Milwaukee Independent Meat Packers Association

National Labor Relations Board - Board Decisions

Apr 15, 1976

223 N.L.R.B. 922 (N.L.R.B. 1976)

922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Milwaukee Independent Meat Packers Association,
Employer-Petitioner and Meat & Allied Food
Workers Local Union No. 248 , AFL-CIO, affiliated
with Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO. Case 30-
RM-343
April 15, 1976
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Shirley A.
Bednarz. Following the Union's request, and pur-
suant to Section 102.67 of the National Labor Rela-
tions Board Rules and Regulations, Series 8, as
amended, by direction of the Regional Director for
Region 30, this case was transferred to the National
Labor Relations Board for decision. Thereafter, the
Petitioner and the Union filed briefs.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case and makes the following findings:
1. The Milwaukee Independent Meat Packers As-
sociation, hereinafter MIMPA or the Employer, is an
association of companies engaged in the meat proc-
essing and packaging industry. The association was
established in 1959 to promote and advance the meat
packing industry by various means, including the es-
tablishment of stable labor relations. The parties stip-
ulated that during the course of the past calendar
year, a representative period, MIMPA collectively,
through its members, purchased and received goods
valued in excess of $50,000 directly from points lo-
cated outside the State of Wisconsin.
The parties stipulated, and we find, that the Em-
ployer is engaged in commerce within the meaning of
the Act and it will effectuate the purposes of the Act
to assert jurisdiction herein.
2. The labor organization involved claims to rep-
resent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(l) and
2(6) and (7) of the Act.
4. The Employer seeks an election in a unit of all
production and maintenance employees, including
truckdrivers, employed by members of MIMPA, and
excluding office clerical employees, buyers, and su-
pervisors as defined in the Act. MIMPA further ar-
gues that employees presently working at the former
Northern Packing Company, Inc., hereinafter North-
ern, and United Packing Corp. Inc., hereinafter
United, facilities, now operated by MIMPA member
Peck Meat Packing Corporation, hereinafter Peck,
and its wholly owned subsidiary, Moo-Battue, Inc.,
are an accretion to the bargaining unit. The Meat &
Allied Food Workers Local Union No. 248, affiliated
with Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, hereinafter the
Union, on the other hand, asserts that the only ap-
propriate units are the employees at each of the
member companies. Stressing that it became collec-
tive-bargaining representative on a plant-by-plant
and employer-by-employer basis, the Union argues
that, upon proper notice, it can withdraw from col-
lective bargaining with MIMPA and resume bargain-
ing with the association members on an individual
basis. Further, the Union contends that at no time
has it consented to bargain with Moo-Battue, and the
Board should not compel it to do so contrary to its
wishes. In the alternative, the Union asserts that the
employees at Moo-Battue and Peck's expanded facil-
ities are not an accretion to the unit.
Since 1959 the Union and MIMPA have engaged
in collective bargaining. Over the years they have en-
tered into successive collective-bargaining agree-
ments, the latest of which expired on January 10,
1975. Member companies signing that contract were:
August Born & Son, Inc.; City Dressed Beef Compa-
ny; Donner Packing Company; Milwaukee Dressed
Beef Company; Milwaukee Meat & Provision Co.;
Nacker Packing; Northern Packing Company, Inc.;
Peck Meat Packing Corporation; South Side Compa-
ny; Strauss Bros. Packing Company; United Packing
Corp, Inc.; and Wisconsin Packing Co. Since execu-
tion of the last, now expired, agreement, a number of
the above companies have either left the association
or gone out of business, and at the time of the hear-
ing MIMPA consisted of seven members.
On January 25, 1975, when the Union commenced
an economic strike against MIMPA and its mem-
bers,' the bargaining unit consisted of approximately
750 employees. During the course of the strike many
MIMPA members replaced the strikers with new em-
ployees, and just prior to the filing of the RM peti-
tion several member companies discharged approxi-
mately 45 employees for alleged strike misconduct.
The Union filed unfair labor practice charges con-
1 There is no evidence before the Board that the strike has been terminat-
ed during or subsequent to the hearing.
223 NLRB No. 155
MEAT PACKERS ASSN. 923
cerning these discharges .2 Additionally, during the
course of the strike, two MIMPA members, North-
ern and United, ceased doing business and terminat-
ed their some 192 employees. Another member,
Peck, in its own name and through a wholly owned
subsidiary, Moo-Battue, Inc., took over facilities pre-
viously utilized by the defunct companies. To oper-
ate the new facilities, Peck and Moo-Battue transfer-
red employees from Peck's old plant, as well as hired
new employees.
Upon the present state of record, the issues before
the Board are the propriety of the Hearing Officer's
rulings at the hearing and the appropriate unit in
which to conduct the election.
1. PROCEDURAL ISSUES
At the preelection hearing held on January 12,
1976, Hearing Officer Bednarz limited the issues to
whether the employees working at the expanded
Peck and Moo-Battue facilities were an accretion to
the unit.
The Union, however, unsuccessfully sought to ex-
pand the range of issues to be litigated. Initially, the
Union moved to dismiss the petition on the basis that
"objective considerations" necessary to support the
RM petition were absent. Upon the Hearing
Officer's denial of its motion, the Union requested
that the Hearing Officer state on the record the basis
for the Regional Director's determination of objec-
tive considerations. The Hearing Officer denied this
request, ruling that the finding of objective consider-
ations is an administrative determination not subject
to litigation. The Union now excepts to the Hearing
Officer's refusal to state on the record the basis for
the Regional Director's determination that objective
considerations supporting the RM petition exist, as-
serting that it must be apprised of the reasons for the
Regional Director's conclusion so that it might raise
the legal sufficiency of that determination. We find
the Union's exception is without merit. The Regional
Director's finding that objective considerations exist,
like the showing of interest in a petition for certifica-
tion, is an administrative determination not subject
to litigation.'
The Union further sought to litigate the eligibility
to vote of: (1) striker replacements, (2) the 192 termi-
nated employees of Northern and United, and (3) the
approximately 45 discharged striking employees.
With regard to the former Northern and United em-
ployees, the Union argues that the Peck and Moo-
Battue operations at the newly acquired plants are
2 At the time of the hearing the Union had been advised of the Regional
Director's decision to proceed on five of the cases and to dismiss the re-
mainder.
3 United States Gypsum Company, 161 NLRB 601 (1966).
successors to the two former MIMPA companies.
Thus, the Union asserts that the former Northern
and United employees' employment rights continue
to date and that as unit members these employees are
eligible to vote. We find no merit to the Union's ex-
ceptions to the Hearing Officer's ruling precluding
litigation of this issue. Any rights to continued em-
ployment that the former Northern and United em-
ployees might presently have are directly related to
the propriety of the cessation of Northern and
United's business and transfer of the facilities to
Peck and Moo-Battue. As such, these rights and the
former employees' eligibility to vote are the subject
of unfair labor practice charges 4 It is well-estab-
lished Board policy that an unfair labor practice alle-
gation may not be litigated in a representation pro-
ceedings Thus, we find that the Hearing Officer
properly precluded the litigation of an unfair labor
practice allegation in this representation proceeding.
Accordingly, we affirm the Hearing Officer's ruling
that eligibility of the former Northern and United
employees to vote was not a proper issue at the hear-
ing herein.
As to the other eligibility issues, the Union urges
that since the large number of strike replacements
and discharged employees involved will necessarily
affect the election results, the Board should make a
preelection determination of their eligibility to vote.
We find no merit in the Union's contention. Well-
established Board policy provides for the resolution
of the eligibility of strike replacements 6 and dis-
charged employees' by the postelection challenge
procedure. Accordingly, we affirm the Hearing
Officer's rulings precluding litigation of these issues.
The Union also excepts to the Hearing Officer's
revocation of the subpoenas duces tecum served on
MIMPA and its members.' The Union contends that
° The Union filed unfair labor practice charges in which the Union's
successorship claim was in issue. The Regional Director dismissed those
charges. The Union, in its brief, asserts that this dismissal is now being
appealed to the General Counsel.
Texas Meat Packers, Inc., Texas Meat and Provision Co., et ai., 130
NLRB 279 (1961).
6 The Pipe Machinery Company, 76 NLRB 247 (1948).
McCarthy Enterprises, Inc., t/a Community Motors, 128 NLRB 60 (1960).
The Union sought to obtain the following information:
(1) employers payroll records after January 25, 1975, including
name, address, job classification, hourly wage rate, hours worked, gross
weekly earnings and any other payments made to employees;
(2) written documents or memoranda relating to (a) MIMPA re-
cruitment of employees after December 1, 1974 and (b) the terms of
any offers of employment made after January 1, 1975;
(3) written documents relating to the discharge of any striking em-
ployee after January 25, 1975;
(4) written documents and memoranda referring or relating to (a)
any employee joining the strike who subsequently returned to work, (b)
the conduct, and (c) any such employee's resignation from the Union;
and
(5) written documents and memoranda concerning (a) the cessation
of production operations and resignation from MIMPA by Northern,
Continued
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the information sought therein was not only related
to its successorship theory, precluded from litigation
by the Hearing Officer, but was also relevant to the
accretion issue. We find, in agreement with the Hear-
ing Officer, that, while some of the information
sought by the Union relates to the accretion issue,
the record developed at the hearing contains suffi-
cient evidence upon which to decide this case. Ac-
cordingly, we find that the Hearing Officer's ruling
revoking the subpoenas duces tecum did not prejudice
the Union.
Thus, the Board has reviewed the rulings of the
Hearing Officer made at the hearing and finds those
rulings free from prejudicial error. The rulings are
hereby affirmed.9
If. APPROPRIATE UNIT
In determining the appropriate unit for conducting
the election, we note, as indicated above, that since
1959 MIMPA and the Union have engaged in collec-
tive bargaining. on a multiemployer basis and that
over the years they have executed successive collec-
tive-bargaining agreements covering MIMPA mem-
bers' employees. Further, common work rules, manu-
al, and grievance procedure are in effect at each of
the member companies.
In such circumstances, we find no merit in the
Union's contention that only single-company units
are appropriate. There is no dispute that the parties
have enjoyed an uninterrupted successful history of
multiemployer collective bargaining. While the
Union is correct in its assertion that upon proper no-
tice it can withdraw from the multiemployer bargain-
ing, the Union herein has failed effectively to with-
draw from this multiemployer bargaining
relationship. In order to extricate itself from mul-
tiemployer bargaining, the Union must notify
MIMPA of its withdrawal from bargaining with the
Association before the commencement of negotia-
tions for a new agreement.1° Here, the Union first
(b) the commencement of operations by Peck at facilities previously
operated by Northern and (c ) the name, address , terms of employment,
hourly wages, hours worked and job classifications of any employee
working at the facilities formerly operated by Northern after August 1,
1975.
9 Following the Hearing Officer 's rulings limiting the hearing to the accre-
tion issue , the Union sought special leave to appeal . After arguments before
him, the Regional Director for Region 30 granted leave to appeal . Follow-
ing further arguments on the merits , the Regional Director affirmed the
Hearing Officer 's rulings, but also granted the Union 's request to transfer
the case to the Board.
10 Cf. Hearst Consolidated Publications, Inc., 156 NLRB 210 (1965); The
Evening News Association , Owner and Publisher of "The Detroit News," 154
NLRB 1494 (1965).
indicated its desire to discontinue bargaining with
MIMPA during the midst of ongoing negotiations
and only after the RM petition was filed. Such notice
does not satisfy the Board's requirements for effec-
tive withdrawal from multiemployer bargaining.
Thus, we find that the Union has not effectively
withdrawn from bargaining with MIMPA. There-
fore, we find that in light of the lengthy and success-
ful bargaining history the appropriate unit consists of
all the employees of MIMPA companies.
As noted above, during the course of the January
1975 strike, Northern and United went out of busi-
ness, and Peck and Moo-Battue, Inc., Peck's wholly
owned subsidiary, acquired the facilities of the two
defunct companies. Following the change in control,
the Union and striking employees continued to pick-
et Peck and Moo-Battue at these facilities. Contrary
to the Union's contentions that the employees at
these facilities are not properly included in the unit,
we find that the most recent collective-bargaining
agreement in effect between MIMPA and the Union
indicates an intent that these employees be included
within the unit. In this regard, the expired contract
provides:
30. Change in ownership, management or leas-
ing of any plant shall not serve to invalidate the
terms of this agreement. The new owner, new
management or new leassee or lessor shall im-
mediately assume all obligations under this
agreement.
While Peck has recently undergone a substantial
change in employee complement, it is still engaged in
the meat packing business at the former Northern
and United facilities. Thus we find that, pursuant to
the parties' intent as expressed in the applicable con-
tractual provision, Moo-Battue and Peck's expanded
operations fall under the scope of the collective-bar-
gaining agreement and that the employees at the
newly acquired facilities are properly included within
the bargaining unit.
Accordingly, we find that the following employees
constitute a unit appropriate for purposes of collec-
tive bargaining within the meaning of Section 8(b) of
the Act.
All production and maintenance employees, in-
cluding truckdrivers, employed by members of
the Milwaukee Independent Meat Packers Asso-
ciation and excluding office clerical employees,
buyers and supervisors as defined by the Act, as
amended.
[Direction of Election and Excelsior footnote omit-
ted from publication.]