Allied Meat Co.

ALLIED MEAT COMPANY 27 Allied Meat Company and Amalgamated Meat Cut- ters and Butcher Workmen of North America, AFL-CIO. Case 27-CA-4464 August 28, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO Upon a charge filed on March 26, 1975, by Amal- gamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein called the Union, and duly served on Allied Meat Company, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 27, issued a complaint on April 30, 1975, 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 Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on February 27, 1975, following a Board election in Case 27-RC-4663, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about March 21, 1975, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On May 12, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Respondent admits all the factual allegations of the complaint, including in- ter alia, the appropriateness of the unit, the certifica- tion of the Union, and the Union's request and its refusal to bargain. In addition, Respondent submits affirmative defenses, to wit: that the Board erred in not certifying the results of an election conducted November 30, 1973;2 a hearing should have been 'Official notice is taken of the record in the representation proceeding, Case 27-RC-4663, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations , Series 8, as amended See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415 F.2d 26 (C.A. 5, 1969); Intertype Co v. Penello, 269 F.Supp. 573 (D.C. Va, 1967), Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. 2 An election was conducted in Case 27 -RC-4663 on November 30, 1973 Upon objections thereto by the Union, a hearing was held which resulted in the Hearing Officer recommending that the election be set aside and anoth- conducted on its objections to the second election conducted October 18, 1974; and the employees were denied rights guaranteed them by Section 7 and other provisions of the Act by the conduct alleged in its objections to the election. On June 16, 1975, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. She submits, in effect, that Respondent by its answer is attempting to relitigate issues which were raised and litigated in the underlying represen- tation proceeding. Under well-settled rules preclud- ing relitigation in an unfair labor practice proceeding of issues which were previously litigated in a repre- sentation proceeding, she moves for judgment and the entry of an appropriate order. Subsequently, on June 19, 1975, the Board issued an order transferring the 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 has not 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 Na- tional Labor Relations Board has delegated its au- thority 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 As noted above, Respondent admits all the factual allegations of the complaint, including its refusal to bargain with the certified Union, and basically at- tacks the Board's direction of a second election in the representation proceeding and reasserts its objections to the second election and argues that a hearing is required on its affirmative defenses. By these asser- tions, Respondent is attempting to relitigate issues which were raised and litigated in the underlying rep- resentation case, as its objections to the second elec- tion included these issues, and were before the Board along with its argument that a hearing was required on its objections, which were a part of Respondent's exceptions to the Acting Regional Director's Report on Objections to the second election. On that occa- sion, the Board adopted the Acting Regional Director's findings and recommendation that the ob- jections be overruled and certified the Union. More- over, with regard to the necessity of a hearing, it is well settled that the parties do not have an absolute right to a hearing. It is only when the moving party presents a prima facie showing of "substantial and er conducted because prejudicial misconduct by the Respondent had affect- ed the results thereof On August 28, 1974, the Board adopted the Hearing Officer's recommendation and directed a second election The second elec- tion was conducted October 18, 1974, and resulted in a 19-to-4 vote in favor of the Union 220 NLRB No. 12 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD material" issues which would warrant setting aside the election is he entitled to an evidentiary hearing.' It is clear that, absent arbitrary action, this qualified right to a hearing satisfies all statutory and constitu- tional requirements .4 In the instant case, the Board fully considered Respondent's objections and excep- tions and did not order a hearing, but rather adopted the Acting Regional Director's recommendations that they be overruled. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.' All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the de- cision made in the representation proceeding. We therefore find that the 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 1. THE BUSINESS OF THE RESPONDENT Respondent is a corporation organized and ex- isting by virtue of the laws of the State of Colorado and maintains its principal office and place of busi- ness in Denver, Colorado, where it is engaged in wholesale meat processing. In the course and con- duct of its business operations annually, Respondent sells and ships goods valued in excess of $50,000 di- rectly to points and places outside the State of Colo- rado. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. N.L.R.B. v. Modine Manufacturing Co., 500 F.2d 914 (C.A. 8, 1974). 4 Amalgamated Clothing Workers of America [Winfield Manufacturing Company] v. N.LR.B., 424 F.2d 818, 828 (C.A.D.C., 1970). 3 See Pittsburgh Plate Glass Co. v. N. L.R.B., 313 U S. 146, 162 ( 1941); Rules and Regulations of the Board, Secs. 102.67(1) and 102.69(c). 11. THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters and Butcher Work- men of North America , AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time production and maintenance employees, including sanita- tion and clean-up employees and delivery driv- ers employed by the Employer at 4900 Clarkson Street, and 709 West 8th Avenue, Denver, Colo- rado, excluding office clerical employees, pro- fessional employees, salesmen, guards and su- pervisors as defined in the Act. 2. The certification On October 18, 1974, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 27, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on February 27, 1975, 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 March 10, 1975, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about March 21, 1975, 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 March 21, 1975, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent ALLIED MEAT COMPANY 29 has engaged in and is engaging in unfair labor prac- tices 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, inti- mate, and substantial relationship to trade, traffic, 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 mean- ing 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 representative of all employees in the ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jac Poultry Company, 1nc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur- nett 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. Allied Meat Company 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, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees, including sanitation and clean-up employees and delivery drivers em- ployed by the Employer at 4900 Clarkson Street, and 709 West 8th Avenue, Denver, Colorado, excluding office clerical employees, professional employees, salesmen, 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 February 27, 1975, the above-named la- bor 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 March 21, 1975, 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 Re- spondent in the appropriate unit, Respondent has en- gaged in and is engaging 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 interfering 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 engaging in unfair labor practices within the mean- ing 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 Re- lations Board hereby orders that Respondent, Allied Meat Company, Denver, Colorado, 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 con- ditions of employment with Amalgamated Meat Cut- ters and Butcher Workmen of North America, AFL- CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time production and maintenance employees, including sanita- tion and clean-up employees and delivery driv- ers employed by the Employer at 4900 Clarkson Street, and 709 West 8th Avenue, Denver, Colo- rado, excluding office clerical employees, pro- fessional employees, salesmen , guards and su- pervisors 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 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 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 4900 Clarkson Street and 709 West 8th Avenue locations in Denver, Colorado, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Di- rector for Region 27, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices 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 27, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 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 rep- resentative 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time produc- tion and maintenance employees, including sanitation and clean-up employees and deliv- ery drivers employed by the Employer at 4900 Clarkson Street, and 709 West 8th Avenue, Denver, Colorado, excluding office clerical employees, professional employees, salesmen, guards and supervisors as defined in the Act. ALLIED MEAT COMPANY