Beatrice Foods Co.

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 630 (N.L.R.B. 1974)

630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hi Temp Inc ., a Division of Beatrice Foods Co., Tru
Temp Inc ., and Steel Treating Inc. and United Steel-
workers of America , AFL-CIO. Case
13-CA-13328
December 16, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY AND PENELLO
Upon a charge filed on June 5, 1974, by United
Steelworkers of America, AFL-CIO, herein called the
Union, and duly served on Hi Temp Inc., A Division
of Beatrice Foods Co., Tru Temp Inc., and Steel Treat-
ing, Inc., herein collectively called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 13, issued
a complaint on June 24, 1974, against Respondent,
alleging that Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 2(6) and (7) of the National Labor Relations Act,
as amended. Copies of the charge, complaint, and no-
tice 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 May 14, 1974, fol-
lowing a Board election in Case 13-RC-13067, 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 May 21, 1974, and at all times thereafter,
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
July 5, 1974, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the allega-
tions in the complaint.
On July 19, 1974, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. On July 22, 1974, the Respondent filed a
motion in opposition alleging that the General Coun-
sel's motion was untimely filed. Thereafter, the Charg-
ing Party and General Counsel filed oppositions to the
Respondent's motion. Subsequently, on September 3,
1974, the Board denied the Respondent's motion in
opposition and issued an order transferring the pro-
I Official notice is taken of the record in the representation proceeding,
Case 13-RC-13067, 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 Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A.
4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d
26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va.,
1957); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7,
1968); Sec. 9(d) of the NLRA.
ceeding 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 Notice To Show Cause, entitled "Motion in
Opposition to General Counsel's Motion for Summary
Judgment."
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
Respondent opposes the Motion for Summary Judg-
ment on the ground that the Regional Director's Deci-
sion and Direction of Election in the underlying repre-
sentation proceeding and the Board's denial of review
thereof were in error, and asserts the certification is-
sued the Union is invalid. Respondent further asserts
that it would be inappropriate for the Board to issue a
Summary Judgment in view of pending appellate court
review of a Board Decision and Order which has a
bearing on the validity of the representation proceed-
ing.
Our review of the record herein, including that of
Case 13-RC-13067, reveals that Respondent con-
tended in the representation case hearing (1) that the
pending appellate court review of the Board's
Decision,' finding inter alia Respondent's conduct
with respect to a rival labor organization in violation of
Section 8(a)(2) of the Act made untimely and barred
the representation proceeding, and (2) that Respon-
dent's collective-bargaining contract with the other la-
bor organization also barred the representation pro-
ceeding. The Regional Director, in his Decision and
Direction of Election, found no merit in these conten-
tions, essentially on the strength of a waiver filed by the
Union in accordance with Carlson Furniture Industries,
Inc., 157 NLRB 851 (1966). Thereafter, Respondent
filed with the Board a Motion To Reopen Hearing and
subsequently a request for review of the Regional
Director's Decision, in substance reasserting its argu-
ments concerning the timeliness of the representation
proceeding and the bar allegedly posed by the pending
unfair labor practice case and by its collective-bargain-
ing contract. On March 4, 1974, the Board denied Re-
spondent's request for review as it did not raise substan-
tial issues warranting review, noting in its denial that
consideration had been given to the Respondent's Mo-
tion To Reopen Hearing.'
2 Hi Temp, Inc., A Division of Beatrice Foods Co., Tru Temp Inc., Steel
Treating Inc., 203 NLRB 753 (1973).
215 NLRB No. 70
HI TEMP INC.
Having previously considered Respondent's conten-
tions in this matter, we find no basis for considering
them anew. It is well settled that in the absence of
newly discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled to
relitigate issues which were or could have been litigated
in a prior representation proceeding.'
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior repre-
sentation proceeding, and the Respondent does not of-
fer 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 prop-
erly litigable in this unfair labor practice proceeding.
We shall, accordingly, 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 THE RESPONDENT
Hi Temp Inc., A Division of Beatrice Foods Co., Tru
Temp Inc., and Steel Treating Inc. are Delaware corpo-
rations with the offices and places of business of Hi
Temp Inc. and Steel Treating Inc. located in
Northlake, Illinois, and the office and place of business
of Tru Temp Inc. located in Melrose Park, Illinois,
where they are engaged in the heat treating of metals.
At all times material herein, Hi Temp Inc., Tru Temp
Inc., and Steel Treating Inc. have been and now are
affiliated businesses with common officers, ownership,
directors, and operators, and constitute a single inte-
grated business enterprise with a common labor policy
formulated and administered by said directors and op-
erators. During the last fiscal or calendar year, a repre-
sentative period, Hi Temp, Tru Temp, and Steel Treat-
ing, and each of them, in the course and conduct of
business operations, did a gross volume of business in
excess of $500,000. During the same period, said busi-
nesses in the course and conduct of their business proc-
essed and shipped finished products valued in excess of
$50,000 directly to customers located in States other
than the State of Illinois.
We find, on the basis of the foregoing, that Respond-
ent is, and has been at all times material herein, an
employer engaged in commerce within the meaning of
3 See also Great Dane Trailers, Inc., 191 NLRB 6 (1971), involving an
analogous situation.
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).
631
Section 2(6) and (7) of the Act, and that it will effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
United Steel Workers of America, AFL-CIO, is a
labor 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 the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed by the Employer at the three plants of Hi
Temp Inc., Tru Temp Inc., and Steel Treating
Inc., located respectively at 75 East Lake Street,
Northlake, Illinois; 5400 West Lake Street, Mel-
rose Park, Illinois; and Wolf Road and Lake
Street, Northlake, Illinois; including inspectors
and shipping employees but excluding office cleri-
cal employees, outside truckdrivers, professional
emp.oyees, technical employees, guards, and
supervisors as defined in the Act.
2. The certification
On March 15, 1974, a majority of the employees of
Respondent in said unit, in a secret ballot election con-
ducted under the supervision of the Regional Director
for Region 13, designated the Union as their represen-
tative for the purpose of collective bargaining with the
Respondent. The Union was certified as the collective-
bargaining representative of the employees in said unit
on May 14, 1974, 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 May 21, 1974, and at all
times thereafter, the Union has requested the Respond-
ent to bargain collectively with it as the exclusive col-
lective-bargaining representative of all the employees in
the above-described unit. Commencing on or about
May 21, 1974, 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.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that the Respondent has, since
May 21, 1974, 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 , 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 its operations de-
scribed 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 commerce.
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, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached, embody such' under-
standing in a signed agreement.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial period of certification as begin-
ning on the date Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate unit. See Mar-Jac
Poultry Company, Inc., 136 NLRB 785 (1962); Com-
merce 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 Com-
pany, 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. Hi Temp Inc., A Division of Beatrice Foods Co.,
Tru Temp Inc., and Steel Treating Inc. collectively are
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All production and maintenance employees em-
ployed by the Employer at the three plants of Hi Temp
Inc., Tru Temp Inc., and Steel Treating Inc., located
respectively at 75 East Lake Street, Northlake, Illinois;
5400 West Lake Street, Melrose Park, Illinois; and
Wolf Road and Lake Street, Northlake, Illinois ; includ-
ing inspectors and shipping employees but excluding
office clerical employees, outside truckdrivers, profes-
sional employees, technical employees, guards, and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since May 14, 1974, the above-named labor organ-
ization has been and now is the certified and exclusive
representative of all employees in the aforesaid appro-
priate unit for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing on or about May 21, 1974, and at all
times thereafter, to bargain collectively with the above-
named labor organization as the exclusive bargaining
representative of all the employees of Respondent in
the appropriate unit , 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, Respondent
has interfered with, restrained, and coerced, and is in-
terfering with, restraining, and coercing, employees in
the exercise of the rights guaranteed to them in Section
7 of the Act, and thereby has engaged in and is engag-
ing 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 meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National-Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Hi Temp Inc.,
A Division of Beatrice Foods Co., Tru Temp Inc., and
Steel Treating Inc., Northlake and Melrose Park, Il-
linois , 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 United Steelworkers of America,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All production and maintenance employees em-
ployed by the Employer at the three plants of Hi
Temp Inc., Tru Temp Inc., and Steel Treating
Inc., located respectively at 75 East Lake Street,
Northlake, Illinois; 5400 West Lake Street, Mel-
rose Park, Illinois; and Wolf Road and Lake
Street, Northlake , Illinois; including inspectors
and shipping employees but excluding office cleri-
cal employees, outside truckdrivers, professional
HI TEMP INC.
employees , technical 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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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.
(b) Post at its Northlake , Illinois, and Melrose Park,
Illinois, facilities copies of the attached notice marked
"Appendix."5 Copies of said notice, on forms pro-
vided by the Regional Director for Region 13, 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 in-
sure that said notices are not altered , defaced , or cov-
ered by any other material.
(c) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 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
633
and conditions of employment with United Steel-
workers of America, AFL-CIO, as the exclusive
representative of the employees in the bargaining
unit described below.
WE WILL NOT in any like or related manner inter-
fere with , restrain , or coerce our employees 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 representative 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 under-
standing in a signed agreement . The bargaining
unit is:
All production and maintenance employees
employed by the Employer at the three plants of
Hi Temp Inc., Tru Temp Inc., and Steel Treat-
ing Inc., located respectively at 75 East Lake
Street, Northlake, Illinois; 5400 West Lake
Street , Melrose Park , Illinois; and Wolf Road
and Lake Street , Northlake , Illinois; including
inspectors and shipping employees but exclud-
ing office clerical employees, outside truckdriv-
ers, professionl employees , technical employees,
guards, and supervisors as defined in the Act.
Hi TEMP INC., A DIVISION OF
BEATRICE FOODS Co., TRU TEMP
INC, AND STEEL TREATING INC.
WE WILL NOT refuse to bargain collectively con-
cerning rates of pay, wages, hours, and other terms