Odom Sausage Co.

National Labor Relations Board - Board Decisions

Jun 2, 1981

256 N.L.R.B. 284 (N.L.R.B. 1981)

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Odom Sausage Co., Inc. of Arkansas and Food Han-
dlers Local 425 of the United Food and Com-
mercial Workers International Union, AFL-
CIO. Case 26-CA-8758
June 2, 1981
DECISION AND ORDER
Upon a charge filed on November 26, 1980, by
Food Handlers Local 425 of the United Food and
Commercial Workers International Union, AFL-
CIO, herein called the Union, and duly served on
Odom Sausage Co., Inc. of Arkansas, herein called
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 26, issued a complaint on December 10,
1980, 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 and 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 October 16,
1980, following a Board election in Case 26-RC-
6209, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about November 17, 1980,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collec-
tively with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On December 17,
1980, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint.
On January 13, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on January 16,
1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
Upon the entire record in this proceeding, the
Board makes the following:
t Official notice is taken of the record in the representation proceed-
ing, Case 26-RC-6209, as the term "record" is defined in Secs. 102.68
and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended
See LTV Electrosysrems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91
(7th Cir. 1968): Sec. 9(d) of the NLRA, as amended.
256 NLRB No. 45
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to
the Notice To Show Cause, Respondent admits its
refusal to bargain, but denies that it thereby violat-
ed Section 8(a)(5) and (1) of the Act, arguing that
the election held on May 30, 1980, should have
been set aside for the reasons set forth in its "Ex-
ceptions to Regional Director's Report on Objec-
tions to Election." However, Respondent states
that it has no objection to the entry of an order by
the Board holding that Respondent has violated
Section 8(a)(5) and (1) of the Act, solely for the
purpose of testing in court the action of the Re-
gional Director and of the Board in refusing to set
aside the election in Case 26-RC-6209. Respondent
also asserts that, since the Regional Director did
not conduct a hearing on Respondent's objections
to the election, all affidavits referred to and relied
on in his Report on Objections should be included
in and made part of the record in Case 26-RC-
6209.
A review of the record herein, including the
record in Case 26-RC-6209, shows that on May
30, 1980, an election was held pursuant to a Stipu-
lation for Certification Upon Consent Election in
which a majority of the unit employees in the stip-
ulated unit designated the Union as their repre-
sentative for the purpose of collective bargaining.
Thereafter, Respondent filed timely objections to
the conduct of the election which stated the fol-
lowing: (1) that the sample ballot of the notice of
election and the ballots used in the election omitted
the question "Do you wish to be represented for
purposes of collective bargaining -?" and that this
omission caused confusion among the voters which
made objective voting impossible; and (2) that
threats to other employees by various members of
the Union's in-plant committee during the 3 or 4
days immediately preceding the election fatally de-
stroyed necessary "laboratory conditions." These
objections were overruled in their entirety by the
Regional Director in his Report on Objections,
issued July 25, 1980. Thereafter, Respondent filed
with the Board its exceptions to the Regional Di-
rector's Report on Objections essentially reiterating
the allegations and contentions set forth in its ob-
jections and citing additional authority in support
thereof. On October 16, 1980, the Board issued its
Decision and Certification of Representative 2 in
which it adopted the Regional Director's findings
and recommendations and certified the Union as
the exclusive bargaining representative of the em-
ployees in the appropriate unit. Subsequently, on
October 28, 1980, Respondent filed a "Petition to
2 Not reported in bound volumes of Board Decisions.
ODOM SAUSAGE CO. 285
Rehear" which was denied by the Board in an
order dated November 7, 1980.3
By letter dated November 12, 1980, the Union
requested Respondent to recognize it as the exclu-
sive collective-bargaining representative of Re-
spondnt's employees in the appropriate unit and to
bargain with it collectively as the exclusive collec-
tive-bargaining representative of such employees.
By letter dated November 17, 1980, and at all times
thereafter, Respondent refused, and is continuing to
refuse, to recognize and bargain with the Union as
the exclusive bargaining representative of the unit
employees.
Respondent seeks to justify its refusal to recog-
nize and bargain with the Union asserting that the
Regional Director and the Board erred in not set-
ting aside the election in Case 26-RC-6209 on the
grounds set out by Respondent in its objections to
the conduct of the election. These objections were
found to be without merit in the Board's Decision
adopting the Regional Director's findings and rec-
ommendations that Respondent's objections to the
election be overruled and the Union certified. Fur-
ther, Respondent's contentions regarding its objec-
tions were rejected by the Board in its dismissal of
Respondent's petition to rehear. It thus appears Re-
spondent is attempting to raise herein issues that
were raised, considered, and resolved in the under-
lying representation case.
Further, we find no merit to Respondent's con-
tention that the affidavits referred to and relied on
by the Regional Director in his Report on Objec-
tions should be made part of the record in Case
26-RC-6209. The Board has consistently held that
affidavits submitted to a regional director during
the investigation of objections are not part of the
record before the Board in a representation pro-
ceeding or in a related unfair labor practice pro-
ceeding. See Colonial Manor 1977, Inc., 253 NLRB
1183 (1981); Klingler Electric Corporation, Klingler
Electronics Division, and Klingler Manufacturing Di-
vision, 245 NLRB 1247 (1979). We adhere to this
position. However, we regret to note that, in the
above-cited cases, the Board erred in its construc-
tion of the Fifth Circuit's holding in N.L.R.B. v.
Osborn Transportation, Inc., 589 F.2d 1275 (1979),
by stating that the court held that affidavits submit-
ted in support of the employer's objections should
be forwarded to the Board as part of the record of
the case. 4 In fact, the court so held in Southwestern
3 Respondent states that General Counsel failed to include with his
Motion for Summary Judgment Respondent's petition to rehear and the
Board order denying such petition. Inasmuch as these documents had
been considered by the Board as part of the record in Case 26-RC-62(Yq
and are presently available, we take administrative notice of them and
make them part of the record in the instant case
4 See Colonial Manor, 253 NLRB 1183 f 6, and Klingler Eleclrw., 245
NLRB 1208.
Portland Cement Company v. N.L.R.B., 407 F.2d
131 (5th Cir. 1969), cert. denied 396 U.S. 820,
when construing Section 102.68 of the Board's
Rules and Regulations, prior to the amendment of
that section in 1977. However, in Osborn, the court
noted the change in language in the amended sec-
tion and, because of its holding there that any error
by the Board in failing to include in the record an
affidavit submitted to the Regional Director by the
Employer was harmless, found it unnecessary to
reach the question of whether, under the 1977
amendment of Section 102.68, the affidavit was
part of the record. Thus, contrary to the Board's
assertions in Colonial Manor and Klingler Electric,
the Fifth Circuit in Osborn did not pass on the
Board's position concerning affidavits submitted to
a regional director in support of objections, and to
our knowledge has not passed on that question
since the 1977 amendment to Section 102.68 of the
Board's Rules and Regulations. As to employee af-
fidavits independently acquired by a regional direc-
tor during the investigation of objections, we note
that the Fifth Circuit has expressed agreement with
our position that such affidavits are confidential
and should not be part of the record. N.L.R.B. v.
Golden Age Beverage Co., 415 F.2d 26.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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.5
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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 Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we 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 RESPONDENT
Respondent, a corporation with an office and
place of business in Little Rock, Arkansas, is en-
gaged in the manufacture of sausage. In the past
year it sold and shipped products, goods, and mate-
5 See Phivurgh Plate (Glau Co. v .' L.R.B. , 313 US 146. 162 (1941);
Rules and Regulations of the Hoard, Secs. 102 67(f) and 102 69(c).
O D O: S A S G C O _8
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rials valued in excess of $50,000 from its Little
Rock facility directly to points outside the State of
Arkansas. During the same period of time Re-
spondent purchased and received at its Little Rock
facility products, goods, and materials valued in
excess of $50,000 directly from points outside the
State of Arkansas.
We find, on the basis of the foregoing, that Re-
spondent 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.
11. THE LABOR ORGANIZATION INVOLVED
Food Handlers Local 425 of the United Food
and Commercial Workers International Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees, in-
cluding shipping and receiving
employees/truckdrivers, and sanitation em-
ployees employed by the Employer at its
Little Rock, Arkansas, facility, but excluding
all office clerical employees, guards and super-
visors as defined in the Act.
2. The certification
On May 30, 1980, 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 26, designated the Union as
their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on October 16, 1980, 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 12, 1980,
and at all times thereafter, the Union has requested
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 November 17, 1980, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
November 17, 1980, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent 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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
---
ODOM SAUSAGE CO. 287
CONCLUSIONS OF LAW
1. Odom Sausage Co., Inc. of Arkansas is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Food Handlers Local 425 of the United Food
and Commercial Workers International Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees,
including shipping and receiving employees truck-
drivers, and sanitation employees employed by the
Employer at its Little Rock, Arkansas, facility, but
excluding all office clerical employees, guards and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. Since October 16, 1980, 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, 1980,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Re-
spondent 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, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged 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 Re-
lations Board hereby orders that the Respondent,
Odom Sausage Co., Inc. of Arkansas, 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 Food Handlers
Local 425 of the United Food and Commercial
Workers International Union, AFL-CIO, as the ex-
clusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees, in-
cluding shipping and receiving
employes/truckdrivers, and sanitation employ-
ees employed by the Employer at its Little
Rock, Arkansas, facility, but excluding all
office clerical employees, guards and supervi-
sors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Little Rock, Arkansas, facility
copies of the attached notice marked "Appendix." 6
Copies of said notice, on forms provided by the
Regional Director for Region 26, 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 26,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
8 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 Pursu-
ant 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 Food Handlers Local 425 of the United
Food and Commercial Workers International
Union, AFL-CIO, as the exclusive representa-
ODOM SAUSAGE CO.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive of the employees in the bargaining unit
described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All production and maintenance employees,
including shipping and receiving
employees/truckdrivers, and sanitation em-
ployes employed by the Employer at our
Little Rock, Arkansas, facility, but exclud-
ing all office clerical employees, guards and
supervisors as defined in the Act.
ODOM SAUSAGE CO., INC. OF AR-
KANSAS