C & D Foods, Inc.

National Labor Relations Board - Board Decisions

May 8, 1979

242 N.L.R.B. 82 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C & D Foods, Inc. and Amalgamated Meat Cutters
and Butcher Workmen of North America, Local 7.3,
AFL-CIO. Case 30-CA-5049
May 8. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
Upon a charge filed on January 22, 1979, by Amal-
gamated Meat Cutters and Butcher Workmen of
North America, Local 73, AFL-CIO, herein called
the Union, and duly served on C & D Foods, Inc.,
herein called Respondent, the General Counsel of the
National Labor Relations Board, by the Regional Di-
rector for Region 30, issued a complaint on February
1, 1979, against Respondent, alleging that Respon-
dent 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, 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 com-
plaint alleges in substance that on October 17, 1978,
following a Board election in Case 30-RC-3373, 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 October 26, 1978, and at all times there-
after, 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
February 9, 1979, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On February 16, 1979, Counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, with exhibits attached. The
General Counsel submits, in effect, that Respondent,
in its answer, is attempting to relitigate issues already
litigated and decided in the prior representation pro-
ceeding, Case 30-RC-3373, but that Respondent has
not asserted, nor can it assert, the existence of any
newly discovered, relevant evidence on these issues.
I Official notice is taken of the record in the representation proceeding,
Case 30-RC 3373, 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 Electrosysrens, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cit.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); Intertype Co. s'. Penello, 269 F. Supp. 573 (D.C.Va. 1957);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended,
The General Counsel further submits that the record
shows that there are no material issues of fact not
admitted, previously determined, or controverted;
that no hearing is necessary in this matter; and that
the Board may appropriately issue a Decision and
Order without further proceedings. Subsequently, on
February 28, 1979, the Board issued an order trans-
ferring the proceeding to the Board and a Notice To
Show Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent thereafter filed a memorandum in opposition to
the Motion for Summary Judgment and a response to
the Notice To Show Cause.
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 and in its memoran-
dum in opposition to the General Counsel's Motion
for Summary Judgment and response to the Notice
To Show Cause, Respondent admits its refusal to bar-
gain but contends it is not obligated to bargain be-
cause the unit for which the Union is certified is not
appropriate. In this regard, Respondent, in substance,
argues that the Board erred when it excluded "grow-
out workers" from the unit found appropriate herein.
Respondent contends they share a community of in-
terest with all hourly employees included in the unit.
It further argues that as the employees, in the unit
found appropriate, are agricultural employees it is
not engaged in commerce or in an industry affecting
commerce, and, thus, is not under the Board's juris-
diction. The General Counsel contends Respondent is
improperly seeking to relitigate issues which were
raised and decided in the underlying representation
case. We agree with the General Counsel.
Review of the record herein, including the record in
Case 30-RC 3373, reveals that on June 15, 1978, in
the representation proceeding, the Union sought to
represent certain of Respondent's employees. Follow-
ing a hearing on the petition in Case 30-RC-3373,
the Regional Director for Region 30 of the National
Labor Relations Board issued a Decision and Direc-
tion of Election on August 4, 1978. Thereafter, Re-
spondent filed a request for review and brief in sup-
port of review of the Regional Director's Decision
and Direction of Election, which was denied by the
Board on September 5, 1978. The election was con-
ducted by the Regional Director for Region 30
among the employees in the unit set forth in the Deci-
sion and Direction of Election. The tally of ballots
242 NLRB No. 19
82
C & D FOODS, INC.
was 101 for, and 77 against, the Union. There were 2
challenged ballots. Respondent filed objections and
amended objections. On October 17, 1978, after an
investigation conducted pursuant to Section 102.69 of
the Board's Rules and Regulations, Series 8, as
amended, the Regional Director for Region 30 issued
and caused to be served on the parties a Supplemen-
tal Decision and Certification of Representative, find-
ing no merit in Respondent's objections, overruling
them in their entirety, and certifying the Union.
Thereafter, Respondent filed a request for review
with the Board and on December 5, 1978, the Board
denied Respondent's request for review of the Re-
gional Director's Supplemental Decision and Certifi-
cation of Representative. The certified unit is:
All full-time and regular part-time dressing plant
employees, feather shed employees, maintenance
employees and truckdrivers employed by C & D
Foods, Inc., at their Franksville, Wisconsin fa-
cilities; excluding York farm grow-out workers,
all agricultural laborers, office clerical employ-
ees, guards and supervisors as defined in the Act.
It thus appears Respondent is seeking to relitigate
herein the appropriate unit and jurisdictional issues
which were fully litigated and decided adversely to
Respondent in the underlying representation case. It
is well settled that in the absence of newly discovered
or previously unavailable evidence or special circum-
stances a respondent in a proceeding alleging a viola-
tion of Section 8(a)(5) is not entitled to relitigate is-
sues which were or could have been litigated in a
prior representation proceeding.2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding. 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.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent, a Wis-
consin corporation, has been engaged in the business
I See Pittsburgh Plate Glass Co. v. '.L.RB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
of breeding, hatching, raising, dressing, and market-
ing ducks at its several locations in Wisconsin and
Michigan, including Franksville. Wisconsin. During
the past calendar year, a representative period, Re-
spondent sold and shipped from its Franksville, Wis-
consin. facility products valued in excess of $50,000
to customers located directly outside the State of Wis-
consin.
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.
II. THE LABOR ORGANIZATION INVOI.VED
Amalgamated Meat Cutters and Butcher Work-
men of North America, Local 73, AFL-CIO. is a la-
bor 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 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 dressing plant
employees, feather shed employees, maintenance
employees and truckdrivers employed by C & D
Foods, Inc., at their Franksville, Wisconsin fa-
cilities; excluding York farm grow-out workers,
all agricultural laborers, office clerical employ-
ees, guards and supervisors as defined in the Act.
2. The certification
On September 8, 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 30, 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 October 17, 1978, and the Union contin-
ues 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 October 20. 1978, and at
all times thereafter, the Union has requested Respon-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about October 26, 1978, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
October 26, 1978, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate 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 the opera-
tions described in section I, above, have a close, inti-
mate, 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 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 Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company, Inc., 136 NLRB
785 (1962); Commerce Company d/b/a Lamar Hotei,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964); 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. C & D Foods, Inc., is an employer engaged 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 73, AFL-CIO, is a la-
bor organization within the meaning of Section 2(5)
of the Act.
3. All full-time and regular part-time dressing
plant employees, feather shed employees, mainte-
nance employees, and truckdrivers employed by Re-
spondent at its Franksville, Wisconsin, facilities; ex-
cluding York farm grow-out workers, all agricultural
laborers, office clerical employees, guards, and super-
visors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Since October 17, 1978, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about October 26, 1978, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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
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)(1) 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,
C & D Foods, Inc., Franksville, Wisconsin, its offi-
cers, 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 Cut-
ters and Butcher Workmen of North America, Local
73, AFL-CIO, as the exclusive bargaining representa-
84
C & D FOODS, INC.
tive of its employees in the following appropriate
unit:
All full-time and regular part-time dressing plant
employees, feather shed employees, maintenance
employees and truckdrivers employed by the Re-
spondent at their Franksville, Wisconsin facili-
ties; excluding York farm grow-out workers, all
agricultural laborers, office clerical 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
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) Post at its Franksville, Wisconsin, facilities
copies of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the Re-
gional Director for Region 30, 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 insure that said
notices are not altered, defaced, or covered by any
other material.
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."
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES
POSIED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE W.I. 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 73, AFL-CIO., as the ex-
clusive representative of the employees in the
bargaining unit described below.
WE kwILL 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.
WI wii, 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 dressing
plant employees, feather shed employees,
maintenance employees and truckdrivers em-
ployed by us at our Franksville, Wisconsin fa-
cilities: excluding York farm grow-out work-
ers, all agricultural laborers, office clerical
employees, guards and supervisors as defined
in the Act.
C & D FOODS. INC.
85