Northern States Beef, Inc.

NORTHERN STATES BEEF, INC. Northern States Beef, Inc. and District Union No. 271 of Amalgamated Meat Cutters and Butcher Work- men of North America, AFL-CIO. Case 17-CA- 7402 July 8, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon a charge filed on November 26, 1976, by District Union No. 271 of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein called the Union, and duly served on Northern States Beef, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17, issued a complaint and notice of hearing on December 23, 1976, 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 November 4, 1976, following a Board election in Case 17-RC- 7731, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencing on or about November 17, 1976, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represen- tative, although the Union has requested and is requesting it to do so. On January 3, 1977, Respon- dent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On February 24, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 7, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- i Official notice is taken of the record in the representation proceeding, Case 17-RC-7731, 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 Electrosvsrems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1%967). enfd. 415 F.2d 26 230 NLRB No. 110 dent failed to file a response to the 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 In its answer to the complaint, Respondent admits that it has refused to furnish information requested by the Union but denies the request and refusal to bargain and the Union's status as a labor organiza- tion and as the exclusive bargaining representative of Respondent's employees in the appropriate produc- tion and maintenance unit. In her Motion for Summary Judgment, counsel for the General Coun- sel contends that the pleadings raise no factual issues litigable in this proceeding and that summary judgment is appropriate. We agree. Review of the record, including that in the underlying representation proceeding, Case 17-RC- 7731, shows that the Respondent moved for dismissal of the Union's petition for a production and maintenance unit on the grounds that the petition was prematurely filed because the employee comple- ment was an insubstantial and unrepresentative segment of an expanding unit. After a hearing, the Regional Director issued his Decision and Direction of Election on July 3, 1975, concluding that the current employee complement was representative and substantial for purposes of conducting an immediate election because Respondent's expansion plans were largely conjectural and contemplated changes would not involve any skills significantly different from those currently required of employees. Respondent filed a timely request for review basical- ly contending that the record did not support the Regional Director's conclusion. By telegram of August 6, 1975, the Board denied Respondent's request for lack of substantial issues warranting review. The election was held on August 8, 1975, and the tally of ballots showed 14 votes for the Union, 15 against, and 6 challenged ballots.2 The Union filed timely objections to the election alleging, inter alia, that Respondent had coerced employees by its conduct, including (1) threats to close the plant if the Union won, (2) discharge of employees because of their organizational campaign activities, and (3) (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 2 The Arthur L. Morgan Union had been permitted to intervene and was on the ballot but received no votes. 711 DECISIONS OF NATIONAL LABOR RELATIONS BOARD increasing wages immediately before the election. The Union also filed an unfair labor practice charge in Case 17-CA-6715 alleging that Respondent's preelection conduct violated the Act. Subsequently, the Regional Director issued a complaint on October 28, 1975, alleging, inter alia, that Respondent had violated Section 8(a)(1) by its conduct including threats to close the plant if the Union won the election, and Section 8(a)(3) by discriminatorily discharging three employees who had cast three of the six challenged ballots. On November 3, 1975, the Regional Director issued an order directing a hearing on the objections and challenges and consolidating the representation and unfair labor practice cases. After the consolidated hearing, the Administrative Law Judge issued his Decision on June 30, 1976, in which he found, inter alia, that Respondent had violated Section 8(a)(l) and (3) of the Act and in which he recommended that the challenges to five of the six challenged ballots be overruled and the ballots be opened and counted, and that, since certain of the Union's objections constituted grounds for setting aside the election, a new election be held if a majority of the votes were not cast for the Union. Respondent filed exceptions to the Administrative Law Judge's Decision and a brief in support, basically reiterating its position with respect to the objections, challenges, and unfair labor practices. After considering the record and the Administrative Law Judge's Decision in light of the exceptions and briefs, the Board on October 13, 1976, issued a Decision, Order, and Direction, 226 NLRB 365, in which it affirmed the Administrative Law Judge's rulings, findings, and conclusions, adopted his recommended Order remedying the unfair labor practice violations found,3 and directed that the overruled challenged ballots be opened and counted and, if the revised tally of ballots showed that the Union received a majority of the votes cast, that it be certified, otherwise that a second election be held. On October 21, 1976, the revised tally of ballots issued showing that the Union had won and, absent objections to the revised tally, the Regional Director certified the Union on November 4, 1976. It is well settled that 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 3 A petition for enforcement of the Board's Order is currently pending before the Eighth Circuit Court of Appeals. N.L.R.B. v. Northern States Beef, Inc., Docket 77-1091. 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). 5 In its answer to the complaint Respondent denies the status of the Union as a labor organization within the meaning of Sec. 2(5) of the Act and the request and refusal to bargain. As the Union's status as a statutory labor organization was determined in the representation case, it may not be relitigated herein. With respect to the request and refusal to bargain. to relitigate issues which were or could have been litigated in a prior representation proceeding.4 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the 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 the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding.5 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 The Respondent is a corporation maintaining a facility in Omaha, Nebraska, where it is engaged in the breaking and boning of carcass beef for wholesal- ing. In the course and conduct of its operations within the State of Nebraska, the Respondent annually purchases goods and services valued in excess of $50,000 directly from sources located outside the State of Nebraska, and annually sells products valued in excess of $50,000 directly to customers outside the State of Nebraska. 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. II. THE LABOR ORGANIZATION INVOLVED District Union No. 271 of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. Respondent's answer admits that Respondent received a letter dated November 10, 1976, from the Union, requesting information and that, by letter of November 17, 1976, to the Union, Respondent declined to enter into negotiations. Since the Board has found that a request for relevant information constitutes a request for bargaining and that a refusal to honor such a request constitutes a refusal to bargain (Richmond, Division of Pak- Well, 206 NLRB 260 (1973)), we find Respondent's denial of a request and refusal to bargain frivolous and the denials are stricken. Accordingly, we deem the paragraphs of the complaint alleging a request and refusal to bargain to be true. 712 NORTHERN STATES BEEF, INC. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees including breakers, boners, trimmers, packers, palletizers, maintenance, janitorial, and truck drivers/loaders employed by Northern States Beef, Inc., at its Omaha, Nebraska, facility, but excluding all office clerical employees, profession- al employees, guards, and supervisors as defined in the Act, all sales personnel, and all other employees. 2. The certification On August 8, 1975, 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 17, designated the Union as their representative for the purpose of ccllective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on November 4, 1976, 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 10, 1976, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit and to furnish information necessary for the purpose of collective bargaining. Commencing on or about November 17, 1976, 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 and to furnish the Union with information necessary for the purpose of collective bargaining. Accordingly, we find that the Respondent has, since November 17, 1976, 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, 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, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing 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, and to furnish the Union, upon request, information necessary for collective bargaining. 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 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, Inc., 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); 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. Northern States Beef, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District Union No. 271 of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees including breakers, boners, trimmers, packers, palle- tizers, maintenance, janitorial, and truck dri- vers/loaders employed by Northern States Beef, Inc., at its Omaha, Nebraska, facility, but excluding all 713 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office clerical employees, professional employees, guards, and supervisors as defined in the Act, all sales personnel, and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 4, 1976, 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, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, and to furnish information necessary for collective bargain- ing, 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, 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Northern States Beef, Inc., Omaha, Nebraska, 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 District Union No. 271 of 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 and maintenance employees including breakers, boners, trimmers, packers, palletizers, maintenance, janitorial, and truck drivers/loaders employed by Northern States Beef, Inc., at its Omaha, Nebraska, facility, but excluding all office clerical employees, profession- al employees, guards, and supervisors as defined in the Act, all sales personnel, and all other employees. (b) Refusing to furnish the above-named Union, upon request, information necessary for the purpose of collective bargaining. (c) 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 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, and furnish the Union, upon request, information necessary for the purpose of collective bargaining. (b) Post at its Omaha, Nebraska, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 17, 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 17, 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 District Union No. 271 of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT refuse to furnish the above- named Union, upon request, information neces- sary for the purpose of collective bargaining. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees 714 NORTHERN STATES BEEF, INC. 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, and furnish the Union, upon request, information necessary for the purpose of collec- tive bargaining. The bargaining unit is: All production and maintenance employ- ees including breakers, boners, trimmers, packers, palletizers, maintenance, janitorial, and truck drivers/loaders employed by Northern States Beef, Inc., at its Omaha, Nebraska, facility, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act, all sales personnel, and all other employees. NORTHERN STATES BEEF, INC. 715