Welfed Catfish, Inc.

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Welfed Catfish, Inc. and United Food and Commer- cial Workers International Union, AFL-CIO, CLC. Case 26-CA-8770 March 25, 1981 DECISION AND ORDER Upon a charge filed on December 8, 1980, by United Food and Commercial Workers Internation- al Union, AFL-CIO, CLC, herein called the Union, and duly served on Welfed Catfish, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 26, issued a com- plaint on December 17, 1980, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 and complaint were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on October 30, 1980, following a Board election in Case 26-RC- 6213, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about November 25, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On December 29, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint, submitting an affirmative de- fense, and requesting that the complaint be dis- missed. On January 29, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 5, 1981, 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 thereafter filed an opposition to the Motion for Summary Judgment. Upon the entire record in this proceeding, the Board makes the following: I Official notice is taken of the record in the representation proceed- ing, Case 26-RC-6213, as the term "record" is defined in Sees. 102.68 and 102.6 9(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 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 255 NLRB No. 40 Ruling on the Motion for Summary Judgment In its answer and opposition to the Motion for Summary Judgment Respondent admits that it has failed to recognize and bargain with the Union. However, Respondent asserts that the Certification of Representative is invalid and that its refusal to bargain is justified, contending that all of its objec- tions should have been sustained or at least have gone to a hearing. A review of the entire record, including that in Case 26-RC-6213, reveals that pursuant to a Stipu- lation for Certification Upon Consent Election ap- proved by the Acting Regional Director for Region 26, on May 29, 1980, an election was con- ducted on June 27, 1980. The tally was 90 for, and 41 against, the Union, with 3 challenged ballots, an insufficient number to affect the results. Respond- ent filed objections which, in substance, alleged that the Union (1) promised employees economic rewards; (2) threatened employees with physical and economic retaliation if they did not support the Union; (3) used supervisors as its agents to solicit cards and votes and to interrogate and threaten em- ployees. After investigating Respondent's objections, the Acting Regional Director, on August 13, 1980, issued his Report on Objections in which he found insufficient evidence to warrant setting aside the election and thus recommended that Respondent's objections be overruled in their entirety. Thereaf- ter, Respondent filed timely exceptions to the Acting Regional Director's report and recommen- dations, contending that its objections should have been sustained or at least have gone to a hearing. On October 30, 1980, the Board issued its Decision and Certification of Representative, 2 adopting the Acting Regional Director's findings and recom- mendations and certifying the Union. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial 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. s All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and 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 decision made in the representation proceeding. We 2 Not reported in volumes of Board Decisions. 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(f) and 102.69(c). WELFED CATFISH, INC. 269 therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we 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 RESPONDENT Respondent is a Mississippi corporation with an office and place of business in Belzoni, Mississippi, where it is engaged in the business of processing farm-raised catfish. During a representative 12- month period, Respondent sold and shipped from its Belzoni facility products, goods, and materials valued in excess of $50,000 directly to points out- side the State of Mississippi, and purchased and re- ceived products, goods, and materials valued in excess of $50,000 directly from points outside the State of Mississippi. We find, on the basis of the foregoing, that Re- spondent 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. II. THE LABOR ORGANIZATION INVOLVED United Food and Commercial Workers Interna- tional Union, AFL-CIO, CLC, is a labor organiza- tion 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 consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees, in- cluding shipping department employees, truck- drivers, the live room counter, and the proc- essing counter, employed by the Employer at its Belzoni, Mississippi, processing plant, ex- cluding all office clerical employees, watch- men, guards and supervisors as defined in the Act. 2. The certification On June 27, 1980, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Acting Re- gional Director for Region 26, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on October 30, 1980, 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 November 6, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about November 25, 1980, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since November 25, 1980, 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, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) 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 oper- ations described in section 1, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. 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 the Union 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent corn- WELFED CATFISH, INC. 269 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Welfed Catfish, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Food and Commercial Workers Inter- national Union, AFL-CIO, CLC, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including shipping department employees, truck- drivers, the live room counter, and the processing counter, employed by the Employer at its Belzoni, Mississippi, processing plant, excluding all office clerical employees, watchmen, guards, and supervi- sors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since October 30, 1980, 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 November 25, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Re- spondent 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, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged 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 meaning 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 the Respondent, Welfed Catfish, Inc., Belzoni, Mississippi, its offi- cers, 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 Food and Commercial Workers International Union, AFL- CIO, CLC, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All production and maintenance employees, in- cluding shipping department employees, truck- drivers, the live room counter, and the proc- essing counter, employed by the Employer at its Belzoni, Mississippi, processing plant, ex- cluding all office clerical employees, watcl. men, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Belzoni, Mississippi, location copies of the attached notice marked "Appendix." 4 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 thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent 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 here- with. 4 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 Pursu- ant To a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." WELFED CATFISH, INC. 271 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 United Food and Commercial Workers International Union, AFL-CIO, CLC, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production aid maintenance employees, including shipping department employees, truckdrivers, the live room counter, and the processing counter, employed by the Em- ployer at its Belzoni, Mississippi, processing plant, excluding all office clerical employ- ees, watchmen, guards and supervisors as defined in the Act. WELFED CATFISH, INC.