Bush Hog, Inc.

BUSH HOG, INC. Bush Hog, Inc . and United Steelworkers of America, AFL-CIO. Case 15-CA-3334 October 30, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA Upon a charge duly filed on July 1, 1968 by United Steelworkers of America, AFL-CIO, the General Counsel for the National Labor Relations Board, by the Regional Director for Region 15, issued a complaint on July 19, 1968, against Bush Hog, Inc., herein called the Respondent, alleging that the Res- pondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. Copies of the complaint, charge, and notice of hearing were duly served upon the Respondent and the Charging Party. The complaint alleges that on or about June 14, 1968, the Union was duly certified by the Board as the exclusive bargaining representative of the Respon- dent's employees in the unit found appropriate, and that, commencing on or about June 24, 1968, the Respondent has refused and is refusing to recognize or bargain with the Union as such exclusive bargaining representative, although the Union has requested and is requesting it to do so. The Respondent filed its answer on July 30, 1968, admitting its refusal to bargain but asserting that the election and union certification are invalid. On August 9, 1968, all parties entered into a stipulation in which the parties waived their rights to a hearing and to the issuance of a Trial Examiner's Decision. In view thereof, the parties stipulated that the entire record of this proceeding shall consist of the stipulation, the charge, the complaint, and the answer. By an order issued on August 20, 1968, the Board approved the aforesaid stipulation, and transferred the matter to the Board. Thereafter the Charging Party filed a brief with the Board. 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-mem- ber panel. Upon the basis of the aforesaid stipulation and the entire record in this case, including the brief of the Charging Party, the Board makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT 467 The Respondent has its principal place of business at Selma, Alabama, where it is engaged in the manufacture and wholesale distribution of rotary cutters, riding tractors, and other farming imple- ments. It annually sells and ships goods valued at more than $50,000 directly to points outside the State of Alabama. During the same period, the Respondent has purchased and received goods valued in excess of $50,000 directly from outside the State of Alabama. The Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. UNFAIR LABOR PRACTICES A. The Representation Proceedings 1. The unit The following employees at the Respondent's Selma, Alabama, plant, constitute a unit appropriate for collective bargaining within the meaning of the Act. All production and maintenance , shipping and receiving employees , including truckdrivers but excluding office clerical employees , watchmen, guards, and supervisors as defined in the Act. 2. The certification On February 1, 1968, a majority of the employees of the Respondent in said unit, in a secret ballot election, conducted under the supervision of the Regional Director for Region 15, designated the Union as their representative for the purposes of collective bargaining with the Respondent. On March 18, 1968, the Respondent filed exceptions to the Regional Director's Report on Objections in Case 15-RC-3805, which exceptions were subsequently overruled, and the Union was certified by Board 173 NLRB No. 74 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Decision and Certification of Representative on June 14, 1968. B. The Request To Bargain and the Respondent's Refusal Commencing on or about June 18, 1968, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about June 24, 1968, and at all times thereafter to date, the Respondent has refused and continues to refuse, to bargain collectively with the Union as the exclusive collective-bargaining representative of all employees in said unit. The Respondent contends that its refusal to bargain is lawful, as meritorious objections which it filed to the election of February 1, 1968, in Case 15-RC-3805 should have resulted in the Board's setting aside of that election and direction of a second election to determine the Union's majority status. We have taken official notice of the record in that proceeding and find no merit in the Respondent's contention. Accordingly, we find that the Union was duly certified as the collective-bargaining representa- tive of the employees of the Respondent in the appropriate unit described above, and that the Union at all times since June 14, 1968, 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 the Respondent has, since June 24, 1968, refused to bargain collectively with the Union as the exclusive bargaining representative of its employees in the appropriate unit, and that by such refusal, 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. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section III , above, occurring in connection with the operations 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 of commerce. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive represen- tative of all employees in the appropriate unit, and, if an understanding is reached, embody such under- standing in a signed agreement. In order 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, we shall construe the initial year of certification as beginning on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See: Mar-Jac Poultry Company, Inc., 136 NLRB 785, Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A.5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). The Charging Party, in its brief, requests a monetary remedy to make the employees whole for losses they may have suffered as a result of the Respondent's unlawful refusal to bargain. We deem it inappropriate in this case to depart from our existing policy with respect to remedial orders in cases involving violations of Section 8(a)(5), and therefore deny the said request. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Bush Hog, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance, shipping, and receiving employees of the Respondent at its Selma, Alabama, plant, including truckdrivers but excluding office clerical employees, watchmen, guards, and supervisors, as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since June 14, 1968, 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 June 24, 1968, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of the Respondent in the appropriate unit , the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain the Respon- dent has interfered with , restrained , and coerced, and is interfering with, restraining, and coercing, em- ployees in the exercise of the rights guaranteed to BUSH them in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing 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 Respondent, Bush Hog, Inc., Selma, Alabama, 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 employment with United Steelworkers of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance, shipping, and receiving employees of the Respondent at its Selma, Alabama, plant, including truckdrivers but excluding office clerical employees, watchmen, guards, and supervisors as defined in the Act. (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 wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Selma, Alabama, plant copies of the attached notice marked "Appendix."i Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by the Respondent's representative, shall be posted by the 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. Reason- able 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 15, in writing, within 10 days from the date of this Decision and Order, what steps the Respondent has taken to comply herewith. HOG, INC. 469 1 In 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 Decision of the United States Court of Appeals Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the 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 our employees that, WE WILL NOT refuse to bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the right guaranteed them by Section 7 of the Act. WE WILL upon request, bargain with the above- named Union, as the exclusive representative of all employees in the bargaining unit described below with respect to wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. The bargaining unit is All production and maintenance, shipping, and receiving employees of our Selma, Alabama, plant, including truckdrivers but excluding office clerical employees, watchmen, guards, and supervisors as defined in the Act. All of our employees are free to become, remain, or refrain from becoming or remaining, members of any labor organization. BUSH HOG, 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, 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361.