Sunnyland Packing Co.

National Labor Relations Board - Board Decisions

Oct 11, 1977

232 N.L.R.B. 1035 (N.L.R.B. 1977)

SUNNYLAND PACKING COMPANY
Sunnyland Packing Company and Amalgamated Meat
Cutters and Butcher Workmen of North America,
Local Union 522, AFL-CIO. Case 10-CA-12749
October 11, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge filed on April 19, 1977, by
Amalgamated Meat Cutters and Butcher Workmen
of North America, Local Union 522, AFL-CIO,
herein called the Union, and duly served on
Sunnyland Packing Company, herein called Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 10, issued a complaint and notice of hearing
on May 20, 1977, against Respondent, alleging that
Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (I) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge, complaint, and
notice of hearing before an Administrative Law
Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on March 25,
1977, following a Board-directed second election in
Case 10-RC-10311, the Union was duly certified as
the exclusive collective-bargaining representative of
Respondent's employees in the unit found appropri-
ate;' and that, commencing on or about April 11,
1977, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so. The complaint further
alleges that commencing on or about March 28,
1977, and at all times thereafter, the Union has
requested that Respondent furnish it with the
following information regarding the employees in the
certified unit: a list of current job classifications,
rates of pay, and fringe benefits of the unit
employees, and that, since on or about April 11,
1977, and at all times thereafter, Respondent refused
and has continued to refuse to supply the Union such
information. On May 27, 1977, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
'Official notice is taken of the record in the representation proceeding,
Case IO-RC 10311, 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
LTV Electrosvstems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969): Interope Co. v. Penello. 269 F.Supp. 573 (D.C.Va., 1967);
232 NLRB No. 152
On July 18, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on July 26, 1977, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. Respondent thereafter filed a response to
Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint, Respondent denies
so much of the complaint that avers that the Union is
the exclusive representative of all employees in the
bargaining unit, as well as all the unfair labor
practices charged. Respondent bases its position on
its contention that the holding of a second election in
the representation proceeding, although conducted
pursuant to a Board direction,2 was improper. In its
Motion for Summary Judgment, the General Coun-
sel submits that Respondent's answer does not allege
the existence of newly discovered evidence which
would justify relitigation of the issues raised in the
underlying representation case, and that the Motion
for Summary Judgment should be granted. In its
response to the Notice To Show Cause, Respondent
contends that the Board erred in setting the election
aside on the basis of one incident of objectionable
conduct which the Board also found constituted a
violation in related Case 10-CA-11248. That case
had been consolidated for hearing with Case 10-RC-
10311. Thus, it appears that Respondent is attempt-
ing to relitigate issues which were raised and
determined in the underlying consolidated proceed-
ing.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding. 3
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and Respondent does not
offer to adduce at a hearing any newly discovered or
Follerr Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
2 Decision, Order, and Direction of Second Election reported at 227
NLRB 590(1976).
3 See Pittsburgh Plate Glass Co. v. N.LR.B.. 313 U.S. 146, 162 (1941):
Rules and Regulations of the Board, Secs. 102.67(0 and 102.69(c).
1035
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
previously unavailable evidence, nor does it allege
that any special circumstances exist herein which
would require the Board to reexamine the decision
made in the representation proceeding. We therefore
find that Respondent has not raised any issue which
is properly litigable in this unfair labor practice
proceeding. We shall, accordingly, grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. IHE BUSINESS OF RESPONDENT
Sunnyland Packing Company, a Georgia corpora-
tion, at all times material herein has engaged in the
processing and sale of meat. The principal office and
place of business of Sunnyland Packing Company is
at North Dawson Street, Thomasville, Georgia.
During the past 12 months, Respondent, in the
course and conduct of its business operations, sold
and shipped finished products valued in excess of
$50,000 directly to customers located outside the
State of Georgia.
We find, on the basis of the foregoing, that
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, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Work-
men of North America, Local Union 522, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production and maintenance employees of
Sunnyland Packing Company employed by the
Employer at its Thomasville, Georgia, plant,
including all cafeteria employees, supply house
employees, and the practical nurse, but excluding
all truckdrivers, garage employees, office clerical
employees, buyers, salesmen, professional em-
ployees, guards and supervisors as defined in the
Act.
2. The certification
On March 17, 1977, a majority of the employees of
Respondent in said unit, in a Board-directed second
election conducted under the supervision of the
Regional Director for Region 10, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining representa-
tive of the employees in said unit on March 25, 1977,
and the Union continues to be such exclusive
representative within the meaning of Section 9(a) of
the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about March 25, 1977, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit and to furnish to
the Union certain information: a list of current job
classifications, rates of pay, and fringe benefits
concerning the employees of Respondent in the
appropriate unit. Commencing on or about April I 11,
1977, and continuing at all times thereafter to date,
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit, or to furnish the requested
information.
Accordingly, we find that Respondent has, since
April 11, 1977, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit. We also find that Respondent has, since April
11, 1977, and at all times thereafter, refused to honor
the Union's request for information we deem
relevant to it in its role as bargaining representative.
By such refusals, Respondent has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)5) and (I) of the Act.
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 opera-
tions described in section 1, above, have a close,
intimate, and substantial relationship 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 com-
merce.
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SUNNYLAND PACKING COMPANY
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 (I) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
Having further found that Respondent, in violation
of its duty under Section 8(a)(5) of the Act, refused to
furnish the Union with a list of job classifications,
rates of pay, and fringe benefits of the employees in
the bargaining unit, we shall order Respondent to
promptly furnish the Union with such information,
and to bargain collectively with the Union, upon
request, concerning the manner and form in which
such information shall be furnished the Union in the
future, and the intervals at which such information
shall be brought up to date.
In order 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, we shall construe the initial period of certifica-
tion as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Sunnyland Packing Company is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Amalgamated Meat Cutters and Butcher
Workmen of North America, Local 522, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. All production and maintenance employees of
Sunnyland Packing Company employed by the
Employer at its Thomasville, Georgia, plant, includ-
ing all cafeteria employees, supply house employees,
and the practical nurse, but excluding all truck-
drivers, garage employees, office clerical employees,
buyers, salesmen, professional employees, guards,
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since March 25, 1977, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about April 11, 1977, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By refusing on or about April 11, 1977, and at
all times thereafter, to furnish the above-named labor
organization, upon request, a list of thejob classifica-
tions, rates of pay, and fringe benefits of the
employees in the appropriate unit, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (I) of the
Act.
7. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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
Relations Board hereby orders that the Respondent,
Sunnyland Packing Company, Thomasville, Georgia,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Amalgamated Meat
Cutters and Butcher Workmen of North America,
Local Union 522, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees of
Sunnyland Packing Company employed by the
Employer at its Thomasville, Georgia, plant,
including all cafeteria employees, supply house
employees, and the practical nurse, but excluding
all truckdrivers, garage employees, office clerical
employees, buyers, salesmen, professional em-
ployees, guards and supervisors as defined in the
Act.
1037
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Refusing to furnish Amalgamated Meat Cutters
and Butcher Workmen of North America, Local
Union 522, AFL-CIO, with a list of the job
classifications, rates of pay, and fringe benefits of the
employees in the appropriate unit.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise 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 request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Promptly furnish the above-named labor
organization with a list of the job classifications,
rates of pay, and fringe benefits of the employees in
the appropriate unit.
(c) Post at its Thomasville, Georgia, plant copies of
the attached notice marked "Appendix." 4 Copies of
said notice, on forms provided by the Regional
Director for Region 10, 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 thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Amal-
gamated Meat Cutters and Butcher Workmen of
North America, Local Union 522, AFL-CIO, as
the exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT refuse to furnish the above-
named Union with a list of the job classifications,
rates of pay, and fringe benefits of the employees
in the appropriate unit.
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
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employees
of Sunnyland Packing Company employed
by the Employer at its Thomasville, Georgia,
plant, including all cafeteria employees,
supply house employees, and the practical
nurse, but excluding all truckdrivers, garage
employees, office clerical employees, buyers,
salesmen, professional employees, guards
and supervisors as defined in the Act.
WE WILL promptly furnish the above-named
labor organization with a list of the job classifica-
tions, rates of pay, and fringe benefits of the
employees in the appropriate unit.
SUNNYLAND PACKING
COMPANY
1038