Spear Meat Company

National Labor Relations Board - Board Decisions

May 22, 1981

256 N.L.R.B. 117 (N.L.R.B. 1981)

SPEAR MEAT COMPANY 117
Rawley C. Koch, d/b/a Spear Meat Company and
United Food and Commercial Workers Local
560A, chartered by United Food and Commer-
cial Workers International Union, AFL-CIO &
CLC. Case 19-CA-12498
May 22, 1981
DECISION AND ORDER
Upon a charge filed on June 9, 1980, as amended
on July 17, 1980, by United Food and Commercial
Workers Local 560A, chartered by United Food
and Commercial Workers International Union,
AFL-CIO & CLC, herein called the Union, and
duly served on Rawley C. Koch, d/b/a Spear
Meat Company, herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 19,
issued a complaint and notice of hearing on July
14, 1980, against Respondent, alleging that Re-
spondent had engaged in and was engaging in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the National Labor Relations Act,
as amended. Copies of the charge and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on January 8,
1980, and April 16, 1980, the Union provided Re-
spondent with written requests for the termination
of employee Robert Ehrmantraut pursuant to the
union-security contract signed by the parties on
September 10, 1979, and effective March 16, 1979
through June 19, 1982; that Ehrmantraut has not
complied with the contract provision that he
become and remain a member in good standing in
the Union despite repeated requests by the Union;
that Respondent has at all times failed and refused
to terminate Ehrmantraut pursuant to the Union's
demands; and that Respondent thereby engaged in,
and is engaging in, unfair labor practices affecting
commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the Act.
On December 23, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on January 6,
1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
did not file a response to the Notice To Show
Cause.
Upon the entire record in this proceeding, the
Board makes the following:
256 NLRB No. 19
Ruling on the Motion for Summary Judgment
Section 102.20 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
provides:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. The respondent shall specifically admit,
deny, or explain each of the facts alleged in
the complaint, unless the respondent is without
knowledge, in which case the respondent shall
so state, such statement operating as a denial.
All allegations in the complaint, if no answer
is filed, or any allegation in the complaint not
specifically denied or explained in an answer
filed, unless the respondent shall state in the
answer that he is without knowledge, shall be
deemed to be admitted to be true and shall be
so found by the Board, unless good cause to
the contrary is shown.
The complaint and notice of hearing specifically
states that, unless an answer to the complaint is
filed by Respondent within 10 days of service
thereof, "all of the allegations in the complaint
shall be deemed to be admitted to be true and may
be so found by the Board." According to the un-
controverted allegations of the Motion for Sum-
mary Judgment, the Regional Director, on July 14,
1980, mailed the complaint and notice of hearing to
Respondent by registered mail. Respondent re-
ceived the complaint on July 16, 1980. Counsel for
the General Counsel, on many occasions since July
24, 1980, discussed with Respondent's owner the
need for prompt compliance with the requirement
for filing an answer. On August 12 and 29, 1980,
counsel for the General Counsel contacted Re-
spondent's owner by telephone and notified him of
the need for an answer. Such conversations were
confirmed by letters to Respondent's owner from
counsel to the General Counsel, dated August 12
and 29, 1980, respectively. In addition, even
though no requests for extension were made, the
due date for answering the complaint was extended
on a number of occasions, the last extension being
to September 5, 1980. Finally, on September 8,
1980, counsel for the General Counsel sent Re-
spondent a telegram which stated that a Motion for
Summary Judgment would issue if Respondent did
not answer by September 10, 1980. Neither an
answer nor a request for extension of time for the
filing of an answer had been received at the time
counsel for the General Counsel filed the Motion
for Summary Judgment. And, as noted, there has
been no answer by Respondent to the Notice To
Show Cause. Therefore, the allegations of the
SPEAR MEAT COMPANY Ill
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Motion for Summary Judgment stand uncontro-
verted.
In view of Respondent's failure to file an answer,
and no good cause having been shown therefor,
the uncontroverted allegations of the complaint are
deemed admitted and are found to be true. Accord-
ingly, we grant the Motion for Summary Judg-
ment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Rawley C. Koch, d/b/a Spear Meat Company, a
sole proprietorship, with its principal place of busi-
ness in Billings, Montana, was at all material times
herein, engaged in the retail sale of meat and gro-
cery products. Respondent, in the course and con-
duct of its business operations during the 12
months preceding issuance of the complaint, had
gross sales of goods and services valued in excess
of $500,000. During the same 12-month period, Re-
spondent also purchased and caused to be trans-
ferred and delivered to its facilities within the State
of Montana goods and materials valued in excess of
$50,000 directly from sources outside the State, or
from suppliers within the State who in turn ob-
tained such goods and materials directly from
sources outside the State of Montana.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
United Food and Commercial Workers Local
560A, chartered by United Food and Commercial
Workers International Union, AFL-CIO & CLC,
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II1. THE UNFAIR LABOR PRACTICES
A. The Unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All employees engaged in the handling, cut-
ting, selling, processing, wrapping, and prepar-
ing of fish, and fish products, poultry, and
poultry products and all meat products that
are offered for sale in Respondent's meat de-
partment and meat cases; excluding guards and
supervisors as defined by the Act.
B. The Representative Status of the Union
On September 10, 1979, Respondent and the
Union entered into a collective-bargaining agree-
ment covering the terms and conditions of employ-
ment for employees in the unit effective March 16,
1979, through June 19, 1982. At all times material
herein, the Union has represented a majority of Re-
spondent's employees in the unit, and has been, and
is now, the exclusive collective-bargaining repre-
sentative of all such employees within the meaning
of Section 9(a) of the Act.
The current collective-bargaining agreement be-
tween the parties requires that employees "become
and remain members in good standing in the
Union."
Section 1.1 of the contract reads as follows:
Section 1.1. It shall be a condition of continu-
ing employment that all employees of the Em-
ployer covered by this Agreement who are
members of the Union in good standing on the
date on which this Agreement is signed shall
remain members in good standing and those
who are not members on the date on which
this Agreement is signed shall, on the thirtieth
(30th) day following the date on which this
Agreement is signed become and remain mem-
bers in good standing in the Union. It shall
also be a condition of employment that all em-
ployees covered by this Agreement and hired
on or after the date on which this Agreement
is signed shall, on the thirtieth (30th) day fol-
lowing the beginning date of such employment
become and remain members in good standing
in the Union. For the purposes of the contract,
the execution date shall be deemed to be the
effective date.
The tender of initiation fees and periodic
dues uniformly required as a condition of re-
taining membership shall constitute good
standing in the Union for the purposes of this
Section.
The Employer will not be asked by the
Union to discharge any employee for non-pay-
ment of Union dues or failure to become a
member of the Union until seven (7) days after
written notice of delinquency in dues or failure
to join the Union has been sent by the Union
to the Employer. Upon payment of delinquent
dues, or joining the Union, whichever the case
may be, the employee will be allowed to con-
tinue working.
SPEAR MEAT COMPANY 119
The Union agrees to hold the Employer
harmless for discharges made pursuant to this
section.
C. The Request To Discharge and Respondent's
Refusal
Commencing on or about January 8, 1980, and
on April 16, 1980, the Union provided Respondent
with written requests for the termination of Robert
Ehrmantraut pursuant to the aforementioned sec-
tion 1.1 of the collective-bargaining agreement.
Notwithstanding repeated requests by the Union,
Robert Ehrmantraut has not complied with the sec-
tion 1.1 provisions of the collective-bargaining
agreement. Also, Respondent has at all times failed
and refused to terminate Robert Ehrmantraut pur-
suant to the Union's demands that section 1.1 of
the collective-bargaining agreement required such
termination.
Accordingly, we find that Respondent has, since
on or about January 8, 1980, and at all times there-
after, refused to honor the Union's repeated valid
requests to discharge its employee Robert Ehrman-
traut pursuant to the valid provisions of the union-
security clause in the contract between it and the
Union and has thereby failed to discharge its bar-
gaining obligations imposed by Section 8(a)(5) and
(1) of the Act. See House of Fabrics, Inc., 234
NLRB 1024, 1025 (1978). King Electrical Manufac-
turing Company, 229 NLRB 615, 616 (1977).
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and
take certain affirmative action designed to effectu-
ate the policies of the Act.
We shall order that Respondent cease and desist
from failing and refusing to terminate, upon the
Union's valid request, employees who fail to
become members of the Union pursuant to valid
union-security provisions of its collective-bargain-
ing contract. Affirmatively, we shall order that Re-
spondent honor, upon the Union's request, all
union-security provisions of its collective-bargain-
ing agreement with the Union.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Rawley C. Koch, d/b/a Spear Meat Compa-
ny, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. United Food and Commercial Workers Local
560A, chartered by United Food and Commercial
Workers International Union, AFL-CIO & CLC,
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. All employees engaged in the handling, cut-
ting, selling, processing, wrapping, and preparing
of fish, and fish products, poultry, and poultry
products and all meat products that are offered for
sale in Respondent's meat department and meat
cases; excluding guards and supervisors as defined
by the Act, constitute a unit appropriate for the
purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. At all times material herein, the above-named
labor organization has been and now is the exclu-
sive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bar-
gaining within the meaning of Section 9(a) of the
Act.
5. Respondent refused to bargain with the Union
within the meaning of Section 8(a)(5) of the Act on
and after January 8, 1980, by failing and refusing to
terminate, upon the Union's valid request, an em-
ployee who failed to become a member of the
Union pursuant to valid union-security provisions
of its collective-bargaining contract.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Rawley C. Koch, d/b/a Spear Meat Company,
Billings, Montana, his agents, successors, or assigns,
shall:
1. Cease and desist from:
SPEAR MEAT COMPANY 9
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Refusing to bargain with the Union by failing
and refusing to terminate upon the Union's valid
request employees who fail to become members of
the Union pursuant to valid union-security provi-
sions of its collective-bargaining contract and in
derogation of the Union's status as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All employees engaged in the handling, cut-
ting, selling, processing, wrapping, and prepa-
ration of fish, and fish products, poultry, and
poultry products and all meat products that
are offered for sale in Respondent's meat de-
partment and meat cases; excluding guards and
supervisors as defined by the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon valid request of the Union, honor all
union-security provisions of Respondent's collec-
tive-bargaining agreement with the Union.
(b) Post at its facility in Billings, Montana, copies
of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the
Regional Director for Region 19, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
(c) Notify the Regional Director for Region 19,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
I WILL NOT refuse to bargain collectively
with United Food and Commercial Workers
Local 560A, chartered by United Food and
Commercial Workers International Union,
AFL-CIO & CLC, herein called the Union,
by failing and refusing to terminate upon the
Union's valid request employees who fail to
become members of the Union pursuant to
valid union-security provisions of its collec-
tive-bargaining contract and in derogation of
the Union's status as the exclusive representa-
tive of the employees in the bargaining unit
described below.
I WILL NOT in any like or related manner in-
terfere with, restrain, or coerce my employees
in the exercise of the rights guaranteed them
by Section 7 of the Act.
I WILL, upon the Union's valid request,
honor all union-security provisions of our col-
lective-bargaining agreement with the Union.
The bargaining unit is:
All employees engaged in the handling, cut-
ting, selling, processing, wrapping, and pre-
paring of fish, and fish products, poultry,
and poultry products and all meat products
that are offered for sale in Respondent's
meat department and meat cases; excluding
guards and supervisors as defined by the
Act.
RAWLEY C. KOCH, D/B/A SPEAR
MEAT COMPANY