Knapp-Sherrill Co.

National Labor Relations Board - Board Decisions

Feb 10, 1984

268 N.L.R.B. 800 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Knapp-Sherrill Company and United Food and Com-
mercial Workers International Union, AFL-
CIO, Local No. 171. Case 23-CA-8088
10 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
Upon a charge filed by the Union 11 August
1980, the General Counsel of the National Labor
Relations Board issued an amended complaint 14
February 19831 against the Company, the Re-
spondent, alleging that it has violated Section
8(a)(5) and (1) of the National Labor Relations
Act.
The amended complaint alleges that the Union is
the exclusive collective-bargaining representative
of the Company's employees in the unit found ap-
propriate. (Official notice is taken of the "record"
in the representation proceeding as defined in the
Board's Rules and Regulations, Secs. 102.68 and
102.69(g), amended Sept. 9, 1981, 46 Fed.Reg.
45922 (1981); Frontier Hotel, 265 NLRB 343 (Nov.
9, 1982).) The amended complaint further alleges
that since 29 July 1980 the Company has refused to
bargain with the Union and to furnish the Union
with certain information necessary for and relevant
to the Union's performance of its duties as the em-
ployees' collective-bargaining representative. On 4
March 1983 the Company filed its answer admit-
ting in part and denying in part the allegations in
the complaint.
On 21 March 1983 the General Counsel filed a
Motion for Summary Judgment. On 25 March 1983
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the motion should not be granted. The Company
filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
In its answer to the amended complaint and re-
sponse to the Notice to Show Cause, the Respond-
ent admits that it has refused to bargain with the
Union and that it has refused to provide the neces-
sary and relevant information requested by the
Union. The Respondent denies, however, that it
has violated Section 8(a)(5) and (1) by its actions.
The Respondent asserts its doubt that the Union is
the lawful successor to Amalgamated Meat Cut-
ters, AFL-CIO, Local No. 173. The Respondent
I The original complaint was issued 26 September 1980.
268 NLRB No. 114
also claims that it has a good-faith doubt as to the
Union's majority status in the appropriate bargain-
ing unit. The General Counsel contends that the
successorship question has been answered by the
Board in a related representation proceeding, Case
23-AC-42, and that the majority status of the
Union also has been considered by the Board in an-
other related representation proceeding, Case 23-
RM-383. The- General Counsel contends that the
Respondent is attempting to relitigate the issues it
raised in the two related representation proceed-
ings. We agree with the General Counsel.
Our review of the entire record herein, including
the records in the two related representation pro-
ceedings, reveals the following: In 1972, Amalga-
mated Meat Cutters Local No. 173, herein referred
to as Local 173, was certified in Case 23-RC-3595
as the representative of the Company's production
and maintenance employees. Thereafter, the Re-
spondent and Local 173 entered into a series of
collective-bargaining agreements, the most recent
of which was effective from 30 September 1977
through 29 September 1980.
In late 1977, negotiations were conducted by
Local 173's leadership towards a merger of Local
173 with Amalgamated Meat Cutters Local Union
No. 171, herein Local 171. The merger was ap-
proved and effective 2 January 1978 Local 171
became the surviving local union. The Respondent
agreed to recognize Local 171 as the representative
of its employees and as the contracting union in the
existing agreement originally signed by Local 173.
On 12 August 1980 Local 171 filed a petition in
Case 23-AC-42 seeking to amend the 1972 certifi-
cation in Case 23-RC-3595. Local 171 requested
that the name of the originally designated repre-
sentative, Local 173, be deleted and that United
Food and Commercial Workers International
Union, AFL-CIO, Local Union No. 171, be substi-
tuted therefor.
At the hearing, the Respondent opposed the
amendment to certification for two reasons: (1) the
merger of Local 173 and Local 171 resulted in a
different entity rather than in the continuation of
former Local 173; and (2) the 1979 merger of the
Retail Clerks International Association, AFL-CIO,
with the Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, which re-
sulted in the creation of the United Food and Com-
mercial Workers International Union, AFL-CIO-
CLC, created an entity which is not the legal suc-
cessor to either of the merged unions. On 25 Sep-
tember 1980 the Regional Director for Region 23
issued a Decision and Order Amending Certifica-
tion of Representative.
800
KNAPP-SHERRILL CO.
The Respondent filed a request for review of the
Regional Director's decision. On 13 August 1982
the Board issued its Decision on Review.2 The
Board, after a full discussion of all the issues, essen-
tially approved the merger of Local 173 and Local
171 finding, in any event, that under the circum-
stances the Respondent was estopped from chal-
lenging the procedures involved in the merger. 3
The Board also found that Local 171 was a con-
tinuation of Local 173. With regard to the Re-
spondent's contention that the Union is not a suc-
cessor to Local 171, the Board noted that it had
previously affirmed the merger of the two Interna-
tional unions 4 and that the change in name of the
certified union from Local 173 to the Union did
not affect the continuity of representation. Thus, it
appears that, with regard to the successorship issue,
the Respondent is attempting to raise issues which
were raised and determined in Case 23-AC-42.
As noted, the Respondent also claims that it has
a good-faith doubt that the Union represents a ma-
jority of its employees in the appropriate unit. On
31 July 1980 the Respondent filed a petition in
Case 23-RM-383. By letter dated 2 December 1982
the Regional Director for Region 23 dismissed the
petition finding that it did not raise a question con-
cerning representation. The Regional Director
noted the Board had resolved the successorship
question in its published decision in Knapp-Sherrill,
supra, and that the Board had issued a complaint in
the instant case alleging the Respondent's unlawful
refusal to bargain with the Union. The Regional
Director indicated that, in view of the Board's dis-
position of the AC petition and the outstanding
complaint, the Respondent may not raise a question
concerning representation. Thereafter, the Re-
spondent filed a request for review of the dismissal
of its petition, reiterating that objective consider-
ations existed which form the basis for its good-
faith doubt of the Union's majority status, and that
the Board acted on its RM petition in Case 23-
AC-42, some 2 years later. On 27 January 1983 the
Board denied the Respondent's request for review
noting that there was an outstanding complaint
2 263 NLRB 396 (1982).
3 Then Chairman Van de Water and Member Hunter relied solely on
the estoppel theory in deciding the case. Chairman Dotson was not on
the Board at the time of its previous decision in 263 NLRB 396 Howev-
er, the Chairman agrees with the rationale of Member Hunter and then
Chairman Van de Water that the Company was estopped in raising the
merger issue. Chairman Dotson disavows any other rationale in that pre-
vious decision.
Member Dennis agrees that the Respondent's voluntary recognition of
Local 171 estops it from challenging the procedures employed in the
merger of the two locals, as the Board found in the previous decision,
263 NLRB 396, and relies solely on that ground and on the Board's find-
ing that Local 171 is a successor to Local 173 in granting the Motion for
Summary Judgment.
4 Warehouse Groceries Management, 254 NLRB 252, 256 (1981); Texas
Plastics, 263 NLRB 394 (1982).
containing allegations that precluded a question
concerning representation from being raised at that
time. 5 Thus it appears that, with regard to this
issue also, the Respondent is attempting to reliti-
gate matters already settled in a related representa-
tion proceeding.
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations.
All issues raised by the Company were or could
have been litigated in the prior representation pro-
ceeding. The Company does not offer to adduce at
a hearing any newly discovered and previously un-
available evidence, nor does it allege any special
circumstances that would require the Board to re-
examine the decision made in the representation
proceeding. We therefore find that the Company
has not raised any issue that is properly litigable in
this unfair labor practice proceeding. Accordingly,
we grant the Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company, a Texas corporation, is engaged
in the manufacture, processing, and sale of citrus
juice and vegetables at its facility in Donna, Texas,
where it annually sold and shipped products,
goods, and materials valued in excess of $50,000 di-
rectly to points outside the State of Texas. We find
that the Company is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
On 20 June 1972 former Local 173 was certified
in Case 23-RC-3595 as the collective-bargaining
representative in said unit. As previously noted,
pursuant to a valid merger, and pursuant to a deci-
sion of the Board, that Certification of Representa-
tive was amended to substitute the Union for Local
173. The Union is the exclusive representative of
s Member Hunter dissented, as he would have reinstated the petition
and consolidated it with the instant unfair labor practice case.
801
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees in the following appropriate unit
within the meaning of Section 9(a) of the Act.
All production and maintenance employees in-
cluding truckdrivers and warehousemen em-
ployed by the Respondent at its Donna, Texas
plant, excluding all fieldmen, office clerical
employees, guards, watchmen and supervisors
as defined in the Act.
B. Refusal to Bargain and the Respondent's
Refusal
Since 15 July 1980 the Union has requested the
Company to bargain, and since 29 July 1980 the
Company has refused. We find that this refusal
constitutes an unlawful refusal to bargain in viola-
tion of Section 8(a)(5) and (1) of the Act.
C. The Request to Furnish Information and the
Respondent's Refusal
Since on or about 9 July 1980 the Union has re-
quested that the Respondent furnish it with the fol-
lowing information:
1. The names of all the employees in the
bargaining unit, addresses, the date of hire, the
rates of pay, dates of birth, marital status, job
classification, department, and any other perti-
nent information to the employees.
2. A copy, if any, of any profit and/or pen-
sion fund plan, the amount of the Employer
and employee contributions.
3. A copy, if any, of all rules and regulations
governing the conduct of employees.
Since on or about 29 July 1980 the Respondent
has failed and refused, and continues to fail and
refuse, to furnish the Union with the information
requested.
By letter dated 5 November 1982 the Union re-
quested that the Respondent furnish it not only
with the information described above, but also with
the following additional information:
1. Number of dependents of each employee.
2. Description of any and all fringe benefits
currently provided to all employees such as
holiday, jury duty payment, funeral pay, paid
vacations, etc., including health and welfare,
total cost, company share of expense and em-
ployee's share of expense.
3. Job descriptions.
4. If merit wages are provided, the names,
amount of merit increases, the date such merit
increases were provided, the method and/or
procedure used to provide such merit in-
creases.
The Respondent has failed and refused, and con-
tinues to fail and refuse, to provide the additional
information requested by the Union.
The information requested, as described above, is
necessary for, and relevant to, the Union's perform-
ance of its function as the exclusive collective-bar-
gaining representative of the employees in the ap-
propriate unit.
CONCLUSIONS OF LAW
By refusing on and after 29 July 1980 to bargain
with the Union as the exclusive collective-bargain-
ing representative of employees in the appropriate
unit, and by refusing on and after 29 July 1980 to
furnish the Union with certain requested informa-
tion necessary and relevant for the purposes of col-
lective-bargaining, the Company has engaged in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order it
to cease and desist, to bargain on request with the
Union, and, if an understanding is reached, to
embody the understanding in a signed agreement.
As we have also found that the Respondent violat-
ed Section 8(a)(5) and (1) of the Act by failing and
refusing to provide the Union with certain informa-
tion, we shall order the Respondent to furnish the
Union with such information.
ORDER
The National Labor Relations Board orders that
the Respondent, Knapp-Sherrill Company, Donna,
Texas, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with United Food and
Commercial Workers International Union, AFL-
CIO, Local No. 171, as the exclusive bargaining
representative of the employees in the bargaining
unit.
(b) Refusing to bargain with the above-named
labor organization by refusing to furnish the re-
quested information relevant and necessary for the
purpose of collective bargaining.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
802
KNAPP-SHERRILL CO.
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All production and maintenance employees in-
cluding truckdrivers and warehousemen em-
ployed by the Respondent at its Donna, Texas
plant excluding all field men, office clerical
employees, guards, watchmen and supervisors
as defined in the Act.
(b) Upon request, furnish the above-named labor
organization with the following information: the
names of all employees in the bargaining unit, ad-
dresses, dates of hire, rates of pay, dates of birth,
marital status, number of dependents, job classifica-
tion and description department, any other infor-
mation pertinent to the employees; a copy, if any,
of any profit and/or pension fund plan, the amount
of the employer and employee contributions; a
copy, if any, of all rules and regulations governing
the conduct of employees; a description of any and
all fringe benefits currently provided to all employ-
ees such as holiday, jury duty payment, funeral
pay, paid vacation, etc., including health and wel-
fare, total cost, company share of expense and em-
ployee's share of expense; and, if merit wages are
provided, the names, amount of merit increases, the
date such merit increases were provided, and the
method and/or procedures used to provide such
merit increases.
(c) Post at its facility in Donna, Texas, copies of
the attached notice marked "Appendix." 6 Copies
of the notice, on forms provided by the Regional
Director for Region 23, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPL OYEES?
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with United
Food and Commercial Workers International
Union, AFL-CIO, Local No. 171, as the exclusive
representative of the employees in the bargaining
unit.
WE WILL NOT refuse to provide the Union with
the requested relevant and necessary information
described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit:
All production and maintenance employees in-
cluding truckdrivers and warehousemen em-
ployed by the Employer at its Donna, Texas
plant excluding all field men, office clerical
employees, guards, watchmen and supervisors
as defined in the Act.
WE WILL, upon request, provide the Union with
the following information: the names of all employ-
ees in the bargaining unit, addresses, dates of hire,
rates of pay, dates of birth, marital status, number
of dependents, job classification and description,
department, and any other information pertinent to
the employees; a copy, if any, of any profit and/or
pension fund plan, the amount of the employer and
employee contributions; a copy, if any, of all rules
and regulations governing the conduct of employ-
ees; a description of any and all fringe benefits cur-
rently provided to all employees such as holiday,
jury duty payment, funeral pay, paid vacation, etc.,
s If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
803
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including health and welfare, total cost, company
share of expa ses and employee's share of expense;
and, if merin wages are provided, the names,
amount of merit increases, the date such merit in-
creases were provided, and the method and/or pro-
cedure used to provide such merit increases.
KNAPP-SHERRILL COMPANY
804