RPM Beef, Inc.

National Labor Relations Board - Board Decisions

Dec 21, 1981

259 N.L.R.B. 813 (N.L.R.B. 1981)

RPM BEEF, INC. 813
RPM Beef, Inc. and Butchers Union Local No. 126, thereafter filed a response to the Notice To Show
United Food and Commercial Workers, AFL- Cause.
CIO. Case 32-CA-3847 Pursuant to the provisions of Section 3(b) of the
December 21, 1981 National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
DECISION AND ORDER thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
BY MEMBERS FANNING, JENKINS, AND Board makes the following:
ZIMMERMAN
Upon a charge filed on August 10, 1981, by Ruling on the Motion for Summary Judgment
Butchers Union Local No. 126, United Food and In its answer to the complaint and response to
Commercial Workers, AFL-CIO, herein called the the Notice To Show Cause, Respondent contends
Union, and duly served on RPM Beef, Inc., herein that the Board erroneously issued a Certification of
called Respondent, the General Counsel of the Na- Representative for the Union because it improperly
tional Labor Relations Board, by the Regional Di- overruled Respondent's objections to the election.
rector for Region 32, issued a complaint on Sep- The General Counsel argues that all material issues
tember 2, 1981, against Respondent, alleging that have been previously decided in the related repre-
Respondent had engaged in and was engaging in sentation proceeding. We agree with the General
unfair labor practices affecting commerce within Counsel.
the meaning of Section 8(a)(5) and (1) and Section Review of the record herein, including the
2(6) and (7) of the National Labor Relations Act, record in Case 32-RC-1211, reveals that on De-
as amended. Copies of the charge and complaint cember 3, 1980, the Regional Director for Region
and notice of hearing before an administrative law 32 approved a Stipulation for Certification Upon
judge were duly served on the parties to this pro- Consent Election agreed to by the Union and Re-
ceeding. spondent. An election was conducted on December
With respect to the unfair labor practices, the 23, 1980, which resulted in a vote of 11 for, and 4
complaint alleges in substance that on July 14, against, the Union. There were four challenged bal-
1981, following a Board election in Case 32-RC- lots, a number insufficient to affect the results of
1211, the Union was duly certified as the exclusive the election. On December 29, 1980, Respondent
collective-bargaining representative of Respond- filed objections to conduct affecting the results of
ent's employees in the unit found appropriate;' and the election. On January 21, 1981, the Regional Di-
that, commencing on or about July 20, 1981, and at rector issued and served on the parties his Report
all times thereafter, Respondent has refused, and on Objections, Order, and Notice of Hearing, in
continues to date to refuse, to bargain collectively which he directed a hearing on Respondent's Ob-
with the Union as the exclusive bargaining repre- jections 1, 2, 5, 19, and 20. At the hearing, con-
sentative, although the Union has requested and is ducted on February 11, 1981, Respondent alleged
requesting it to do so.2 On September 16, 1981, Re- that the Union made material misrepresentations to
spondent filed its answer to the complaint admit- the employees regarding the Employer's profitabil-
ting in part, and denying in part, the allegations in ity, the compensation received by the owners of
the complaint. the Employer, and benefits and wages provided at
On October 6, 1981, counsel for the General union plants. Respondent also alleged that the
Counsel filed directly with the Board a Motion for Union made unlawful promises of wages and bene-
Summary Judgment. Subsequently, on October 8, fits in return for favorable votes. Both independent-
1981, the Board issued an order transferring the ly and cumulatively these acts were claimed to
proceeding to the Board and a Notice To Show have destroyed the "laboratory conditions" re-
Cause why the General Counsel's Motion for Sum- quired for the election.
mary Judgment should not be granted. Respondent In her Report on Objections and an Amendment
to Report on Objections, issued on April 2 and
'Official notice is taken of the record in the representation proceeding, April 7, 1981, the Hearing Officer found that no
Case 32-RC-1211, 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 material misrepresentations or unlawful promises
LTV Electrosyslems Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th were made, and therefore recommended that Re-
Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 spondents Objections 1 2 5, 19, and 20 be over-
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 ruled in their entirety. On April 9, 1981, Respond-
(7th Cir. 1968); Sec. 9(d) of the NLRA. as amended. ent filed with the Board exceptions to the Hearing
By letter dated August 26, 1981, Respondent confirmed to an agent Offcer's Report on Objections On y 1, 11
of the Regional Director that it was engaging in a "technical refusal to Officer Report n Objections. On July 14, 1981,
bargain" with the Union. the National Labor Relations Board issued its De-
259 NLRB No. 109
t
,
By MEMBER, FANNING, JENKINS,-AND t ti i t i i , t
I , J I , Board makes the following:
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O ficial ti is t t r r i t r r s t ti r cee i , ril 7, , t ri fficer f that no
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Cir. 1968); Gold n Age Beyeag Co., 167 NLRB 151 (196 ), enf . 415 spondent's Objections 1, 2, 5, 19, and 20 be over-
type . . .
lett ),
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814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cision and Certification of Representative, in which that it will effectuate the policies of the Act to
it adopted the Hearing Officer's recommended dis- assert jurisdiction herein.
position of Respondent's Objections 1, 2, 5, 19, and
20 and certified the Union as the exclusive collec- II. THE LABOR ORGANIZATION INVOLVED
tive-bargaining representative of the employees of Butchers Union Local No. 126, United Food and
Respondent in the unit described in the stipulation. Commercial Workers, AFL-CIO, is a labor organi-
In its response to the Notice To Show Cause, zation within the meaning of Section 2(5) of the
Respondent alleges as the basis to deny the Gener- Act.
al Counsel's Motion for Summary Judgment the
same union conduct it raised in its objections to the Ill. THE UNFAIR LABOR PRACTICES
election and its exceptions to the Hearing Officer's. T n
report. It thus appears that Respondent is attempt-
ing to raise herein issues which were raised and de- 1. The unit
termined in the underlying representation case.
It is well settled that in the absence of newly dis- The following employees of Respondent consti-
covered or previously unavailable evidence or spe- tute a unit appropriate for collective-bargaining
cial circumstances a respondent in a proceeding al- purposes within the meaning of Section 9(b) of the
leging a violation of Section 8(a)(5) is not entitled Act:
to relitigate issues which were or could have been All full-time and regular part-time butchers,
litigated in a prior representation proceeding. 3 wrapping employees, shipping and receiving
All issues raised by Respondent in this proceed- employees, and drivers employed by the Em-
ing were or could have been litigated in the prior ployer at its 2413 S. Fruit Street, Fresno, Cali-
representation proceeding, and Respondent does fornia, location; excluding all office clerical
not offer to adduce at a hearing any newly discov- employees, sales employees, guards and super-
ered or previously unavailable evidence, nor does visors as defined in the Act.
it allege that any special circumstances exist herein
which would require the Board to reexamine the 2. The certification
decision made in the representation proceeding. We On December 23, 1980, a majority of the em-
therefore find that Respondent has not raised any ployees of Respondent in said unit, in a secret-
issue which is properly litigable in this unfair labor ballot election conducted under the supervision of
practice proceeding. Accordingly, we grant the the Regional Director for Region 32, designated
Motion for Summary Judgment. the Union as their representative for the purpose of
On the basis of the entire record, the Board collective bargaining with Respondent
makes the following: The Union was certified as the collective-bar-
FINDINGS OF FACT gaining representative of the employees in said unit
on July 14, 1981, and the Union continues to be
I. THE BUSINESS OF RESPONDENT such exclusive representative within the meaning of
Respondent is a California corporation, with an Section 9(a) of the Act.
office and place of business in Fresno, California, B. The Request To Bargain and Respondent's
engaged in the retail and nonretail sales of meat Refusal
products. During the past 12 months Respondent,
in the course and conduct of its business oper- Commencing on or about July 20, 1981, and at
ations, purchased and received goods and services all times thereafter, the Union has requested Re-
valued in excess of $50,000 directly from suppliers spondent to bargain collectively with it as the ex-
located outside the State of California, and derived clusive collective-bargaining representative of all
gross revenues in excess of $500,000. 4 the employees in the above-described unit. Com-
We find, on the basis of the foregoing, that Re- mencing on or about July 20, 1981, and continuing
spondent is, and has been at all times material at all times thereafter to date, Respondent has re-
herein, an employer engaged in commerce within fused, and continues to refuse, to recognize and
the meaning of Section 2(6) and (7) of the Act, and bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
See Pittsburgh Plate Glass Co v. N.L.R.B., 313 U.S. 146, 162 (1941); said unit
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
In its answer to the complaint and response to the Notice To Show Accordingly, we find that Respondent has, since
Cause, Respondent denied that it is engaged in the retail sale of meat. In July 20, 1981, and at all times thereafter, refused to
the Stipulation for Certification Upon Consent Election, however, Re- bargain clleivl i i l
spondent agreed that it did engage in retail sales. In any event, Respond-ollectively ith the Union as the ex
ent does not contest the Board's jurisdiction. sive representative of the employees in the appro-
Respondent n the unitdescribed n the stiplation. Comercial Wokers, AFL-IO, is-a-lbor-------
rti l i l 11. T H E L A BOR I

l ti ' h Rrea n P e
t-A. T h e Representaton Proceeding
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T h e
tu t e a u n
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i , r is rs as defined in the ct.
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r t il sales of eat Refusal
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' l . . . . .B., 313 .S. 146, 162 (1941); said unit.
, e . . (f) . (c).
< Accordingly, W Si

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ond- Collectively Wit t i t cu-
A . ^presentati
RPM BEEF, INC. 815
priate unit, and that, by such refusal, Respondent ployees, and drivers employed by the Employer at
has engaged in and is engaging in unfair labor prac- its 2413 S. Fruit Street, Fresno, California, loca-
tices within the meaning of Section 8(a)(5) and (1) tion; excluding all office clerical employees, sales
of the Act. employees, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purpose
IV. THE EFFECT OF THE UNFAIR LABOR of collective bargaining within the meaning of Sec-
PRACTICES UPON COMMERCE tion 9(b) of the Act.
The activities of RPM Beef, Inc., set forth in 4. Since July 14, 1981, the above-named labor or-
section III, above, occurring in connection with its ganization has been and now is the certified and ex-
operations described in section I, above, have a clusive representative of all employees in the afore-
close, intimate, and substantial relationship to trade, said appropriate unit for the purpose of collective
traffic, and commerce among the several States and bargaining within the meaning of Section 9(a) of
tend to lead to labor disputes burdening and ob- the Act.
structing commerce and the free flow of com- 5. By refusing on or about July 20, 1981, and at
merce. all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
V. THE REMEDY bargaining representative of all the employees of
Having found that Respondent has engaged in Respondent in the appropriate unit, Respondent
and is engaging in unfair labor practices within the has engaged in and is engaging in unfair labor prac-
meaning of Section 8(a)(5) and (1) of the Act, we tices within the meaning of Section 8(a)5) of the
shall order that it cease and desist therefrom, and, Act.
upon request, bargain collectively with the Union 6. By the aforesaid refusal to bargain, Respond-
as the exclusive representative of all employees in ent has interfered with, restrained, and coerced,
the appropriate unit and, if an understanding is and is interfering with, restraining, and coercing,
reached, embody such understanding in a signed employees in the exercise of the rights guaranteed
agreement. 5 them in Section 7 of the Act, and thereby has en-
In order to insure that the employees in the ap- gaged in and is engaging in unfair labor practices
propriate unit will be accorded the services of their within the meaning of Section 8(a)(l) of the Act.
selected bargaining agent for the period provided 7. The aforesaid unfair labor practices are unfair
by law, we shall construe the initial period of certi- labor practices affecting commerce within the
fication as beginning on the date Respondent com- meaning of Section 2(6) and (7) of the Act.
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-ORDER
propriate unit. See Mar-Jac Poultry Company, Inc., Pursuant to Section 10(c) of the National Labor
136 NLRB 785 (1962); Commerce Company d/b/a Relations Act, as amended, the National Labor Re-
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 lations Board hereby orders that the Respondent,
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; RPM Beef, Inc., Fresno, California, its officers,
Burnett Construction Company, 149 NLRB 1419, agents, successors, and assigns, shall:
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). 1. Cease and desist from:
The Board, upon the basis of the foregoing facts (a) Refusing to bargain collectively concerning
and the entire record, makes the following: rates of pay, wages, hours, and other terms and
CONCLUSIONS OF LAW conditions of employment with Butchers Union
Local No. 126, United Food and Commercial
1. RPM Beef, Inc., is an employer engaged in Workers, AFL-CIO, as the exclusive bargaining
commerce within the meaning of Section 2(6) and representative of its employees in the following ap-
(7) of the Act. propriate unit:
2. Butchers Union Local No. 126, United Food
and Commercial Workers, AFL-CIO, is a labor or- All full-tme and regular part-time butchers,
ganization within the meaning of Section 2(5) of w employees, shipping and receivg
the Act. employees, and drivers employed by the Em-
3. All full-time and regular part-time butchers, ployer at its 2413 S. Fruit Street, Fresno, Cali-3. All full-time and regular part-time butchers, r l t e a of. clericalwrappgemployees, shipping and receiving em- fornia, location; excluding all office clerical
wrapping employees, shipping and receiving em-wrapping e oes sipn an reen employees, sales employees, guards and super-
' In its Joinder in Motion for Summary Judgment, the Charging Party visors as defined in the Act.
requests that attorneys fees be awarded to it Tha request is denied Seeinterfering
Trustees of Boston University, 228 NLRB 1008, 1010 (1977), enfd. 575 F.2dle e ed manner inerfe
301 (Ist Cir 1978) with, restraining, or coercing employees in the ex-
)
t, stit t a it r ri t f r t r s
IV. THE EFFECT OF THE UNFAIR LABORof collective bargaining it i t i -
PRACTICES UPON COMMERCE tion 9(b) of the Act.
e
.
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ORDER
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A f a r
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f u~l l -t im e a n d re gu l~a r part-111" b u t c h e r s ,
and ommrcia Woker, AF-CI, i a lboror- wrapping employees, shipping and receiving
i ti it i t i f ti ( ) f employees, an dd e m dy Bh Ac. -employees, and drivers e ployed by the -the A t. -„ . , , ,, , ployer at its 2413 S. Fruit Street, Fresno, Cali-
3 All full-time and regular part-timebutcherfornia, l cati ; e cl i all ffice clerical
, s e g a s- ° * * Kr " -~~~~~~employees,
rt
v s o r s a s .
y' t it t request ^ ^ related manner interfering
/Bo t i it , , ( ), f . .2d b In a l o r
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t is denied. ^
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ercise of the rights guaranteed them in Section 7 of APPENDIX
the Act. ~~~~~~~~the Act. ~NOTICE To EMPLOYEES
2. Take the following affirmative action which POSTED BY ORDER OF THE
the Board finds will effectuate the policies of the NATIONAL LABOR RELATIONS BOARDNATIONAL LABOR RELATIONS BOARD
,.Act: , . . An Agency of the United States Government
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative WE WILL NOT refuse to bargain collectively
of all employees in the aforesaid appropriate unit concerning rates of pay, wages, hours, and
with respect to rates of pay, wages, hours, and other terms and conditions of employment
other terms and conditions of employment and, if with Butchers Union Local No. 126, United
an understanding is reached, embody such under- Food and Commercial Workers, AFL-CIO, as
standing in a signed agreement. the exclusive representative of the employees
(b) Post at its 2413 S. Fruit Street, Fresno, Cali- in the bargaining unit described below.
fornia, facility copies of the attached notice marked WE WILL NOT in any like or related manner
"Appendix."6 Copies of said notice, on forms pro- interfere with, restrain, or coerce our employ-
vided by the Regional Director for Region 32, ees in the exercise of the rights guaranteed
after being duly signed by Respondent's representa- them by Section 7 of the Act.
tive, shall be posted by Respondent immediately WE WILL, upon request, bargain with the
upon receipt thereof, and be maintained by it for 60 above-named Union, as the exclusive repre-
consecutive days thereafter, in conspicuous places, sentative of all employees in the bargaining
including all places where notices to employees are unit described below, with respect to rates of
customarily posted. Reasonable steps shall be taken pay, wages, hours and other terms and condi-
tions of employment and, if an understandingby Respondent to insure that said notices are not d understanding
. i .s reached, embody such understanding in aaltered, defaced, or covered by any other material. sied areement. The bargaining unit is:
(c) Notify the Regional Director for Region 32,
in writing, within 20 days from the date of this All full-time and regular part-time butchers,
Order, what steps have been taken to comply here- wrapping employees, shipping and receiving
with. employees, and drivers employed by the
Employer at its 2413 S. Fruit Street, Fresno,
California, location; excluding all office
6 In the event that this Order is enforced by a Judgment of a United clerical employees, sales employees, guards
States Court of Appeals, the words in the notice reading "Posted by and supervisors as defined in the Act.
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." RPM BEEF, INC.
the Act. ~~~~~~~~~NOTIC
Act: , . ., . , , n gency of the nited States overn ent
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t w a , h o u r s , a n d o th e r ter s and condi-
t i i eplye an if an r t i
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l , t r i t e tice rea i " osted by and Supervisors as defined in the ct.

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