Dean Foods Co., Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1970

181 N.L.R.B. 197 (N.L.R.B. 1970)

MRS. WEAVER'S SALADS 197
Mrs. Weaver 's Salads, a Division of Dean Foods
Co., Inc. and Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO,
Local Union Number 515. Case 26-CA-3437
February 18, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
Upon a charge filed by Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, Local Union Number 515, herein called
the Union , the General Counsel of the National
Labor Relations Board , by the Regional Director
for Region 26, issued a complaint , dated August 22,
1969,' against Mrs. Weaver ' s Salads, a Division of
Dean Foods Co., Inc., herein called the Respondent,
alleging that the Respondent had engaged in and
was engaging in unfair labor practices within the
meaning of Sections 8(a)(5) and ( 1) and 2 (6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charge , complaint, and notice of
hearing before a Trial Examiner were duly served
upon the Respondent.
With respect to the unfair labor practices, the
complaint alleges in substance that ( 1) although on
or about July 11, the Union was duly certified by
the Board as the exclusive bargaining representative
of the Respondent ' s employees in the unit found
appropriate ,2 the Respondent has, since on or about
August 5, refused and is refusing to bargain with the
Union as such exclusive bargaining representative,
although the Union had requested and is requesting
it to do so; and (2) on or about August 11, the
Respondent unilaterally changed the existing wage
rates of certain unit employees . On August 27, the
Respondent filed its answer , admitting in part and
denying in part the allegations of the complaint; and
asserting that it had been denied due process of law
because, in the related representation case, the
Regional Director refused it an opportunity to
present evidence in support of its objections to
alleged conduct assertedly affecting the results of the
election.
On September 15, 1969, the General Counsel filed
a Motion for Summary Judgment , contending that
the pleadings raise no issues which require a hearing
or which were not previously presented to and
decided by the Board in the related representation
case. Thereafter, on September 18, the Board, by its
Deputy Executive Secretary , issued an order
transferring proceeding to the Board and notice to
show cause why the General Counsel ' s motion for
summary judgment should not be granted. On
'All dates herein refer to 1969
'Decision and Certification of Representative in Case 26-RC-3404 (not
published in NLRB volumes ), of which the Board is requested by the
General Counsel to take official notice
September 23, the Respondent filed an answer to
the notice to show cause, on October 1, the General
Counsel filed a response to the Respondent's
answer, and on December 1, the Respondent filed a
supplemental answer to notice to show cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
Ruling on the Motion for Summary Judgment
The Respondent is engaged in the production of
food items at its plant and place of business in
Memphis, Tennessee. Pursuant to a stipulation for
certification upon consent election, executed by the
Respondent and the Union, and approved by the
Regional Director for Region 26, an election by
secret ballot was conducted in Case 26-RC-3404 on
April 18, 1969, under the direction and supervision
of the said Regional Director. The subsequent tally
of ballots showed that a majority of the valid ballots
were cast for the Union.
Thereafter, on April 23, the Respondent filed
timely objections to the election' and, in accordance
with the Board's Rules and Regulations, the
Regional Director attempted to conduct an
investigation. When the Board agent advised the
Employer's counsel that he was prepared to
investigate the objections immediately, the
Employer's counsel requested a delay of 13 calendar
days before submitting witnesses in support of the
objections. The agent, acting at the direction of the
Regional Office, advised the attorney that such a
delay could not be granted, and that the Regional
Office required the evidence be presented within 4
working days. Although the Regional Director
immediately confirmed this position by letter
(stating that no necessity had been shown for the
delay sought) and notified the Employer's counsel
that if the deadline were not met the objections
would be overruled, the attorney neither presented
any witnesses or other supporting evidence, nor
made any arrangements to do so. The Regional
Director accordingly recommended, in his report on
objections, that the objections be overruled in their
entirety and that the Union be certified, because,
under all the circumstances, he was of the view that
the Employer had not shown sufficient justification
for the amount of delay it had sought. The
Employer filed exceptions to this report, but the
Board found no basis for a hearing and adopted the
Regional Director's findings and recommendations,
on the ground that the Employer had not satisfied
applicable Board policy, as set forth in Atlantic
Mills Servicing Corporation of Cleveland, Inc , 120
NLRB 1284, 1288, fn. 7, requiring that the party
'These objections alleged in substance that the Union had threatened
employees, in various ways, if they did not support the Union.
181 NLRB No. 34
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filing objections submit supporting evidence at the
time objections are filed, or forthwith upon request
from the Regional Director.
In support of his motion for summary judgment,
the General Counsel contends that the pleadings,
considered together with the official Board record in
the underlying representation proceeding, raise no
issues requiring a hearing: and that the
Respondent's defense set forth in its answer raises
no litigable question of fact, but only questions of
law which have already been decided by the Board
and, which are, therefore, invalid as a defense to the
allegations of the complaint.
The Respondent, in its answer to notice to show
cause, argues that the Regional Director abused his
discretion in the underlying representation case by
refusing its offer to submit evidence at a later date
in support of its objections to the election. The
Respondent also maintains that special
circumstances exist which warrant a hearing, and
that, therefore, the motion for summary judgment
should not be granted.
It is settled that, in the absence of newly
discovered or previously unavailable evidence, Board
policy does not permit litigation in an unfair labor
practice case, of issues which were - or could have
been - litigated in a prior representation
proceeding.4 It is equally clear that Board policy
requires an objecting party to submit its evidence
immediately or forthwith upon the Regional
Director's request;' and the Board has held that the
Regional Director is entitled to some discretion in
deciding whether supporting evidence has been
submitted (or proffered, as in this case) "forthwith."6
We have already ruled in the representation
proceeding that the Regional Director did not abuse
his discretion by informing the Respondent that,
under the circumstances present, it had only until
May 2 to submit any available evidence. Thus, we
have already decided the very issue which
Respondent now presses, and the Respondent does
not offer to adduce at a hearing any newly
discovered or previously unavailable evidence. Nor
are the purported "special circumstances" on which
the Respondent now relies any different from those
we have considered previously.' Under these
circumstances, we find that the Respondent has
failed to raise any issue which is properly litigable in
this unfair labor practice proceeding.' Accordingly,
all material issues having been either decided by the
Board or admitted in the answer to the complaint,
there are no matters requiring a hearing before a
Trial Examiner. Therefore, we hereby grant the
General Counsel's Motion for Summary Judgment.
On the basis of the record before it, the Board
makes the following-
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a division of Dean Foods Co.,
Inc., a corporation, and maintains a plant and place
of business in Memphis, Tennessee, where it is
engaged in the preparation of food items. In the
course and conduct of its business operations, the
Respondent annually sells and ships goods valued in
excess of $50,000 directly to points outside the State
of Tennessee, and purchases and receives goods
valued in excess of $50,000 directly from points
located outside the State of Tennessee. The
Respondent admits, and we find, that it is and has
been at all times material herein, engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, Local
Union Number 515, is, and has been at all times
material herein , a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Appropriate Unit
The following ' employees of Respondent
constitute, and at all times material herein have
constituted, a unit appropriate for purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All production employees, including shipping and
receiving employees employed at the Employer's
plant located at 2050 Madison Avenue, Memphis,
Tennessee, excluding all office clerical employees,
maintenance employees, route salesmen, leadmen,
floor ladies, guards and supervisors as defined in
the Act.
B. The, Certification
On or about April 18, 1969, a majority of,the
employees of the Respondent in the said unit, by
voting in a secret-ballot election conducted under
the supervision of the Regional Director for Region
26, designated the Union as their representative for
the purpose of collective bargaining with the
Respondent. On July 11, 1969, the Board certified
the Union as the exclusive collective-bargaining
representative of the employees in said unit, and the
Union continues to be such representative.
'See Pittsburgh Plate Glass Co v NLRB B. 313 U S 146, 161-162,
Meyer Dairy , Inc. 178 NLRB No 74 , Ohio Machinery Co. 176 NLRB
No 130
'Atlantic Mills Servicing Corporation of Cleveland. Inc , supra at 1288,
in 7
'Mohawk Bedding Corp, 178 NLRB No 68
'Indeed, the Respondent has never stated what specific evidence it had to
support its objections to the election , nor even contended that it had such
evidence in its possession Cf Ohio Machinery Co , supra
'The contentions contained in the Respondent's supplemental answer to
notice to show cause, filed on December 1, do not change this result
MRS WEAVER'S SALADS 199
C. The Request To Bargain and the
Respondent 's Refusal
Since on or about July 31, 1969, the Union has
requested, and is requesting, Respondent to bargain
collectively with respect to rates of pay, wages,
hours of employment, and other terms and
conditions of employment, as the exclusive
collective-bargaining representative of all the
employees of the Respondent in the unit described
above. Since on or about August 5, 1969, the
Respondent did refuse, and continues to refuse, to
bargain collectively with the Union as the exclusive
bargaining representative of all the employees in the
said unit. As the Respondent was obligated to meet
and bargain with the Union upon request, we find
that the Respondent's refusal on and after August 5,
1969, to bargain collectively with the Union as the
exclusive bargaining representative of the employees
in the appropriate unit was and is violative of
Section 8(a)(5) and (1) of the Act.
also order that the Respondent refrain from
changing the rates of pay of the employees in the
unit without first notifying the Union and giving it a
reasonable opportunity to consult and negotiate with
Respondent concerning such changes.
In addition, to ensure that the employees in the
appropriate bargaining unit will be accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the initial
year of certification as beginning on the date the
Respondent commences to bargain in good faith
with the Union as the certified bargaining
representative of the employees in the appropriate
unit . See Mar-Jac Poultry Company, Inc , 136
NLRB 785; Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600
(C.A. 5), cert. denied 379 U.S. 817 ; Burnett
Construction Company. 149 NLRB 1419, 1421,
enfd. 350 F.2d 57 (C.A. 10).
CONCLUSIONS OF LAW
D. The Respondent's Unilateral Change in
Working Conditions
On or about August 11 , 1969, the Respondent,
unilaterally and without notification to or
bargaining with the Union , changed the existing
wage rates of the employees in the said unit .' As the
Union was the exclusive collective - bargaining
representative of all unit employees , and therefore,
the Respondent was statutorily obligated to notify
and bargain with the Union about such changes, we
find that this conduct of the Respondent also was,
and is, violative of Section 8(a)(5) and ( 1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The acts of the Respondent set forth in section
III, above, occurring in connection with its
operations as described in section I, above, have a
close, intimate, and', substantial relation to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged 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,
bargain collectively with the Union as the exclusive
representative of all employees in the appropriate
unit, and, if an understanding is reached, embody
such understanding in a signed agreement. We shall
'The pleadings do not specify in what manner these existing wage rates
were changed
1. Mrs. Weaver's Salads, a division of Dean
Foods Co., 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
Workmen of North America, AFL-CIO, Local
Union Number 515, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All production employees, including shipping
and receiving employees employed at the Employer's
plant located at 2050 Madison Avenue, Memphis,
Tennessee, excluding all office clerical employees,
maintenance employees, route salesmen, leadmen,
floor ladies, 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. At all times since April 18, 1969, the Union
has been the exclusive representative for the
purposes of collective bargaining of the
Respondent's employees in the appropriate unit.
5. By refusing to bargain collectively with the
Union as the exclusive representative of all the
employees in the appropriate unit on and after
August 5, 1969, and by changing the existing wage
rates of certain of the employees in the appropriate
unit, the 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 and
unilateral modification of wage rates, the
Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing employees in the exercise of the rights
guaranteed to them in Section 7 of the Act, and has
thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of
the Act.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Mrs. Weaver's Salads, a division of Dean Foods
Co., Inc., Memphis, Tennessee, 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 Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, Local Union Number 515, as the
exclusive bargaining representative of the employees
in the appropriate unit.
(b) Changing the rates of pay of the employees in
said unit without first notifying the Union and
giving the Union a reasonable opportunity to
consult and negotiate with it concerning the same.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed to them by 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 collectively with the
above-named labor organization as the exclusive
representative of all employees in the appropriate
unit with respect to rates of pay, wages, hours of
employment, and other terms and conditions of
employment, and if an understanding is reached,
embody such understanding in a signed agreement.
The unit for bargaining is:
All production employees, including shipping and
receiving employees employed at the Employer's
plant located at 2050 Madison Avenue, Memphis,
Tennessee, excluding all office clerical employees,
maintenance employees, route salesmen, leadmen,
floor ladies, guards and supervisors as defined in
the Act.
(b) Post at its plant in Memphis, Tennessee,
copies of the attached notice marked "Appendix."' °
Copies of said notice, on forms provided by the
Regional Director for Region 26, shall, after being
duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
"In the event this order is enforced by a judgment of the 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 "
places where notices to employees are customarily
posted. Reasonable steps shall be taken to ensure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 26, in
writing, within 10 days from the date of this
Decision and Order, what steps Respondent has
taken to comply herewith.
APPENDIX*
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
After a case in which all sides had the chance to
present their positions, the National Labor Relations
Board found that we, Mrs. Weaver's Salads, a division of
Dean Foods Co , Inc., violated the National Labor
Relations Act. The Board therefore ordered us to post this
notice.
The Act gives all employees these rights
To engage in self-organization,
To form, help or join unions;
To bargain collectively through representatives of
their own choosing;
To act together for collective bargaining or other
mutual aid or protection;
To refrain from any or all of these things
We will not do anything that interferes with these rights.
* * * * *
The National Labor Relations Board Found-
1. That the Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO, Local Union
Number 515, is the Union you have chosen, through a
secret ballot election , as your collective - bargaining
representative
2. That we refused to bargain with this Union about
wages, hours, and other conditions of employment.
3. That we changed some of your wage rates without
notifying the Union or bargaining with it about these
changes.
The Board ruled that our refusal to bargain with the
Union , and our unilateral change in wage rates, violated
the- National Labor Relations Act Accordingly , we give
you these assurances.
We recognize the Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO,
Local Union Number 515, as your exclusive bargaining
representative with respect to wages, hours, and other
conditions of employment
WE WILL, upon request , bargain with this Union over
the subjects described above.
* This notice is addressed to all production employees , including! shipping
and receiving employees , but excluding all office clerical employees,
maintenance employees , route salesmen , leadmen, floor ladies, guards and
supervisors as defined in the National Labor Relations Act, as amended
MRS. WEAVER'S SALADS 201
WE WILL NOT change your wage rates without This is an official notice and must not be defaced by
notifying the Union or bargaining with it anyone.
MRS. WEAVER'S This notice must remain posted for 60 consecutive days
SALADS, A DIVISION OF from the date of posting and must not be altered, defaced,
DEAN FOODS CO., INC. or covered by any other material
(Employer) Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
Dated By 746 Federal Office Building, 167 North Main Street,
(Representative) (Title) Memphis, Tennessee 38103, Telephone 901-534-3161.