Uncle Charlie's Sausage Co.

570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meat Foods, Inc. d/b/a Uncle Charlie's Sausage Co. and District Union Local 227 , Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case 9-CA-4956, June 11, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On March 25, 1969, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended , and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision . Thereafter, Respondent filed exceptions to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the Act, 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; Respondent's exceptions, 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 Respondent, Meat Foods, Inc. d/b/a Uncle Charlie's Sausage Co., Richmond, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 'In adopting the Trial Examiner's conclusion that Charles Reinhart was the Charging Party's agent in requesting recognition from Respondent, we note that the Regional Director found Reinhart to be "Petitioner's representative" in his Report on Objections in the underlying representation case . In its exceptions to this Report , attached as an exhibit to Respondent's exceptions in this case , Respondent itself refers to Reinhart as "an admitted representative of Petitioner." We reject Respondent's contention that Reinhart was not the Charging Party's agent. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The Representation Proceeding' On December 5, 1967, an election was conducted at the Richmond, Kentucky, plant of Meat Foods , Inc. d/b/a Uncle Charlie's Sausage Co., herein called the Respondent, pursuant to a Stipulation for Certification Upon Consent of Election approved on November 3, 1967, by Respondent and District Union Local 227, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein called the Union. Of an appropriate unit of approximately 34 eligible voters, 33 ballots were cast, 20 in favor of and 13 against the Union. No ballots were challenged. Pursuant to timely objections to conduct affecting the results of the election filed by Respondent on December 11, 1967, an investigation was conducted in accordance with Section 102.69 of the Board's Rules and Regulations, Series 8 , as amended . As a result of such investigation, a Report on Objections to Election and Recommendations to the Board was issued by the Regional Director on July 30, 1968, in which he found that the objections raised no substantial or material issues with respect to the election, recommended to the Board that the objections be overruled in their entirety, and that the Union be certified as the collective-bargaining representative of the employees in the stipulated unit. The Respondent filed timely exceptions to the Regional Director's Report on Objections to Election and Recommendations to the Board. On October 10, 1968, the Board issued its Decision and Certification of Representative in which it overruled Respondent's exceptions in their entirety, and certified the Union as the exclusive bargaining representative of the employees in the appropriate unit. The Complaint Case On November 7, 1968, the Union filed the unfair labor practice charge involved in the instant case, in which it alleged , inter a/ia, that since on or about October 10, 1968, the Respondent refused to bargain with the Union. On December 18, 1968, the General Counsel, by the Regional Director of Region 9, issued a Complaint and Notice of Hearing alleging that the Respondent had committed unfair labor practices in violation of Section 8(a)(l) and (5) and Section 2(6) and (7) of the Act by refusing to bargain with the Union upon request. In due course the 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) filing and service of the charge, (2) certain jurisdictional facts, (3) that the union is a labor organization within the meaning of Section 2(5) of the Act, and (4) that H.N. Benton is an agent acting on the Respondent's behalf and is a supervisor as defined in Section 2(11) of the Act. Respondent denies the allegations contained in the complaint to the effect that: (1) the Union has requested the Respondent to bargain collectively, (2) Respondent has refused to bargain with the Union, and (3) it is engaging in unfair labor practices 'Administrative or official notice is taken of the record in the representation proceeding, Case No. 9-RC-7482, as the term "record" is defined in Section 102.68 and 102.69(f) of the Board's Rules (Rules and Regulations and Statements of Procedure, National Labor Relations Board, Series 8, as amended ). 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); lntertype Co. v. N. L.R B. 401 F.2d 41 (C.A. 4, 1968X Follett Corp., et al. 164 NLRB No. 47, enfd. 397 F.2d 91 (C.A. 7, 1968); Section 9(d) of the NLRA. 176 NLRB No. 74 MEAT FOODS, INC. 571 affecting commerce within the meaning of the Act. As to the allegations contained in paragraph 5(a) of the Complaint and Notice of Hearing, which alleges that an election was conducted by the Board, that the Union was certified as the exclusive collective-bargaining representative, and that the appropriate collective-bargaining unit is all employees of Respondent at its Richmond, Kentucky, plant, excluding all mechanics and driver salesmen , all guards, office clericals, and professional employees and all supervisors as defined in Section 2(11) of the Act, Respondent neither admits nor denies, but rather sets out an explanation . In this explanation Respondent's Answer states that its "Objections to the conduct of the election alleged in paragraph 5(a), raise substantial and material issues of fact on the basis of which such election should be either set aside, or in the alternative , a hearing directed to resolve such substantial material issues of fact." As to paragraph 5(b) of the Complaint and Notice of Hearing in which it is asserted that the Union is the exclusive collective-bargaining representative of Respondent's employees in the appropriate unit, Respondent's Answer states that the Respondent is without knowledge as to these allegations. Under date of February 13, 1969, received February 17, 1969, Counsel for the General Counsel filed a Motion for Summary Judgment in which he contends that the pleadings considered together with the official Board record in the underlying representation proceeding, Case 9-RC-7482, raise no issues requiring hearing, that Respondent's defense set forth in its Answer raises no litigable question of fact and that, as a matter of law, Respondent has no valid defense to the complaint and therefore cannot submit an opposing affidavit, a position which the Respondent suggests is particularly true in the light of restrictions on discovery proceedings in unfair labor practice cases. Attached to the Motion for Summary Judgment as exhibit (b) is a copy of a letter from Charles R. Reinhart, Director of Organizing of the Union, to Mr. Herman Benton, president of the Respondent. In this letter, dated October 15, 1968, (5 days after certification) the Union requested the Respondent to bargain with it as the certified union in the appropriate unit. Attached to the Motion for Summary Judgment as exhibit (c) is a copy of a letter from H. N. Benton, on behalf of the Respondent, acknowledging receipt of the Union's October 15 letter. In its reply, dated October 25, 1968 the Respondent declined to recognize the Union as the representative of its employees on the ground, in sum, that the Union was not the legal bargaining representative . Copies of these two letters are attached hereto. On February 20, 1969, 1 issued an Order returnable March 3, 1969, and subsequently extended at the request of the Respondent to March 14, 1969, directing the parties to show cause as to whether or not the General Counsel's Motion should be granted. On March 13, 1969, Counsel for the Respondent filed a Response to General Counsel's Motion for Summary Judgment. No other responses have been received . Inter alia, the Response admits the authenticity of exhibits (b) and (c). Ruling on Motion for Summary Judgment reasons. First, Respondent states that its "exceptions when read in connection with the Report of the Regional Director on Respondent's Objections to the conduct of the election held in Case 9-RC-7482, clearly establishes substantial and material issues of fact upon which the hearing should be held, at which time witnesses will be subjected to examination and cross-examination, thus affording Respondent due process, and equal protection under the law." Secondly, Respondent questions the authority of Charles Reinhart. Thus, while admitting the authenticity of exhibit (b), the letter which Reinhart wrote to the Respondent on behalf of the Union requesting recognition, the Respondent does not admit the agency of Reinhart or his authority to act for the Union in the matter set out in exhibit (b). The Respondent correctly states that the General Counsel has the burden to show that Reinhart is in fact an agent of the Union, that this is a material fact, and that no supporting affidavits are submitted by the General Counsel in connection therewith. The Respondent further asserts that under the Rules of Federal Procedure concerning motions for summary judgment, Respondent has no ability to determine whether Reinhart is in fact an agent of the Union. and therefore cannot submit an opposing affidavit, a position which the Respondent suggests is particularly true in the light of restrictions on discovery proceedings in unfair labor practice cases. The Respondent's contentions concerning the agency of Reinhart are not sustained. In the light of the whole context of events, the letter of Reinhart to the Respondent on behalf of the Union has a circumstantial guarantee of trust worthiness and constitutes prima facie evidence of the authority of Reinhart to request the Respondent to bargain. The Respondent did not question Reinhart's authority upon receipt of the letter but accepted it as authentic and responded to it with an unequivocal refusal to bargain. The Respondent suggests no facts casting doubt on Reinhart's authority. That discovery may be restricted in unfair labor practice cases would not have prevented the Respondent from making an investigation and representing in its Response to the Motion for Summary Judgment (either by way of affidavit or by certification of counsel) what its investigation disclosed respecting Reinhart's authority. If such representations raised genuine factual issues requiring the taking of evidence respecting Reinhart's authority, hearing would be provided. However, nothing of such nature is suggested here. In the absence of any assertion that evidence exists casting doubt on the authority of Reinhart to request recognition on behalf of the Union, it must be concluded that Reinhart was in fact authorized to make the request. With respect to the Respondent's contention that its objections raised issues upon which a hearing should be held, it must be noted that that issue was resolved by the Board to the contrary in the representation proceeding. The Respondent thus seeks to relitigate the issue here. This the Respondent may not do before the trial examiner. It is established Board policy, in the absence of newly discovered or previously unavailable evidence, not to permit litigation before a Trial Examiner in a complaint case of issues which were or could have been litigated in a prior related representation proceeding.' This policy is Counsel for the Respondent opposes summary judgment . In its Response Respondent urges that the General Counsel's motion should be denied for two 'Krieger-Radsdale & Co. Inc. 159 NLRB 490, enfd 379 F.2d 517, (C.A. 7, 1967), cert. denied 389 U.S. 1041; N L.R.B v. Macomb Pottery, 376 F.2d 450 (C.A. 7, 1967); Howard Johnson Company, 164 NLRB No. 121; Metropolitan Life Insurance Company. 163 NLRB No. 71. See 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD applicable even though no formal hearing on objections has been provided by the Board. Such a hearing is not a matter of right unless substantial and material issues are raised;' and that there are not such issues here has been effectively decided by the Board. In view of Respondent' s admission of the authenticity of General Counsel's Exhibit (c) (Respondent's letter of October 25, 1968, to the Union), I find that the Respondent has since October 25, 1968, refused to recognize the Union as the exclusive bargaining agent of the employees in the appropriate unit and has refused to meet and bargain collectively with the Union concerning the terms and conditions of employment of these employees. There thus being no unresolved matters 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 Meat Foods, Inc., d/b/a Uncle Charlie's Sausage Co., the Respondent, is a Kentucky corporation engaged in the business of processing and selling beef and other meat products at its plant in Richmond, Kentucky. During the past 12 months, which is a representative period, Respondent had a direct inflow, in interstate commerce, of goods and products valued in excess of $50,000, which it purchased and caused to be shipped directly to its Richmond, Kentucky, plant from points outside the State of Kentucky. Respondent is, and has been , at all times material herein, an employer engaged in commerce and in operations affecting commerce , within the meaning of Section 2(6) and (7) of the Act. [I. THE LABOR ORGANIZATION INVOLVED the Regional Director of Region 9 of the National Labor Relations Board. On October 10, 1968, the Board certified the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit. At all times since October 10, 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. On or about October 15 , 1968, the Union requested the Respondent to meet with it for the purpose of collective bargaining with respect to the employees in the appropriate unit, and on October 25, 1968, the Respondent refused to do so. 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 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, pursuant to Section 10(c) of the Act, I recommend that the Board issue the following: ORDER A. 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 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 the Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees employed by the Respondent at its plant located at Richmond, Kentucky, excluding all mechanics and driver salesmen, all guards, office clericals and professional employees and all supervisors as defined in Section 2(11) of the Act. On December 5, 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 Pittsburgh Plate Glass Co. v. N L R.B., 313 U.S. 146, 162 (1941); NLRB Rules and Regulations, Sections 102.67(f) and 102.69(c). 'D K. Van and Storage, inc., 127 NLRB 1537, enfd. 297 F.2d 74 (C.A. 5, 1961). See Air Control Window Products. inc., 355 F.2d 245, 249 (C.A. 5, 1964). "If there is nothing to hear, then a hearing is a senseless and useless formality." See also N L R B. v. Bata Shoe ('a, 377 F.2d 821, 826 (C A. 4, 1967): ". . . there is no requirement, constitutional or otherwise, that there be a hearing in the absence of substantial and material issues crucial to determination of whether NLRB election results are to be accepted for purposes of certification." B. Meat Foods, Inc., d/b/a Uncle Charlie's Sausage Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with District Union Local 227, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive collective-bargaining representative of the employees in the following appropriate bargaining unit: All employees employed by the Respondent at its plant located at Richmond, Kentucky, excluding all mechanics and driver salesmen, all guards, office clericals and professional employees, and all supervisors as defined in Section 2(11) of the 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 District Union Local 227, Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO, as the exclusive ' i'l apurpose of this provision is to msure 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), cert. denied 379 U.S. 817 ( 1964); Burnett Construction Co, 149 NLRB 1419, 1421 , enfd . 350 F.2d 57 (C.A. 10, 1965). MEAT FOODS, INC. 573 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 plant at Richmond, Kentucky, copies of the attached notice marked "Appendix."' Copies of said notice on forms provided by the Regional Director for Region 9, 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 9, in writing, ,within 20 days from the receipt of this Recommended Order what steps the Respondent has taken to comply herewith., 'In the event that this Recommended Order is adopted by the Board the words "a Decision and Order" shall be substituted for the words "the Recommendations 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." '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 9, in writing, within 10 days from the receipt of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board WE WILL NOT refuse to bargain collectively with District Union Local 227, Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO, as the exclusive collective-bargaining representative of all our following employees: All employees employed by us at our plant located at Richmond, Kentucky, excluding all mechanics and driver salesmen , all guards, office clericals and professional employees and all supervisors as defined in Section 2(l 1) of the 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 understanding is reached sign a contract with the Union. MEATS FOODS, INC., D/B/A UNCLE CHARLIE S SAUSAGE CO. (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. Any questions concerning this notice may be directed to the Board's Regional Office, Room 2407 Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686. EXHIBIT (b) October 15, 1968 Mr. Herman Benton c/o Uncle Charlie' s Sausage Company 406 No. Estille Avenue Richmond, Kentucky 40475 Dear Sir: This Union having been certified by the National Labor Relations Board, Washington, D. C., on October 10, 1968 as the exclusive bargaining agent of all employees of the employer in the union found appropriate by the National Labor Relations Board, hereby request that you immediately bargain with said union concerning wages, hours, and conditions of said employees and further request that you contact the undersigned as to the date, time, and place within five days so that a conference can commence for the purpose of consummating a collective bargaining agreement. Very truly yours, Charles R. Reinhart Director of Organizing District Union Local 227 CRR/g cc: Mr. Ronald Allen, Attorney 305 Union Federal Building, Evansville, Indiana 47708 EXHIBIT (c) District Union Local 227 2140 Dixie Highway Louisville, Ky 40210 ATTENTION: Charles R. Reinhart Dear Mr. Reinhart: Your letter of October 15 has been received. The purpose of this letter is to inform you that we will not recognize the Amalgamated Meat Cutters and Butcher Workmen of North America as the representative of our employees . The reason for this, as you are no doubt aware of, is the fact that the results of the election held on our premises do not accurately reflect the desires of our employees . This situation has arisen due to the conduct of the Amalgamated Meat Cutters and Butcher Workmen of North America during the campaign preceding the election. We do not believe that the decision of the NLRB in any way correctly represents the state of the law applicable to the evidence submitted by us in support of our objections. Therefore , we feel, as a matter of law, that you do not represent a majority of our employees and consequently, any recognition of your union by this company would be illegal . We hereby inform you that we will conduct no bargaining negotiations with the 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Amalgamated Meat Cutters until the court of highest matter by the NLRB. jurisdiction in these matters has not only determined Very truly yours, that your conduct preceding the election was Uncle Charlie's Sausage unobjectionable ; but also that we have received due Co. process of law as guaranteed by the constitution of the /s/ H. N. Benton United States in respect to the prosecution of this HNB/jw . H. N. Benton