Purnell's Pride, Inc.

PURNELL'S PRIDE, INC. Purnell's Pride, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, Local P-1224. Case 26-CA-6869 January 11, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on September 15, 1977, by Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local P-1224, herein called the Union, and duly served on Purnell's Pride, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 26, issued a complaint on September 20, 1977, and an amended complaint on September 26, 1977, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices 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 an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on June 24, 1977, following a Board election in Case 26-RC-5479, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; I and that, commenc- ing on or about September 2, 1977, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, (herein called Amal- gamated) as the exclusive bargaining representative, although Amalgamated has requested and is request- ing it to do so. On September 21, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, submitting affirmative defenses, and requesting that the complaint be dismissed in its entirety. On October 13, 1977, it refiled the answer it filed to the complaint in response to the amended complaint. On October 19, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on October 28, 1977, the Board issued an order transferring the i Official notice is taken of the record in the representation proceeding, Case 26-RC-5479, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Senes 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938 (1967\, enfd. 388 F.2d 683 (C.A. 4, 234 NLRB No. 25 proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Respondent does not contend that there is newly discovered or previously unavailable evidence bear- ing on the issues raised in the representation pro- ceeding. Respondent does contend, however, that use of summary judgment procedures in the instant case denies it due process of law, and urges the Board to render no decision in this case without first affording it the opportunity to a hearing on its objections to the election in the underlying representation case. Re- spondent further argues that the Regional Director's opposition to its motion to consolidate the instant case with Case 26-CA-6737 is inconsistent with his assertion that a grant of summary judgment will avoid unnecessary costs and unwarranted delay in the case presently before the Board. Our review of the record, including the record in Case 26-RC-5479, discloses that in an election held May 13, 1977, pursuant to the direction of the Regional Director for Region 26, Amalgamated was successful by a vote of 200 to 89, with 14 nondetermi- native challenged ballots. Respondent thereafter filed timely objections to conduct affecting the results of the election, alleging in substance that officers and agents of Amalgamated had made various misrepre- sentations which included the distribution of litera- ture which misrepresented the Section 7 rights of employees and created the impression that the Board had endorsed Amalgamated; engaged in conduct designed to incite racial prejudices on the part of black employees concerning matters not related to election issues; engaged in electioneering through threats made to employees both before and during the day of the election; caused rumors to circulate that black employees would lose their jobs if the Union lost the election; and that the Regional Director and the Board had erred in making the unit determination. After an investigation, the Regional Director issued a supplemental decision and certification of repre- sentative on June 24, 1977, in which he overruled the 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Internype Co. v. Penello, 269 F.Supp. 573 (D.C.Va.. 1967); Foilerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 197 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer's objections in their entirety and certified Amalgamated as the exclusive bargaining representa- tive for the unit employees. On July 5, 1977, the Employer requested the Board to review the Regional Director's supplemental decision and certification of representative, alleging that the Regional Director's findings were clearly erroneous, that his rulings departed from reported Board precedent, and that certain rulings made in connection with the proceeding resulted in substan- tial prejudice. That request was denied on July 28, 1977, on the grounds that the Employer had raised no substantial issues warranting review. It is well established that an evidentiary hearing is not required in a representation proceeding unless there are material and substantial issues of fact.2 The courts have not questioned the Board's use of summary judgment in cases where there are no material or substantial issues of fact in which the Board has decided issues relating to objections without holding an evidentiary hearing.3 In the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding. 4 All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and 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 Respondent has not raised any issue which is properly 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 Respondent, a Mississippi corporation with its principal place of business at Tupelo, Mississippi, is now and continuously has been engaged at said location in the production and processing of chickens for market and in the sales and distribution of poultry and related products. During the times material herein, Respondent, in the course and 2 Allied Foods, Inc., 189 NLRB 513 (1971), and cases cited in fn. 6 therein. I Amalgamated Clothing Workers of America [Winfield Manufacturing Company, Inc.] v. N.LR.B., 424 F.2d 818 (C.A.D.C., 1970), and cases cited therein. conduct of its business operations, purchased and received at its Tupelo, Mississippi, location, products valued in excess of $50,000 directly from points located outside the State of Mississippi and, during the same time, Respondent sold and shipped from its Tupelo, Mississippi, location products valued in excess of $50,000 directly to points located outside the State of Mississippi. We find, on the basis of the foregoing, that 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, and that it will effectuate the policies of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters and Butcher Work- men of North America, AFL-CIO, and Local P- 1224 are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production employees employed at the Employer's poultry processing plant on Straus Street in Tupelo, Mississippi, including all un- loaders, loaders, killers, eviscerators, cutters and packers, and all general maintenance employees employed by the Employer at its Tupelo, Missis- sippi, facilities; excluding all office clerical em- ployees, local and over-the-road truckdrivers, hatchery employees, commercial egg processing employees, feed mill and by-products plant em- ployees, dry warehouse employees, refrigerated warehouse employees, breeder farm employees, live haul department employees, and supervisors as defined in the Act. 2. The certification On May 13, 1977, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 26, designated Amalgamated as their representative for the purpose of collective bargaining with Respondent. Amalgamated was cer- 4 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). 198 PURNELL'S PRIDE, INC. tified as the collective-bargaining representative of the employees in said unit on June 24, 1977, and Amalgamated continues to be such exclusive repre- sentative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about September 2, 1977, and at all times thereafter, Amalgamated has requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about September 9, 1977, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with Amalgamated as the exclusive represen- tative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since September 9, 1977, and at all times thereafter, refused to bargain collectively with Amalgamated as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respon- dent 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 UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traff- ic, and commerce 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, bargain collectively with Amalgamated as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding 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 period of certifica- tion as beginning on the date Respondent com- mences to bargain in good faith with Amalgamated as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamnar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Purnell's Pride, 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 Workmen of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production employees employed at the Employer's poultry processing plant on Straus Street in Tupelo, Mississippi, including all unloaders, load- ers, killers, eviscerators, cutters and packers, and all general maintenance employees employed by the Employer at its Tupelo, Mississippi, facilities; ex- cluding all office clerical employees, local and over- the-road truckdrivers, hatchery employees, commer- cial egg processing employees, feed mill and by- products plant employees, dry warehouse employees, refrigerated warehouse employees, breeder farm em- ployees, live haul department employees, and super- visors 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 24, 1977, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about September 9, 1977, and at all times thereafter, to bargain collectively with Amalgamated as the exclusive bargaining repre- sentative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has 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. 199 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Purnell's Pride, Inc., Tupelo, Mississippi, 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, as the exclusive bargaining representative of its employees in the following appropriate unit: All production employees employed at the Employer's poultry processing plant on Straus Street in Tupelo, Mississippi, including all un- loaders, loaders, killers, eviscerators, cutters and packers, and all general maintenance employees employed by the Employer at its Tupelo, Missis- sippi, facilities; excluding all office clerical em- ployees, local and over-the-road truckdrivers, hatchery employees, commercial egg processing employees, feed mill and by-products plant em- ployees, dry warehouse employees, refrigerated warehouse employees, breeder farm employees, live haul department employees, and supervisors as defined in 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 Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Tupelo, Mississippi, facility copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 26, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. I In the event that 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 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, as the exclusive repre- sentative of the employees in the bargaining 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 Section 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 described below, with respect 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. The bargaining unit is: All production employees employed at the Employer's poultry processing plant on Straus Street in Tupelo, Mississippi, includ- ing all unloaders, loaders, killers, eviscera- tors, cutters and packers, and all general maintenance employees employed by the Employer at its Tupelo, Mississippi, facili- ties; excluding all office clerical employees, local and over-the-road truckdrivers, hatch- ery employees, commercial egg processing employees, feed mill and by-products plant employees, dry warehouse employees, refrig- erated warehouse employees, breeder farm employees, live haul department employees, and supervisors as defined in the Act. PURNELL'S PRIDE, INC. 200