Southern Foods, Inc.

154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southern Foods, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case 10-CA-7410 January 17, 1969 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On September 16, 1968, Trial Examiner Charles W. Schneider issued his Decision in the above proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices 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 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. The Board has considered the Trial Examiner's Decision, the exceptions and supporting brief, and the entire record in this 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 Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Southern Foods, Inc., Columbus, Georgia, its officers,, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The Representation Proceeding' CHARLES SCHNEIDER, Trial Examiner: upon petition filed under Section 9(c) of the National Labor Relations Act (29 U.S.C.A. 159(c)) on June 5 , 1967, by United Packinghouse, Food and Allied Workers, AFL-CIO, herein called the Union, a hearing was held by the Regional Director for Region 10 of the Board, who 'Administrative or official notice is taken of the record in the representation proceeding , Case 10-RC-7116, as the term "record" is defined in Section 102.68 and 102.69(f) of the Board's Rules and Regulations and Statements of Procedure, National Labor Relations Board, Series 8, as revised January 1, 1965 See LTV Electrosystems, Inc., 166 NLRB No. 81, enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co , 167 NLRB No. 24; Intertype Co v. Penello , 269 F Supp 573 (D.C. Va, 1967); Follett Corp., et al., 164 NLRB No. 47, enfd. 397 F.2d 91 (C.A. 7, 1968); Section 9(d) of the National Labor Relations Act subsequently issued a Decision and Direction of Election in an appropriate bargaining unit , described hereinafter, of the employees of Southern Foods, Inc ., Columbus, Georgia, herein called the Respondent. Pursuant to the Decision and Direction of Election an election by secret ballot was conducted on August 30, 1967, under the supervision and direction of said Regional Director. Immediately following the election the parties were served with copies of the tally of ballots which showed that of approximately 133 eligible voters , 70 cast ballots for the Union , 53 cast ballots against the Union, and 7 cast challenged ballots. On September 7, 1967, the Respondent filed timely objections to conduct affecting the results of the election alleging ( 1) That the Union improperly promised a waiver of initiation fees and dues payments conditioned upon the results of the election, (2) that the Union made representations which departed from the requirements and directives of its international constitution , (3) that the Union improperly injected into the campaign an atmosphere of coercion , threats, and fear, (4) that the Union created the impression that if selected it would, as a matter of course , bring about specified benefits which it knew would be a subject for collective bargaining, (5) that the Union exceeded the bounds of legitimate campaign propaganda by distributing leaflets which deliberately deceived the employees with respect to working conditions provided by the Union at another meat packing plant , and (6 ) that the Union by other acts and conduct destroyed the laboratory conditions guaranteed employees exercising their rights under the Act. The Regional Director for Region 10 conducted an investigation of the challenges and objections and on October 19, 1967, issued a Supplemental Decision , Order, and Direction of Second Election in which he found that Respondent's Objection 5 was supported by the evidence and determined that the misrepresentation was sufficient ground to warrant setting aside the election . Accordingly, he ordered that a second election be conducted among the employees in the appropriate unit. Pursuant to the Regional Director's Decision, Order, and Direction of Second Election an election by secret ballot was conducted on November 15, 1967, under the supervision of said Regional Director . Upon conclusion of the balloting, the parties were furnished with a tally of ballots which showed that of approximately 142 eligible voters, 77 cast ballots for the Union , 55 cast ballots against the Union, and 7 cast challenged ballots. On November 21 , 1967, the Respondent filed timely objections to the election alleging: ( 1) that the Union, by several individual acts, exceeded the bounds of legitimate campaign propaganda, (2) that the Union improperly promised a waiver of initiation fees ' and dues payments if the employees selected the Union, (3) that the Union misrepresented the requirements of its international constitution by promising the employees the opportunity to vote on the contents of the contract without paying dues, (4) that the Union improperly permitted an atmosphere of coercion, threats, and fear to permeate the atmosphere of the campaign, and (5 ) that by other conduct and interference from the Union the results of the election were affected. The Regional Director for Region 10 conducted an investigation of the objections to the election and on December 29 , 1967, issued a Supplemental Decision, Order, and Direction of Third Election in which he sustained Respondent's Objection 4 which alleged that a letter delivered to the homes of the employees the day 174 NLRB No. 29 SOUTHERN FOODS, INC. prior to the election exceeded the bounds of legitimate campaign propaganda by falsely stating that wages and total benefits at Southern Foods, Inc., were greater than the wages and benefits offered in negotiations at Armour and Company, a nearby competitive meat packing plant. Since in the Regional Director's judgment Respondent's Objection 4 raised substantial and material issues which affected the election, the election of November 15, 1967, was set aside and a third election was directed. On January 16, 1968, the Union filed a Request for Reconsideration and Vacation of Regional Director's Supplemental Decision, Order, and Direction of Third Election. On January 18, 1968, after consideration of the above request, the Regional Director issued an Order Vacating Direction of Third Election, Granting Petitioner's Motion for Reconsideration and Notice of Hearing in which he found that the Union's Request for Reconsideration raised substantial issues with respect to Respondent's Objection 4, which could best be resolved through testimony taken at a hearing. Accordingly, the Regional Director vacated his previous findings and conclusions concerning Objection 4 and directed a hearing thereon for February 13, 1968. On January 24, 1968, the Respondent filed a Motion for Reconsideration of Order of Regional Director's Vacating Direction of Third Election, in which it contended, inter alia, that there was no substantial issue respecting its Objection 4 requiring a hearing. On January 25, 1968, the Union filed with the Board in Washington, D.C., a Request for Review of Regional Director's Supplemental Decision, Order, and Direction of Third Election, and to the Regional Director's Subsequent Order Directing a Hearing on Issues Raised by the Employer's Objection No. 4. Also, on January 25, 1968, the Respondent requested the Board to review the Regional Director's findings with respect to Respondent's Objections 1, 2, 3, 5, 6, 7, 8, and 9 and also Objection 4. In view of the fact that both the Union and the Respondent had requested review of the Supplemental Decision, Order, and Direction of Third Election, the Regional Director for Region 10, on February 8, 1968, issued an Order Withdrawing Notice of Hearing. On February 7, 1968, the Respondent filed with the Board a Request for Review of: Certain Findings of the Regional Director in the Supplemental Decision, Order, and Direction of Third Election; of Regional Director's Order Vacating Direction of Third Election and Ordering of a Hearing; and Regional Director's Order Denying the Employer's Motion for Reconsideration, together with a supporting brief. On March 5, 1968, the Board granted the Respondent's and the Union's requests for review of the Regional Director's order of January 18, 1968, on the ground that they raised substantial issues warranting review. The Board further ordered that the Union's request for review of the Supplemental Decision, Order, and Direction of Third Election, insofar as it related to Objection 4, be granted, on the ground that it also raised substantial issues warranting review. It was further ordered that the Respondent's request for review of the Supplemental Decision be denied. Pursuant to the grant of review, the Respondent on March 15, 1968, filed a Brief on Review, to which the Union filed a Response brief on March 20, 1968. Subsequently, on March 25, 1968, the Respondent filed a response to the Union's brief of March 20, 1968. On the same date, March 25, the Board rejected the Union's brief on the ground that it was postmarked 4 days after the due date (March 15, 1968). 155 On June 5, 1968, the Board issued a Decision on Review and Certification of Representative, in which it found that the matter raised by Objection 4 did not have a substantial impact on the election. Therefore, the Board certified the Union as the exclusive representative of all the employees in the appropriate unit for the purposes of collective bargaining., On June 20, 1968, the Respondent filed a Motion for Reconsideration of the Board's June 5 Decision and a Request for Oral Argument. On June 24, 1968, this motion for reconsideration was denied by the Board as lacking in merit. The request for oral argument was also denied. The Unfair Labor Practice Case On July 9, 1968, the Union filed the unfair labor practice charge involved in the instant case, in which it alleged that since on or about June 12, 1968, and at all times thereafter, the Respondent has refused to bargain with the Union as the representative of employees in the appropriate unit. On July 24, 1968, the General Counsel, by the Regional Director for Region 10, issued a Complaint and Notice of Hearing alleging that the Respondent had committed unfair labor practices in violation of Sections 8(a)(1) and (5) and 2(6) and (7) of the Act by refusing to bargain with the Union upon request In due course Respondent filed its answer to the complaint in which certain allegations of the complaint were admitted and others denied. In its answer the Respondent admits the following allegations of the complaint: (1) jurisdictional, (2) that the Union is a labor organization within the meaning of Section 2(5) of the Act, (3) that the unit is appropriate, (4) that the Union requested the Respondent to bargain collectively, and (5) that Respondent refused and continues to refuse to bargain collectively with the Union. Though admitting the fact of the election and the certification, Respondent's answer denies that: (1) the employees in the appropriate unit selected the Union as their representative for the purposes of collective bargaining, (2) the Union was properly certified by the Board, (3) the Union is the exclusive representative of all the employees in the said unit within the meaning of Section 9(a) of the Act, and .(4) the Respondent has committed unfair labor practices within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. Under date of August 9, 1968, received August 12, counsel for the General Counsel filed a Motion for Summary Judgment in which he contends that the pleadings, considered together with the official record in the underlying representation proceeding, Case 10-RC-7116, raise no issues requiring a hearing, that Respondent's defense set forth in its answer raises no litigable questions of fact, and, as a matter of law, Respondent has no valid defense to the complaint. On August 12, 1968, I issued an order directing the parties to show cause as to whether or not General Counsel's motion for summary judgment should be granted. On August 26, 1968, counsel for the Respondent filed a Response in which it opposes the General Counsel's Motion. 'Southern Foods, Inc, 171 NLRB No 131. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ruling on Motion for Summary Judgment In its Response to the Motion for Summary Judgment, the Respondent urges that the General Counsel's motion should be denied for a number of reasons, which in summary are as follows: (1) Respondent's Answer to Complaint presents adequate and compelling grounds to require that the proceeding be dismissed, (2) a hearing is necessary to determine whether or not the defenses set forth in Respondent's answer are adequate, (3) that the Board misapplied the law in its June 5, 1968, decision, and that the Trial Examiner should recognize the Board's error and dismiss the complaint in order to avoid an appeal to the court of appeals, (4) the defenses raised in Respondent's answer are not a mere relitigation of the issues raised in the representation proceeding, and (5) there are "unusual circumstances" requiring that the Respondent not bargain with the Union. None of these propositions is found to be supported.' It is established Board policy, in the absence of newly discovered or previously unavailable evidence or special circumstances, 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." No newly discovered or previously unavailable evidence is asserted here. The "unusual circumstances" referred to by the Respondent are that after the election 121 of 130 employees in the unit, without interference by the Respondent, hired an attorney and sent cards to the Board stating that they had been misled by the Union and had voted in favor of the Union because of such deception. The contention that these cards affect the Union's representative status was reviewed by the Board and rejected in its Decision and Certification of Representative. Accordingly I find no unusual circumstances authorizing disregard of the certification. In this situation the Board's Decision and Certification of Representative constitutes the law of the case and is binding on the Trial Examiner. The fact that the Respondent attacks the validity of the election and the certification in its answer does not free the Respondent of its obligation to bargain, or entitle it to a hearing on matters already decided by the Board. There being no unresolved issues requiring 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 Southern Foods, Inc., the Respondent, is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Georgia. It maintains its principal office and place of business at Columbus, Georgia, where it is engaged in the manufacture and sale of meat products. In the course and conduct of its business operations, Respondent, during the past year, manufactured and sold 'The Respondent also requests opportunity to argue its case orally before the Trial Examiner This request is denied for the reason that the pleadings, the record, and the Respondent' s brief adequately present the positions of the parties 'Howard Johnson Co , 164 NLRB No. 121, Metropolitan Life Insurance Co., 163 NLRB No 71. See Pittsburgh Plate Glass Co. v N L R B , 313 U S. 146, 162 (1941 ), Rules and Regulations of the Board, Section 102 67 (f) and 102.69(c) products valued in excess of $50,000 directly from sources located outside the State of Georgia. Respondent is, 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 The Union is, and has been at all times material herein, 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 production and maintenance employees of Respondent at its Columbus, Georgia, plant, including janitors, truckdrivers, the truck washer, the leaderman in the engineering and maintenance department, order assembler clerks, full-time shipping and receiving clerks, the plant cost clerk, the beef cooler man, and the warehouse receiving clerk, but excluding office clerical employees, the livestock buyers (livestock buyer - sorter, grader, weigher), professional employees, guards, superintendents, assistant superintendents, foremen, the assistant foreman, and all other supervisors as defined in the Act. On November 15, 1967, a majority of Respondent's employees in the said unit designated and selected the Union as their collective bargaining representative in a secret ballot election conducted under the supervision of the Regional Director of Region 10 of the National Labor Relations Board. On June 5, 1968, the National Labor Relations Board certified the Union as the exclusive collective bargaining representative of the employees in the appropriate unit. At all times since June 5, 1968, and continuously to the present, the Union has been the representative for the purpose of collective bargaining of the employees in the said unit, and by virtue of Section 9(a) of the Act has been, and is now, the exclusive representative of all the employees in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. It is alleged and admitted that following the certification of the Union, the Union requested the Respondent to meet with it for the purposes of collective bargaining and that the Respondent failed and refused to do so. On these facts it is found, in accordance with the allegations of the complaint, and the admissions of the answer, that commencing on or about July 1, 1968, the Respondent has refused and continues to refuse to bargain collectively with the Union as the representative of the employees in the appropriate unit. By thus refusing to bargain collectively the Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) of the Act and has interfered with, restrained, and coerced its 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: SOUTHERN FOODS, INC. 157 ORDER A. For the purposes 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.5 B. Southern Foods, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with United Packing House, Food and Allied Workers, AFL-CIO, as the exclusive collective bargaining representative of the employees in the following appropriate bargaining unit: All production and maintenance employees of the Respondent at its Columbus, Georgia, plant, including janitors, truckdrivers, the truck washer, the leaderman in the engineering and maintenance department, order assembler clerks, full-time shipping and receiving clerks, the plant cost clerk, the beef cooler man, and the warehouse receiving clerk, but excluding office clerical employees, the livestock buyers (livestock buyer - sorter, grader, weigher), professional employees, guards, superintendents, assistant superintendents, foremen, the assistant foreman, and all other supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent the employees as 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 United Packinghouse, Food and Allied Workers, AFL-CIO, as the exclusive representative of 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. (b) Post at its office and place of business in Columbus, Georgia. copies of the notice attached hereto marked "Appendix."' Copies of said notice, on forms to be furnished by the Regional Director for Region 10, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, be maintained by it for a period of '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., Inc, 136 NLRB 785; Commerce Co, d/bra Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F 2d 600 (C A 5, 1964), cert. denied 379 U S. 817 (1964); Burnett Construction Co, 149 NLRB 1419, 1421, enfd 350 F 2d 57 (C A 10, 1965) 'In the event that this Recommended Order is adopted by the Board, the words, "a Decision and Order" shall be substituted for the words "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 " 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 10, in writing, within 20 days from receipt of this Recommended Order what steps Respondent has taken to comply herewith.' 'In the event this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify the Regional Director for Region 10, in writing , within 10 days from receipt of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations 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 bargaining representative of all our following employees: All production and maintenance employees at our Columbus, Georgia, plant, including janitors, truckdrivers, the truck washer, the leaderman in the engineering and maintenance department, order assembler clerks, full-time shipping and receiving clerks, the plant cost clerk, the beef cooler man, and the warehouse receiving clerk, but excluding office clerical employees, the livestock buyers (livestock buyer - sorter, grader, weigher), professional employees, guards, superintendents , assistant superintendents , foremen, the assistant foreman, and all other supervisors as defined in the Act. WE WILL NOT interfere with the efforts of the Union to negotiate for or represent the employees as exclusive collective bargaining representative. WE WILL bargain collectively with the Union as exclusive collective bargaining representative of the employees in the appropriate unit and if an understanding is reached we will sign a contract with the Union. Dated By SOUTHERN FOODS, INC. (Employer) (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, 730 Peachtree St., N.E., Atlanta, Georgia 30308, Telephone 404-526-5760.