order a hearing to be conducted in Roswell, New Mexico, "for the purpose of hearing testimony under oath by all who have knowledge of the circumstances as contended by the various parties to this controversy, and thereby resolve questions of credibility and give all parties the opportunity to have his day in court." On June 12 , 1970, the Board issued a Decision and Certification of Representatives in which the Board adopted the Regional Director's findings, conclusions, and recommendations and certified the Union as bargaining representative. In said decision the Board made the specific findings: In our opinion, the Employer's exceptions raise no material or substantial issues of fact or law which would warrant a reversal of the Regional Director 's findings and recommendations or require a hearing. The Unfair Labor Practice Case On July 7, 1970, the Union filed the instant unfair labor practice charge alleging that since the certification, the Respondent had refused and continued to refuse to bargain with the Union. On July 17, 1970, the Regional Director issued a complaint and notice of hearing alleging that Respondent had committed unfair labor practices in violation of Section 8(a)(1) and (5) of the Act by refusing to bargain collectively with the Union as bargaining representative, though requested to do so since the certification. On July 27, 1970, Respondent filed its answer to the complaint wherein it admitted the factual allegations of the complaint but denied the commission of unfair labor practices. In its answer Respondent states: Respondent admits that it has refused to bargain pursuant to the Union's request on or about June 22, 1970. However, Respondent affirmatively states that it has refused to meet with the Union for the reason that the Board's certification was in error. By way of affirmative defense the answer avers: A. On or about November 14, 1969 Respondent filed timely "Objections to the Election" wherein it alleged "specific evidence of specific events from or about specific people" which warranted the setting aside of the election or alternatively a hearing. B. That on or about March 6, 1970 the Regional Director for the Twenty-Eighth Region after an ex parse investigation and without a hearing erroniously recom- mended that the Board overrule all of Respondent's "Objections" which precluded a hearing on Respon- dent's "Objections." C. On or about March 27, 1970 Respondent timely filed with the Board its "Exceptions" to the Regional Director's "Recommendations." D. That on or about June 12, 1970 the Board as a mere formality adopted the Regional Director's "Recommendations." E. The Board did not review the affidavits or any other investigatory material pertaining to the Repre- sentation proceeding. F. The Board did not articulate in any manner its reasons for summarily dismissing Respondent's "Objections." G. The Board's failure to review the complete file in the Representation proceeding, to set aside the election, or its failure to articulate its basis for summarily dismissing Respondent's "Objections " under the cir- cumstances was a denial of due process. H. Because of the reasons contained in A, B, C, D, E, GLOVER PACKING COMPANY 457 F, and G above the Board erroniously certified the Union as the bargaining agent of the unit described in paragraph 7 of the complaint. On July 31, 1970, counsel for the General Counsel filed a Motion for Summary Judgment on the ground that Respondent's answer did not raise any triable issue requiring hearing. On August 20, 1970, Trial Examiner James R. Hemingway issued a Notice To Show Cause, to which Respondent filed a timely response on September 1, 1970. Respondent in its Answer to Notice To Show Cause and Request for Hearing, describes in detail evidence which it could and should have presented to the Regional Director in aid of his investigation of Respondent's objections. Respondent does not assert that any of the evidence tendered is in any sense newly discovered or previously unavailable. Respondent argues that the "specific evidence of specific events from or about specific people" set forth in its answer to the General Counsel's motion has a basis in fact and law sufficient to overturn the election and that a hearing is required because: The Regional Director conducted an ex parte investigation of Respondent's Objections. From a reading of the Regional Director's Report it must be assumed that his investigation disclosed head-on clashes between Respondent's evidence and the Un- ion's answers thereto. Notwithstanding these diametri- cally opposed contentions, the Regional Director resolved credibility in favor of witnesses that the Union presented or witnesses that the Regional Director may have uncovered. His resolutions were arrived at without a hearing on specific events from specified persons. This approach was a denial of procedural fair play. The Board did not evaluate Respondent Objections. The Board did not review the affidavits or any other investigatory material pertaining to the representation proceeding ... . The Board failed to review the complete file in the representation proceeding. The Board did not articulate in any manner its reasons for summarily dismissing Respondent's Objec- tions. The Board, in adopting the Regional Director's Report, under the circumstances of this case, com- pounded the error of its Regional Director. The Board, in giving cavalier treatment to Respon- dent's Objections, and its "rubber stamp" approval of the Regional Director's Report, in this instance in unsupportable. The Board's Certification of Representatives in this instance is unwarranted at this time. A hearing is therefore necessary and indispensable if a proper and fair resolution of the disputed facts, taken with the facts which the Regional Director may have considered as a 2 Krieger-Ragsdale & Co., Inc, 159 NLRB 490, enfd 379 F 2d 517 (C A 7, 1967), cert denied 389 U S 1041; N LR B v. Macomb Pottery, 376 F 2d 450 (C A 7, 1967), Howard Johnson Company, 164 NLRB 801, Metropolitan Life Insurance Company, 163 NLRB 579 See Pittsburgh Plate Glass Co v NLR B, 313 US 146, 162 ( 1941), NLRB Rules and result of his ex parse investigation, are to be made by the Trial Examiner or the Board.... . Due process prohibits the Board from shutting off a party's right to conduct cross-examination material to the issues , nor has the Board the right to foreclose Respondent's case until it has an opportunity to be fairly heard. United States Rubber Co. v. N.L.R.B., 373 F.2d 602, (C.A. 5, 1967) and N.L.R.B. v. Bill's Institutional Commissary Corporation, 418 F.2d 405 (C A. 5, 1969). Since substantial and material factual issues exist, they can be resolved only after a formal hearing before the proper forum ; and any refusal to bargain is justifiable at this time for the reasons stated herein. Ruling on Motion for Summary Judgment It is established Board policy, in the absence of newly discovered or previously unavailable evidence, not to permit litigation before a Trial Examiner in an unfair labor practice case of issues which were or could have been litigated in a prior related representation proceeding.2 Such a hearing is not a matter of right unless substantial and material issues are raised by the objections.3 That there are no such issues here has been decided by the Board, and the Respondent offers no new evidence. At this stage of the proceedings the Board's determination is therefore the law of the case. There thus being no unresolved issues requiring an evidential hearing the motion of the General Counsel for summary judgment is granted, and I hereby make the following further: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Glover Packing Company is, and has been at all times material herein, a New Mexico corporation with its principal office and place of business in Roswell, New Mexico, where it is engaged in the business of operating a packinghouse including the processing and sale of meat and byproducts of meat. During the last calendar year, Respondent, in the course and conduct of its business operations, sold and distributed products, the gross value of which exceeded $500,000. During the same period of time Respondent purchased, transported and received goods, including livestock and packaged meat, valued in excess of $50,000 at its place of business, in interstate commerce directly from States of the United States other than the State of New Mexico. Respondent is, and has been at all times material herein, an employer within the meaning of Section 2(2) of the Act engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. Regulations, Secs 102 67(f) and 102 69(c). 3 Bufkor-Pelzner Division, Inc, 169 NLRB No 139, N L R B v E-Z Davies Chevrolet and N L R B v Carl Simpson Buick Inc, 395 F 2d 191 (CA 9, 1968), enfg 161 NLRB 1389 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All hourly paid production and maintenance employ- ees, all truckdrivers and shipping clerks of Glover Packing Company in Roswell, New Mexico, excluding office clerical employees, guards, watchmen, and supervisors as defined in the National Labor Relations Act. On November 7, 1969, in an election by secret ballot conducted under the supervision of the Regional Director for Region 28 of the National Labor Relations Board, a majority of the employees in the appropriate unit designated and selected the Union as their collective- bargaining representative. On June 12, 1970, the National Labor Relations Board certified the Union as the exclusive collective-bargaining representative; as defined in Section 9(a) of the Act of all of the employees in the above-described unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. On or about June 22, 1970, the Union requested the Respondent to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Since on or about June 22, 1970, Respondent has refused and continues to refuse to recognize and bargain collective- ly with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit. By thus refusing to bargain collectively Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) of the Act and has interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings and conclusions and the entire record in the case, I recommend that the Board issue the following: ORDER Glover Packing Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: representative of all of the employees in the following (a) Refusing to bargain collectively with Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, as the exclusive collective-bargaining appropri- ate unit: All hourly paid production and maintenance em- ployees, all truckdnvers and shipping clerks of Glover Packing Company in Roswell, New Mexico, excluding office clerical employees, guards, watchmen, and supervisors as defined in the National Labor Relations Act. (b) Interfering with the efforts of said Union to negotiate for or represent employees as such exclusive collective- bargaining representative. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, as the exclusive representative of all the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agreement any understanding reached.4 (b) Post at its office and place of business in Roswell, New Mexico, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms to be furnished by the Regional Director for Region 28, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent 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 employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 28, in writing, within 20 days from receipt of this recommended Order, what steps the Respondent has taken to comply herewith.6 4 For the purpose of determining the duration of the certification, the initial year of certification shall be deemed to begin on the date the Respondent commences to bargain in good faith with the Union as the recognized exclusive bargaining representative in the appropriate unit The purpose of this provision is to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law See Mar-Jac Poultry Co, 136 NLRB 785, Commerce Co d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd 328 F 2d 600 (C.A 5, 1964), cert denied 379 U S. 817; Burnett Construction Co, 149 NLRB 1419,142 1, enfd 350 F 2d 57 (C A 10, 1965) s In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 6 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 28, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Amalgamated Meat Cutters & Butcher Workmen of North America , AFL-CIO, as the exclusive collective- GLOVER PACKING COMPANY bargaining representative of all the following employ- ees All hourly paid production and maintenance em- ployees, all truckdrivers and shipping clerks of Glover Packing Company in Roswell, New Mexico, excluding office clerical employees, guards, watchmen, and supervisors as defined in the National Labor Relations Act WE WILL not interfere with the efforts of the Union to negotiate for or represent employees as exclusive collective-bargaining representative WE WILL bargain collectively with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit, and, if an under- standing is reached, we will sign a contract with the Union Dated By 459 GLOVER PACKING COMPANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone 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 Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 7011 Federal Building and U S Courthouse, 500 Gold Avenue, S W, P O Box 2146, Albuquerque, New Mexico 87101, Telephone 843-2555