P & B Packers, Inc.

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD P & B Packers, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, Local 340. Case 17-CA-4825 February 3, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on September 3, 1971, by Amal- gamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local 340, herein called the Un- ion, and duly served on P & B Packers, Inc., herein called the Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Acting Regional Director for Region 17, issued a complaint on October 7, 1971, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Exam- iner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on August 12, 1971, following a Board election in Case 17-RC-6528 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about August 26, 1971, and at all times there- after, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Un- ion has requested and is requesting it to do so. On October 13, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On November 11, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 16, 1971, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent failed to file a re- sponse to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. ' Official notice is taken of the record in the representation proceeding, Case 17-RC-6528 , as the term "record" is defined in Secs 102 68 and 102 69(f) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938, enfd 388 F 2d 683 (C.A 4, 1968), Golden Age Beverage Co., 167 NLRB 151, Intertype Co. v Penello, 269 F Supp 573 (D C Va., 1967); Follett Corp., 164 NLRB 378, enfd 397 F 2d 91 (C A 7, 1968), Sec. 9(d) of the NLRA Upon the entire record in this proceeding, the Board makes the following: RULING ON THE MOTION FOR SUMMARY JUDGMENT The record in Case 17-RC-6528 shows that, al- though the Respondent and Union agreed to the inclu- sion in the appropriate unit of feed lot employees as nonagricultural employees, the Regional Director in his Decision and Direction of Election of March 15, 1971, excluded them as agricultural employees within the meaning of Section 2(3) of the Act. The Respondent timely filed a request for review which the Board on April 7, 1971, denied as raising no substantial issues warranting review. In the election held on April 16, 1971, there were approximately 29 eligible voters, 14 of whom voted for, and 12 against, the Union and 3 were challenged. No objections to the conduct of the election were filed. Pursuant to agreement of the parties, two of the chal- lenged ballots were opened and counted. The revised tally showed that there were 14 ballots cast for, and 14 against, the Union, with the remaining challenged bal- lot being determinative of the election. The parties agreed that the results of the election await the Board's determination of the voter's status in the unfair labor practice proceeding, Case 17-CA-4534. On July 19, 1971, the Board in its Decision and Order (192 NLRB No. 32) found that the voter had been discriminatorily discharged and ordered his im- mediate reinstatement. Thereafter, on July 22, 1971, the Acting Regional Director issued his Supplemental Decision on Challenged Ballots and Direction in which, on the basis of the Board's Decision and Order, he found the voter to be an eligible voter whose chal- lenged ballot should be opened and counted. As the second revised tally of ballots showed that 15 votes were cast for, and 14 against, the Union, the Regional Director, on August 12, 1971, certified the Union as the collective-bargaining representative of the employees in the unit. There is no record that the Respondent filed any further administrative appeal. In its answer to the complaint, the Respondent de- nies that the certified unit is appropriate for collective bargaining and that the Union is the exclusive collec- tive-bargaining representative of the employees in the unit. By its denial the Respondent is attempting to relitigate issues raised and determined in representation Case 17-RC-6528. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate 195 NLRB No. 61 P & B PACKERS, INC. issues which were or could have been litigated in a prior representation proceeding.2 All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior repre- sentation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Kansas corporation, is engaged in feeding, slaughtering, and processing hogs and cattle and the wholesale and retail sale of meat at its plant and principal place of business at Hays, Kansas. In the course and conduct of its business at the plant the Respondent annually purchases goods and services valued in excess of $50,000 directly from sources located outside the State of Kansas and it annually sells food and services valued in excess of $50,000 directly to customers located outside the State of Kansas. Its annual gross volume of sales exceeds $500,000. We find, on the basis of the foregoing, that Respond- ent 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, and that it will effectu- ate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local 340, is a labor organization within the meaning of Section 2(5) of the Act. ' See Pittsburgh Plate Glass Co. v N.LR B., 313 U.S. 146, 162 (1941), Rules and Regulations of the Board, Secs. 102.67(1) and 102 69(c) III THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit 319 The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All slaughterhouse, processing plant and retail market employees of P & B Packers, Inc. at its Hays, Kansas plant, including truck drivers and regular part-time employees, but excluding feed lot employees, office clerical employees; profes- sional employees, guards and supervisors as defined in the Act. 2. The certification On April 16, 1971, a majority of the employees of Respondent in said unit, in a secret ballot election con- ducted under the supervision of the Regional Director for Region 17 designated the Union as their representa- tive for the purpose of collective bargaining with the Respondent. The Union was certified as the collective- bargaining representative of the employees in said unit on August 12, 1971, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about August 16, 1971, and at all times thereafter, the Union has requested the Respond- ent to bargain collectively with it as the exclusive col- lective-bargaining representative of all the employees in the above-described unit. Commencing on or about August 26, 1971, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since August 26, 1971, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, 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 PRACTICE UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that Respondent has engaged in and is engaging 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, bar- gain collectively with the Union as the exclusive repre- sentative 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 appropri- ate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as begin- ning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate 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 Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. P & B Packers, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Meat Cutters and Butcher Work- men of North America, AFL-CIO, Local 340, is a labor organization within the meaning of Section 2(5) of the Act. 3. All slaughterhouse, processing plant and retail market employees of P & B Packers, Inc. at its Hays, Kansas plant, including truck drivers and regular part- time employees, but excluding feed lot employees, office clerical employees, professional employees, guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since August 12, 1971, the above-named labor organization has been and now is the certified and ex- clusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargain- ing within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 26, 1971, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respond- ent in the appropriate unit, Respondent has engaged in 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, Respondent has interfered with, restrained, and coerced, and is in- terfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engag- ing 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 meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, P & B Packers, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Lo- cal 340, as the exclusive bargaining representative of its employees in the following appropriate unit: All slaughterhouse, processing plant and retail market employees of P & B Packers, Inc. at its Hays, Kansas plant, including truck drivers and regular part-time employees, but excluding feed lot employees, office clerical employees, profes- sional employees, 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. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in 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 la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Post at its plant at Hays, Kansas, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for ' In the event this 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." P & B PACKERS, INC. 321 Region 17 after being duly signed by Respondent's representative , shall be posted by Respondent immedi- ately 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. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps have been 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 concerning rates of pay, wages, hours, and other terms and conditions of employment with Amal- gamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local 340, as the ex- clusive representative of the employees in the bar- gaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- scribed below , with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All slaughterhouse, processing plant and re- tail market employees of P & B Packers, Inc. at its Hays, Kansas plant, including truck drivers and regular part-time employees, but excluding feed lot employees , office clerical employees, professional employees, guards and supervisors as defined in the Act consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. P & B PACKERS, INC. (Employer) Dated By (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, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374- 5181.