Northern States Beef, Inc.

National Labor Relations Board - Board Decisions

Jul 8, 1977

230 N.L.R.B. 711 (N.L.R.B. 1977)

NORTHERN STATES BEEF, INC.
Northern States Beef, Inc. and District Union No. 271
of Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO. Case 17-CA-
7402
July 8, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a charge filed on November 26, 1976, by
District Union No. 271 of Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, herein called the Union, and duly served
on Northern States Beef, Inc., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 17, issued a complaint and notice of hearing
on December 23, 1976, 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 November 4,
1976, following a Board election in Case 17-RC-
7731, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; 1 and that,
commencing on or about November 17, 1976, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represen-
tative, although the Union has requested and is
requesting it to do so. On January 3, 1977, Respon-
dent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On February 24, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 7,
1977, 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-
i Official notice is taken of the record in the representation proceeding,
Case 17-RC-7731, as the term "record" is defined in Secs. 102.68 and
10
2
.6
9
(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosvsrems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1%967). enfd. 415 F.2d 26
230 NLRB No. 110
dent failed to file a response to the 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
authority in this proceeding 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 answer to the complaint, Respondent admits
that it has refused to furnish information requested
by the Union but denies the request and refusal to
bargain and the Union's status as a labor organiza-
tion and as the exclusive bargaining representative of
Respondent's employees in the appropriate produc-
tion and maintenance unit. In her Motion for
Summary Judgment, counsel for the General Coun-
sel contends that the pleadings raise no factual issues
litigable in this proceeding and that summary
judgment is appropriate. We agree.
Review of the record, including that in the
underlying representation proceeding, Case 17-RC-
7731, shows that the Respondent moved for dismissal
of the Union's petition for a production and
maintenance unit on the grounds that the petition
was prematurely filed because the employee comple-
ment was an insubstantial and unrepresentative
segment of an expanding unit. After a hearing, the
Regional Director issued his Decision and Direction
of Election on July 3, 1975, concluding that the
current employee complement was representative
and substantial for purposes of conducting an
immediate election because Respondent's expansion
plans were largely conjectural and contemplated
changes would not involve any skills significantly
different from those currently required of employees.
Respondent filed a timely request for review basical-
ly contending that the record did not support the
Regional Director's conclusion. By telegram of
August 6, 1975, the Board denied Respondent's
request for lack of substantial issues warranting
review.
The election was held on August 8, 1975, and the
tally of ballots showed 14 votes for the Union, 15
against, and 6 challenged ballots. 2 The Union filed
timely objections to the election alleging, inter alia,
that Respondent had coerced employees by its
conduct, including (1) threats to close the plant if the
Union won, (2) discharge of employees because of
their organizational campaign activities, and (3)
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
2 The Arthur L. Morgan Union had been permitted to intervene and was
on the ballot but received no votes.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increasing wages immediately before the election.
The Union also filed an unfair labor practice charge
in Case 17-CA-6715 alleging that Respondent's
preelection conduct violated the Act. Subsequently,
the Regional Director issued a complaint on October
28, 1975, alleging, inter alia, that Respondent had
violated Section 8(a)(1) by its conduct including
threats to close the plant if the Union won the
election, and Section 8(a)(3) by discriminatorily
discharging three employees who had cast three of
the six challenged ballots. On November 3, 1975, the
Regional Director issued an order directing a hearing
on the objections and challenges and consolidating
the representation and unfair labor practice cases.
After the consolidated hearing, the Administrative
Law Judge issued his Decision on June 30, 1976, in
which he found, inter alia, that Respondent had
violated Section 8(a)(l) and (3) of the Act and in
which he recommended that the challenges to five of
the six challenged ballots be overruled and the
ballots be opened and counted, and that, since
certain of the Union's objections constituted grounds
for setting aside the election, a new election be held if
a majority of the votes were not cast for the Union.
Respondent filed exceptions to the Administrative
Law Judge's Decision and a brief in support,
basically reiterating its position with respect to the
objections, challenges, and unfair labor practices.
After considering the record and the Administrative
Law Judge's Decision in light of the exceptions and
briefs, the Board on October 13, 1976, issued a
Decision, Order, and Direction, 226 NLRB 365, in
which it affirmed the Administrative Law Judge's
rulings, findings, and conclusions, adopted his
recommended Order remedying the unfair labor
practice violations found,3 and directed that the
overruled challenged ballots be opened and counted
and, if the revised tally of ballots showed that the
Union received a majority of the votes cast, that it be
certified, otherwise that a second election be held.
On October 21, 1976, the revised tally of ballots
issued showing that the Union had won and, absent
objections to the revised tally, the Regional Director
certified the Union on November 4, 1976.
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
3 A petition for enforcement of the Board's Order is currently pending
before the Eighth Circuit Court of Appeals. N.L.R.B. v. Northern States
Beef, Inc., Docket 77-1091.
4 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).
5 In its answer to the complaint Respondent denies the status of the
Union as a labor organization within the meaning of Sec. 2(5) of the Act and
the request and refusal to bargain. As the Union's status as a statutory labor
organization was determined in the representation case, it may not be
relitigated herein. With respect to the request and refusal to bargain.
to relitigate issues which were or could have been
litigated in a prior representation proceeding.4
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.
We therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.5 We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation maintaining a
facility in Omaha, Nebraska, where it is engaged in
the breaking and boning of carcass beef for wholesal-
ing. In the course and conduct of its operations
within the State of Nebraska, the Respondent
annually purchases goods and services valued in
excess of $50,000 directly from sources located
outside the State of Nebraska, and annually sells
products valued in excess of $50,000 directly to
customers outside the State of Nebraska.
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
District Union No. 271 of Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
Respondent's answer admits that Respondent received a letter dated
November 10, 1976, from the Union, requesting information and that, by
letter of November 17, 1976, to the Union, Respondent declined to enter
into negotiations. Since the Board has found that a request for relevant
information constitutes a request for bargaining and that a refusal to honor
such a request constitutes a refusal to bargain (Richmond, Division of Pak-
Well, 206 NLRB 260 (1973)), we find Respondent's denial of a request and
refusal to bargain frivolous and the denials are stricken. Accordingly, we
deem the paragraphs of the complaint alleging a request and refusal to
bargain to be true.
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NORTHERN STATES BEEF, INC.
III. THE 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
including breakers, boners, trimmers, packers,
palletizers, maintenance, janitorial, and truck
drivers/loaders employed by Northern States
Beef, Inc., at its Omaha, Nebraska, facility, but
excluding all office clerical employees, profession-
al employees, guards, and supervisors as defined
in the Act, all sales personnel, and all other
employees.
2. The certification
On August 8, 1975, 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 17, designated the Union as their
representative for the purpose of ccllective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on November 4, 1976, 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 November 10, 1976, 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 and to
furnish information necessary for the purpose of
collective bargaining. Commencing on or about
November 17, 1976, 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 and to
furnish the Union with information necessary for the
purpose of collective bargaining.
Accordingly, we find that the Respondent has,
since November 17, 1976, 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,
and to furnish the Union, upon request, information
necessary for collective bargaining.
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 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Northern States Beef, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. District Union No. 271 of Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees
including breakers, boners, trimmers, packers, palle-
tizers, maintenance, janitorial, and truck dri-
vers/loaders employed by Northern States Beef, Inc.,
at its Omaha, Nebraska, facility, but excluding all
713
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office clerical employees, professional employees,
guards, and supervisors as defined in the Act, all
sales personnel, and all other employees, constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since November 4, 1976, 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 November 17, 1976,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, and to
furnish information necessary for collective bargain-
ing, 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 the Respondent,
Northern States Beef, Inc., Omaha, Nebraska, 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 District Union No.
271 of Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees
including breakers, boners, trimmers, packers,
palletizers, maintenance, janitorial, and truck
drivers/loaders employed by Northern States
Beef, Inc., at its Omaha, Nebraska, facility, but
excluding all office clerical employees, profession-
al employees, guards, and supervisors as defined
in the Act, all sales personnel, and all other
employees.
(b) Refusing to furnish the above-named Union,
upon request, information necessary for the purpose
of collective bargaining.
(c) 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, and furnish the Union, upon
request, information necessary for the purpose of
collective bargaining.
(b) Post at its Omaha, Nebraska, facility copies of
the attached notice marked "Appendix." 6 Copies of
said notice, on forms provided by the Regional
Director for Region 17, 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 thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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 17, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 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 District
Union No. 271 of Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-
CIO, as the exclusive representative of the
employees in the bargaining unit described below.
WE WILL NOT refuse to furnish the above-
named Union, upon request, information neces-
sary for the purpose of collective bargaining.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
714
NORTHERN STATES BEEF, INC.
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, and furnish the Union, upon request,
information necessary for the purpose of collec-
tive bargaining. The bargaining unit is:
All production and maintenance employ-
ees including breakers, boners, trimmers,
packers, palletizers, maintenance, janitorial,
and truck drivers/loaders employed by
Northern States Beef, Inc., at its Omaha,
Nebraska, facility, but excluding all office
clerical employees, professional employees,
guards, and supervisors as defined in the
Act, all sales personnel, and all other
employees.
NORTHERN STATES BEEF,
INC.
715