Tama Meat Packing Corp.

I\\1I A It AI P'\CKINI ( (ORP. Taila Meat Packing (Corp. and Amalgamlated lMeat (utters and Butcher Workmen of North America. IA)Cal P-46, AFI,-(CIO. ('ase 18 ('A 6()75 Ma\ 14. 1979 D[)1(ISION AND) ORI)ER BY MtILI LRS JKI\NS. Mt RP'll. AND) I Rt IlSI) \ 1i Upon a charge filed on November 29, 1978. hb Amalgamated Meat ('utters and Butcher Workman of North America. L.ocal P 46, A CIO). herein called the Union. and duls served on Tama Meat Packing Corp., herein called Respondent. the G(eneral Counsel of the National Labor Relations Board. bh the Regional Director for Region 18. issued a conm- plaint on December 14. 1978, against Respondent. al- leging that Respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (I) and Section 2(6) and (7t of the National Labor Relations Act. as amended. Copies of the charge. complaint. and notice of hearing betore an Administrative Law Judge were duly served on the parties to this proceed- Ing. With respect to the unfair labor practices. the com- plaint alleges. in substance, that on November 15, 1978. following a Board election in Case 18 RC- 10677. 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 November 22, 1978, and at all times thereafter, Respondent has refused, and con- tinues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative and to furnish certain information. although the Union has requested and is requesting it to do so. On January 4 1979. Respondent filed its answer to the complaint admitting in part. and denying in part. the allegations in the complaint. On February 6, 1979. counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently. on February 15. 1979. the Board issued an Order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent filed no response to the Notice To Show Cause. I Official notice is taken of the record in the representation proceeding. Case 18 RC 10677. as the term "record" is defined in Sec 102.68 and Sec 102.69g) 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 (ir. 1968)1" Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969): Interiype Co v. Penelli, 269 F.Supp 573 (DC. Va 1967). Follei Corp, 164 Nt.RB 38 (1967). enfd 397 F2d 91 (7th Cir 1968): Sec 9(d) of the NLRA as amended Pursuant to the provisions of' Section 3(h) of the National [.;tabor Relations Act. as amended. the Na- tional Labor Relations Board hits delegated its a - thorit in this proceeding to a three-membe panel. t pon the entire record in this proceeding. the Board makes the ftollowing: Ruling on the Motion for Summlar's Judgnent In its answer to the complaint. Respondent admits its refusal to bargain but attacked the Itnion's certifi- cation oni the basis that the Board erred in certit'ing the [Union as the exclusive bargaining represntaltive o' Respondent's employees in the appropriate unit. In her Motion for SummarN Judgment. counsel fr the General Counsel alleges that Respondent seeks to re- litigate issues previously considered in the underl, ing representation case, and that there are no Ihactual is- sues warranting a hearing. Our review of record herein, including the record in Case 18 RC 10677. discloses, inler trli, that on Sep- tember 30. 1976. the Board issued its Order and Di- rection of Second Election, 2 directing that an election be held in the foillowing appropriate unit: All full-time and regular part-time production and maintenance employees employed by the Employer at its Tama. Iowa facilit including plant clerical employees, meat graders, ard drivers and shag drivers: excluding cattle bus ers. salesmen, office clerical emploees, professional emiployees, guards and supervisors as defined in the Act. Thereafter, a second election was held on July 21. 1978. The tall, of ballots showed 94 votes cast for the Union and 59 against. There were 25 challenged bal- lots, an insufficient number to aflect the results. Re- spondent filed an objection to the election. On August 11. 1978. the Regional director for Region 18 issued a report recommending that the Board overrule Re- spondent's objection and that a Certification of Rep- resentative be issued. On August 18, 1978, Respon- dent filed exceptions to the Regional Director's recommendations. On November Is. 1978, the Board issued its decision and Certification of Representative adopting the findings and recommendations of the Regional Director and certifying the Union as the ex- clusive bargaining representative of the employees in the appropriate unit. On November 22, 1978, Re- spondent informed the Regional Director for Region 2 The first election was cnducted pursuant to a Stipulation for ('ertlfica- tion Upon ('onsent Election. hat election was set aside bh an Administra- tive .aw Judge n a D)ecision issued in the consolidated proceeding of Case 18 ('A-4809 and Case 18 RC 10677. No exceptions were taken to the Deci- sion of the Administrative Laaw Judge. ('onsequently. the Order and direc- tion of second election was issued b) a Deput) Executive Secretar' at the direction of the Board. 242 NL RB No. 43 239 I)4 ('ISIONS Of: NATIONAL LABOR RELATIONS BOARD IX that it wo uld Icchlnic'aiv refuse to bargain with the I lnin. ased on the loregoig counsel for the Gen- elal ('omIscl conitelnds that the only issue in this case is wilhether the oard erred in certit'ing the Union as tile cxclLisive hairgaining representative of Respon- dient's ellployces. It thus appears that Respondent is alteptling to raise herein issues which were raised in the unlderlyiing representation case. It is well settled that in the absence of newly dis- co)ered or previously unavailable evidence or special ci rcumstaLnces a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which swere or could have been litigated in a prior representation proceeding.3 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and 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. 4 On the basis of the entire record, the Board makes the following: FINDINGS OF FAC'T I. 1liE BUSINESS OF RESPONDENT Respondent, an Iowa corporation, is engaged in the processing and wholesale distribution of meat and meat products. During the year ending December 31, 1978, a representative period, Respondent, in the See Pit.xhurgh Plate Glasv Co. v. N.L.R B., 313 U.S. 146. (1941); Rules and Regulations of the Board, Sec. 102.67(f) and Sec. 102.69(c). In its answer to the complaint, Respondent. in addition to denying the commission of any unfair labor practices, denies that the unit described is an appropriate unit. However. the record in Case 18-RC-10677 discloses that Respondent agreed to this unit in entering into a Stipulation for Certification Upon Consent Election. and that both Board elections were conducted in said unit. Inasmuch as the issue of what constitutes an appropriate unit was disposed of in the underlying representation proceeding, no litigable issue is raised by Respondent's denial. Respondent also denies that since on or about November 24, 1978, and continuing to date, the Union has been requesting Respondent to bargain collectively with respect to rates of pay. wages, hours of employment, and other conditions of employment. However, the record discloses that the Union, by letters dated November 24 and 27. 1978. re- quested Respondent to bargain collectively with respect to rates of pay. wages, hours of employment, and other conditions of employment. Respon- dent has submitted nothing to controvert these letters or their contents. Respondent also denies that it has failed and refused to furnish the Union with information necessary and relevant to the Union for purposes of collec- tive bargaining. Respondent admits, however, that since November 24. 1978, and continuing to date, the Union has requested such information from Respondent. Respondent does not allege that it has provided the Union with the aforesaid requested information. and, as Respondent has submitted noth- ing to controvert the complaint allegation, Respondent's denial is without any substance and raises no litigable issue. course and conduct of its business operations. pur- chased and caused to be transported and delivered at its Tama, Iowa, facility goods and materials in excess of $50.000. of which goods and materials valued in excess of $50.000 were transported and delivered to said facility in Iowa directly from points located out- side the State of Iowa. During the same representa- tive period, Respondent processed, sold. and distrib- uted at its Tama, Iowa. facility products valued in ecess of $50,000, of which products valued in excess of $50.000 were shipped from said facility in Iowa to points located outside the State of Iowa. 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. 11. THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters and Butcher Work- men of North America, Local P-46. AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. IlHE 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 production and maintenance employees employed by the Respondent at its Tama, Iowa facility, including plant clerical employees, meat graders, yard drivers and shag drivers; excluding cattle buyers, salesmen, office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On July 21, 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 18, 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 November 15, 1978, and the Union con- tinues to be such exclusive representative within the meaning of Section 9(a) of the Act. 4 o 'TAMA MEAT PACKING CORP. B. The Request lo BrgaXin Uand Repondent Re.voe/Usa/ Commencing on or about Novelmber 24. 1978. and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the em- ployees in the above-described unit and to supply it with certain information relevant for purposes of col- lective bargaining. Commencing on or about Novem- her 22. 1978. and continuing at all times thereafter to date, Respondent has refused, and continues to re- fuse. 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 the information requested by it. Accordingly, we find that Respondent has, since November 22, 1978, 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 to furnish it with information rel- evant for the purpose of collective bargaining, and that, by such refusals, Respondent 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 ABOR PRACII(ICES UPON COMMERCE The activities of Respondent set forth in section 11, above, occurring in connection with its operations described in section I, above, have a close, intimate. and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMt )Y 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 that Respondent com- mences to bargain in good fiith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jac Poultriy Cnpanhv, Inc., 136 NLRB 785 (1962): Commerce Company d/h/a Lamnar Hotel. 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964). cert. denied 379 U.S. 817; Burnett Cons.truction (Conpan'y, 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: CONC('I.SIONS OF LAW 1. Tama Meat Packing Corp. is an employer en- gaged 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 P 46. AFL-CIO. is a labor organization within the meaning of Section 2(5) of' the Act. 3. All full-time production and maintenance em- ployees and regular part-time production and mainte- nance employees employed by the Respondent at its Tama. Iowa, facility, including plant clerical employ- ees, meat graders, yard drivers and shag drivers; ex- cluding cattle buyers, salesmen, office clerical em- ployees. professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 15. 1978, the above-named la- bor 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. B refusing on or about November 22, 1978. and at all times thereafter. to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employees of Respondent in the appropriate unit and to furnish it information relevant for the purpose of collective bargaining, Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusals 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)( I1) 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, 241 22DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tama Meat Packing Corp., Tama, Iowa, 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 con- ditions of employment with Amalgamated Meat C('ut- ters and Butcher Workmen of North America, Local P 46, AFL CIO, as the exclusive bargaining repre- sentative of its employees in the following appropri- ate unit: All full-time and regular part-time production and maintenance employees employed by the Respondent at its Tama, Iowa facility including plant clerical employees, meat graders, yard drivers and shag drivers; excluding cattle buyers, salesmen, office clerical employees, professional employees, guards and supervisors as defined in the Act. (b) Refusing to furnish the above-named labor or- ganization with information relevant and 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 understand- ing is reached, embody such understanding in a signed agreement. (b) Upon request, provide the above-named labor organization with information relevant and necessary for the purpose of collective bargaining. (c) Post at its Route I, Tama, Iowa, facility copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by Respondent's representative, shall be posted by Re- spondent 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 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." steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Directors for Region 18, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPEND)IX NoriC(i To EMPI.()YEES POSTED BY ORDER O)F IHE NATIONAL LABOR REI.ATIONS 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 Amal- gamated Meat Cutters and Butcher Workmen of North America, Local P-46, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT refuse to supply information re- quested by the Union which is relevant and nec- essary for the purpose of collective bargaining. WE WILL 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. WE WII.L, 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 production and maintenance employees employed by Re- spondent at its Tama, Iowa facility, including plant clerical employees, meat graders, yard drivers and shag drivers, excluding cattle buy- ers, salesmen, office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. WE WILL, upon request, furnish the above- named Union information relevant for the pur- pose of collective bargaining. TAMA MEAT PACKING CORP. 242