Tarlas Meat Co.

National Labor Relations Board - Board Decisions

Jan 15, 1979

239 N.L.R.B. 1396 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tarlas Meat Company and Amalgamated Meat Cut-
ters and Butcher Workmen of North America,
AFL-CIO, Local No. 545. Case 14-CA-I 1149
January 18, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY. AND TRLESDAL.Ei
On September 14, 1978, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel and the
Charging Party filed answering briefs.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Tarlas Meat Company,
Madison, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
DECISION
STATEMENT OF THE CASE
JAMES L ROSE. Administrative Law Judge: This matter
was heard before me at St. Louis, Missouri, on June 19,
1978, upon the General Counsel's complaint, and amend-
ment thereto, which allege that the Respondent violated
Section 8(a)(5) of the National Labor Relations Act, Series
8, as amended, 29 U.S.C. § 151, et seq., by bargaining to
impasse on a mandatory subject (the scope of the bargain-
ing unit) and by refusing further to meet and negotiate
with the Charging Party from and after March 20, 1978.
While admitting that it has refused to meet with the
Charging Party, the Respondent generally denies that it
has engaged in any activity violative of Section 8(a)(5) of
the Act.
On the record as a whole, including my observation of
the witnesses, briefs, and arguments of counsel, I hereby
make the following:
FINDIN(,s OF FACI AND CONCLUSIONS OF LAW
I JURISDICTION
John Tarlas and Diane Kornages are copartners doing
business as Tarlas Meat Company (the Respondent), en-
gaged in the nonretail sale and distribution of meat, gro-
cery, and related products. In connection with this opera-
tion, the Respondent annually purchases and causes to be
transported to its place of business in Madison, Illinois,
directly from points outside the State of Illinois, goods,
products and materials valued in excess of $50,000.
The Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
11 THE L,.BOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL CIO, Local No. 545, is admitted to
be, and I find is, a labor organization within the meaning
of Section 2(5) of the Act.
111 THE ALLEGED UNFAIR LABOR PRA(TICES
A. Factual Background
On May 29, 1964, the parties entered into a memoran-
dum of recognition which reads, in material part:
The Tarlas Meat Company of Madison, Illinois will
recognize the Amalgamated Meat Cutters and Butch-
er Workmen of North America, Local Union No. 545,
affiliated with the AFL-CIO, for all of its employees
in production, maintenance, and labor, and all deliv-
ery truck drivers working for the Company, and agree
to bargain and sign a contract with Local Union 545.
The parties executed their first collective-bargaining
agreement effective June 1, 1964, and thereafter were par-
ties to successive collective-bargaining agreements, the
most recent of which was effective October 28, 1973,
through October 23, 1976.
In the initial collective-bargaining agreement there is a
reference to "the collective bargaining unit" but no lan-
guage defining it. In the most recent collective-bargaining
agreement there is the following definition:
The Collective Bargaining Unit shall include all pro-
duction employees, all plant scalers and clerks, all ho-
tel supply workers, and all clean-up personnel, dock
workers, truck loading and receiving employees who
have historically been members of Local Union 545
and all other employees who have histroically been
members of Local 545.
It is noted that while the initial agreement was specifical-
ly negotiated between the Respondent and the Union, the
most recent agreement was between the Union and "Beef
Houses" and was apparently, though unclear from the rec-
ord, a contract negotiated on some kind of multiemployer
basis.
In any event, the contract having expired in October
1396
TARI.AS MEAI COMPANY
1976. the parties undertook to negotiate a new agreement.
during the course of which the Respondent was charged
with having committed certain unfair labor practices. par-
ticularly bad-faith bargaining by attempting to negotiate
with individual employees. That matter was heard before
Administrative L.aw Judge Thomas A. Ricci who on Janu-
ary 23. 1978, issued his decision. It is now pending before
the Board on the Respondent's exceptions.
In brief. Judge Ricci found that the strike commenced
by the Union on March I (and which continued at least to
the date of the hearing in the instant case) was caused b, a
variety of factors, including employees' desire for a better
contract, but was motivated at least in part by the Respon-
dent's unfair labor practices.
Early in negotiations. and prior to the strike of March 1,
according to the testimony of the Union's president. James
Pettingrew, the Union proposed a change in the unit de-
scription to "include all production, labor, maintenance.
drivers." Some time thereafter, though unclear when from
the record, the Respondent countered the Union's pro-
posed enlargement of the unit with a proposal to constrict
it to include only "meat handlers."
In the first proceeding it was alleged. admitted, and
found that the appropriate bargaining unit is:
All employees at Tarlas Meat Company. including ho-
tel supply order fillers, cooler men, all-round helpers.
dock workers, truck loading and receiving employees.
and clean-up personnel, but excluding office clerical
and professional employees, guards and supervisors as
defined in the Act, salesmen and drivers.
At a negotiation session on January 3. 1978. the Union
changed its position on the bargaining unit. According to
the testimony of Pettingrew, the proposed inclusion of
drivers was dropped. The Company's attorney indicated
that such was a substantial move on the Union's part, and
there might be room for compromise on the unit question.
However, in a subsequent meeting on February 7. the Re-
spondent did not alter its position on the unit question.
Thus from January 3, the Union's position has been that
the bargaining unit should include all the remaining em-
ployees with the exception of the maintenance people and
"full-time drivers." Pettingrew testified that he had in mind
clarifying the unit description so that the parties would
know that part-time drivers are included. The Union still
sought a change in the unit description from the previous
contract language, but implicitly from Pettingrew's testi-
mony, the change after January 3 was in form only. Deliv-
ery drivers were named as included in the recognition
agreement, but were not mentioned in the expired contract.
But after January 3, there were many other issues still
unresolved with regard to the new contract including wag-
es, pensions, and health and welfare.
The parties last met on February 7 with the Union tak-
ing essentially the same position with regard to the bar-
gaining unit as it had on January 3. Shortly thereafter the
Union filed the charge in the instant matter following
which the Respondent has admittedly refused to meet with
the Union.
The Respondent contends that it cannot, and need not,
negotiate without first having determined its right with re-
gard to the bargaining uni; issue whether in the context
of this situation it has the right to include on the agenda its
bargaining unit proposal.
B. .4nalv is andt (Concluding Findings
1. The alleged bargaining to impasse on a nonmandator\
subject
The original ccrnpla:nt in this matter alleged principally
that from and after February 7. 1978. the Respondent re-
fused to bargain by demanding to impasse its proposal
concerning a nonmandatory subject -the scope of the har-
gaining unit.
It is well settled that one cannot bargain to impasse over
a nonmandators subject. N.L.R.B. v. Wooster Division of
Bor, -Warner Corporition. 356 U.S. 342 (1958). It is further
settled that the scope of a collective-bargaining unit is such
a nonmandator, subject and that insisting to impasse on
changing the scope of the unit is a breach of one's bargaill-
ing duts. E.g., Newspaper Printing Corporation, 232 NL RB
291 (1977).
But proposing a change in the bargaining unit is not an
unfair labor practice and the parties may under certain
circumstances agree to alter the originally established bar-
gaining unit. E.g.. Beverl Chevrolet Inc.. 221 NLRB 710
(1975).
Having, as it did. the right to suggest an alteration of the
bargaining unit, the question is whether the Respondent
here did so in violation of its bargaining obligation-
whether it insisted to impasse on its proposal. From the
record before me. I am constrained to concluded that it did
not.
Of significance is the fact that the Union first proposed a
change in the bargaining unit. It was the Union's proposal
which was being insisted on by it when the strike began on
March 1. 1977. While the strike, according to the findings
of Administrative Law Judge Ricci, was precipitated at
least in part by the Respondent's unfair labor practices.
clearly also the strike had as a purpose to support the
Union's bargaining demands, one of which was the unit
description. If in fact there was, as it appears, an impasse
in negotiations that impasse occurred some time around
March 1. 1977. And though the Respondent had proposed
to change the bargaining unit, inasmuch as the Union had
also proposed a substantial change from the existing and
agreed to unit, it cannot be said that the Respondent's pro-
posal caused the impasse on this point.
Apparently the General Counsel argues that when the
Union changed its proposal concerning the bargaining unit
in January 1978, because the Respondent continued to de-
mand its unit description, impasse on this issue was then
reached. This does not necessarily follow. In fact from the
testimony of Pettingrew it appears that in January the Re-
spondent took the position that a compromise on the unit
issue could be reached. And I note also that the Union did
not revert to the originally described bargaining unit or the
one set forth in the most recent contract. Rather, even after
January 3, 1978. the Union continued to seek to include
some drivers ir. the bargaining unit "to clarify" the situa-
tion. Finally, from the beginning of negotiations through
1397
DECISIONS OF NAIIONAl. IABOR RELATIONS BOARD
February 7 there were mans important issues unresolved.
Based upon these factors. I do not believe that the Respon-
dent in fact bargained to impasse with the U nion on its
demand for a constricted bargaining unit in violation of
the Act.
2. The Respondent's refusal to meet
However, the fact that the Respondent ma\v not have
technically violated Section 8(a}(5) in the manner alleged
in the original complaint did not give it license to refuse to
meet with the Union. In effect, the Respondent contends
that following the unfair labor practice charge. it was re-
lieved from its obligation to meet with the I.nion so that it
might test its position with regard to the bargaining unit
issue.
As the Board stated in Rauland Division of Zenith Radio
Corporation. 187 NLRB 785 (1971):
It is well settled that the pendenct of unfair labor
practice charges against an employer does not relieve
it of its duty to bargain with the union filing those
charges and that a refusal to bargain because of pend-
ing charges constitutes bad-faith bargaining on its
part.
The Respondent contends that the nature of collective
bargaining is such that meaningful negotiations can not
take place where an important issue is withdrawn from
consideration. Hence, meeting while the unit issue was
being litigated would have been futile. However, since the
Respondent could not insist on its unit proposal this argu-
ment is inapposite.
I therefore conclude that by refusing to meet with the
Union from and after March 20. 1978, when the Union
first demanded a bargaining session following February 7.
the Respondent has been engaged in a violation of Section
8(a)(5) of the Act.
IV. THE EFFECT OF THE UNFAIR tABOR PRACTI(' IS UPON
COMMERCE
The activities of the Respondent set forth above, occur-
ring in connection with its operations, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce.
V, THE REMEDY
Having found that the Respondent refused to bargain in
good faith with the Union. I shall recommend that it be
ordered to cease and desist from such practices, and affir-
matively to bargain with the Union upon request as the
duly designated representative of employees in the follow-
ing appropriate unit:
All employees at Tarlas Meat Company, including ho-
tel supply order fillers, cooler men, all-round helpers.
dock workers, truck loading and receiving employees.
and clean-up personnel, but excluding office clerical
and professional employees, guards and supervisors as
defined in the Act. salesmen and drivers.
Upon the foregoing findings of fact, conclusions of law,
the entire record in 'his matter, and pursuant to the provi-
sions of Section 10(( ) of the Act. I hereby issue the follow-
ing recommended:
ORDER|
The Respondent, Tarlas Meat ('ompany. Madison, Illi-
nois. its officers, agents. successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to meet and bargain with the Union as a
dul? designated collective-bargaining agent of its employ-
ees in the collective-barg. ining unit described above in the
Remeds section.
(hb) In any other manner interfering with, restraining, or
coercing its emplocyees in the exercise of rights guaranteed
to them under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request. recognize and bargain with the Union
as the exclusive representative of all employees in the bar-
gaining unit described above in the Remedy section with
respect to rates of pay. wages. hours, and other terms and
conditions of employmient and if an understanding is
reached. embody such in a written signed agreement.
(b) Post at its place of business, in Madison, Illinois.
copies of the attached notice marked "Appendix." 2 Copies
of said notice on forms provided by the Regional Director
for Region 14, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure
that the notices are not altered, defaced, or covered by any
other material,
(c) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
In the eeni no excceptions are filed a.s proided bs Sec 10 246 of Ihe
Rules iiand Regulations of the Nationlnl t abor Relations Board. the findings
concltuslonis. and recommended Order herein sharll as provided in Sec
10'.48 ol Ihe Rules anJ Regulatilnls, be adopled by the Board and hecorme
Its findting, conclusions. and Order, alid all objectirons hereto shall be
deeneid 5,ais ed for all purposes.
In Ihe eernll thm his Order is enforced hb a ljudgmen ofhe theI nited
Stales ( ourl of Appeals. the words in the notice reading "Posled hb Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgmenict of the L nited States ( ourl of Appeals Inforring an Order of the
N.altional ;ihor Relaitons Board"
APPENDIX
Nol i(I To EMPi.oYiE S
POSTrFD BY ORDIER OF 1tHE
NlTIO1)NAL. LABOR RFI.ATI ONS BOARD
An Agency of the United States Government
After a hearing in which all parties were represented by
!398
TARLAS MEAT COMPANY
counsel and afforded the opportunity to call, examine, and
cross-examine witnesses, it has been found by the National
Labor Relations Board that we have violated the National
Labor Relations Act. We have been ordered to cease such
activity, to post this notice, and to comply with its terms.
WF Wn.L NOT refuse to bargain in good faith with
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO,. Local Union No. 545.
WE WILL NOT in any other 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 recognize and bargain with
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL CIO. Local Union No. 545, as
the exclusive representative of all employees in the fol-
lowing described collective-bargaining unit:
All our employees including hotel supply order fil-
lers, cooler men, all-around helpers, dock workers,
truck loading and receiving employees, and clean-
up personnel. but excluding office clerical and pro-
fessional employees, guards and supervisors as de-
fined in the Act. salesmen and drivers.
TARLAS MEAI COMPANY
1399