Clearfield Cheese Co., Inc.

National Labor Relations Board - Board Decisions

Oct 10, 1962

139 N.L.R.B. 1 (N.L.R.B. 1962)

Clearfield Cheese Company, Inc. and Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL -CIO. Case No.
6-CA-2503. October 10, 1962
DECISION AND ORDER
On August 17, 1962, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The 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 Inter-
mediate Report and the entire record in the case, including the excep-
tions, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.'
1 The first line of the notice below the signature is amended to read ". . . posted for
60 consecutive days from the date of posting . . .
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Admitting its refusal to bargain , the Company here would test the Board's pro-
cedure and the Regional Director's certification of the Union as the exclusive col-
lective-bargaining representative of all of the employees in the unit . The facts of
certification and request and refusal to bargain are admitted ; challenged are the
Regional Director 's action in setting aside an earlier election , his certification after a
second election , and the Board 's denials of the Company 's requests for review.
Charges were filed herein on May 4 and 24, 1962; the complaint issued on May
25, 1962. A hearing was held before Trial Examiner Lloyd Buchanan on July 12,
1962. Pursuant to leave granted to all parties , a brief has been filed by the Company.
It was admitted and I find that the Company, a Pennsylvania corporation, manu-
factures and sells cheese at its plant in Curwensville, Pennsylvania ; and that during
the 12 months preceding issuance of the complaint it produced, sold, and shipped
products valued at more than $50,000 from said plant to points outside the Common-
wealth of Pennsylvania . I find that the Company is engaged in commerce within
the meaning of the Act. It was also admitted and I find that the Union is a labor
organization within the meaning of the Act.
On December 8, 1961, the Regional Director set aside an election held on Octo-
ber 18 in Case No. 6-RC-2950, the Union having filed objections thereto, and directed
a second election . The Board on January 16, 1962, denied the Company's request
to review that action by the Regional Director . A second election was held on
139 NLRB No. 2. 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 19, and the Regional Director issued a second supplemental decision and
certification of representative on April 5. The Company's request for review of the
latter was denied by the Board on April 30.
On May 1, 1962, the Union requested the Company to bargain collectively, but
the Company on May 2 refused. The Company contends that its refusal to bargain
was not an unfair labor practice, however, since the setting aside of the October 1961
election and the holding of the February 1962 election were unlawful and the certi-
fication thereafter issued is void. The Company's position that the certification of the
Union was illegal and ,that there is therefore no obligation to bargain with it is based
on the contention that the Regional Director's and the Board's procedures and ac-
tions in the representation were improper. That contention and arguments in
support thereof were considered in the representation proceeding and, were rejected
at that time; at the instant hearing no matters were offered for consideration which
were not or could not have been presented in the representation proceeding.
It is neither my function nor my right to review the Board's determinations.
Accepting its denial of the Company's requests to review the Regional Director's
decisions, particularly his certification of the Union, and the request and refusal
to bargain being admitted, I find that at all times since May 2, 1962, the Company
has in violation of the National Labor Relations Act, as amended, 73 Stat. 519,
refused to bargain with the Union as the collective-bargaining representative of the
employees in the unit described infra.' Any contention based on the fact that cer-
tain acts were by the Regional Director and not by the Board in the first instance is
met by Rule 102.67(f) 2 and the recent decision in The Mountain States Telephone
and Telegraph Company.'
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act.
2. All production and maintenance employees employed by the Company at its
Curwensville, Pennsylvania, plant, including shipping and receiving employees and
laboratory employees, excluding all office clerical employees, guards, professional
employees, and supervisors as defined in the Act, constitute -a unit appropriate for
the purpose of collective bargaining within the meaning of Section 9(b) of the Act.
3. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO, was on May 2, 1962, and at all times since has been the exclusive bargaining
representative within the meaning of Section 9(a) of the Act, of all employees in
the aforesaid unit for the purposes of collective bargaining.
4. By refusing to bargain collectively with Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, as the exclusive representative of the em-
ployees in the appropriate unit, Clearfield Cheese Company, Inc., has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the
Act.
5. By such refusal to bargain, thereby interfering with, restraining, and coercing
its employees in the exercise of rights guaranteed in Section 7 of the Act, the Com-
pany has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a) (,1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Company, Clearfield Cheese
Company, Inc., Curwensville, Pennsylvania, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as the exclusive representative
of all its employees in the appropriate unit with respect to rates of pay, wages, hours
of employment, or other conditions of employment.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted ac-
' See Moloney Electric Company, 129 NLRB 1208.
2 Board ' s Rules and Regulations, Series 8, as amended
3136 NLRB 1612.
CLEARFIELD CHEESE COMPANY, INC. c3
tivities for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section '8 (a) (3 ) of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request, bargain collectively with the Union as the exclusive representa-
tive of the employees in the appropriate unit, and embody in a signed agreement any
understanding reached
,(b) Post at its plant in Curwensville, Pennsylvania, copies of the notice attached
hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional
Director for the Sixth Region, shall, after being duly signed by the Company's rep-
resentative, be posted by the Company immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to its employees are customarily posted. Reasonable steps
shall be taken by the Company to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for the Sixth Region, in writing, within 20 days
from the receipt of this Intermediate Report and Recommended Order, what steps
have been taken to comply herewith .5
4In the event that this Recommended order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
5In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, In writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
We WILL bargain, upon request, with Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, as the exclusive representative of all
employees in the bargaining unit described herein with respect to rates of pay,
hours of employment, or other conditions of employment, and embody in a
signed agreement any understanding reached. The bargaining unit is:
All production and maintenance employees employed by the Company at
its Curwensville, Pennsylvania, plant, including shipping and receiving em-
ployees and laboratory employees, excluding all office clerical employees,
guards, professional employees, and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities, except to the
extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
CLEARFIELD CHEESE COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate with the Board's Regional Office, 2107 Clark Build-
ing, Pittsburgh 22, Pennsylvania, Telephone Number, Grant 1-2977, if they have
any question concerning this notice or compliance with its provisions.
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