Beatrice Foods Co.

630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hi Temp Inc., a Division of Beatrice Foods Co., Tru Temp Inc., and Steel Treating Inc. and United Steel- workers of America, AFL-CIO. Case 13-CA-13328 December 16, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY AND PENELLO Upon a charge filed on June 5, 1974, by United Steelworkers of America, AFL-CIO, herein called the Union, and duly served on Hi Temp Inc., A Division of Beatrice Foods Co., Tru Temp Inc., and Steel Treat- ing, Inc., herein collectively called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a complaint on June 24, 1974, against Respondent, alleging that Respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Sec- tion 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and no- tice of hearing before an Administrative 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 May 14, 1974, fol- lowing a Board election in Case 13-RC-13067, 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 May 21, 1974, 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 July 5, 1974, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the allega- tions in the complaint. On July 19, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. On July 22, 1974, the Respondent filed a motion in opposition alleging that the General Coun- sel's motion was untimely filed. Thereafter, the Charg- ing Party and General Counsel filed oppositions to the Respondent's motion. Subsequently, on September 3, 1974, the Board denied the Respondent's motion in opposition and issued an order transferring the pro- I Official notice is taken of the record in the representation proceeding, Case 13-RC-13067, 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., 1957); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause, entitled "Motion in Opposition to General Counsel's Motion for Summary Judgment." 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 Respondent opposes the Motion for Summary Judg- ment on the ground that the Regional Director's Deci- sion and Direction of Election in the underlying repre- sentation proceeding and the Board's denial of review thereof were in error, and asserts the certification is- sued the Union is invalid. Respondent further asserts that it would be inappropriate for the Board to issue a Summary Judgment in view of pending appellate court review of a Board Decision and Order which has a bearing on the validity of the representation proceed- ing. Our review of the record herein, including that of Case 13-RC-13067, reveals that Respondent con- tended in the representation case hearing (1) that the pending appellate court review of the Board's Decision,' finding inter alia Respondent's conduct with respect to a rival labor organization in violation of Section 8(a)(2) of the Act made untimely and barred the representation proceeding, and (2) that Respon- dent's collective-bargaining contract with the other la- bor organization also barred the representation pro- ceeding. The Regional Director, in his Decision and Direction of Election, found no merit in these conten- tions, essentially on the strength of a waiver filed by the Union in accordance with Carlson Furniture Industries, Inc., 157 NLRB 851 (1966). Thereafter, Respondent filed with the Board a Motion To Reopen Hearing and subsequently a request for review of the Regional Director's Decision, in substance reasserting its argu- ments concerning the timeliness of the representation proceeding and the bar allegedly posed by the pending unfair labor practice case and by its collective-bargain- ing contract. On March 4, 1974, the Board denied Re- spondent's request for review as it did not raise substan- tial issues warranting review, noting in its denial that consideration had been given to the Respondent's Mo- tion To Reopen Hearing.' 2 Hi Temp, Inc., A Division of Beatrice Foods Co., Tru Temp Inc., Steel Treating Inc., 203 NLRB 753 (1973). 215 NLRB No. 70 HI TEMP INC. Having previously considered Respondent's conten- tions in this matter, we find no basis for considering them anew. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding al- leging 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.' 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 of- fer 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 1. THE BUSINESS OF THE RESPONDENT Hi Temp Inc., A Division of Beatrice Foods Co., Tru Temp Inc., and Steel Treating Inc. are Delaware corpo- rations with the offices and places of business of Hi Temp Inc. and Steel Treating Inc. located in Northlake, Illinois, and the office and place of business of Tru Temp Inc. located in Melrose Park, Illinois, where they are engaged in the heat treating of metals. At all times material herein, Hi Temp Inc., Tru Temp Inc., and Steel Treating Inc. have been and now are affiliated businesses with common officers, ownership, directors, and operators, and constitute a single inte- grated business enterprise with a common labor policy formulated and administered by said directors and op- erators. During the last fiscal or calendar year, a repre- sentative period, Hi Temp, Tru Temp, and Steel Treat- ing, and each of them, in the course and conduct of business operations, did a gross volume of business in excess of $500,000. During the same period, said busi- nesses in the course and conduct of their business proc- essed and shipped finished products valued in excess of $50,000 directly to customers located in States other than the State of Illinois. 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 3 See also Great Dane Trailers, Inc., 191 NLRB 6 (1971), involving an analogous situation. 4 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(f) and 102.69(c). 631 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 United Steel Workers of America, AFL-CIO, is a labor organization 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 consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by the Employer at the three plants of Hi Temp Inc., Tru Temp Inc., and Steel Treating Inc., located respectively at 75 East Lake Street, Northlake, Illinois; 5400 West Lake Street, Mel- rose Park, Illinois; and Wolf Road and Lake Street, Northlake, Illinois; including inspectors and shipping employees but excluding office cleri- cal employees, outside truckdrivers, professional emp.oyees, technical employees, guards, and supervisors as defined in the Act. 2. The certification On March 15, 1974, 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 13, designated the Union as their represen- tative 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 May 14, 1974, 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 May 21, 1974, 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 May 21, 1974, 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. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that the Respondent has, since May 21, 1974, 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 PRACTICES 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 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 (1962); Com- merce 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); Burnett Construction Com- pany, 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. Hi Temp Inc., A Division of Beatrice Foods Co., Tru Temp Inc., and Steel Treating Inc. collectively are an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by the Employer at the three plants of Hi Temp Inc., Tru Temp Inc., and Steel Treating Inc., located respectively at 75 East Lake Street, Northlake, Illinois; 5400 West Lake Street, Melrose Park, Illinois; and Wolf Road and Lake Street, Northlake, Illinois; includ- ing inspectors and shipping employees but excluding office clerical employees, outside truckdrivers, profes- sional employees, technical 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. 4. Since May 14, 1974, the above-named labor organ- ization has been and now is the certified and exclusive representative of all employees in the aforesaid appro- priate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about May 21, 1974, and at all times thereafter, to bargain collectively with the above- named labor organization as the exclusive bargaining representative 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(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, Hi Temp Inc., A Division of Beatrice Foods Co., Tru Temp Inc., and Steel Treating Inc., Northlake and Melrose Park, Il- linois, 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 United Steelworkers of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees em- ployed by the Employer at the three plants of Hi Temp Inc., Tru Temp Inc., and Steel Treating Inc., located respectively at 75 East Lake Street, Northlake, Illinois; 5400 West Lake Street, Mel- rose Park, Illinois; and Wolf Road and Lake Street, Northlake, Illinois; including inspectors and shipping employees but excluding office cleri- cal employees, outside truckdrivers, professional HI TEMP INC. employees, technical employees, guards, 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 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 Northlake, Illinois, and Melrose Park, Illinois, facilities copies of the attached notice marked "Appendix."5 Copies of said notice, on forms pro- vided by the Regional Director for Region 13, 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 thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to in- sure that said notices are not altered , defaced, or cov- ered by any other material. (c) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5 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 633 and conditions of employment with United Steel- workers of America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner inter- fere 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 representative 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 under- standing in a signed agreement. The bargaining unit is: All production and maintenance employees employed by the Employer at the three plants of Hi Temp Inc., Tru Temp Inc., and Steel Treat- ing Inc., located respectively at 75 East Lake Street, Northlake, Illinois; 5400 West Lake Street, Melrose Park , Illinois; and Wolf Road and Lake Street, Northlake, Illinois; including inspectors and shipping employees but exclud- ing office clerical employees, outside truckdriv- ers, professionl employees , technical employees, guards, and supervisors as defined in the Act. Hi TEMP INC., A DIVISION OF BEATRICE FOODS Co., TRU TEMP INC, AND STEEL TREATING INC. WE WILL NOT refuse to bargain collectively con- cerning rates of pay, wages, hours, and other terms