Southern Foods, Inc.

National Labor Relations Board - Board Decisions

Jan 17, 1969

174 N.L.R.B. 154 (N.L.R.B. 1969)

154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southern Foods, Inc. and Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO. Case 10-CA-7410
January 17, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS , AND ZAGORIA
On September 16, 1968, Trial Examiner Charles
W. Schneider issued his Decision in the above
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions and a
supporting brief.
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.
The Board has considered the Trial Examiner's
Decision, the exceptions and supporting brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Southern Foods,
Inc., Columbus, Georgia, its officers,, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding'
CHARLES SCHNEIDER , Trial Examiner: upon petition
filed under Section 9(c) of the National Labor Relations
Act (29 U.S.C.A. 159(c)) on June 5 , 1967, by United
Packinghouse , Food and Allied Workers , AFL-CIO,
herein called the Union , a hearing was held by the
Regional Director for Region 10 of the Board, who
'Administrative or official notice is taken of the record in the
representation proceeding , Case 10-RC-7116, as the term "record" is
defined in Section 102.68 and 102.69(f) of the Board's Rules and
Regulations and Statements of Procedure, National Labor Relations
Board, Series 8, as revised January 1, 1965 See LTV Electrosystems, Inc.,
166 NLRB No. 81, enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age
Beverage Co , 167 NLRB No. 24; Intertype Co v. Penello , 269 F Supp
573 (D.C. Va, 1967); Follett Corp., et al., 164 NLRB No. 47, enfd. 397
F.2d 91 (C.A. 7, 1968); Section 9 (d) of the National Labor Relations Act
subsequently issued a Decision and Direction of Election
in an appropriate bargaining unit , described hereinafter, of
the employees of Southern Foods, Inc ., Columbus,
Georgia , herein called the Respondent.
Pursuant to the Decision and Direction of Election an
election by secret ballot was conducted on August 30,
1967, under the supervision and direction of said Regional
Director . Immediately following the election the parties
were served with copies of the tally of ballots which
showed that of approximately 133 eligible voters , 70 cast
ballots for the Union , 53 cast ballots against the Union,
and 7 cast challenged ballots. On September 7, 1967, the
Respondent filed timely objections to conduct affecting
the results of the election alleging ( 1) That the Union
improperly promised a waiver of initiation fees and dues
payments conditioned upon the results of the election, (2)
that the Union made representations which departed from
the requirements and directives of its international
constitution , (3) that the Union improperly injected into
the campaign an atmosphere of coercion , threats, and
fear, (4) that the Union created the impression that if
selected it would, as a matter of course , bring about
specified benefits which it knew would be a subject for
collective bargaining , (5) that the Union exceeded the
bounds of legitimate campaign propaganda by distributing
leaflets which deliberately deceived the employees with
respect to working conditions provided by the Union at
another meat packing plant , and (6 ) that the Union by
other acts and conduct destroyed the laboratory conditions
guaranteed employees exercising their rights under the
Act.
The Regional Director for Region 10 conducted an
investigation of the challenges and objections and on
October 19, 1967, issued a Supplemental Decision , Order,
and Direction of Second Election in which he found that
Respondent's Objection 5 was supported by the evidence
and determined that the misrepresentation was sufficient
ground to warrant setting aside the election . Accordingly,
he ordered that a second election be conducted among the
employees in the appropriate unit.
Pursuant to the Regional Director 's Decision , Order,
and Direction of Second Election an election by secret
ballot was conducted on November 15, 1967, under the
supervision of said Regional Director . Upon conclusion of
the balloting , the parties were furnished with a tally of
ballots which showed that of approximately 142 eligible
voters, 77 cast ballots for the Union , 55 cast ballots
against the Union, and 7 cast challenged ballots. On
November 21 , 1967, the Respondent filed timely
objections to the election alleging: ( 1) that the Union, by
several individual acts, exceeded the bounds of legitimate
campaign propaganda , (2) that the Union improperly
promised a waiver of initiation fees ' and dues payments if
the employees selected the Union, (3) that the Union
misrepresented the requirements of its international
constitution by promising the employees the opportunity
to vote on the contents of the contract without paying
dues, (4) that the Union improperly permitted an
atmosphere of coercion , threats, and fear to permeate the
atmosphere of the campaign , and (5 ) that by other
conduct and interference from the Union the results of the
election were affected.
The Regional Director for Region 10 conducted an
investigation of the objections to the election and on
December 29 , 1967, issued a Supplemental Decision,
Order, and Direction of Third Election in which he
sustained Respondent ' s Objection 4 which alleged that a
letter delivered to the homes of the employees the day
174 NLRB No. 29
SOUTHERN FOODS, INC.
prior to the election exceeded the bounds of legitimate
campaign propaganda by falsely stating that wages and
total benefits at Southern Foods, Inc., were greater than
the wages and benefits offered in negotiations at Armour
and Company, a nearby competitive meat packing plant.
Since in the Regional Director's judgment Respondent's
Objection 4 raised substantial and material issues which
affected the election, the election of November 15, 1967,
was set aside and a third election was directed.
On January 16, 1968, the Union filed a Request for
Reconsideration and Vacation of Regional Director's
Supplemental Decision, Order, and Direction of Third
Election. On January 18, 1968, after consideration of the
above request, the Regional Director issued an Order
Vacating Direction of Third Election, Granting
Petitioner's Motion for Reconsideration and Notice of
Hearing in which he found that the Union's Request for
Reconsideration raised substantial issues with respect to
Respondent's Objection 4, which could best be resolved
through testimony taken at a hearing. Accordingly, the
Regional Director vacated his previous findings and
conclusions concerning Objection 4 and directed a hearing
thereon for February 13, 1968.
On January 24, 1968, the Respondent filed a Motion
for Reconsideration of Order of Regional Director's
Vacating Direction of Third Election, in which it
contended, inter alia, that there was no substantial issue
respecting its Objection 4 requiring a hearing. On January
25, 1968, the Union filed with the Board in Washington,
D.C., a Request for Review of Regional Director's
Supplemental Decision, Order, and Direction of Third
Election, and to the Regional Director's Subsequent Order
Directing a Hearing on Issues Raised by the Employer's
Objection No. 4. Also, on January 25, 1968, the
Respondent requested the Board to review the Regional
Director's findings with respect to Respondent's
Objections 1, 2, 3, 5, 6, 7, 8, and 9 and also Objection 4.
In view of the fact that both the Union and the
Respondent had requested review of the Supplemental
Decision, Order, and Direction of Third Election, the
Regional Director for Region 10, on February 8, 1968,
issued an Order Withdrawing Notice of Hearing.
On February 7, 1968, the Respondent filed with the
Board a Request for Review of: Certain Findings of the
Regional Director in the Supplemental Decision, Order,
and Direction of Third Election; of Regional Director's
Order Vacating Direction of Third Election and Ordering
of a Hearing; and Regional Director's Order Denying the
Employer's Motion for Reconsideration, together with a
supporting brief. On March 5, 1968, the Board granted
the Respondent's and the Union's requests for review of
the Regional Director's order of January 18, 1968, on the
ground that they raised substantial issues warranting
review. The Board further ordered that the Union's request
for review of the Supplemental Decision, Order, and
Direction of Third Election, insofar as it related to
Objection 4, be granted, on the ground that it also raised
substantial issues warranting review. It was further
ordered that the Respondent's request for review of the
Supplemental Decision be denied.
Pursuant to the grant of review, the Respondent on
March 15, 1968, filed a Brief on Review, to which the
Union filed a Response brief on March 20, 1968.
Subsequently, on March 25, 1968, the Respondent filed a
response to the Union's brief of March 20, 1968. On the
same date, March 25, the Board rejected the Union's brief
on the ground that it was postmarked 4 days after the due
date (March 15, 1968).
155
On June 5, 1968, the Board issued a Decision on
Review and Certification of Representative, in which it
found that the matter raised by Objection 4 did not have a
substantial impact on the election. Therefore, the Board
certified the Union as the exclusive representative of all
the employees in the appropriate unit for the purposes of
collective bargaining.,
On June 20, 1968, the Respondent filed a Motion for
Reconsideration of the Board's June 5 Decision and a
Request for Oral Argument. On June 24, 1968, this
motion for reconsideration was denied by the Board as
lacking in merit. The request for oral argument was also
denied.
The Unfair Labor Practice Case
On July 9, 1968, the Union filed the unfair labor
practice charge involved in the instant case, in which it
alleged that since on or about June 12, 1968, and at all
times thereafter, the Respondent has refused to bargain
with the Union as the representative of employees in the
appropriate unit.
On July 24, 1968, the General Counsel, by the Regional
Director for Region 10, issued a Complaint and Notice of
Hearing alleging that the Respondent had committed
unfair labor practices in violation of Sections 8(a)(1) and
(5) and 2(6) and (7) of the Act by refusing to bargain with
the Union upon request In due course Respondent filed
its answer to the complaint in which certain allegations of
the complaint were admitted and others denied.
In its answer the Respondent admits the following
allegations of the complaint: (1) jurisdictional, (2) that the
Union is a labor organization within the meaning of
Section 2(5) of the Act, (3) that the unit is appropriate,
(4) that the Union requested the Respondent to bargain
collectively, and (5) that Respondent refused and
continues to refuse to bargain collectively with the Union.
Though admitting the fact of the election and the
certification, Respondent's answer denies that: (1) the
employees in the appropriate unit selected the Union as
their representative for the purposes of collective
bargaining, (2) the Union was properly certified by the
Board, (3) the Union is the exclusive representative of all
the employees in the said unit within the meaning of
Section 9(a) of the Act, and .(4) the Respondent has
committed unfair labor practices within the meaning of
Section 8(a)(1) and (5) and Section 2(6) and (7) of the
Act.
Under date of August 9, 1968, received August 12,
counsel for the General Counsel filed a Motion for
Summary Judgment in which he contends that the
pleadings, considered together with the official record in
the underlying representation proceeding, Case
10-RC-7116, raise no issues requiring a hearing, that
Respondent's defense set forth in its answer raises no
litigable questions of fact, and, as a matter of law,
Respondent has no valid defense to the complaint.
On August 12, 1968, I issued an order directing the
parties to show cause as to whether or not General
Counsel's motion for summary judgment should be
granted. On August 26, 1968, counsel for the Respondent
filed a Response in which it opposes the General
Counsel's Motion.
'Southern Foods, Inc, 171 NLRB No 131.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ruling on Motion for Summary Judgment
In its Response to the Motion for Summary Judgment,
the Respondent urges that the General Counsel's motion
should be denied for a number of reasons, which in
summary are as follows: (1) Respondent's Answer to
Complaint presents adequate and compelling grounds to
require that the proceeding be dismissed, (2) a hearing is
necessary to determine whether or not the defenses set
forth in Respondent's answer are adequate, (3) that the
Board misapplied the law in its June 5, 1968, decision,
and that the Trial Examiner should recognize the Board's
error and dismiss the complaint in order to avoid an
appeal to the court of appeals, (4) the defenses raised in
Respondent's answer are not a mere relitigation of the
issues raised in the representation proceeding, and (5)
there are "unusual circumstances" requiring that the
Respondent not bargain with the Union. None of these
propositions is found to be supported.'
It is established Board policy, in the absence of newly
discovered or previously unavailable evidence or special
circumstances, not to permit litigation before a trial
examiner in an unfair labor practice case of issues which
were or could have been litigated in a prior related
representation proceeding."
No newly discovered or previously unavailable evidence
is asserted here. The "unusual circumstances" referred to
by the Respondent are that after the election 121 of 130
employees in the unit, without interference by the
Respondent, hired an attorney and sent cards to the Board
stating that they had been misled by the Union and had
voted in favor of the Union because of such deception.
The contention that these cards affect the Union's
representative status was reviewed by the Board and
rejected in its Decision and Certification of
Representative. Accordingly I find no unusual
circumstances authorizing disregard of the certification. In
this situation the Board's Decision and Certification of
Representative constitutes the law of the case and is
binding on the Trial Examiner. The fact that the
Respondent attacks the validity of the election and the
certification in its answer does not free the Respondent of
its obligation to bargain, or entitle it to a hearing on
matters already decided by the Board.
There being no unresolved issues requiring hearing, the
Motion of the General Counsel for Summary Judgment is
granted, and I hereby make the following further:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Southern Foods, Inc., the Respondent, is, and has been
at all times material herein, a corporation duly organized
under and existing by virtue of the laws of the State of
Georgia. It maintains its principal office and place of
business at Columbus, Georgia, where it is engaged in the
manufacture and sale of meat products.
In the course and conduct of its business operations,
Respondent, during the past year, manufactured and sold
'The Respondent also requests opportunity to argue its case orally before
the Trial Examiner This request is denied for the reason that the
pleadings, the record, and the Respondent ' s brief adequately present the
positions of the parties
'Howard Johnson Co , 164 NLRB No. 121, Metropolitan Life Insurance
Co., 163 NLRB No 71. See Pittsburgh Plate Glass Co . v N L R B , 313
U S. 146, 162 (1941 ), Rules and Regulations of the Board , Section 102 67
(f) and 102.69(c)
products valued in excess of $50,000 directly from sources
located outside the State of Georgia.
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.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees of
Respondent at its Columbus, Georgia, plant, including
janitors, truckdrivers, the truck washer, the leaderman
in the engineering and maintenance department, order
assembler clerks, full-time shipping and receiving clerks,
the plant cost clerk, the beef cooler man, and the
warehouse receiving clerk, but excluding office clerical
employees, the livestock buyers (livestock buyer -
sorter, grader, weigher), professional employees, guards,
superintendents, assistant superintendents, foremen, the
assistant foreman, and all other supervisors as defined
in the Act.
On November 15, 1967, a majority of Respondent's
employees in the said unit designated and selected the
Union as their collective bargaining representative in a
secret ballot election conducted under the supervision of
the Regional Director of Region 10 of the National Labor
Relations Board.
On June 5, 1968, the National Labor Relations Board
certified the Union as the exclusive collective bargaining
representative of the employees in the appropriate unit.
At all times since June 5, 1968, and continuously to the
present, the Union has been the representative for the
purpose of collective bargaining of the employees in the
said unit, and by virtue of Section 9(a) of the Act has
been, and is now, the exclusive representative of all the
employees in said unit for the purpose of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of
employment.
It is alleged and admitted that following the
certification of the Union, the Union requested the
Respondent to meet with it for the purposes of collective
bargaining and that the Respondent failed and refused to
do so. On these facts it is found, in accordance with the
allegations of the complaint, and the admissions of the
answer, that commencing on or about July 1, 1968, the
Respondent has refused and continues to refuse to bargain
collectively with the Union as the representative of the
employees in the appropriate unit.
By thus refusing to bargain collectively the Respondent
has engaged in unfair labor practices in violation of
Section 8(a)(5) of the Act and has interfered with,
restrained, and coerced its employees in violation of
Section 8(a)(1) of the Act.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
Upon the foregoing findings and conclusions and the
entire record in the case, I recommend that the Board
issue the following:
SOUTHERN FOODS, INC. 157
ORDER
A. For the purposes of determining the duration of the
certification the initial year of certification shall be
deemed to begin on the date the Respondent commences
to bargain in good faith with the Union as the recognized
exclusive bargaining representative in the appropriate
unit.5
B. Southern Foods, Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United
Packing House, Food and Allied Workers, AFL-CIO, as
the exclusive collective bargaining representative of the
employees in the following appropriate bargaining unit:
All production and maintenance employees of the
Respondent at its Columbus, Georgia, plant, including
janitors, truckdrivers, the truck washer, the leaderman
in the engineering and maintenance department, order
assembler clerks, full-time shipping and receiving clerks,
the plant cost clerk, the beef cooler man, and the
warehouse receiving clerk, but excluding office clerical
employees, the livestock buyers (livestock buyer -
sorter, grader, weigher), professional employees, guards,
superintendents, assistant superintendents, foremen, the
assistant foreman, and all other supervisors as defined
in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent the employees as exclusive
collective bargaining representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively with United
Packinghouse, Food and Allied Workers, AFL-CIO, as
the exclusive representative of the employees in the
appropriate unit with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment, and embody in a signed agreement any
understanding reached.
(b) Post at its office and place of business in Columbus,
Georgia. copies of the notice attached hereto marked
"Appendix."' Copies of said notice, on forms to be
furnished by the Regional Director for Region 10, shall,
after being duly signed by an authorized representative of
the Respondent, be posted by the Respondent immediately
upon receipt thereof, be maintained by it for a period of
'The purpose of this provision is 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 See Mar-Jac Poultry Co., Inc, 136
NLRB 785; Commerce Co, d/bra Lamar Hotel , 140 NLRB 226, 229,
enfd. 328 F 2d 600 (C A 5, 1964), cert. denied 379 U S. 817 (1964);
Burnett Construction Co, 149 NLRB 1419, 1421, enfd 350 F 2d 57 (C A
10, 1965)
'In the event that this Recommended Order is adopted by the Board, the
words, "a Decision and Order" shall be substituted for the words
"Recommended Order of a Trial Examiner" in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from receipt of this Recommended
Order what steps Respondent has taken to comply
herewith.'
'In the event this Recommended Order is adopted by the Board, this
provision shall be modified to read- "Notify the Regional Director for
Region 10, in writing , within 10 days from receipt of this Order, what
steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations
Act, as amended , we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with
United Packinghouse , Food and Allied Workers,
AFL-CIO, as the exclusive bargaining representative of
all our following employees:
All production and maintenance employees at our
Columbus, Georgia , plant, including j anitors,
truckdrivers , the truck washer, the leaderman in the
engineering and maintenance department, order
assembler clerks , full-time shipping and receiving
clerks, the plant cost clerk, the beef cooler man, and
the warehouse receiving clerk, but excluding office
clerical employees , the livestock buyers (livestock
buyer - sorter, grader , weigher), professional
employees, guards, superintendents , assistant
superintendents , foremen, the assistant foreman, and
all other supervisors as defined in the Act.
WE WILL NOT interfere with the efforts of the Union
to negotiate for or represent the employees as exclusive
collective bargaining representative.
WE WILL bargain collectively with the Union as
exclusive collective bargaining representative of the
employees in the appropriate unit and if an
understanding is reached we will sign a contract with
the Union.
Dated By
SOUTHERN FOODS, INC.
(Employer)
(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.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, 730 Peachtree
St., N.E., Atlanta, Georgia 30308, Telephone
404-526-5760.