Lauridsen Foods, Inc.

204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lauridsen Foods, Inc. and United Food and Com- mercial Workers International Union, Local P- 31, AFL-CIO. Case 18-CA-6657 August 14, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on April 21, 1980, by United Food and Commercial Workers International Union, Local P-31, AFL-CIO, herein called the Union, and duly served on Lauridsen Foods, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 18, issued a complaint and notice of hearing on May 7, 1980, against Re- spondent, 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 January 9, 1980, following a Board election in Cases 18-RC- 12316 and 18-RC-12323, the Union was duly certi- fied as the exclusive collective-bargaining repre- sentative of Respondent's employees in the unit found appropriate;' and that, commencing on or about February 14, 1980, and at all times thereaf- ter, 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 May 28, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On June 20, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on June 24, 1980, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. I Official notice is taken of the record in the representation proceed- ing, Cases 18-RC-12316 and 18-RC-12323, as the term "record" is de- fined in Secs. 102.68 and 102 69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Elecrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Pen- ello, 269 F.Supp. 573 (DC Va 1967) Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F2d 91 (7th Cir. 1968): Sec. 9(d) of the N.RA, as amended. 251 NLRB No. 35 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, Respondent admits the request and refusal to bargain, but denies the commerce allegations of the complaint and alleges certain affirmative defenses, the sub- stance of which attacks the validity of the Board's certification in the underlying representation pro- ceeding. In its first affirmative defense, Respondent contends that the Union destroyed, by misrepresen- tation, threats, and promises, the laboratory condi- tions necessary for employees to exercise their free and uncoerced choice. In its second affirmative de- fense, Respondent asserts that the Regional Direc- tor improperly refused to order a hearing or grant Respondent additional time to establish a prima facie case of the Union's objectionable conduct. In its further affirmative defenses, Respondent asserts, inter alia, that the Regional Director failed to ade- quately investigate Respondent's objections, and that Respondent was therefore denied due process. Further, Respondent asserts that the Regional Di- rector and the Board incorrectly concluded that Respondent's objections did not raise substantial and material issues that would warrant setting aside the election. Review of the record herein, including the record in Cases 18-RC-12316 and 18-RC-12323, reveals that on July 13, 1979, after a hearing in which Respondent participated, the Regional Di- rector issued a Decision and Direction of Election in which he found, on a projected basis, that Re- spondent's annual direct inflow and indirect out- flow exceeded the Board's statutory, if not discre- tionary, authority and, therefore, that Respondent was engaged in commerce within the meaning of the Act. On January 9, 1980, the Regional Director over- ruled Respondent's objections to conduct affecting the results of the election in Cases 18-RC-12316 and 18-RC-12323 and certified the Union. On March 12, 1980, the Board denied Respondent's re- quest for review. It therefore appears that in this proceeding Respondent is attempting to relitigate issues fully litigated and finally determined in the representation proceeding. 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 ------ LAURIDSEN FOODS, INC. 205 to relitigate issues which were or could have been litigated in a prior representation proceeding.2 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 is an Iowa corporation with its office and place of business in Britt, Iowa, herein called Respondent's facility. Respondent is engaged in the processing and shipping of meat and related products. During the calendar year ending Decem- ber 31, 1979, Respondent, in the course and con- duct of its business operations, shipped from its Britt, Iowa, facility products, goods, and materials valued in excess of $50,000 directly to points out- side the State of Iowa. 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. II1. THE LABOR ORGANIZATION INVOLVED United Food and Commercial Workers Interna- tional Union, Local P-31, AFL-CIO, is a labor or- ganization 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 full-time and regular part-time production and maintenance employees employed by Re- 2 See Pittsburgh Plate Glast Co. v NL.R.B.. 313 US 14,. 162 (1941): Rules and Regulations of the Board, Secs 102.b7(f) and 102.6 9 (c) spondent at its Britt, Iowa, facility; excluding office clerical employees, professional employ- ees, managerial employees, guards and supervi- sors as defined in the Act. 2. The certification On November 8, 1979, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 18, 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 January 9, 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 February 14, 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 February 14, 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 February 14, 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 , 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 LAURIDSEN FOODS, INC 205 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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: CONCLUSIONS OF LAW 1. Lauridsen Foods, 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, Local P-31, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees employed by Respond- ent at its Britt, Iowa, facility; excluding office cleri- cal employees, professional employees, managerial employees, guards and supervisors as defined as the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Since January 9, 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 February 14, 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)(l) 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, Lauridsen Foods, Inc., Britt, Iowa, its officers, agents, successors, and assigns, shall: I. 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, Local P-31, AFL-CIO, as the exclusive bargaining repre- sentative of its employees in the following appro- priate unit: All full-time and regular part-time production and maintenance employees employed by Re- spondent at its Britt, Iowa, facility; excluding office clerical employees, professional employ- ees, managerial employees, guards and supervi- sors as defined as 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 Britt, Iowa, facility copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Di- rector 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. Rea- ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the swords in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- anlt to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " LAURIDSEN FOODS, INC. 207 sonable 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 18, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 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, Local P-31, AFL-CIO, as the exclusive representative of the employ- ees 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 full-time and regular part-time produc- tion and maintenance employees employed by us at our Britt, Iowa, facility; excluding office clerical employees, professional em- ployees, managerial employees, guards and supervisors as defined as the Act. LAURIDSEN FOODS, INC. LAURIDSEN FOODS, INC 207