Swift & Co., Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1967

168 N.L.R.B. 7 (N.L.R.B. 1967)

SWIFT & COMPANY, INC. 7
Swift & Company, Inc. and Local 529, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
3-CA-3256
October 31, 1967
DECISION AND ORDER
By MEMBERS FANNING,JENKINS, AND ZAGORIA
Upon a charge filed by Local 529, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
called the Union, the General Counsel of the Na-
tional Labor Relations Board, by the Regional
Director for Region 3, issued a complaint dated
July 25, 1967, against Swift & Company, Inc.,
herein called Respondent, alleging that the Respond-
ent had engaged in and was engaging in unfair
labor practices within the meaning of Sections
8(a)(5) and (1) and 2(6) and (7) of the National
Labor Relations Act, as amended. Copies-of the
charge, complaint, and notice of hearing before a
Trial Examiner were duly served upon the Re-
spondent.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on or about
May 18, 1967, the Union was duly certified by the
Board' as the exclusive bargaining representative
of Respondent's employees in the appropriate unit
as stipulated by the parties and that, since on or
about March 14 and June 9, 1967, and thereafter,
Respondent has refused and is refusing to recognize
or bargain with the Union as such exclusive bar-
gaining representative, although the Union has
requested and is requesting it to do so. Pursuant to
an extension of time in which to file its answer, the
Respondent did so on August 17, 1967, and therein
denied the commission of the unfair labor practices
alleged.
On August 22, 1967, the General Counsel filed
with the Board a motion for summary judgment, as-
serting, in view of admissions by the Respondent
contained in its answer and the lack of any allega-
tion of newly discovered evidence or the existence
of evidence which would justify the relitigation of
issues determined in the prior representation
proceeding in Case 3-RC-3992, that there are no
issues of fact or law requiring a hearing, and praying
the issuance of a Decision and Order finding the
violations as alleged in the complaint. Thereafter,
on August 28, 1967, the Board issued an order
transferring proceeding to the Board, and, on the
same date, a notice to show cause on or before Sep-
tember 11, 1967, why the General Counsel's Mo-
tion for Summary Judgment should not be granted.
On September 12, 1967, the Respondent filed its
memorandum in reply to Board's Order transferring
proceeding to the Board and notice to show cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
makes the following:
RULING ON THE MOTION FOR SUMMARY
JUDGMENT
In its reply memorandum Respondent contends
that it is entitled to an evidentiary hearing to insure
full litigation of the facts. This contention is without
merit. The truth of the allegations of the complaint
has either been expressly admitted by the Respond-
ent in its answer, or stands admitted by virtue of
the uncontroverted factual averments in the
General Counsel's motion.
The record before us establishes that on August
1, 1966, the Union filed a petition in Case
3-RC-3992, seeking to represent all truckdrivers
at the Employer's place of business in Elmira, New
York. On August 11, 1966, the Regional Director
approved a stipulation for certification upon con-
sent election, to which the Respondent and Union
were parties, and in which the appropriate bargain-
ing unit of employees was defined as follows:
All truck drivers employed at the Employer's
Elmira, New York, place of business, exclud-
ing all office clerical employees, professional
employees, guards and supervisors as defined
in the Act and all other employees.
On August 29, 1966, a secret ballot election was
conducted- under the supervision of the Regional
Director pursuant to said stipulation. In the elec-
tion, with five voters eligible, two votes were cast
for the Union, one vote against the participating
labor organization, and one vote was challenged.
Thereafter, the Union filed timely objections to the
election. The Regional Director, on October 5,
1966, issued his report on challenged ballot and ob-
jection in which he recommended that the challenge
be overruled and the ballot counted, and found
merit to the Union's objection based on the
Respondent's failure to submit an eligibility list in
accordance with the Board's rule in Excelsior Un-
derwear Inc., 156 NLRB 1236; he further recom-
mended that if as a result of the Board's determina-
tion of the challenge, the majority of the valid votes
be cast for the Union, that it be certified as the bar-
gaining representative but if the Union did not at-
tain a majority that the said election of August 29
be set aside and a new election directed. On Oc-
tober 20, 1966, Respondent filed exceptions to the
' Certification of Representative in Case 3-RC-3992
168 NLRB No. 2
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said report and a brief in support, and the Board, on
December 9, 1966, issued a Decision and
Direction reserving decision as to the objections
and directing that the challenged ballot be opened
and counted and revised tally of ballots be issued.
On December 14, 1966, pursuant to said Deci-
sion and Direction, the Regional Director counted
the challenged ballot, and the revised tally of ballots
served on the parties reflected two votes cast for
the Union and two votes cast against the participat-
ing labor organization. Then, on December 16,
1966, the Regional Director issued an Order return-
ing the case to the Board.
The Board, on February 17, 1967, issued a Sup-
plemental Decision and Direction of Election'
ordering that the election conducted on August 29,
1966, be set aside, adopting the Regional Director's
findings, conclusions, and recommendations, and
thereby finding merit in the Union's objection based
on Respondent's failure to furnish an eligibility list
in accordance with the Board's decision in
Excelsior Underwear, supra.3
The rerun election, with six voters eligible, was
conducted by the Regional Director on March 14,
1967, among the employees in the appropriate unit.
The tally of ballots reflected four votes cast for the
Union and two votes cast against the participating
labor organization. Thereafter, on or about March
21, 1967, the Respondent filed timely objections to
the conduct of the rerun election, and on March 28,
1967, the Acting Regional Director issued a supple-
mental report on objections, finding that Respond-
ent's objections did not raise substantial or materi-
al issues with respect to conduct affecting the
results of the election, and recommending that the
objections be overruled and a certification of
representative be issued.
On April 7, 1967, Respondent filed exceptions to
said supplemental report on objections, and on May
18, 1967, the Board issued a Second Supplemental
Decision and Certification of Representative,
adopting the Acting Regional Director's findings,
conclusions, and recommendations, thereby finding
no merit to Respondent's objections and certifying
the Union as the collective-bargaining representa-
tive of the employees in said appropriate unit for the
purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment.
Commencing on or about March 14, 1967, and
more particularly on May 23 and June 2, 1967, the
certified Union requested that the Respondent bar-
gain collectively with it. Since March 14, 1967, and
more particularly on or about June 9, 1967,
Respondent refused to bargain with the Union, and
on June 26, 1967, the Union filed the charge upon
which these proceedings are predicated.
In its memorandum in reply to the motion, the
Respondent contends in substance that a hearing
should be held so that it may have a chance "to
show the error of the Board in a per se application
of Excelsior ." Based upon our decision in the re-
ported representation case as quoted in footnote 3
above, we find this contention lacking in merit.
As all material issues have been previously de-
cident by the Board, are admitted by the Respond-
ent's answer to the complaint, or stand admitted
by the failure of Respondent to controvert the aver-
ments of the General Counsel's motion, there are
no matters requiring a hearing before a Trial Ex-
aminer. Accordingly, the General Counsel's motion
for summary judgment is granted. On the basis of
the record before it, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under, and ex-
isting by virtue of, the laws of the State of Illinois,
maintaining its principal office and place of business
in Chicago, Illinois, and various other plants, places
of business, warehouses, and other facilities in vari-
ous States, including the plant at Elmira, New
York, the only facility here involved. At these vari-
ous facilities it is engaged in the packing,
processing, sale, and distribution of meat, meat
products, and related products. During the past
year, Respondent in the course and conduct of its
business operations purchased, transferred, and
delivered to its plants located in New York State,
meat, meat products, and other goods and material
valued in excess of $100,000, of which goods and
materials valued in excess of $100,000 were trans-
ported to said plant directly from States other than
the State of New York. We find that Respondent is,
and has been at all times material herein, an em-
ployer in commerce within the meaning of Section
2(6) and (7) of the Act:
II. THE LABOR ORGANIZATION INVOLVED
Local 529, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
Published in NLRB volumes at 163 NLRB 17
With respect to Respondent 's contention that the Union had ample
means of communicating with the few employees in the unit so that there
was no need for the list, the Board disagreed, stating "As the Board
stated in Excelsior, 'even assuming the availability of other avenues by
which a union might be able to communicate with employees, we may
properly require employer disclosure of employee names and addresses so
as to insure the opportunity of all employees to be reached by all parties in
the period immediately preceding a representation election '
Moreover, we see no justification for permitting employers to decide for
themselves in each case whether a 'need' for the list exists Such a policy
could result only in confusion and delay in the conduct of representation
proceedings"
SWIFT & COMPANY, INC. 9
III. THE UNFAIR LABOR PRACTICES
A. The Representative Proceeding
1. The unit
The following employees at the Respondent's El-
mira, New York, plant constitute a unit appropriate
for collective bargaining within the meaning of the
Act:
All truck drivers, exclusive of all other em-
ployees, all office clerical employees , profes-
sional employees , guards, and supervisors as
defined in the Act.
2. The certification
On or about March 14, 1967, a majority of the
employees of Respondent in said unit, in a secret
election conducted under the supervision of the Re-
gional Director for Region 3, designated the Union
as their representative for the purpose of collective
bargaining with Respondent, and on May 18, 1967,
the Board certified the Union as the collective-bar-
gaining representative of the employees in said unit,
and the Union continues to be such representative.
B. The Request to Bargain and the Respondent's
Refusal
Commencing on or about March 14, 1967, and
continuing to date, and more particularly on May
23 and June 2, 1967, the Union has requested, and
is requesting, Respondent to bargain collectively
with it as the exclusive collective- bargaining
representative of all the employees in the above-
described unit. Since March 14, 1967, and continu-
ing to date, and more particularly on or about June
9, 1967, Respondent, by its officers, agents, and
representatives including Patrick W. Kempsey, did
refuse, and continues to refuse, to bargain collec-
tively with the Union as the exclusive collective-
bargaining representative of all employees in said
unit.
Accordingly, we find that the Union was duly
certified by the Board as the collective-bargaining
representative of the employees of the Respondent
in the appropriate unit described above, and that the
Union at all times since May 18, 1967, has been
and now is the exclusive bargaining representative
of all the employees in the aforesaid unit within the
meaning of Section 9(a) of the Act. We further find
that Respondent has, since on or about March 14,
1967, refused to bargain collectively with the Union
as the exclusive bargaining representative of its em-
ployees in the appropriate unit, and that, by such
refusal, the Respondent has engaged in, and is en-
gaging in, unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The acts of the Respondent set forth in section
III, above, occurring in connection with its opera-
tions as described in section I, above, have a close,
intimate, and substantial relation 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 commerce.
V. THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act, we shall order that it
cease and desist therefrom, and, upon request, bar-
gain 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.
CONCLUSIONS OF LAW
1. Swift & Company, Inc., is an Employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 529, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All truckdrivers employed at the Employer's
Elmira, New York, place of business, excluding all
office clerical employees, professional employees,
guards, and supervisors as defined in the Act and all
other employees, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since May 18, 1967, the above-named labor
organization has been the exclusive representative
of all employees in the aforesaid appropriate unit
for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing on or about March 14, 1967, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed to
them in Section 7 of the Act, and has thereby en-
gaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
Relations Board hereby orders that the Respond-
ent, Swift & Company, Inc., Elmira, New York,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of em-
ployment, with Local 529, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All truck drivers employed at the Employer's
Elmira, New York, place of business, exclud-
ing all office clerical employees, professional
employees, guards, and supervisors as defined
in the Act and all other employees.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the
rights guaranteed to them by 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 un-
derstanding is reached, embody such understanding
in a signed agreement.
(b) Post at its Elmira, New York, place of busi-
ness , copies of the attached notice marked "Appen-
dix."' Copies of said notice, to be furnished by the
Regional Director for Region 3, 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-
4 1n the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order."
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 3, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT refuse to bargain collectively
with Local 529, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive represent-
ative of the employees in the bargaining unit
described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees 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 represent-
ative of all employees in the bargaining unit
described below with respect to wages, hours,
and other terms and conditions of employment
and, if an understanding is reached, embody
such understanding in a signed agreement.
The bargaining unit is:
All truck drivers employed at the Em-
ployer's Elmira, New York, place of busi-
ness, excluding all office clerical em-
ployees, professional employees, guards,
and supervisors as defined in the Act and
all other employees.
SWIFT & COMPANY, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive 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, 4th Floor, The 120 Building, 120 Delaware
Avenue, Buffalo, New York 14202, Telephone
842-3100.