Peerless Food Products

National Labor Relations Board - Board Decisions

May 17, 1978

236 N.L.R.B. 161 (N.L.R.B. 1978)

PEERLESS FOOD PRODUCTS
Peerless Food Products, Inc. and Amalgamated Meat
Cutters and Butcher Workmen of North America,
Local Union No. 553, AFL-CIO. Case 19-CA-
9402
May 17, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS.
PENELLO. AND MURPHY
On December 14, 1977, Administrative Law
Judge George Christensen issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief and
Respondent filed an answering brief.
The Board has considered the record and the at-
tached Decision, in light of the exceptions and briefs,
and has decided, for the reasons set forth below, to
affirm the rulings, findings, and conclusions of the
Administrative Law Judge and to adopt his recom-
mended Order.
The complaint alleges Respondent violated Sec-
tion 8(a)(5) of the Act when, in March 1977, it unilat-
erally imposed on the Charging Party's business rep-
resentative, Jacka, certain limitations on
nonemployee access to production areas which Re-
spondent had promulgated a month earlier.
The record indicates that while prior to March
1977 Jacka enjoyed virtually unlimited plant access
in connection with his duties, his access to unit em-
ployees since that time has been limited to meeting
and conversing with employees and their shop stew-
ard in Respondent's lunchroom during break and
lunch periods. As the attached Decision further
points out,' however, the record does not establish
that the access limitations applied to Jacka are oper-
ative in those cases in which Jacka requests access to
production areas themselves for the purposes of in-
vestigating or processing grievances.
We agree with the Administrative Law Judge's ul-
timate conclusion that a violation of Section 8(a)(5)
has not been established in these circumstances, but
do not agree with his rationale for that conclusion.
Plainly, that Respondent may have perceived some
business need or necessity, or that one may have in
fact existed, for changes in its policy of allowing Jac-
ka unlimited access to the plant does not relieve Re-
' See the Administrative Law Judge's Decision at fn. 14 and accompany-
ing text. In its brief to the Board, Respondent acknowledges that it would
"permit Jacka accessto the production floor during the normal work terms
[sic--"times"'? for certain specific purposes such as to ascertain the merits
of a grievance over some condition or to check any alleged defect and safety
or sanitary facilities."
spondent of its statutory obligation to bargain with
its employees' representative about that matter.
Granite City Steel Company, 167 NLRB 310 (1967).
Grievance procedures are mandatory subjects of bar-
gaining, Bethlehem Steel Company (Shipbuilding Divi-
sion), 136 NLRB 1500 (1962), enforcement denied on
other grounds 320 F.2d 615 (C.A. 3, 1963), and Re-
spondent's undisputed past practice in connection
with those procedures has been to afford Jacka very
liberal access to production areas. Although the poli-
cy does not derive from the express terms of the col-
lective-bargaining agreement, the past practice ele-
vates it to a term of employment not susceptible to
unilateral change. Granite City, supra. To the extent,
therefore, the Administrative Law Judge's recom-
mended dismissal of the complaint is grounded in the
"valid business considerations" 2 underlying Respon-
dent's promulgation of the new access rules, his anal-
ysis conflicts with longstanding principles.
But not every unilateral change in work, or in this
case access, rules constitutes a breach of the bargain-
ing obligation. The change unilaterally imposed
must, initially, amount to "a material, substantial,
and a significant" one, Rust Craft Broadcasting of
New York, Inc., 225 NLRB 327 (1976),' and we do
not believe the access limitations imposed here
amount to that. From the record, including Respon-
dent's representations on the brief,4 the net effect of
the change in policy is to remove Jacka's former
"right" to engage unit employees in conversations on
the production floor when those conversations are
unrelated to contract matters. While we do not mini-
mize the value of employee access to union business
representatives, the change effected here (which does
not apply to the job steward) does not materially,
substantially, or significantly reduce that value. We
shall, therefore, dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be dismissed in its entirety.
2 .Uaser Slack and or Maoter Trousers Corp. et al. 230 NLRB 1054
(1977), upon which the Administrative Law Judge relied in an effort to
distinghish the applicability of Granite Cit, supra., and the cases which fol-
low in its line (see fn I I. infra) does not countenance the proposition that
valid business considerations relieve an employer of its obligation to bar-
gain about changes in working conditions, including access rules See pars.
5. 6. 7 there. In Master Slack, which did not involve an existing contractual
relationship. the Board found no violation of Sec 8(aK51 in a unilateral
change in employee access to warehouse and shipping areas At no point did
we justilfy that finding by reliance upon the valid business considerations
behind the change in the rule.
'See also Murphv Diesel Cornpan;. 184 NLRB 757, 763 (1970).
' See In 2. supra
236 NLRB No. 23
161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER PENEI.LO. concurring:
I agree that the complaint should be dismissed.
However, I regret that, in the face of the dramatic
increase in caseload projected to 61,000 cases in the
next fiscal year and the backlog of cases awaiting
hearing amounting to crisis proportions, this Agency
would burden its limited resources and limit its capa-
bility to promptly and effectively provide remedies
by concerning itself with issues involving such trivia.
I continue to adhere to the holding of American Fed-
eration of Musicians, Local 76, AFL-CIO (Jimmy
Wakely Show), 202 NLRB 620 (1973), whose princi-
ples have been endorsed by the judiciary. N.L. R.B. v.
Columbia Tipographical Union No. 101, International
Typographical Union of North America, AFL-CIO
[The Evening Star Newspaper Co. and The Washing-
ton Daily Newvs], 470 F.2d 1274 (C.A.D.C., 1972), de-
nying enforcement of 193 NLRB 1089 (1971). And
see the comments of the court in Dallas Mailers
Union, Local No. 143, International Mailers Union
(Dow Jones Company, Inc.) v. N.L.R.B., 445 F.2d 730
(C.A.D.C., 1971), enfg. 181 NLRB 286 (1970), and
Truck Drivers, Oil Drivers, Filling Station and Plat-
form Workers Local No. 705 of the International
Brotherhood of Teamsters [Johns-Manville Products
Corporation] v. N.L.R.B., 509 F.2d 425 (C.A.D.C.,
1974), enfg. 205 NLRB 387 (1973). These cases wise-
ly teach that the General Counsel should exercise his
discretion under Section 3(d) of the Act to refuse to
process violations of minor or isolated character. Es-
pecially worthy of quotation are the comments of the
District of Columbia Circuit in the Johns-Manville
Products Corporation case referring to my dissent
therein,
The Board has latitude not to burden itself and
the courts with "infinitesimally small abstract
grievances.". . . But where to draw the line of
matters trivial in their impact is primarily a task
for the Board and not for the court. [Fn. omit-
ted.]
Note also my remarks in Bureau of National Affairs,
Inc., 235 NLRB No. 2, footnote 1 (1978).
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN. Administrative Law Judge: On
August 23, 1977.1 I conducted a hearing at Chehalis, Wash-
ington, to hear issues raised by a complaint issued on May
19 pursuant to a charge filed by the Union on April 15.
The complaint alleged that Peerless Food Products, Inc.2
' Read 1977 after all further date references omitting the sear
violated Section 8(a)(l) and (5) of the National Labor Re-
lations Act, as amended (hereafter referred to as the Act),
by restricting visitation rights within the plant previously
enjoyed by Amalgamated Meat Cutters and Butcher
Workmen of North America, Local Union No. 553, AFL-
CIO,3 in the exercise of its function as the exclusive collec-
tive-bargaining representative of the Company's employees
within an appropriate unit under the Act. The Company
denied the unit set out in the complaint was appropriate
for the purposes of collective bargaining, denied the Union
was the exclusive representative of the employees within
that unit for collective-bargaining purposes and denied it
restricted the Union from exercising its functions as the
representative of the employees within the unit in violation
of the Act.
The issues created by the pleadings are:
I. Whether the unit set out in the complaint was appro-
priate for collective-bargaining purposes.
2. Whether the Union was the exclusive representative
of the employees within the unit for the purpose of bar-
gaining collectively on their behalf with the Company.
3. Whether the Company restricted visitation rights
within the plant previously enjoyed by the Union in the
exercise of its functions as the unit employees' exclusive
collective-bargaining representative.
4. Whether the Company thereby violated Section
8(a)(1) and (5) of the Act.
The parties appeared by counsel at the hearing and were
afforded full opportunity to examine and cross-examine
witnesses, argue, and file briefs. Briefs have been received
from the General Counsel and the Company.
Based upon my review of the entire record, observation
of the witnesses, perusal of the briefs and research, I enter
the following:
FINDINGS OF FACT
I1 JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find
that at all times material the Company was an employer
engaged in commerce in a business affecting commerce
and the Union was a labor organization within the mean-
ing of Section 2(2), (5), (6), and (7) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. The unit
The Company has had collective-bargaining relations
with the Union and its predecessor (another local of the
same International Union) for the past 14 years. The Com-
pany has entered into a succession of collective-bargaining
agreements covering a unit of its employees over that same
time period with the Union and its predecessor. The last
contract was executed on June 9, 1975, for a term extend-
2 Hereafter called the Company.
' Hereafter called the Union.
162
PEERLESS FOOD PRODUCTS
ing from May 4, 1975, to May 1, 1976. In that (and preced-
ing) contracts the Company recognized the Union as "the
sole and exclusive collective bargaining agency for all em-
ployees of the Employer working under this Agreement."
That contract was terminated by appropriate notice and
the parties, though they engaged in protracted negotia-
tions, had not executed a new agreement at the time of the
hearing in this case (August 23). On August 22, however,
the Board issued a decision in a case involving the same
parties 4 wherein it held the Company violated Section
8(aXl) and (5) of the Act by failing or refusing to sign an
agreement containing the agreement of the parties on all
issues other than a nonmandatory subject the Company
insisted on as a condition to its signing the agreement and
directed the Company to execute the new agreement. In
the same decision, the Board adopted findings of the Ad-
ministrative Law Judge that "All full-time and regular
part-time production employees employed by Respondent
(Company) at its Chehalis, Washington packing plant, ex-
cluding office clerical employees, guards and supervisors as
defined in the Act" was an appropriate unit for collective-
bargaining purposes under the Act.
Based on the facts, reasoning, and conclusions set forth
in that decision, I find the unit set out in the complaint.
namely,
All full-time and regular part-time production employ-
ees employed at Respondent's (the Company's) Che-
halis, Washington packing plant, excluding office cler-
ical employees, guards and supervisors as defined in
the Act.
constitutes an appropriate unit for the purposes of collec-
tive bargaining within the meaning of the Act.
2. The Union's status
The Company has recognized the Union as the exclu-
sive representative of its employees within the unit speci-
fied above for collective-bargaining purposes since 1963
and executed a succession of agreements formalizing that
recognition to and including May 1, 1976; it continued that
recognition in a provision of the agreement it reached but
failed or refused to execute after the May 1, 1976, expira-
tion of its last contract and had agreed to the continued
insertion of that recognition provision in the agreement the
Board ordered it to sign on August 22; based on the fore-
going, I find and conclude that at all times material the
Union has been the sole and exclusive representative of the
Company's employees within the unit specified above for
collective-bargaining purposes.
3. The alleged restriction of visitation rights
During the period the Company was party to agree-
ments 5 with the Union's predecessor union (1963-72), that
union's representatives rarely visited the plant. Such visits
as its representatives made occurred only for the purpose
of processing grievances or to negotiate new agreements.
4231 NLRB 530.
The sucessive agreements were for l-year terms.
The successive annual agreements between the Union
and the Company (1972-76), as well as the agreement the
Board ordered the Company to execute for a 1976-77 term,
contained a grievance procedure wherein it was provided
the initial step in the handling of any unit employee griev-
ance would be handled by the duly accredited representa-
tive of the Union and the Company. The second step con-
sisted of referral to a labor relations committee consisting
of two members selected by the Company and two mem-
bers selected by the Union and the third step provided
either party the opportunity to refer the dispute to binding
arbitration.
During the 5-year period the Union has represented the
unit employees, no disputes have gone beyond the first
step. In fact, only three grievances have gone beyond the
Union's job steward and the Company's production fore-
man.6 Three grievances were adjusted between 1972 and
1975 at the first step of the grievance procedure by and
between Marvin Jacka. the Union's financial secretary and
business representative, and Karl Muller, the Company's
vice president and plant manager,7 with the last such ad-
justment occurring in 1975. 8 The Union's steward (Graber)
testified the only employee complaints he received since
the 1975 adjustment were complaints since the expiration
of the 1975-76 agreement over company and union failure
to agree upon and execute a new contract.
Irrespective of any demands for Jacka's presence at the
plant for the purpose of processing grievances or engaging
in contract negotiations, Jacka has made it his practice
from the time the Union began to represent the unit em-
ployees in 1972 to visit the plant on an average of once a
month. He followed a standard format for such visits; first,
he went to the offices shared by Muller and Gerald Morse.
the Company's president, greeted them and exchanged
pleasantries if they were in: he then acquired a paper hat
and entered the production area, progressed through each
section the unit employees worked, exchanged greetings
with employee-members, 9 answered inquiries, etc.; if he
was there at a break or lunchtime, he accompanied unit
employees to the location they utilized during their lunch
and break periods and engaged in further conversation.
While Jacka testified he not only engaged in general con-
versation with the employees, he also checked safety condi-
tions at the plant, there is no evidence Jacka ever so in-
formed management or discussed any safety matters with
management.
In early 1977 the premiums paid by the Company for its
workmen's compensation and liability coverages were sub-
stantially increased. Morse and Muller reviewed their
During the term of the 1975 76 agreement, and subsequentl. all gries-
ances have been processed and adjusted by a job stew ard chosen froml
among the unit emplosees and the company foreman The three grievances
noted were adjusted as noted hereafter,
? The complaint alleged. the answer admitted. and I find that at all pertil-
nent times NMuller uas the Coimpan)'s vice president and plant manager and
a superslsor and agent of the (ompans acting on its behalf within the
meaning of the Act
s [he three grievances Involed an employee complaint oser hi s.acitwn
pay entiilement. a union complaint over alleged employee nonconmpiiance
with the union-secunty provision of the agreement, and an employee complaint
over his pay scale: all were resolved at the first step
' At times pertinent there were 10- I I full-time unit emplosees and 3 4
regular part-time emplosees
163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
safety and security procedures and decided they were
much too loose and needed tightening to minimize employ-
ee distraction from the work and thereby accomplish the
double purpose of lessening the possibility of accidents and
increasing production and profits.
Commencing in February 1977, Morse and Muller be-
gan to limit access to the production areas of the plant to
persons whose presence was necessary or required--dis-
continuing previously permitted tours and visits to the
plant by students, various organizations, and others.
On March 18, in the course of a telephone conversation,
Muller advised Jacka in the future that he, too, would not
be permitted to continue to visit and converse with the
employees on the production floor as and when he chose,
informing him he could come to the lunchroom any day at
lunch or breaktimes for the purpose of conversing or con-
ferring with the unit employees, including the job steward.
On March 25, the Union's counsel addressed a letter to
the Company stating he had been informed the Company
had decided to deny Jacka access to the plant for the pur-
pose of policing and enforcing the agreement '0 and re-
questing the Company grant Jacka reasonable access to the
plant for the purposes just described or unfair labor prac-
tice charges would be filed.
On March 28, the Company replied with a letter stating
it had reasonable and legitimate business reasons for bar-
ring all persons whose presence was neither required nor
warranted on the production floor during working hours,
that it was not its purpose in denying Jacka access to the
production floor to interfere with the Union's policing and
enforcing the agreement and stated such functions could
be carried out by the steward, who was on the production
floor at all times, and by Jacka through consultation with
the steward and any employees, which consultation would
be arranged on company premises whenever desired.
On April 4 the union counsel again wrote to the Compa-
ny, specifically requesting that Jacka be permitted to re-
sume his prior practice of visiting the plant's production
area during working hours as and when he chose and con-
versing with the unit employees while there.
On April 5 the Company reiterated its March 28 posi-
tion.
The General Counsel alleges Jacka's conversational ex-
changes with unit employees during his periodic visits to
the production floor during working hours prior to March
18 enabled Jacka to accept employee grievances; that a
denial of such opportunity forces unit employees to travel
to Tacoma, Washington, to Jacka's office to file such griev-
ances; that under these circumstances the Company's limi-
tation of Jacka's former visitation and conversational privi-
leges changed a "working condition" valuable to the unit
employees and violated the Act, in view of the Company's
failure to notify and bargain with the Union concerning
the change prior to its institution, citing Granite City Steel
Company, 167 NLRB 310 (1967).
The Granite City decision and its progeny 11 all involve
0o It should be noted no agreement was in effect at the time.
'' N.L.R.B. v. Metlox Manufacturing Company, 83 LRRM 2346, 71 LCH
13,817 (C.A. 9. 1973); Medical Manors, Inc., d/b/a, Community Conmralercent
Hospital, 206 NLRB 961 (1973), and 199 NLRB 840 (1972); Boyer Bro..
situations wherein an employer party to an agreement with
a union providing for reasonable access by an authorized
union representative to the plant for the purpose of investi-
gating the merits of an employee grievance or processing
such grievance has denied the request of such union repre-
sentative for access to the plant to determine the merits of
an employee grievance complaint without reasonable busi-
ness justification therefor.
That is not the situation here. Here, as in Master Slack, 12
the Company for valid business considerations limited ac-
cess to the plant floor during working hours and while ma-
chinery is in operation to employees who work there and
persons whose presence is authorized as necessary or re-
quired. The Company did not refuse a Jacka request for
access to the production area to investigate or process a
grievance; on the contrary, it diligently processed all griev-
ances brought to its attention by the Union over the past 5
years and offered Jacka on his request the use of private
facilities at the plant to consult or converse with any aggreived
employee and/or the Union's job steward, plus access to the
plant at lunch or breaktimes to communicate with them.
While the Company's offer did not contain assurances
Jacka would be permitted on the production floor during
working hours to ascertain the merits or a grievance over
some condition there or to check any alleged defects in
safety or sanitary facilities, on this record I I believe the
Company's representation-that it did not by its an-
nouncement (that Jacka would not be permitted to enter
the production area at will and converse with the employ-
ees while they were performing their regular work duties)
intend to deny or inhibit Jacka's investigation or pro-
cessing of a grievance-leads to the reasonable conclusion
the Company will permit Jacka access to the production
floor during normal work turns for those specific pur-
poses.14
I therefore find and conclude the Company did not vio-
late the Act by restricting access to the production floor
during working hours to the employees who work there
and persons whose presence is authorized as necessary or
required. I therefore shall recommend the complaint be
dismissed in its entirety.
CONCLUSIONS OF LAW
1. At all times pertinent the Company was an employer
engaged in commerce in a business affecting commerce
and the Union was a labor organization within the mean-
ing of Section 2(2), (5), (6), and (7) of the Act.
2. A unit consisting of all full-time and regular part-time
production employees employed at the Company's Chehal-
is, Washington, packing plant, excluding office clerical em-
ployees, guards, and supervisors as defined in the Act, is
appropriate for collective-bargaining purposes under Sec-
Inc., 217 NLRB 342 (1975); Haskell of Pittsburgh. Inc., 226 NLRB 1020
(1976). Pioneer Inn Associates, d/b/a Pioneer Inn and Pioneer Inn Casino,
228 NLRB 1263 (1976).
:2 Master Slack Corp., et al., 230 NLRB 1054 (1977).
" The Company's cooperation in adjusting all grievances between 1972-
77
14 Particularly since such action, under the cases cited heretofore, may
form the basis for an unfair labor practice charge.
164
PEERLESS FOOD PRODUCTS
tion 9 of the Act.
3. At all pertinent times the Union has been the exclu-
sive collective-bargaining representative of the Company's
employees within the above-described unit.
4. The Company did not violate Section 8(a)(l) and (5)
of the Act by its March 18 restrictions on Jacka's previous-
ly unlimited visitation and conversational privileges on the
production floor during working hours.
5. The actions of the Company alleged in the complaint
affected interstate commerce within the meaning of the
Act.
On the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record and pursuant to Section
10(c) of the Act, I issue the following recommended:
ORDER 15
The complaint shall be dismissed in its entirety.
15 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
165