Knapp-Sherrill Co.

National Labor Relations Board - Board Decisions

Jan 12, 1973

201 N.L.R.B. 223 (N.L.R.B. 1973)

KNAPP-SHERRILL COMPANY 223
Knapp-Sherrill Company and Amalgamated Meat
Cutters & Butcher Workmen of North America,
AFL-CIO, Local 173. Case 23-CA-4484
January 12, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING, JENKINS, AND PENELLO
Upon a charge filed on August 23, 1972, by
Amalgamated Meat Cutters & Butcher Workmen of
North America, AFL-CIO, Local 173, herein called
the Union, and duly served on August 23, 1972, by
Knapp-Sherrill Company, herein called the Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 23, issued a complaint on September 6, 1972,
against Respondent, alleging that Respondent 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
complaint alleges in substance that on June 20, 1972,
following a Board election in Case 23-RC-3595 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;1 and that, commenc-
ing on or about July 25, 1972, and at all times
thereafter, 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 September 15, 1972, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint.
On September 21, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on October 6,
1972, the Board issued an order transferring 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 response to Notice To Show
Cause.
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 response to the
motion for summary judgment, Respondent basically
contends that the Board improperly certified the
Union by failing to sustain challenges to 12 ballots
cast by seasonal employees. The General Counsel
maintains that the Respondent is attempting to
relitigate the issues it raised in the related representa-
tion proceeding. We find merit in the General
Counsel's position.
The record in the representation case,
23-RC-3595, reflects that, pursuant to a Stipulation
for Certification Upon Consent Election, an election
was conducted on April 29, 1971, which resulted in a
vote of 85 to 84 in favor of the Union, with 18 ballots
challenged. Both parties filed objections to the
conduct of the election, none of which are in issue
here.
After investigation, the Regional Director directed
a hearing, which was conducted on July 27, 1971, on
the issues raised by the objections and challenged
ballots. Thereafter, on October 5, 1971, the Hearing
Officer issued his Report and Recommendations, in
which he recommended that the challenges to 5
ballots be sustained and that the challenges to the
remaining 13 ballots be overruled. Twelve of the 13
ballots, the challenges to which were overruled,
involved I1 temporary employees and 1 regular
seasonal employee who, the Respondent argued,
were ineligible to vote under the stipulation agree-
ment because they were not employed during the
eligibility period. However, the Hearing Officer
found that they had a reasonable expectation of
substantial employment from year to year, and were
therefore eligible to vote. The Respondent filed
exceptions to the report, and a supporting brief
alleging, inter alia, that only 1 of the 13 remaining
ballots should have been counted, and that the
challenges to the other 12 ballots should have been
sustained pursuant to the intent of the parties under
the stipulation.
On May 15, 1972, the Board issued its Decision
and Direction 2 in which it adopted the Hearing
Officer's recommendations, sustained the challenges
to 5 ballots and overruled the challenges to the
remaining 13 ballots, including the 12 disputed by
Respondent. Accordingly, it directed the Regional
Director to open and count the 13 ballots and issue a
revised tally of ballots.
Subsequently, the Respondent timely filed a
motion for leave to file a motion for rehearing which
1 Official notice is taken of the record in the representation proceeding , F.Supp . Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello,
Case 23-RC-3595, as the term "record" is defined in Sees . 102.68 and 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd 397
102.69(f) of the Board 's Rules and Regulations , Series 8, as amended See F.2d 91 (C.A. 7, 1968); Sec 9(d) of the NLRA.
LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F 2d 683 (C.A. 4, 1968); 2 196 NLRB No. 106, Chairman Miller dissenting.
Golden Age Beverage Co., 167 NLRB 151; Intertype Co v. Penello, 269
201 NLRB No. 20
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board denied on May 24, 1972, on the grounds
that it contained nothing that had not previously
been considered by the Board. Thereafter, the
Regional Director opened the 13 ballots and issued a
revised tally of ballots which showed 93 votes for,
and 88 votes against the Union, with 1 ballot void.
On May 31, 1972, Respondent filed an objection to
the revised tally of ballots, reiterating its argument
with respect to the 12 ballots. The Regional Director
on June 2, 1972, issued his Supplemental Report on
Employer's Objection to Revised Tally of Ballots,
recommending that the Board overrule the objection
and issue a Certification of Representative. On June
20, 1972, the Board, in the absence of exceptions to
the Regional Director's report, issued its Supplemen-
tal Decision and Certification of Representative
adopting the recommendations of the Regional
Director, overruling Respondent's objection and
certifying the Union.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances 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
proceeding were or could have been litigated in the
prior representation 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.4
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.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a partnership with its principal office and
place of business located at 331 South 12th Street,
Donna, Texas, where it is engaged in the business of
3 See Pittsburgh Plate Glass Co v NL. R.B, 313 US . 146, 162 ( 1941),
Rules and Regulations of the Board , Secs 102.67(f) and 102 .69(c).
4 Attached to the response to the Notice To Show Cause is the affidavit
of Mr . Scott Toothaker, an attorney who represented Respondent in
preparing the election stipulation in the representation proceeding,
concerning the intent of the parties to the stipulation with respect to the
voting eligibility of "temporary seasonal employees ." Despite the affiant's
statement that he was unable to participate in the hearing on the challenged
ballots due to "unavoidable conflicts in schedule ," it does not appear that
he requested a postponement . Further , Respondent 's C. M. Sherrill, Jr.,
processing, canning, and shipping of vegetables and
fruits.
During the preceding 12 months, which period is
representative of all times material herein, Respon-
dent, in the course and conduct of its business
operation, made sales of products valued in excess of
$50,000, directly to customers located outside the
State of Texas.
We find, on the basis of the foregoing, that
Respondent 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 INVOLVED
Amalgamated Meat Cutters & Butcher Workmen
of North America, AFLA-CIO, Local 173, 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
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees at
the Employer's Donna, Texas facilities, including
warehousemen and truck drivers, excluding all
office clerical employees, field men, guards,
watchmen and supervisors as defined in the Act.
2. The certification
On April 29, 1971, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 23 designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on June 20, 1972, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
testified at the heanng on the challenged ballots regarding the execution
and understanding of the parties to the stipulation based on advice by Mr
Toothaker. In these circumstances, Mr. Toothaker's affidavit does not
constitute newly discovered or previously unavailable evidence or special
circumstances Further, as the Board noted in fn 2 of its Decision and
Direction herein , provisions in the parties ' preelection stipulation do not
always preclude the Board from subsequently determining employees'
voting eligibility in accord with customary precedent and policies under
which it is normal to consider the identity of interests prevailing between
employees concededly in the unit and others whose status is contested.
KNAPP-SHERRILL COMPANY 225
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about July 3, 1972, and at all
times thereafter , the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective -bargaining representative of all
the employees in the above -described unit. Com-
mencing on or about July 25, 1972, 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 representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since July 25 , 1972, and at all times . thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit , and that , by such refusal , Respon-
dent 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 its opera-
tions described in section I, above , have a close,
intimate , 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 com-
merce.
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
appropriate unit , and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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).
The Board , upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. Knapp-Sherrill Company is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Amalgamated Meat Cutters & Butcher Work-
men of North America , AFL-CIO, Local 173, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All production and maintenance employees at
the Employer's Donna , Texas , facilities , including
warehousemen and truck drivers , excluding all office
clerical employees , field men , guards , watchmen 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 June 20, 1972 , the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about July 25, 1972, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit , 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 , Respon-
dent has interfered with , restrained , and coerced, and
is interfering with , restraining, and coercing, employ-
ees 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 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
Relations Board hereby orders that Respondent,
Knapp-Sherrill Company, its officers , agents, succes-
sors, 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 & Butcher Workmen of North America,
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL-CIO, Local 173, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All production and maintenance employees at
the Employer's Donna, Texas facilities, including
warehousemen and truck drivers, excluding all
office clerical employees, field men, guards,
watchmen 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Donna, Texas, facilities copies of the
attached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional Director
for Region 23 after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous 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 23 in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
CHAIRMAN MILLER, dissenting:
I dissented in the Decision and Direction in Case
23-RC-3595 as in my view the Respondent's
interpretation of the stipulation has validity and I
would so interpret the stipulation. Further, the
record herein falls short of establishing that the
seasonal employees had any genuine likelihood of
reemployment. I therefore would not grant the
General Counsel's Motion for Summary Judgment
as I do not agree with the conclusion herein that
Respondent violated Section 8(a)(5) and (1) by
refusing to bargain with the Union.
5 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."
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
concerning rates of pay , wages, hours, and other
terms and conditions of employment with Amal-
gamated Meat Cutters & Butcher Workmen of
North America , AFL-CIO, Local 173, as the
exclusive representative of the employees in the
bargaining unit described below.
WE WILL 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.
WE WILL, upon request , bargain with the
above-named Union , as the exclusive representa-
tive of all employees in the bargaining unit
described 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 agree-
ment . The bargaining unit is:
All production and maintenance employees at
the Employer 's Donna, Texas facilities , including
warehousemen and truck drivers, excluding all
office clerical employees , field men , guards,
watchmen and supervisors as defined in the Act.
KNAPP-SHERRILL
COMPANY
(Employer)
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, Dallas-Brazos Building, 1125 Brazos
Street, Houston, Texas 77002, Telephone
713-226-4296.