United Fryer and Stillman, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1962

139 N.L.R.B. 704 (N.L.R.B. 1962)

704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any of them not to purchase or install molded fittings manufactured by Speed-
Line Manufacturing Company, Inc., or Fibrous Glass Products, Inc., or by any
other person.
INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS
AND ASBESTOS WORKERS , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS
AND ASBESTOS WORKERS , LOCAL 2, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof , and must not
be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 2107
Clark Building, Pittsburgh 22, Pennsylvania, Telephone Number, Grant 1-2977,
if they have any question concerning this notice or compliance with its provisions.
United Fryer and Stillman , Inc. and International Union of Oper-
ating Engineers, Local No. 1. Case No. 27-CA-1128. October
31,1962
DECISION AND ORDER
On August 14,1962, Trial Examiner E. Don Wilson issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
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 Intermediate
Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the modifications noted below.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications :
(1) Paragraph 1(b) and paragraph 2(a) of the Recommended
Order are deleted.'
i The Trial Examiner recommended that the Respondent be ordered to cease and desist
from interfering "in any like or related manner" with the rights of its employees under
139 NLRB No. 52.
UNITED FRYER AND STILLMAN, INC. 705
(2) The Appendix is amended by deleting the words "WE WILL,
upon request," appearing in the first paragraph and substituting there-
for, "WE WILL not refuse to".
(3) The Appendix is amended by deleting the second full para-
graph ("WE WILL NOT, by unlawfully refusing to bargain, etc....").
(4) The Appendix is amended by deleting the words "60 days from
the date hereof" in the next to last sentence therein and substituting
"60 consecutive days from the date of posting."
the Act. Since this proceeding arose solely as a result of a legal dispute between the
parties as to appropriateness of a multlemployer unit and as the record contains no
evidence of antiunion activity by the Respondent, we shall delete this portion of the
Recommended Order. See Pepsi-Cola Louisville Bottlers, 139 NLRB 463 The Trial
Examiner also recommended that the Respondent be ordered affirmatively to bargain with
the Union, upon request, for a collective-bargaining agreement We shall not adopt this
recommendation in view of the following circumstances. On January 16, 1962, the Re-
spondent, being represented by the Rocky Mountain Meat Dealers Association, and the
Union, entered into negotiations for a collective-bargaining agreement and, on February
10, 1962, the Respondent and the Union entered into a 3-year agreement on a single-
employer basis This agreement contains one provision relating to premium pay for week-
end work, which is not contained in the multiemployer agreement entered Into between
the Association and the Union at the same time At the hearing, counsel for the General
Counsel conceded that the agreement between the Respondent and the Union was a "good
contract" and stated in effect that the General Counsel sought only a determination by
the Board of the appropriate unit for the purpose of bargaining negotiations between the
parties in the future In the circumstances, we deem it unnecessary to order the Respond-
ent to bargain with the Union at this time respecting a new collective-bargaining
agreement.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Pursuant to due notice, a hearing in this case was held before Trial Examiner
E. Don Wilson at Denver, Colorado, on May 28 and 29, 1962. A complaint was
issued by the General Counsel of the National Labor Relations Board, herein called
the Board, on March 23, 1962, upon a charge filed on December 4, 1961, by Inter-
national Union of Operating Engineers, Local No. 1, herein called the Union. The
complaint alleges, in substance, that United Fryer and Stillman, Inc., herein called
the Respondent, refused to bargain with the Union in violation of Section 8(a) (1)
and (5) of the National Labor Relations Act, as amended, herein called the Act. In
substance, Respondent denied the allegations of the complaint and interposed affirm-
ative defenses which will be discussed in detail hereinafter. Each of the parties was
represented by counsel and each fully participated in the hearing. Oral argumenr
was heard at the conclusion of the hearing. Briefs have been received from all
parties and have been considered.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent is a Colorado corporation with its primary place of business located
at Denver, Colorado, and at all times material has been engaged in the packing and
sale of meat. In the year preceding March 23, 1962, Respondent in the course and
conduct of its business in Denver, Colorado, sold and caused to be shipped directly
into States other than the State of Colorado from the State of Colorado, goods valued
at in excess of $50,000. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. The Board has jurisdiction of the
subject matter of this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers , Local No. 1, is, and has been at all
times material , a labor organization within the meaning of Section 2(5) of the Act.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
1. The issue
Did Respondent, on and after October 9, 1961, violate Section 8(a)(5) and (1)
of the Act by refusing to bargain with the Union on a single-employer basis while
simultaneously insisting it would bargain with the Union only on a multiemployer
basis?
2. Background
For approximately 10 years, some so-called "small packers" in the Denver,
Colorado, area have negotiated with the Union and Amalgamated Butcher Work-
men Union, Local 641, herein called Local 641, on a multiemployer basis, as
members of the Rocky Mountain Meat Dealers Association, herein called Associa-
tion.' Through the years, the membership in the Association has, from time to
time, expanded and contracted and contracts with labor organizations , including the
Union, have been of varying durations.
The Board, in Fryer and Stillman, Inc., et at., 101 NLRB 1333, found a multi-
employer unit of the production employees of the "small packers" who were em-
ployer-members of the Association to be appropriate for collective bargaining, as a
result of a petition filed by Local 641.
One of the members of the Association, whose employees were included in the
multiemployer unit, was Fryer and Stillman, Inc., and it bargained with the Union
and Local 641 on a multiemployer basis for some years, until 1959. In November
1959, Fryer and Stillman, Inc., leased for a long term, with an option to buy, its
packing plant facilities to Respondent, then newly organized. No part of Respond-
ent has been or is owned or controlled by Fryer and Stillman , Inc., or by anyone
connected with it. Respondent is a subsidiary of Food Fair Stores, Inc., a retail
food chain operating on the east coast and not in the Denver, Colorado, area.
Thirty to forty percent of Respondent's production is shipped to its parent company,
the remainder being sold in competition with members of the Association
Following upon the lease of facilities by Fryer and Stillman, Inc., as above
described, the Union and Local 641 maintained the position that Respondent was,
in effect, a successor to Fryer and Stillman, Inc., and that employee benefits, e.g.,
seniority, union security, vacation, etc., were to be continued in labor agreements
between Respondent and the Union and between Respondent and Local 641
Respondent "acquiesced in and complied with the position of the Union and Local
641" and with the demands described in the preceding paragraph. Respondent
negotiated with the Union independently of the Association and as a single employer
Negotiations continued for about 11 months. In October 1960, a contract between
Respondent and the Union was entered into. It was dated August 3, 1960, and
"covered the period of November 30, 1959, to December 4, 1961 " Respondent,
also, independently of the Association, entered into a contract, for approximately
the same period of time, with Local 641.2
Bargaining by the Association with the Union has been conducted by an "Em-
ployers Council," herein called Council
On June 20, 1961, without notice to the Union, Respondent applied for and
obtained membership in the Association. On September 28, 1961, it signed a power
of attorney authorizing Council to negotiate in Respondent's behalf, as a member of
Association, with the Union and Local 641.
3. Bargaining between the Union and Respondent in 1961-62
On September 25, 1961, pursuant to the terms of the then current contract with
Respondent, the Union wrote to Respondent, advising it that the Union was opening
the contract for modifications and proposing changes. Respondent was asked to
notify the Union as to a convenient time for negotiations.3
'They have been known as the "small packer group" to distinguish them from the
,o-called "Big 4"--Smith, Armour, Cudahv, and Wilson
During the time encompassed by the events hereinabove described, members of the
Association who signed contracts with the Union, in some cases, varied from the members
who signed contracts with Local 641 Also, during the same period of time, the Union
had contracts with at least two of the "Big 4" and two national food chains and at least
one "independent Denver packer "
On the same date, the Union sent similar notices to members of the Association who
were parties to the then current Association contract and sent contract proposals to the
Association
UNITED FRYER AND STILLMAN, INC. 707
On September 29, 1961, the Association wrote to the Union with respect to the
Union's proposals and said that the members of the Association desired to make
specific proposals, etc. The Association letter included Respondent as one of the
members of the Association in whose behalf the letter was written.
On October 5, 1961, the Union replied to Respondent's September 29, 1961, letter,
stating it would not recognize Respondent as part of the Association.
On October 9, 1961, the Association wrote to the Union, questioning the Union's
position with respect to considering Respondent as part of the Association and
proposing changes in behalf of the Association and its members and changes in behalf
of Respondent.
On October 19, 1961, the Union advised the Association and Council again that
it would not recognize Respondent and another employer as members of the Associa-
tion for purposes of negotiation. The Union expressed its readiness to meet with the
Respondent and the other employer to negotiate individual contracts with them.
On November 13, 1961, Council on behalf of the Association and its members,
specifically including Respondent, made contract proposals to the Union.
On November 30, 1961, the Union wrote directly to Respondent, requesting im-
mediate negotiations for a contract covering Respondent's employees. The Union
stated it was not concerned with who represented Respondent in the negotiations but
insisted that bargaining with Respondent cover its employees as a unit separate
from any other unit of employees.
In the meanwhile, beginning in October 1961, the Union engaged in bargaining
negoiations with the Association. Respondent sat in and participated with the
other Association members in these negotiations and at all times took the position
that it was bargaining with the Union, and also with Local 641, as a member of
the Association and that it would not bargain separately with the Union or with
Local 641. Until January 16, 1962, the Union insisted it was bargaining only with
the Association and not with Respondent.
As previously noted, the Union's charge herein was filed on December 4, 1961
The Regional Director dismissed it on January 10, 1962. On January* 16, 1962, the
Union advised the Council that pending appeal of the dismissal, it would, without
prejudice, bargain in the multiemployer unit with respect to Respondent Subse-
quently, the Union's appeal was sustained.
Beginning on January 16, 1962, the Union and Respondent, without prejudice to
their respective positions regarding the charge, engaged in negotiaions, "Respondent
being represented by the Association as a multiemployer unit." On February 10,
1962, Respondent and the Union entered into a collective-bargaining agreement. On
the same date, a collective-bargaining agreement was also reached between the As-
sociation and the Union.4 With but few exceptions, the contracts are identical.
4. The units
The parties stipulated that "All shift engineers, apprentice engineers, maintenance
men, helpers and oilers employed by Respondent at its plant at East 53d Avenue
and Franklin Street in Denver, Colorado, excluding all other employees, guards,
professional employees and supervisors within the meaning of the Act, constitute,
and at all times material herein, did constitute a unit appropriate for the purposes
of collective bargaining," except that Respondent challenges such appropriateness
"on the grounds that the appropriate bargaining unit is a multiemployer bargaining
group composed of members of the ... Association."
9. Union's majority
It was further stipulated that the Union, at all times material, has represented,
for the purposes of collective-bargaining, a majority of the employees in each of
the units described in the above paragraph.
Conclusions
As majority representative of Respondent's engineers, et al., in late September
1961, pursuant to the terms of the existing collective-bargaining agreement, the
Union requested Respondent to bargain. Respondent's refusal to bargain on and
after October 9, 1961, in a unit limited to its employees, was unlawful Respond-
A The contract- are in evidence and are dated March 28, 1962 They are effective from
December 4, 1961, until December 4, 1964
0 7 2 01 0-6 3-vol 139 46
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's contention that it was justified in insisting that the Union bargain with it only
on a multiemployer basis, through the Association , is without merit.
Presumptively , a single-employer unit limited to Respondent 's employees is ap-
propriate , "and to defeat a claim for such a unit in favor of a broader unit, a
controlling history of collective bargaining on the broader basis must exist." 5 The
Board regularly has looked to the controlling bargaining history and the intent and
conduct of the parties .6
The Board has held that "the inclusion of a particular employer in a multiemployer
unit is based upon the mutual consent of the parties to such inclusion, as evidenced
either by a bargaining history for such group of employers in a single unit, or by
the express agreement of the parties to the inclusion of the individual employers." 7
It has been noted that Fryer and Stillman, Inc., for years bargained with the
Union on a multiemployer basis through and as a member of the Association but I
do not consider this to be a controlling bargaining history of Respondent. A variety
of positions are taken by the parties as to whether Respondent is a successor to
'Fryer and Stillman, Inc. I consider a determination of this question unnecessary.
If Respondent is a successor, it demonstrated an unequivocal intent to bargain on a
single employer basis, and cease multiemployer bargaining, with the consent of
the Union and Local 641, when it entered into the 1959-61 contracts. Such recent
bargaining history of two years duration, would be the "controlling bargaining his-
tory," in October 1961. If Respondent is not a successor, as a new entity its only
bargaining history was on a single-employer basis when, on October 9, 1961, it refused
to bargain with the Union on a single-employer basis.
Thus, if Respondent was or was not a successor to Fryer and Stillman, Inc., it
had no "controlling" multiemployer bargaining history. Rather, it had a "control-
ling" single-employer bargaining history on October 9, 1961.
Further, Respondent's application for membership in the Association in 1961 is
indicative that prior to that time it did not consider itself either a member of the
Association or a part of the multiemployer group which consisted of employer-
members of the Association.
I am not persuaded by Respondent's argument that it was entitled to deal with the
Union on a single-employer basis for a period of time "to gain some experience to
guide it for the future" and that presumably based upon such experience it had the
right to become a member of the Association and bargain thereafter on a multi-
employer basis. For whatever reason, Respondent and the labor organizations
with whom it contracted established a controlling single-employer bargaining history
of 2 years.
The presumption that a unit limited to Respondent's employees is appropriate has
not been rebutted by any evidence of a controlling history of collective bargaining
on a broader basis.
I find that all shift engineers, apprentice engineers, maintenance men, helpers, and
oilers employed by Respondent at its plant at East 53d Avenue and Franklin Street
in Denver, Colorado, excluding all other employees, guards, professional employees,
and supervisors within the meaning of the Act, at all times material, have constituted
a unit appropriate for collective bargaining.
I further find that at all times material, the Union has been the exclusive bargain-
ing representative of Respondent's employees in the above unit.
Although requested by the Union so to do, Respondent, since October 9, 1961,
has refused to bargain with the Union as the above described bargaining representative.
By such refusal to bargain, Respondent has committed 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 activities of Respondent set forth in section TIT, above, occurring in connection
with operations of Respondent 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.
:John Farms
, et al, 117 NLRB 318, 319
c John Breuner Co, 129 NLRB 394; Greater St. Louis Automotive Trimmers & Uphol-
sterers Association, Inc, 131 NLRB 75
I Local Union 4 9, of the Sheet Metal Workers Association , E D. Brooks, Business Repre-
sentative (New Mexico Sheet Metal Contractors Association , Inc.), 122 NLRB 1192, 1194.
UNITED FRYER AND STILLMAN) INC . 709
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a) (1) and (5) of the Act, I shall recommend that Respondent cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2(2) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. All shift engineers, apprentice engineers, maintenance men, helpers, and oilers
employed by Respondent at its plant at East 53d Avenue and Franklin Street in
Denver, Colorado, excluding all other employees, guards, professional employees,
and supervisors within the meaning of the Act, constitute, and at all times material
did constitute , a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. The Union has been since October 9, 1961, and now is, the exclusive repre-
sentative of all the employees in the aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(a) of the Act.
5. By failing and refusing on October 9, 1961, and thereafter, to recognize and
to bargain with the Union as the exclusive representative of the Respondent's em-
ployees in the aforesaid appropriate unit the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8(a) (1) and (5) of
the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and pur-
suant to Section 10(c) of the Act, I hereby recommend that United Fryer and Still-
man, Inc., its officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International Union of Operating Engi-
neers, Local No. 1, as the exclusive representative of all employees in the unit herein
found appropriate.
(b) In any like or related manner interfering with , restraining, or coercing its
employees in the exercise of the right of self-organization , to join or assist Interna-
tional Union of Operating Engineers , Local No. 1, to bargain collectively with rep-
resentatives of their own choosing , and to engage in concerted activities for the
purposes of collective bargaining or mutual aid or protection , and to refrain from
any or all such activities , except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of employ-
ment as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request , bargain collectively with International Union of Operating
Engineers , Local No. 1, as the exclusive representative of the employees in the ap-
propriate unit hereinabove described with respect to their rates of pay, wages, hours
of employment , and other conditions of employment.
(b) Post at its Denver , Colorado, establishment , copies of the attached notice
marked "Appendix ." 8 Copies of said notice , to be furnished by the Regional Director
for the Twenty-seventh Region , shall, after being duly signed by the Respondent's
representative , be posted by it immediately upon receipt thereof, and be maintained
by it for at least 60 consecutive days thereafter , in conspicuous places, including all
places where notices to employees are customarily posted . Reasonable steps shall be
" In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United
States Court of Appeals , Enforcing an Order" shall be substituted for the words "Pursuant
to a Decision and Order "
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taken by the Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report, what steps the Respondent has taken to comply herewith .9
It is recommended that unless on or before 20 days from the date of the receipt
of this Intermediate Report and Recommended Order the Respondent notify said
Regional Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the Respondent to take
the action aforesaid.
°In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: : "Notify said Regional Director, in writing, within 10 days
from the date 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 Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that:
WE WILL, upon request, bargain collectively with International Union of Op-
erating Engineers , Local No. 1, as the exclusive representative of the following
employees :
All shift engineers , apprentice engineers , maintenance men, helpers, and
oilers employed by us at our plant at East 53d Avenue and Franklin Street
in Denver , Colorado, excluding all other employees , guards , professional
employees , and supervisors within the meaning of the National Labor
Relations Act.
WE WILL NOT, by unlawfully refusing to bargain with International Union of
Operating Engineers, Local No. 1, or in any like or related manner interfere
with, restrain , or coerce our employees in violation of the National Labor
Relations Act.
UNITED FRYER AND STILLMAN, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional Office, 609 Rail-
way Exchange Building, 17th and Champa Streets, Denver 2, Colorado, Telephone
Number, Keystone 4-4151, Extension 513, if they have any question concerning this
notice or compliance with its provisions.
Exchange Parts Company and Exchange Parts Company, Re-
builders Service Company, and Southwest Shoe Exchange
Company and International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO,
Subordinate Lodge No. 96. Cases Nos. 16-CA-1579 and 16-CA-
1590. October 31, 1960
DECISION AND ORDER
On June 11, 1962, Trial Examiner Ramey Donovan issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
139 NLRB No. 46.