Butchers' Union Local 120, United Food And Commercial Workers International Union, Afl-Cio

National Labor Relations Board - Board Decisions

Aug 5, 1985

275 N.L.R.B. 1376 (N.L.R.B. 1985)

1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Butchers' Union Local 120, United Food and Com-
mercial Workers International Union, AFL-
CIO and Weber Quality Meats, Inc. Case 32-
CP-302
5 August 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Employer, Weber
Quality Meats, Inc. (Weber) on 7 February 1985,
the General Counsel of the National Labor Rela-
tions Board issued a complaint. 15 February 1985
against the Respondent Union Local 120 alleging
that it has violated Section 8(b)(7)(B) of the Na-
tional Labor Relations Act. '
The complaint alleges that the Respondent vio-
lated Section 8(b)(7)(B) by threatening to picket
Weber "to force you to bargain with Local One
Twenty" less than 12 months after a valid repre-
sentation election in Case 32-RM-393 in which
Local 120 failed to, receive a majority. of the valid
ballots cast. (Official notice is taken of the
"record" in the representation proceeding as de-
fined, in the Board's Rules and Regulations, Secs.
102.68 and 102.69(g), amended Sept. 9, 1981, 46
Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB
343 (1982).)
On 11 and 25 March 1985 the Respondent filed
an answer and an amended answer admitting in
part and denying in part the allegations of the com-
plaint, and denying having committed any unfair
labor practices. As affirmative defenses, the Re-
spondent challenges the Board's assertion, and the
constitutionality of the Act as applicable to the Re-
spondent here. On, I April 1985 the General Coun-
sel filed a Motion for Summary Judgment on the
ground that there are no issues of fact requiring a
hearing in this proceeding. On 10 April 1985, the
Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the
motion should not be granted. The Respondent
filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record, the Board makes the fol-
lowing
Ruling on Motion for Summary Judgment
The Respondent's response to the Notice to
Show Cause admits that it threatened to picket
Weber as alleged, but attacks the validity of the
Board-conducted election. The Respondent con-
tends that the Board asserted jurisdiction over
Weber by misapplying or' broadening its indirect
inflow standard for discretionary jurisdiction. The
Respondent further asserts that its election objec-
tions were erroneously overruled by the Regional
Director without holding a hearing -on the 'objec-
tions.
Review of the record here, including the record
in Case 32-RM-393, reveals that' following a, hear-
ing on the representation petition, the ° Regional Di-
rector for Region 32 issued a Decision and Order
on 5 September 1984 dismissing the petition based
on his finding that there was insufficient evidence
of indirect inflow to establish jurisdiction over the
Employer. The Board, by mailgram dated 16 No-
vember 1984, granted the Employer's request for
review, finding that the record evidence establishes
that the Employer meets the indirect inflow stand-
ard, and reinstated- the petition.' Thereafter,, the
Regional Director issued a Supplemental Decision
and Direction of Election2 and, pursuant thereto,
conducted an election on 18 December 1984 in
which there were no votes for, and 8 against, the
participating labor organizations. On 21 December
1984 the Respondent Union filed timely objections
to the conduct of the election. The Regional Direc-
tor, in his Second Supplemental Decision and Cer-
tification of Results of Election of 11 January 1985,
overruled the election objections for lack of sup-
porting evidence. The Respondent Union did not
request review of the Second -Supplemental Deci-
sion. On 31 January 1985, the Respondent threat-
ened Weber in writing to picket to force Weber to
bargain with the Respondent and stated that its
purpose was to challenge the validity of the elec-
tion.
It is well settled that in the absence of newly dis-
covered and previously unavailable evidence or
special circumstances, a respondent is not entitled
in an unfair labor` practice proceeding to relitigate
issues that were or could have been litigated in a
prior representation proceeding. See Pittsburgh
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs.
102.67(f) and '102.69(c) of the Board's Rules and
Regulations. The issue of the Board's discretionary
jurisdiction which; the Respondent raises here was
i In granting review, Members Hunter and Dennis noted that under
the indirect inflow standard an employer may have more than one inter-
mediate in-state supplier and does not have to show that its supplier re-
ceived the products directly from out of state They further noted that
the record evidence indicated that the products purchased from the in-
state supplier were in substantially the same form as when they entered
the State Chairman Dotson concurred in the result , based on record evi-
dence showing that approximately $160,000 of product purchased by the
Employer from its in-state supplier was received directly from points lo-
cated outside the State
2 The Union filed a timely request for review of the Supplemental De-
cision which the Board mistakenly denied as untimely Thereafter, the
Board reconsidered the request for review -and denied it on the merits
275 NLRB No. 187
FOOD & COMMERCIAL WORKERS LOCAL 120 (WEBER MEATS) 1377
fully litigated in the underlying representation pro-
ceeding and the Respondent does not here offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence , nor does it allege any
special circumstances that would require the Board
to reexamine its decision made in the representation
proceeding . We therefore find that the jurisdiction
issue is not properly litigable in this unfair labor
practice ' proceeding . 3 Likewise , the Respondent's
failure to request review of the Regional Director's
overruling of its election objections forecloses reli-
tigation of that issue under Section 102.67(f) of the
Board 's.Rules and Regulations.
As we have found that the Respondent has not
raised any issue that is properly litigable in this
unfair labor practice proceeding, and as the Re-
spondent has admitted engaging in the alleged con-
duct in order to challenge the validity of the un-
derlying representation election , we grant the Gen-
eral Counsel 's Motion for Summary Judgment.
On the entire record , the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company, Weber Quality Meats, Inc., a
California corporation with an office and place of
business in Hayward , California , has been engaged
in the nonretail sale and distribution of meat prod-
ucts . During the preceding 12 months , Weber, in
the course and conduct of its business operations,
purchased and received meat products valued in
excess of $50 ,000 from sellers or suppliers located
within the State of California. Said products origi-
nated outside the State of California . We find that
the Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act and that the Respondent Union is a labor orga-
nization within the meaning of Section 2 (5) of the
Act.
Please consider this letter to be a threat to
picket you to force you to bargain with Local
One Twenty.
We consider the election in Case 32-RM-393
to be a nullity . . . .
C. Discussion-and Conclusions
Section 8 (b)(7)(B) of the Act provides:
It shall be an unfair labor practice for a
labor organization or its agents . . . to picket
or cause to be picketed, or threaten to picket
or cause to be picketed, any employer where
an object thereof is forcing or requiring an em-
ployer to 'recognize or bargain with a labor or-
ganization as the representative of his employ-
ees, or forcing or requiring the employees of
an employer - to accept or select such labor or-
ganization as their collective bargaining repre-
sentative , unless such labor organization is cur-
rently certified as the representative of such
employees . . . where within the preceding
twelve months a valid election under section
9(c) of the Act has been conducted . . . .
The clear purpose of this statutory provision is
to provide stability for the 12-month period during
which Section 9(c)(3) of the Act bars a second
election for the same unit by protecting an employ-
er and its employees against the pressures of recog-
nitional and organizational picketing by a union for
the duration of that period . Operating Engineers
Local 12 (Lamont Pipe Co.), 239 NLRB 500, 501
(1978).
We find from the foregoing that the Respond-
ent's threat to picket Weber on 31 January 1985,
within 12 months of a valid election , had a statuto-
rily proscribed object, and that the Respondent
thereby violated Section 8(b)(7)(B ) of the Act.
REMEDY
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Representation Election
On 18 December 1984 an election by secret
ballot in Case 32-RM-393' was held by the Board
to determine the collective -bargaining representa-
tive of the employees of Weber in an appropriate
unit , and the Respondent did not receive a majority
of the valid ballots cast.
B. The Threat to Picket Weber
On 31 January 1985 the Respondent Union's at-
torney sent Weber a letter which stated, in part:
3 Gateway Motor Lodge , 222 NLRB 851, 852 (1976)
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(b)(7)(B) of the Act, we shall order it to
cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies
of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent , Butchers ' Union Local 120,
United Food and Commercial Workers Internation-
al Union , AFL-CIO, Oakland , California , its offi-
cers, agents, and representatives, shall
1. Cease and desist from picketing or threatening
to picket Weber Quality Meats, . Inc., where an
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
object thereof is forcing or requiring it to recog-
nize or bargain with the Respondent as the collec-
tive-bargaining representative of certain of its em
ployees, where, within the preceding 12 months, a
valid election under Section 9(c) of the Act has
been conducted which the Respondent did not win.
2. Take the following affirmative action designed
to effectuate the policies of the Act.
(a) Post at its business offices.and meeting halls
copies of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Re-
gional Director for Region 32, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered'by any other material.
(b) Furnish to the Regional Director for Region
32 signed copies of said notice for posting by
Weber Quality Meats, Inc., the Company willing,
in places where notices are customarily posted.
" If 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 Na-
tional-Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
(c) Notify the Regional • Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT picket or threaten to picket
Weber Quality Meats, Inc. for a period of 1 year
from a valid election, where an object thereof is to
force or require said Company to recognize or bar-
gain with us as the- collective-bargaining represent-
ative of certain of its employees in violation of Sec-
tion 8(b)(7)(B) of the National Labor Relations
Act. -
BUTCHERS ' UNION LOCAL 120,
UNITED FOOD AND COMMERCIAL
WORKERS INTERNATIONAL UNION,
AFL-CIO