Gooch Packing Co., Inc.

National Labor Relations Board - Board Decisions

Mar 8, 1971

188 N.L.R.B. 890 (N.L.R.B. 1971)

890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gooch Packing Company, Inc., and Gooch Blue Rib-
bon Meats, A Division of Gooch Packing Company
and Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, District Local
Union P-54. Case 16-CA-4154
March 8, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
BROWN
Upon a charge and an amended charge filed, re-
spectively, on October 21 and October 27, 1970, by
Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, District Local Union
P-54, herein called the Union, and duly served on
Gooch Packing Company, Inc., and Gooch Blue Rib-
bon Meats, a Division of Gooch Packing Company,
herein called the Respondent, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 16, issued a complaint on No-
vember 13, 1970, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair 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 a Trial Examiner were duly served
on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on September 14,
1970, following a Board election in Case 16-RC-5435
the Union was duly certified as the exclusive collec-
tive-bargaining representative of Respondent's em-
ployees in the unit found appropriate;' and that,
commencing on or about October 14, 1970, and at all
times thereafter, Respondent has refused, and conti-
nues to date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative, al-
though the Union has requested and is requesting it
to do so. On November 24, 1970, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint. The
Respondent admits that in the Board election con-
ducted on May 20, 1970, a majority of its employees
designated and selected the Union as their bargaining
representative and that on September 14, 1970, the
'Official notice is taken of the record in the representation proceeding,
Case 16-RC-5435 as the term "record" is defined in Secs . 102 68 and 102
69(f) of the Board ' s Rules and Regulations , Series 8, as amended See LTV
Electrosystems, Inc, 166 NLRB 938 , enfd 388 F 2d 683 (C.A 4, 1968),
Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello, 269 F
Supp . 573 (D C Va., 1967), Follett Corp, 164 NLRB 378, enfd 397 F 2d 91
(C.A 7, 1%8), Sec. 9(d) of the NLRA
Union was certified as the exclusive collective-bar-
gaining representative of the employees in the appro-
priate unit. However, the Respondent pleads lack of
knowledge to admit or deny that the Union is now,
and has been, the majority representative of its em-
ployees, and the Respondent denies that it has refused
to bargain with the Union in violation of Section
8(a)(5) and (1) of the Act.'
On December 23, 1970, counsel for the General
Counsel filed directly, with the Board a Motion to
Strike Portions of Respondent's Answer to Complaint
and Motion for Summary Judgment, alleging, inter
alia, that the Respondent's answer to the complaint
raises no factual issues warranting an evidentiary
hearing, and therefore requests the Board to grant the
Motion for Summary Judgment. Subsequently, on
January 6, 1971, the Board issued an order transfer-
ring the proceeding to the Board and a Notice To
Show Cause why the General Counsel's motions
should not be granted. Respondent thereafter filed a
Response to Notice To Show Cause. Subsequently,
the General Counsel filed a reply to the Respondent's
response.
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 powers
in connection with this case 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 Response to the Notice To Show Cause, enti-
tled an Offer of Proof, the Respondent contends that
it was denied a hearing on its objections to the elec-
tion; that it was denied the opportunity to present
evidence, to subpena and cross-examine witnesses;
that it was denied opportunity to have its attorney
present at the interview of witnesses ; and that the
Board's investigative agent failed to fairly investigate
and develop the evidence presented by the Respon-
dent in support of its objections. Accordingly, the
Respondent argues that it is entitled to an evidentiary
hearing in this unfair labor practice proceeding to
present witnesses and develop evidence in support of
2 By its answer the Respondent also denies paragraphs 9 and 10 of the
complaint , which allege that the Union has requested and the Respondent
has refused to bargain Attached to the General Counsel 's Motion for Sum-
mary Judgment are two letters dated September 16 and September 24, 1970,
together with signed return receipts from the United States Post Office De-
partment , which purport to be requests made by the Union for bargaining
and served on the Respondent by certified mail. In its Response to the Notice
To Show Cause , the Respondent neither alludes to nor seeks to controvert
the contents or the receipt of the letters attached to the General Counsel's
motion , nor does it aver that it responded , or intended to respond, to the
Union's requests for bargaining Accordingly , we find the Respondent's
denials of paragraphs 9 and 10 of the complaint to be frivolous, and we deem
these allegations of the complaint to be admitted . The May Department Stores
Company, 186 NLRB No. 17 and Carl Simpson Buick Inc, 161 NLRB 1389.
188 NLRB No. 127
GOOCH PACKING CO.
the alleged misconduct affecting the results of the
election and the impact that the alleged misconduct
had on the employees' free choice in the selection of
a bargaining representative.
We find no merit in the Respondent's contentions
and arguments. The election in Case 16-RC-5435 was
conducted pursuant to a Decision and Direction of
Election issued by the Regional Director on April 29,
1970; no request for review was filed with the Board.
Upon the conclusion of the election the parties were
served with a tally of ballots which reflected that of
157 eligible voters, 153 case ballots of which 76 were
case for the Union, 71 ballots were against the Union,
and 6 ballots, a number sufficient to affect the results
of the election, were challenged. Following the elec-
tion, the Employer filed timely objections.
Upon evidence supplied by the Respondent, the
Regional Director conducted an investigation of the
challenges and the objections, and thereafter, on Au-
gust 7, 1970, issued and caused to be served on the
parties his Supplemental Decision and Order, in
which he overruled the challenges to the ballots of
four voters, sustained the challenge to the ballot of
one voter, and reserved the opening and counting of
the ballot of the sixth challenged voter pending the
issuance of a revised tally of ballots. As to the
Respondent's objections to the election, the Regional
Director overruled the objections in their entirety,
and, accordingly, ordered that the ballots of the four
voters whose challenges were overruled be opened
and counted.
Thereafter, on August 17, 1970, the Respondent
filed with the Board a Request for Review, limited to
the Regional Director's determinations on the
Respondent's objections to the election and one chal-
lenged voter. In support of its Request for Review by
the Board, the Respondent advanced the same argu-
ments and contentions that it now advances as
grounds for denying the General Counsel's Motion
for Summary Judgment. Having considered the Re-
gional Director's Supplemental Decision and Order
and the contents of the Respondent's Request for
Review, the Board, by order dated September 2, 1970,
denied the Request for Review. A revised tally of
ballots dated September 8, 1970, reflected that 77 of
the 152 valid voters cast were cast for the Union.
Upon the foregoing, and having reviewed the rec-
ord in Case 16-RC-5435, as well as the record in the
instant unfair labor practice proceeding, we find no
grounds to support the Respondent's contention that
an evidentiary hearing is required in this unfair labor
practice proceeding. Although the Respondent in its
Response to the Notice To Show Cause alludes to the
evidence it could adduce if accorded the opportunity
for an evidentiary hearing, it has advanced no sugges-
tion that the proferred evidence is newly discovered or
891
unavailable to it during the course of the representa-
tion case proceeding.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances a respondent in a proceeding alleging 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.3
All issues raised by the Respondent in this proceed-
ing were or could have been raised in the prior repre-
sentation proceeding, and the Respondent does not
offer 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 properly litigable in this unfair labor practice
proceeding. We shall, accordingly, grant the Motion
for Summary Judgment .4
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times mate-
rial herein, a corporation duly organized and existing
by virtue of the laws of the State of Texas, maintain-
ing an office and place of business in Abilene, Texas,
at 800 Almond Street, herein called its plant, where it
is engaged in the business of killing and processing
beef and other meats and related products. During the
past year, the Respondent, in the course and conduct
of its business operations, sold and distributed prod-
ucts the gross value of which exceeded $100,000. Dur-
ing the same period of time, Respondent shipped and
transported products valued in excess of $50,000 from
its place of business in Abilene, Texas, in interstate
commerce directly to States of the United States other
than the State of Texas. During the same period of
time, Respondent received goods valued in excess of
$50,000 transported to its place of business in Abilene,
Texas, in interstate commerce directly from States of
the United States other than the State of Texas.
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 effectu-
ate the policies of the Act to assert jurisdiction herein.
7 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).
4 In view of our disposition herein, we shall deny the General Counsel's
Motion to Strike Portions of Respondent's Answer.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, District Local Union
P-54, is a labor organization within the meaning of
Section 2(5) of the Act.
III. 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 of
the Respondent employed at its Abilene, Texas,
plant including regular part-time employees,
plant clerical employees, laboratory employees,
warehousemen, loaders, freezermen, truckdriv-
ers, sanitation men, and leadmen, exclusive of
office clerical employees , salesmen, professional
employees, watchmen, guards, and supervisors as
defined in the Act.
2. The certification
On May 20, 1970, 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 16, designated the Union as their
representative 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 September 14, 1970, 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 September 16, 1970,
again on September 24 and October 19, 1970, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about October 14, 1970, 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.
Accordingly, we find that the Respondent has,
since October 14, 1970, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in-the ap-
propriate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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 the Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce 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, bargain collectively with the Union as the
exclusive representative of all employees in the appro-
priate unit, and, if an understanding is reached, em-
body 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 select-
ed bargaining agent for the period provided by law,
we shall construe the initial period of certification as
beginning on the date Respondent commences to bar-
gain in good faith with the Union as the recognized
bargaining representative in the appropriate unit. See
Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com-
merce 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).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Gooch Packing Company, Inc., and Gooch Blue
Ribbon Meats, a Division of Gooch Packing Compa-
ny, 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, AFL-CIO, District Local Un-
ion P-54, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employees of
the Respondent employed at its Abilene, Texas, plant
including regular part-time employees, plant clerical
employees, laboratory employees, warehousemen,
GOOCH PACKING CO.
loaders, freezermen, truckdrivers, sanitation men, and
leadmen, exclusive of office clerical employees, sales-
men, professional employees, watchmen, 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 September 14, 1970, the above-named la-
bor 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 14, 1970, 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 Respon-
dent in the appropriate unit, Respondent had 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
interfering 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 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
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 Rela-
tions Board hereby orders that Respondent, Gooch
Packing Company, Inc., and Gooch Blue Ribbon
Meats, a Division of Gooch Packing Company, 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 condi-
tions of employment with Amalgamated Meat Cut-
ters and Butcher Workmen of North America,
AFL-CIO, District Local Union P-:)4, as the exclu-
sive bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees of
the Respondent employed at its Abilene , Texas,
plant including regular part-time employees,
plant clerical employees, laboratory employees,
warehousemen , loaders, freezermen , truckdriv-
ers, sanitation men, and leadmen , exclusive of
office clerical employees , salesmen , professional
employees , watchmen , guards, and supervisors as
defined in the Act.
(b) In any like or related manner interfering with,
893
restraining, or coercing employees in the rights guar-
anteed 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 the Respondent's Abilene, Texas, plant
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the Re-
gional Director for Region 16, 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.
(c) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
S 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 be changed to 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
WE WILL NOT refuse to bargain collectively con-
cerning rates of pay, wages , hours, and other
terms and conditions of employment with Amal-
gamated Meat Cutters and Butcher Workmen of
North America , AFL-CIO, District Local Union
P-54, as the exclusive representative of the em-
ployees in the bargaining unit described below.
WE WILL NOT in any like or related manner in-
terfere 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,
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 production and maintenance employees
of the Respondent employed at its Abilene,
Texas, plant including regular part-time em-
ployees, plant clerical employees , laboratory
employees , warehousemen , loaders , freezer-
men, truckdrivers , sanitation men, and lead-
men, exclusive of office clerical employees,
salesmen, professional exmployees , watch-
men, guards , and supervisors as defined in
the Act.
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 8A24 Federal Office Building, 819
Taylor Street , Fort Worth, Texas 76102, Telephone
817-334-2921.
GOOCH PACKING COMPANY, INC.,
AND GOOCH BLUE RIBBON MEATS,
A DIVISION OF GOOCH PACKING
COMPANY
(Employer)