C & D Foods, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD C & D Foods, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, Local 7.3, AFL-CIO. Case 30-CA-5049 May 8. 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on January 22, 1979, by Amal- gamated Meat Cutters and Butcher Workmen of North America, Local 73, AFL-CIO, herein called the Union, and duly served on C & D Foods, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Di- rector for Region 30, issued a complaint on February 1, 1979, against Respondent, alleging that Respon- dent 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 com- plaint alleges in substance that on October 17, 1978, following a Board election in Case 30-RC-3373, 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 October 26, 1978, and at all times there- after, 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 February 9, 1979, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On February 16, 1979, Counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with exhibits attached. The General Counsel submits, in effect, that Respondent, in its answer, is attempting to relitigate issues already litigated and decided in the prior representation pro- ceeding, Case 30-RC-3373, but that Respondent has not asserted, nor can it assert, the existence of any newly discovered, relevant evidence on these issues. I Official notice is taken of the record in the representation proceeding, Case 30-RC 3373, 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 Electrosysrens, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cit. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. s'. Penello, 269 F. Supp. 573 (D.C.Va. 1957); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended, The General Counsel further submits that the record shows that there are no material issues of fact not admitted, previously determined, or controverted; that no hearing is necessary in this matter; and that the Board may appropriately issue a Decision and Order without further proceedings. Subsequently, on February 28, 1979, the Board issued an order trans- ferring 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- dent thereafter filed a memorandum in opposition to the Motion for Summary Judgment and 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 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 In its answer to the complaint and in its memoran- dum in opposition to the General Counsel's Motion for Summary Judgment and response to the Notice To Show Cause, Respondent admits its refusal to bar- gain but contends it is not obligated to bargain be- cause the unit for which the Union is certified is not appropriate. In this regard, Respondent, in substance, argues that the Board erred when it excluded "grow- out workers" from the unit found appropriate herein. Respondent contends they share a community of in- terest with all hourly employees included in the unit. It further argues that as the employees, in the unit found appropriate, are agricultural employees it is not engaged in commerce or in an industry affecting commerce, and, thus, is not under the Board's juris- diction. The General Counsel contends Respondent is improperly seeking to relitigate issues which were raised and decided in the underlying representation case. We agree with the General Counsel. Review of the record herein, including the record in Case 30-RC 3373, reveals that on June 15, 1978, in the representation proceeding, the Union sought to represent certain of Respondent's employees. Follow- ing a hearing on the petition in Case 30-RC-3373, the Regional Director for Region 30 of the National Labor Relations Board issued a Decision and Direc- tion of Election on August 4, 1978. Thereafter, Re- spondent filed a request for review and brief in sup- port of review of the Regional Director's Decision and Direction of Election, which was denied by the Board on September 5, 1978. The election was con- ducted by the Regional Director for Region 30 among the employees in the unit set forth in the Deci- sion and Direction of Election. The tally of ballots 242 NLRB No. 19 82 C & D FOODS, INC. was 101 for, and 77 against, the Union. There were 2 challenged ballots. Respondent filed objections and amended objections. On October 17, 1978, after an investigation conducted pursuant to Section 102.69 of the Board's Rules and Regulations, Series 8, as amended, the Regional Director for Region 30 issued and caused to be served on the parties a Supplemen- tal Decision and Certification of Representative, find- ing no merit in Respondent's objections, overruling them in their entirety, and certifying the Union. Thereafter, Respondent filed a request for review with the Board and on December 5, 1978, the Board denied Respondent's request for review of the Re- gional Director's Supplemental Decision and Certifi- cation of Representative. The certified unit is: All full-time and regular part-time dressing plant employees, feather shed employees, maintenance employees and truckdrivers employed by C & D Foods, Inc., at their Franksville, Wisconsin fa- cilities; excluding York farm grow-out workers, all agricultural laborers, office clerical employ- ees, guards and supervisors as defined in the Act. It thus appears Respondent is seeking to relitigate herein the appropriate unit and jurisdictional issues which were fully litigated and decided adversely to Respondent in the underlying representation case. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circum- stances a respondent in a proceeding alleging a viola- tion of Section 8(a)(5) is not entitled to relitigate is- sues which were or could have been litigated in a prior representation proceeding.2 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding. Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- erly 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 1. THE BUSINESS OF RESPONDENT At all times material herein, Respondent, a Wis- consin corporation, has been engaged in the business I See Pittsburgh Plate Glass Co. v. '.L.RB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). of breeding, hatching, raising, dressing, and market- ing ducks at its several locations in Wisconsin and Michigan, including Franksville. Wisconsin. During the past calendar year, a representative period, Re- spondent sold and shipped from its Franksville, Wis- consin. facility products valued in excess of $50,000 to customers located directly outside the State of Wis- consin. We find, on the basis of the foregoing, that Respon- dent 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 INVOI.VED Amalgamated Meat Cutters and Butcher Work- men of North America, Local 73, AFL-CIO. is a la- bor 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 Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time dressing plant employees, feather shed employees, maintenance employees and truckdrivers employed by C & D Foods, Inc., at their Franksville, Wisconsin fa- cilities; excluding York farm grow-out workers, all agricultural laborers, office clerical employ- ees, guards and supervisors as defined in the Act. 2. The certification On September 8, 1978, 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 30, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on October 17, 1978, and the Union contin- ues 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 October 20. 1978, and at all times thereafter, the Union has requested Respon- 83 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about October 26, 1978, and continuing at all times thereafter to date, Respondent has refused, and con- tinues 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 Respondent has, since October 26, 1978, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appropri- ate 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 the 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 commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotei, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); 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. C & D Foods, Inc., 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, Local 73, AFL-CIO, is a la- bor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time dressing plant employees, feather shed employees, mainte- nance employees, and truckdrivers employed by Re- spondent at its Franksville, Wisconsin, facilities; ex- cluding York farm grow-out workers, all agricultural laborers, office clerical employees, guards, and super- visors 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 17, 1978, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about October 26, 1978, 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 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 interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Sec- tion 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 Rela- tions Board hereby orders that the Respondent, C & D Foods, Inc., Franksville, Wisconsin, 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 con- ditions of employment with Amalgamated Meat Cut- ters and Butcher Workmen of North America, Local 73, AFL-CIO, as the exclusive bargaining representa- 84 C & D FOODS, INC. tive of its employees in the following appropriate unit: All full-time and regular part-time dressing plant employees, feather shed employees, maintenance employees and truckdrivers employed by the Re- spondent at their Franksville, Wisconsin facili- ties; excluding York farm grow-out workers, all agricultural laborers, office clerical 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 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 understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its Franksville, Wisconsin, facilities copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Re- gional Director for Region 30, 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 insure that said notices are not altered, defaced, or covered by any other material. I 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." (c) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO EMPLOYEES POSIED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE W.I. 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. Local 73, AFL-CIO., as the ex- clusive representative of the employees in the bargaining unit described below. WE kwILL 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. WI wii, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- scribed 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 agreement. The bargaining unit is: All full-time and regular part-time dressing plant employees, feather shed employees, maintenance employees and truckdrivers em- ployed by us at our Franksville, Wisconsin fa- cilities: excluding York farm grow-out work- ers, all agricultural laborers, office clerical employees, guards and supervisors as defined in the Act. C & D FOODS. INC. 85