Ore-Ida Foods, Inc.

National Labor Relations Board - Board Decisions

May 9, 1967

164 N.L.R.B. 438 (N.L.R.B. 1967)

438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ore-Ida Foods, Inc. and Joint Council of
Teamsters No. 37, affiliated with the
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Independent and Amalgamated
Meat Cutters and Butcher Workmen of
North America, AFL-CIO. Cases 36-CA-1597
and 36-CA-1598.
May 9, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
Upon a charge filed by Joint Council of Teamsters
No. 37, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Independent, herein called
Teamsters, and a charge filed by Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, herein called Meat Cutters, the General
Counsel of the National Labor Relations Board, by
the Acting Regional Director for Region 19, issued
an order consolidating cases, consolidated
complaint, and notice of hearing, dated
December 22, 1966, alleging that the Respondent
had engaged in and was engaging in unfair labor
practices 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 charges,
the order consolidating cases, consolidated
complaint, and notice of hearing were duly served
upon the parties.
With respect to the unfair labor practices, the
consolidated complaint alleges, in substance, that on
or about November 28, 1966, each of the above-
named Unions was duly certified by the Board' as
the exclusive bargaining representative of
Respondent's employees in a unit found
appropriate and that, since on or about
December 2, 1966, Respondent has refused and is
refusing to recognize or bargain with the Unions as
such exclusive bargaining representatives, although
the Unions have requested and are requesting it to
do so. On January 3, 1967, the Respondent filed its
answer denying the commission of the unfair labor
practices alleged.
On February 20, 1967, the General Counsel filed
with the Board a motion for summary judgment,
urging that the Board, in view of the admissions
contained in the Respondent's answer and the
documents annexed as appendixes to the moving
papers, find the allegations of the complaint to be
true and make findings of fact and conclusions of
law in conformity with the allegations of the
complaint. On February 23, 1967, the Board issued
an order transferring proceeding to the Board and
' The certifications of representatives were issued in Cases
36-RC-2090 and 36-RC-2092, by the Regional Director for
notice to show cause on or before March 13, 1967,
why the General Counsel's motion for summary
judgment should not be granted. On March 9, 1967,
the Respondent filed exceptions and a brief in
opposition to General Counsel's motion for summary
judgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
makes the following:
Ruling on the Motion for Summary Judgment
In its exceptions and brief in opposition to General
Counsel's motion for summary judgment,
Respondent contends, inter alia, that it is entitled to
a hearing to insure full litigation of the facts. This
contention is without merit, as the Respondent's
answer to the complaint and its exceptions and brief
in opposition to General Counsel's motion for
summary judgment establishes that the Respondent
is seeking to relitigate matters decided in the prior
representation proceeding.
The record before us establishes that on
December 16, 1965, following a hearing, the
Regional Director for Region 19 issued a Decision
and Direction of Elections in which he found that
either a separate maintenance unit, or a combined
unit of production and maintenance employees, as
requested by the Teamsters and the Meat Cutters,
respectively, may be appropriate; the Regional
Director accordingly directed self-determination
elections in separate voting groups of
(1) maintenance employees, and (2) production
employees. On February 2, 1966, after a request for
review by the Respondent, and a denial of that
request by the Board, a majority of the employees in
voting group (1) selected the Teamsters as their
bargaining representative, and a majority of the
employees in voting group (2) cast ballots against the
Meat Cutters. Thereafter, the Respondent and the
Meat Cutters filed separate objections to election
and to conduct affecting results of election. After an
administrative investigation, the Regional Director
issued a Supplemental Decision, Certification of
Representative, and Certification of Results, in
which he overruled the objections; certified the
Teamsters as the exclusive representative of the
employees in the appropriate maintenance unit; and
certified that a majority of the valid ballots had not
been cast for any labor organization in voting group
(2).
On September 27, 1966, following requests for
review by the Respondent and the Meat Cutters, the
Board issued a Decision on Review, Order, and
Region 19 on behalf of the Board.
164 NLRB No. 64
ORE-IDA FOODS
Direction of Second Elections (160 NLRB 1396)
setting aside the elections conducted on February 2,
1966, and directing second elections in both voting
groups. On November 17, 1966, a majority of the
employees in voting group (1) selected the
Teamsters as their bargaining representative, and a
majority of the employees in voting group
(2) selected the Meat Cutters as their representative.
On November 28, 1966, the Regional Director
certified the Teamsters as exclusive bargaining
representative of the appropriate maintenance unit
and the Meat Cutters as exclusive bargaining
representative of the appropriate production unit.
As the Respondent admits in its answer, the
Teamsters, on November 23, 1966, and the Meat
Cutters on December 2, 1966, requested that the
Respondent bargain collectively in the certified
units, and the Respondent, on December 2, 1966,
refused and has continued to refuse the Unions'
requests.
In its answer , the Respondent admitted all
allegations of the complaint except that it denied
that the two units are appropriate and that its
conduct violated Section 8(a)(5) and (1) of the Act. In
its exceptions, and brief in opposition, to the motion
for summary judgment, the Respondent contends
that the two certified units are not appropriate and
demands a hearing (a) as a matter of right, or (b) in
the alternative, to litigate factual issues pertaining to
allegedly new developments arising since the
representation proceeding.
In support of its contention that the units are
inappropriate (1) the Respondent offers to present
both preexisting evidence, which it is alleged the
Regional Director erroneously disregarded, and
alleged new evidence concerning (a) combined
production and maintenance units at other plants of
the Respondent and at plants of other employers in
the area and the industry, the true relevance and
importance of which the Respondent alleges were
not fully ascertainable until the Board, subsequent
to the hearing in the representation case herein,
issued its decision in Mallinckrodt Chemical Works,
Uranium Division, 162 NLRB 387; and (b) the
Teamsters' piecemeal organizational tactics, which
allegedly establish that the Teamsters' petition for a
separate maintenance unit was based on extent of
organization; and (2) the Respondent also seeks to
clarify the Regional Director's alleged
misconstruction of evidence as to the working
relationship between Respondent's production and
maintenance employees.
In the absence of newly discovered or previously
unavailable evidence that warrants a hearing, the
Board normally does not permit relitigation in a
2 Pittsburgh Plate Glass Company v N L R B, 313 U S 146,
Collins & Atkman Corporation, 160 NLRB 1750; United States
Rubber Company, 155 NLRB 1298
NLRB V. Douglas County Electric Membership
Corporation, 358 F 2d 125, 129 (C A 5), citing with approval
439
subsequent 8(a)(5) complaint proceeding of issues
which were or could have been raised in a prior
representation proceeding.2 Admittedly, the issues
which Respondent seeks to raise in the instant
proceeding relate to the correctness of the unit
determination representation proceeding. As noted,
the Board heretofore denied the Respondent's
request for review of the Regional Director's unit
findings.
No newly discovered "clarifying" evidence is
offered in support of contention (2), which we find
clearly without merit. The allegedly newly
discovered evidence offered in support of contention
1(a) and (b) is similar in nature to evidence which
was available at the time of the hearing in the
representation proceeding and was either duly
considered or properly rejected as irrelevant. We
find no merit in Respondent's contention that the
Board's decision in Mallinckrodt warrants a hearing
herein. Aside from other considerations,
Mallinckrodt was prospective in application, and, in
any event, dealt with craft unit determinations
whereas the instant case does not involve a craft
unit. Moreover, the Board in Crown Simpson Pulp
Company, 163 NLRB 796, issued subsequent to
Mallinckrodt, affirmed its holding in American
Cynamid Company, 131 NLRB 909, relied on by the
Regional Director herein, as to the appropriateness
of separate units or a combined unit of production
and maintenance employees in previously
unorganized plants. Accordingly, these contentions
fail to raise any genuine issue warranting a hearing
or requiring modification of the conclusions reached
in the representation proceeding. We also find no
merit in the Respondent's contention that it is
entitled to a hearing as a matter of right. An
evidentiary hearing is not a matter of right where, as
here, the proffered evidence relates to no material or
competent factual issue to be determined.; As
Respondent has made no meritorious offer of
additional evidence or alleged any further facts that
would require modification or reexamination of the
determinations made in the representation
proceeding, it is clear that, in the circumstances of
this case, an evidentiary hearing is not warranted.4
All material issues thus having been decided or
admitted in the answer to the complaint, there are no
matters requiring a hearing before a Trial Examiner.
Accordingly, the General Counsel's Motion for
Summary Judgment is granted. On the basis of the
record before it, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
N L R B v Atr Control Products, 335 F 2d 245, 249 (C A 5) Cf
KVP Sutherland Paper Company, 143 NLRB 834, enforcement
denied and remanded to the Board 356 F 2d 671 (C A 6)
' E-Z Davies Chevrolet, 161 NLRB 1380 and cases cited
therein
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein , a corporation duly organized and existing by
virtue of laws of the State of Delaware and it is
engaged in the processing , sale, and distribution of
potatoes , corn , and related products at its plant in
Ontario, Oregon , which is alone involved in this
proceeding , and at another plant in the State of
Idaho . During the past year , which is a
representative period , the Respondent sold and
delivered from its Ontario plant to points outside the
State of Oregon potatoes , corn , and other goods and
related products valued in excess of $50,000.
Respondent admits and we find that it 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.
H. THE LABOR ORGANIZATIONS INVOLVED
A. The Representation Proceeding
1. The units
At all times material herein , the following
employees of the Respondent at its food processing
operation in Ontario, Oregon , have constituted units
appropriate for collective bargaining within the
meaning of the Act:
(1) All maintenance employees, including
employees in the general maintenance department,
the packaging maintenance department, the
building and grounds maintenance department, the
boiler department , the refrigeration department, the
electrical department , and the truck mechanic
department, but excluding watchmen and guards,
professional employees , and supervisors as defined
in the Act.
(2) All production employees, including
employees in the quality control department, the
sanitation department , the field department, and
the warehouse department , but excluding over-the-
road truckdrivers , office clerical employees , guards,
professional employees , and supervisors as defined
in the Act.
2. The certification
On November 17, 1966, a majority of the
employees of the Respondent in said maintenance
unit, in a secret election conducted under the
supervision of the Regional Director for Region 19,
designated Joint Council of Teamsters No. 37,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Independent, as their
representative for the purposes of collective
bargaining , and a majority of the employees of the
Respondent in the said production unit designated
Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, as their representative
for the purposes of collective bargaining with the
Respondent. On November 28, 1966, the Board
certified the Unions as the collective- bargaining
representatives of the employees in said units, and
the Unions continue to be such representatives.
B. The Requests to Bargain and the Respondent's
Refusal
On or about November 23, 1966, the Teamsters
and, on or about December 2, 1966, the Meat Cutters
requested the Respondent to bargain collectively
with them as the exclusive bargaining
representatives of all employees in the respective
above-described units for which they had been
certified. Commencing on or about December 2,
1966, and continuing to date, the Respondent did
refuse, and continues to refuse, to bargain
collectively with the Unions as exclusive collective-
bargaining representatives of all employees in said
units.
Accordingly, we find that the Unions were duly
certified by the Board as the collective-bargaining
representatives of the employees of the Respondent
in the appropriate units described above in the
Board's certifications, and that the Unions at all
times since November 28, 1966, have been and now
are the exclusive bargaining representatives of all
the employees in the aforesaid units, within the
meaning of Section 9(a) of the Act. We further find
that Respondent has, since about December 2, 1966,
refused to bargain collectively with the Unions as the
exclusive bargaining representatives of its
employees in the appropriate units, and that, by
such refusal, the Respondent 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 acts of the Respondent set forth in section III,
above, occurring in connection with its operations as
described in section I, above, have a close, intimate,
and substantial relation 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 commerce.
V. THE REMEDY
Having found that the Respondent has engaged 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 Unions as the exclusive
representatives of all employees in the appropriate
units and, if an understanding is reached, embody
such understanding in signed agreements.
CONCLUSIONS OF LAW
1. Ore-Ida Foods, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
ORE-IDA FOODS
2. Joint Council of Teamsters No. 37, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Independent, and Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, are
labor organizations within the meaning of Section
2(5) of the Act.
3. (1) All maintenance employees employed by
the Respondent at its food processing operations in
Ontario, Oregon, including employees in the general
maintenance department, the packaging
maintenance department, the building and grounds
maintenance department, the boiler department, the
refrigeration department, the electrical department,
and the truck mechanic department, but excluding
watchmen and guards, professional employees, and
supervisors as defined in the Act, and (2) all
production employees employed by the Respondent
at its food processing operations in Ontario, Oregon,
including employees in the quality control
department, the sanitation department, the field
department, and the warehouse department, but
excluding over-the-road truckdrivers, office clerical
employees, guards, professional employees and
supervisors as defined in the Act, constitute units
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since November 28, 1966, Joint Council of
Teamsters No. 37, affiliated with the International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America,
Independent, has been the exclusive representative
of all employees in the above-described maintenance
unit , and Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, has been
the exclusive representative of all employees in the
above-described production unit , for the purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about December 2, 1966, and
at all times thereafter, to bargain collectively with
the above-named labor organizations as the
exclusive bargaining representatives of all the
employees of Respondent in the appropriate units,
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,
Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing employees in the exercise of the rights
guaranteed to them in Section 7 of the Act, and has
thereby 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
meaning of Section 2(6) and (7) of the Act.
ORDER
441
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Ore-Ida Foods, Inc., Ontario, Oregon, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment with Joint Council of Teamsters No. 37,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Independent, as the exclusive
bargaining representative of employees at its
Ontario, Oregon, operations in the following
appropriate unit:
All maintenance employees, including employees
in the general maintenance department, the
packaging maintenance department, the building
and grounds maintenance department, the boiler
department, the refrigeration department, the
electrical department, and the truck mechanic
department, but excluding watchmen and guards,
professional employees, and supervisors as defined
in the Act.
(b) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment with Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, as
the exclusive bargaining representative of
employees at its Ontario, Oregon, operations in the
following appropriate unit:
All production employees, including employees in
the quality control department, the sanitation
department, the field department, and the
warehouse department, but excluding over-the-road
truckdrivers, office clerical employees, guards,
professional employees, and supervisors as defined
in the Act.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed to them by 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 Joint Council of
Teamsters No. 37, affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America,
Independent, as the exclusive representative of all
employees in the above-described maintenance unit,
and with Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, as the
exclusive representative of all employees in the
above-described production unit, with respect to
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in signed agreements.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its Ontario, Oregon, place of business,
copies of the attached notice marked "Appendix."5
Copies of said notice, to be furnished by the
Regional Director for Region 19, shall, after being
duly signed by Respondent's representative, 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
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify said Regional Director for Region 19, in
writing, within 10 days from the date of this Decision
and Order, what steps have been taken to comply
herewith.
5 In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT refuse to bargain collectively
with Joint Council of Teamsters No. 37,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Independent, as the
exclusive bargaining representative of
employees at our food processing operations in
Ontario, Oregon, in the following appropriate
unit:
All maintenance employees, including
employees in the general maintenance
department, the packaging maintenance
department, the building and grounds
maintenance department, the boiler
department, the refrigeration department,
the electrical department, and the truck
mechanic department, but excluding
watchmen and guards, professional
employees, and supervisors as defined in
the Act.
WE WILL NOT refuse to bargain collectively
with Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, as the
exclusive bargaining representative of
employees at our food processing operations in
Ontario, Oregon, in the following appropriate
bargaining unit:
All production employees, including
employees in the quality control
department, the sanitation department, the
field department, and the warehouse
department, but excluding over-the-road
truckdrivers, office clerical employees,
guards, professional employees, and
supervisors as defined in the Act.
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
Joint Council of Teamsters No. 37, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Independent, as the exclusive
representative of all employees in the above-
described maintenance unit, and with the
Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, as the
exclusive representative of all employees in the
above-described production unit, with respect
to wages, hours, and other terms and conditions
of employment, and, if an understanding is
reached, embody such understanding in signed
agreements.
ORE-IDA FOODS, INC.
(Employer)
Dated By
(Representative) (Title)
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.
Employees may communicate directly with the
Board's Regional Office, 500 Union Street, 327
Logan Building, Seattle, Washington 98101,
Telephone 583-4532, if they have any questions
concerning this notice or compliance with its
provisions.