Odom Sausage Co.

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Odom Sausage Co., Inc. of Arkansas and Food Han- dlers Local 425 of the United Food and Com- mercial Workers International Union, AFL- CIO. Case 26-CA-8758 June 2, 1981 DECISION AND ORDER Upon a charge filed on November 26, 1980, by Food Handlers Local 425 of the United Food and Commercial Workers International Union, AFL- CIO, herein called the Union, and duly served on Odom Sausage Co., Inc. of Arkansas, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 26, issued a complaint on December 10, 1980, 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 and 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 October 16, 1980, following a Board election in Case 26-RC- 6209, 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 17, 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 17, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint. On January 13, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 16, 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 a response to the Notice To Show Cause. Upon the entire record in this proceeding, the Board makes the following: t Official notice is taken of the record in the representation proceed- ing, Case 26-RC-6209, 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 Electrosysrems, 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. 256 NLRB No. 45 Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, Respondent admits its refusal to bargain, but denies that it thereby violat- ed Section 8(a)(5) and (1) of the Act, arguing that the election held on May 30, 1980, should have been set aside for the reasons set forth in its "Ex- ceptions to Regional Director's Report on Objec- tions to Election." However, Respondent states that it has no objection to the entry of an order by the Board holding that Respondent has violated Section 8(a)(5) and (1) of the Act, solely for the purpose of testing in court the action of the Re- gional Director and of the Board in refusing to set aside the election in Case 26-RC-6209. Respondent also asserts that, since the Regional Director did not conduct a hearing on Respondent's objections to the election, all affidavits referred to and relied on in his Report on Objections should be included in and made part of the record in Case 26-RC- 6209. A review of the record herein, including the record in Case 26-RC-6209, shows that on May 30, 1980, an election was held pursuant to a Stipu- lation for Certification Upon Consent Election in which a majority of the unit employees in the stip- ulated unit designated the Union as their repre- sentative for the purpose of collective bargaining. Thereafter, Respondent filed timely objections to the conduct of the election which stated the fol- lowing: (1) that the sample ballot of the notice of election and the ballots used in the election omitted the question "Do you wish to be represented for purposes of collective bargaining -?" and that this omission caused confusion among the voters which made objective voting impossible; and (2) that threats to other employees by various members of the Union's in-plant committee during the 3 or 4 days immediately preceding the election fatally de- stroyed necessary "laboratory conditions." These objections were overruled in their entirety by the Regional Director in his Report on Objections, issued July 25, 1980. Thereafter, Respondent filed with the Board its exceptions to the Regional Di- rector's Report on Objections essentially reiterating the allegations and contentions set forth in its ob- jections and citing additional authority in support thereof. On October 16, 1980, the Board issued its Decision and Certification of Representative 2 in which it adopted the Regional Director's findings and recommendations and certified the Union as the exclusive bargaining representative of the em- ployees in the appropriate unit. Subsequently, on October 28, 1980, Respondent filed a "Petition to 2 Not reported in bound volumes of Board Decisions. ODOM SAUSAGE CO. 285 Rehear" which was denied by the Board in an order dated November 7, 1980.3 By letter dated November 12, 1980, the Union requested Respondent to recognize it as the exclu- sive collective-bargaining representative of Re- spondnt's employees in the appropriate unit and to bargain with it collectively as the exclusive collec- tive-bargaining representative of such employees. By letter dated November 17, 1980, and at all times thereafter, Respondent refused, and is continuing to refuse, to recognize and bargain with the Union as the exclusive bargaining representative of the unit employees. Respondent seeks to justify its refusal to recog- nize and bargain with the Union asserting that the Regional Director and the Board erred in not set- ting aside the election in Case 26-RC-6209 on the grounds set out by Respondent in its objections to the conduct of the election. These objections were found to be without merit in the Board's Decision adopting the Regional Director's findings and rec- ommendations that Respondent's objections to the election be overruled and the Union certified. Fur- ther, Respondent's contentions regarding its objec- tions were rejected by the Board in its dismissal of Respondent's petition to rehear. It thus appears Re- spondent is attempting to raise herein issues that were raised, considered, and resolved in the under- lying representation case. Further, we find no merit to Respondent's con- tention that the affidavits referred to and relied on by the Regional Director in his Report on Objec- tions should be made part of the record in Case 26-RC-6209. The Board has consistently held that affidavits submitted to a regional director during the investigation of objections are not part of the record before the Board in a representation pro- ceeding or in a related unfair labor practice pro- ceeding. See Colonial Manor 1977, Inc., 253 NLRB 1183 (1981); Klingler Electric Corporation, Klingler Electronics Division, and Klingler Manufacturing Di- vision, 245 NLRB 1247 (1979). We adhere to this position. However, we regret to note that, in the above-cited cases, the Board erred in its construc- tion of the Fifth Circuit's holding in N.L.R.B. v. Osborn Transportation, Inc., 589 F.2d 1275 (1979), by stating that the court held that affidavits submit- ted in support of the employer's objections should be forwarded to the Board as part of the record of the case. 4 In fact, the court so held in Southwestern 3 Respondent states that General Counsel failed to include with his Motion for Summary Judgment Respondent's petition to rehear and the Board order denying such petition. Inasmuch as these documents had been considered by the Board as part of the record in Case 26-RC-62(Yq and are presently available, we take administrative notice of them and make them part of the record in the instant case 4 See Colonial Manor, 253 NLRB 1183 f 6, and Klingler Eleclrw., 245 NLRB 1208. Portland Cement Company v. N.L.R.B., 407 F.2d 131 (5th Cir. 1969), cert. denied 396 U.S. 820, when construing Section 102.68 of the Board's Rules and Regulations, prior to the amendment of that section in 1977. However, in Osborn, the court noted the change in language in the amended sec- tion and, because of its holding there that any error by the Board in failing to include in the record an affidavit submitted to the Regional Director by the Employer was harmless, found it unnecessary to reach the question of whether, under the 1977 amendment of Section 102.68, the affidavit was part of the record. Thus, contrary to the Board's assertions in Colonial Manor and Klingler Electric, the Fifth Circuit in Osborn did not pass on the Board's position concerning affidavits submitted to a regional director in support of objections, and to our knowledge has not passed on that question since the 1977 amendment to Section 102.68 of the Board's Rules and Regulations. As to employee af- fidavits independently acquired by a regional direc- tor during the investigation of objections, we note that the Fifth Circuit has expressed agreement with our position that such affidavits are confidential and should not be part of the record. N.L.R.B. v. Golden Age Beverage Co., 415 F.2d 26. 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.5 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 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, a corporation with an office and place of business in Little Rock, Arkansas, is en- gaged in the manufacture of sausage. In the past year it sold and shipped products, goods, and mate- 5 See Phivurgh Plate (Glau Co. v .' L.R.B. , 313 US 146. 162 (1941); Rules and Regulations of the Hoard, Secs. 102 67(f) and 102 69(c). O D O: S A S G C O _8 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rials valued in excess of $50,000 from its Little Rock facility directly to points outside the State of Arkansas. During the same period of time Re- spondent purchased and received at its Little Rock facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Arkansas. 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. 11. THE LABOR ORGANIZATION INVOLVED Food Handlers Local 425 of the United Food and Commercial Workers International Union, AFL-CIO, is a labor organization within the mean- ing 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 and receiving employees/truckdrivers, and sanitation em- ployees employed by the Employer at its Little Rock, Arkansas, facility, but excluding all office clerical employees, guards and super- visors as defined in the Act. 2. The certification On May 30, 1980, 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 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 16, 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 12, 1980, and at all times thereafter, the Union 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 November 17, 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 17, 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 (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 oper- ations described in section I, 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 com- 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: --- ODOM SAUSAGE CO. 287 CONCLUSIONS OF LAW 1. Odom Sausage Co., Inc. of Arkansas is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Food Handlers Local 425 of the United Food and Commercial Workers International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees, including shipping and receiving employees truck- drivers, and sanitation employees employed by the Employer at its Little Rock, Arkansas, facility, but excluding all office clerical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 4. Since October 16, 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 17, 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, Odom Sausage Co., Inc. of Arkansas, 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 Food Handlers Local 425 of the United Food and Commercial Workers International Union, AFL-CIO, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, in- cluding shipping and receiving employes/truckdrivers, and sanitation employ- ees employed by the Employer at its Little Rock, Arkansas, facility, but excluding all office clerical employees, guards and supervi- sors 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 Little Rock, Arkansas, facility copies of the attached notice marked "Appendix." 6 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. 8 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." 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 Food Handlers Local 425 of the United Food and Commercial Workers International Union, AFL-CIO, as the exclusive representa- ODOM SAUSAGE CO. 287 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive 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 and maintenance employees, including shipping and receiving employees/truckdrivers, and sanitation em- ployes employed by the Employer at our Little Rock, Arkansas, facility, but exclud- ing all office clerical employees, guards and supervisors as defined in the Act. ODOM SAUSAGE CO., INC. OF AR- KANSAS