Amalgamated Meat Cutters

National Labor Relations Board - Board Decisions

May 13, 1970

182 N.L.R.B. 410 (N.L.R.B. 1970)

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amalgamated Meat Cutters & Butcher Workmen of North
America , AFL-CIO, and Iowa Beef Packers , Inc. Case
17-CC-386
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER2
May 13, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING,
BROWN, AND JENKINS
On January 13, 1970, Trial Examiner Jerry B. Stone
issued his Decision in the above-entitled proceeding,
finding that Respondent had not engaged in certain unfair
labor practices alleged in the complaint and recommend-
ing that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision.
Thereafter, the Charging Party and the General Counsel
filed exceptions to the Decision and supporting briefs;
Respondent filed a brief in support of the Decision.
The National Labor Relations Board has reviewed
the rulings of the Trial Examiner made at the hearing
and finds that no prejudicial error was committed. The
rulings are hereby affirmed.
The Board has considered the Trial Examiner's Deci-
sion, the exceptions, briefs, and the entire record in
the case, and hereby adopts the findings, conclusions,
and recommendation of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the' Recommended Order
of the Trial Examiner, and hereby orders that the com-
plaint be, and is hereby is, dismissed in its entirety.
' The Trial Examiner's Decision is hereby corrected to include the
finding that Conveyor Systems, Inc , is an employer engaged in commerce
within the meaning of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations
Act, as 'amended, was tried pursuant to due notice
on October 15 and 16, 1969, at South Sioux City, Nebras-
ka.
All parties were afforded full opportunity to participate
in the proceeding and briefs filed by all of the parties
have been considered.
Upon the entire record in the case and from my
observation of the witnesses, I hereby make the follow-
ing:'
' The General Counsel's motion to correct the transcript, dated
November 21, 1969, is marked as TX Exh I and is received into
the record. Duplicate exhibits thereof are waived Said motion is hereby
granted Additionally, there are several minor, inadvertent errors in
the transcript which are hereby corrected On p 23 of the transcript
Iowa Beef Packers , Inc., is an Iowa corporation
engaged in the slaughter and processing of beef at its
plants in several States including its plant at Dakota
City, Nebraska , the only facility involved in this proceed-
ing. In the operation of its business , its purchases from
suppliers outside the State of Nebraska and its sales
to customers outside the State of Nebraska each annually
exceed $50 ,000, and its gross annual sales are in excess
of $500,000.
The instant case involves the question of certain
union activity at a gate (on Iowa Beef Packers, Inc.,
property in Dakota City, Nebraska) reserved for use
of certain subcontractors . At the time of such activity
and since July 1968 , Iowa Beef Packers , Inc., by use
of its own construction division and by use of subcontrac-
tors (Conveyor Systems, Inc., Casler Electric Company,
and Kalin ' s Heating and Air Conditioning Company),
was in the process of building a new addition to its
Dakota City plant.
Conveyor Systems , Inc., is a Chicago , Illinois, con-
cern , and its contractual obligations with Iowa Beef
Packers, Inc., pertained to the installation of a conveyor
system at the new addition . The contract work currently
being performed and to be performed is valued approxi-
mately at $3,500,000.
Casler Electric Company is a Sioux City, Iowa, con-
cern , and its current contractual obligations with Iowa
Beef Packers , Inc., pertained to certain electrical installa-
tions at the Dakota City site . In 1969 Casler Electric
Company performed , under a time and material contract,
work at the Iowa Beef Packers ,- Inc., plant in Emporia,
Kansas, for approximately $ 145,000 . At the Dakota City,
Nebraska, site Caster Electric Company , on a time
and material contract for the current new addition, has
performed work for approximately $34,000 . A reasonable
estimate for the time and material contract for the
total electrical subcontract to be performed at Dakota
City, Nebraska , is $100,000.
Kalin ' s Heating & Air Conditioning Company is a
Sioux City, Iowa , concern , and its current contractual
obligations with Iowa Beef Packers , Inc., pertained to
certain heating and sheet metal work to be performed
on the new addition at the Dakota City site. In the
fiscal year preceding this case , Kalin ' s Heating & Air
Conditioning Company performed services in the State
of Nebraska in excess of $150 ,000, and is engaged
as a contractor in the building and construction industry.
A reasonable estimate of the services performed and
to be performed by Kalin ' s Heating & Air Conditioning
at 1 7, the word "get" is substituted for the word "let." On p
48 of the transcript, at 1 10, the sentence is corrected to read, "You
may go ahead, if necessary, I will stop you " On p.112 of the transcript,
at 1 19, the sentence is corrected to read: "I will give little value
to . " On p 166 of the transcript, at 1 17, the word "talk" is
deleted and substituted therefor is the word "walk "
2 The facts are based upon the pleadings and admissions therein,
stipulations, and the credited testimony of Nymann and Groeneveld
182 NLRB No. 60
AMALGAMATED MEAT CUTTERS
Company on Iowa Beef Packers, Inc 's new addition
at Dakota City, Nebraska is $32,000
Considering all of the foregoing, it is concluded and
found that Iowa Beef Packers, Inc , Casler Electric
Company, and Kalin's Heating & Air Conditioning Com-
pany , are, and each are, employers engaged in commerce
or an industry affecting commerce within the meaning
of Sections 2(6) and (7) and 8(b)(4) of the Act 3
II THE LABOR ORGANIZATION INVOLVED4
Amalgamated Meat Cutters & Butcher Workmen of
North America , AFL-CIO, is now , and at all times
material herein has been , a labor organization within
the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel and the Charging Party in effect
contend that the Charging Party established a "reserve"
gate on August 26, 1969, and that thereafter the Union
engaged in picketing activity at such gate entrance in
violation of Section 8(b)(4)(i) and (n)(B) of the National
Labor Relations Act There are some factual issues
and a number of legal issues involved However, it
is only necessary to consider one issue for the disposition
of this case
The facts5 are clear that the Respondent and the
Charging Party (Iowa Beef Packers, Inc) had a labor
dispute, and that the Respondent and subcontractors
involved in work on the Charging Party's premises did
not have a labor dispute On August 24, 1969, the
Respondent commenced permissible primary picketing
at various gates used as entrances to he Charging Party's
premises On August 26, 1969, the Charging Party posted
signs reserving one of these gates, the north gate, for
exclusive use by the subcontractors on the new addition
project
The guidelines set forth and applicable for the determi-
nation of whether picketing at a "reserve " gate at
the primary employer's premises, such as this, is primary
(and legal) or secondary (and illegal ) are those set out
in Local 761, International Union of Electrical, Radio
and Machine Workers, AFL-CIO [General Electric Co I
v N L R B, 366 U S 667 R These are that (1) there
3 At the hearing a statement by Respondent indicates no real issues
with this finding
The facts are based upon the pleadings and admissions therein
Although there is conflict in contention as to the legal meaning
of certain facts there is not great dispute as to the basic facts The
dispute as to basic facts is mainly limited to the character of union
activity on and after August 26 1969 Resolution of such dispute
as to basic facts although of a limited nature is not necessary for
the disposition of this case The facts herein are based upon pleadings
and admissions therein stipulations and the credited aspects of the
testimony of Nymann Jacobs Hughes Dinges Groeneveld Jenson
and Anson
" The General Counsel s argument that Moore Dry Dock Company
92 NLRB 547 549 sets forth the criteria to consider in this case
and that the General Electric criteria is inapplicable is rejected As
I read the General Electric case the Court considered the fundamental
principles and problems arising from common site situations and
approved of criteria to accomplish a similar result as intended by
411
must be a separate gate marked afad set apart from
other gates, (2) the work done by the men who use
the gate must be unrelated to the normal operations
of the primary employer, and (3) the work must be
of a kind that would not, if done when the primary
employer were engaged in its regular operations , necessi-
tate curtailing their operations
In this case it is only necessary to consider criteria
2 The evidence presented by the General Counsel and
the Charging Party is insufficient to establish that the
work done by the men (the subcontractor's employees)
is unrelated to the normal operations of the Charging
Party
In the General Electric case the Supreme Court
revealed that the reference to "normal operations" was
meant to be specific as well as general Thus the case
was remanded to the Board for a consideration as to
whether the employees of independent contractors, using
the reserve gates, performed conventional maintenance
work necessary to the normal operations of General
Electric The Board has so construed the Court's decision
and has evaluated the specifics of the work done by
employees of independent contractors as compared to
the primary employer's employee work in determining
the question of whether the work is "unrelated "
In the instant case only scant evidence was presented
toward this issue , Essentially, the General Counsel and
the Charging Party established that Iowa Beef Packers,
Inc , was essentially in the business of slaughtering,
processing, and selling beef and beef products, that
it also had a construction division which engaged in
construction work on its own plants, including building
new plants, refurbishing old plants, and in building addi-
tions to plant faciliites Also established was the fact
that on some of the jobs the construction division subcon-
tracted out some of such work
The evidence submitted establishes that in connection
with its business of slaughtering, processing , and sale
of beef and beef products that the Iowa Beef Packers,
Inc , employs employees in a bargaining unit of produc-
tion and maintenance employees Essentially no evidence
was submitted to establish what maintenance work such
employees performed However, one of Respondent's
witnesses did testify to the effect that he was an "instru-
ment maintenance man ," that he was in the bargaining
unit, that he repaired scales and the intercom systems,
the Moore Dry Dock criteria In cases of the type involved herein
the Board has rejected the applicability of the specific criteria of Moore
Dry Dock and instead has utilized the General Electric criteria See
International Chemical Workers Union AFL-CIO and Local No 557
International Chemical Workers Union AFL-CIO (Crest Inc) 179
NLRB No 26 The Charging Party indicates agreement that the General
Electric criteria is applicable to this case As an alternative argument
relating to the question of related work of the employees who
use the reserve gate and the Iowa Beef Packers Inc construction
division employees the Charging Party argues that if such type of
comparison were proper then the work relationship test in General
Electric would not be applicable I ryect this contention The facts
in my opinion do not reveal Iowa Beef Packer Inc to be in the
construction industry but merely to be engaged in construction related
to its own facilities As one of Respondent s officials testified in effect
its conduct in construction was similar to that of any individual home
or business owner doing ms own building or contracting I
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that he was 'more or less in the electronic end
of the work Evidence was also submitted that the
Charging Party construction division employees did not
do any of the routine production and maintenance work
of the packing house plant
The evidence submitted with respect to the work
of employees in the construction division of Iowa Beef
Packers, Inc , was essentially that the employees did
exclusively construction work, blockwork, concrete
work, plumbing work, and electrical work The facts
reveal that the construction division had block laying
crews, plumbers, mechanical crews, and electricians
The facts as to the work performed by the subcontrac-
tors is limited to the effect that contracts had been
let for the installation of a conveyor system, for heating
and sheet metal work, ancj for certain electrical installa-
tions
Concerning the record as a whole and the foregoing,
it is concluded and found that the General Counsel
has failed to establish that the employees who used
the "reserve" gate after August 26, 1969, were engaged
in work unrelated to the work performed by employees
in Iowa Beef Packers, Inc 's normal operations 8 Thus
without knowing the specifics of the work performed
by maintenance employees in Iowa Beef Packers, Inc 's
production and maintenance unit or the work performed
by the employees of the subcontractors involved who
use the reserve gate, it is impossible to ascertain whether
the work is related or unrelated within the meaning
of the General Electric criteria For substantially the
same reason it is impossible to ascertain whether the
work performed by the employees of the subcontractors
involved who use the reserve gate is related or unrelated
to work performed by the construction division employ-
ees of Iowa Beef Packers, Inc It follows thus that
the General Counsel has failed to carry the burden
of proof on an essential issue in this case Accordingly,
it is found and concluded that the evidence does not
establish that the Respondent has violated Section
8(b)(4)(i) and (ii)(B) of the Act by conduct on and
after August 26, 1969, in regard to alleged picketing
at the "reserve" gate 9
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case,
it is recommended that the complaint in this matter
be dismissed in its entirety
' This does not establish that construction division employees did
not do nonroutine production and maintenance work of the packing
house plant
" Local 761 International Union of Electrical Radio and Machine
Workers AFL-CIO [General Electric Company] v N L R B 366 U S
667 remanding 123 NLRB 1547 supplemental decision by Board on
remand 138 NLRB 342
9 Local No I International Brotherhood of Electrical Workers
AFL-CIO (Mallinckrodt Chemical Works) 148 NI,RB 340