Victoria Packing Corp.

National Labor Relations Board - Board Decisions

Sep 29, 2000

332 N.L.R.B. 597 (N.L.R.B. 2000)

VICTORIA PACKING CORP. 597
Victoria Packing Corp. and United Food and Com-
mercial Workers Local 174, AFL–CIO. Case
29–CA–22386
September 29, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On December 23, 1999, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Respondent filed exceptions and a supporting brief and
the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
Based on the facts as credited by the judge, we find
that the Respondent violated Section 8(a)(5) and (1) of
the Act by refusing to meet, bargain, and deal with Busi-
ness Agent John Pierman, the Union’s designated repre-
sentative. We also adopt the judge’s finding that the
Respondent additionally violated Section 8(a)(5) and (1)
by unilaterally abrogating the visitation provisions in
article 26 of the parties’ collective-bargaining agreement
(set out in the opening paragraph of sec. II of the judge’s
decision), by refusing to permit Pierman access to the
Respondent’s facility.3
The Respondent excepts, asserting, among other
things, that the latter violation was neither alleged in the
complaint nor litigated at the hearing. For the reasons set
forth below, we find no merit in this exception.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondent has also excepted to the judge’s description of the
holding in Sahara Datsun, 278 NLRB 1044 (1986). We modify the
judge’s decision to clarify that Sahara Datsun involved unsubstantiated
factual allegations, whereas Fitzsimmons Mfg. Co., 251 NLRB 375
(1980), involved an unprovoked physical assault.
2 In affirming the judge’s findings and conclusions, we do not adopt
his comments in fn. 3.
3 The judge mischaracterized the Respondent’s September 2, 1998
letter to Union Secretary/Treasurer Steve Miceli as stating that the
Respondent no longer would allow Pierman on the premises. That
letter requested that the Union assign another representative to the
facility based on Pierman’s conduct. Nevertheless, the Respondent
admitted that it refused to permit Pierman access to its Brooklyn facil-
ity. Moreover, it is uncontroverted that in mid-September 1998, the
Respondent refused Pierman entry to its Brooklyn facility to service the
shop.
Paragraph 9 of the complaint alleges that:

Since on or about September 2, 1998, Respondent has
failed and refused to meet or deal with or bargain with
John Pierman regarding terms and conditions of em-
ployment of the employees in the Unit and has refused
to permit him access to its Brooklyn facility. [Emphasis
added.]

Paragraph 10 of the complaint alleges that:

By the conduct described above in paragraph 9, Re-
spondent has been failing and refusing to bargain col-
lectively with the exclusive collective-bargaining repre-
sentative of its employees in violation of Section
8(a)(1) and (5) of the Act.

In its answer to the complaint, the Respondent admit-
ted the allegations in paragraph 9, denied the allegations
in paragraph 10, and raised the affirmative defense that:

Respondent was justified in refusing to deal with Pier-
man and in denying him access to the plant because of
his violent, threatening and disruptive behavior. [Em-
phasis added; citations omitted.]

In his opening statement at the hearing, the General
Counsel stated that the unfair labor practice allegations
were that the Respondent violated Section 8(a)(5) by
refusing to meet with Union Representative Pierman for
the purpose of discussing grievances and by refusing to
allow Pierman access to the Respondent’s facility for the
purpose of administering the collective-bargaining
agreement. Shortly thereafter in his opening statement,
the General Counsel again asserted that the Respondent
denied Pierman visitation rights, “which under the terms
of the collective-bargaining agreement, [the Respondent]
had no authority to do.” (Emphasis added.)
In its subsequent opening statement, the Respondent
asserted, inter alia, that “the facts will show very clearly
that the Company had a right to bar Mr. Pierman,” and
that “the objectives of the Act of good faith collective
bargaining will be promoted by continuing to allow us to
bar Mr. Pierman from the premises.”
At the close of the opening statements, the judge ascer-
tained from the General Counsel, on the record, that at
the time of the events in question there was an existing
collective-bargaining agreement between the parties, that
it would be introduced into evidence, and that it con-
tained a “visitation clause.”
Based on the foregoing, the record establishes, and we
find, that (1) the complaint alleges and the Respondent
admits that the Respondent has refused to permit Pier-
man access to the Respondent’s Brooklyn facility since
332 NLRB No. 58
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 598
on or about September 2, 1998; (2) the complaint alleges
that such refusal constituted a failure and refusal to bar-
gain collectively with the Union, in violation of Section
8(a)(5) and (1) of the Act; (3) paragraph 10 of the com-
plaint reasonably comprehends an alleged unlawful
breach of the contractual visitation clause; (4) the Gen-
eral Counsel’s opening statement at the hearing reasona-
bly put the Respondent on notice that the denial of plant
access to Pierman was being alleged as an unlawful
breach of the contractual visitation clause; and (5) the
operative facts underlying the existence of such a breach
are undisputed. Therefore, contrary to the Respondent’s
exception (for which the Respondent has offered no sup-
porting argument) and the position of our dissenting col-
league, we find that this violation was both alleged and
litigated, and has been properly found.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Victoria Packing Corp.,
Brooklyn, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

MEMBER HURTGEN, dissenting in part.
I agree with my colleagues that the Respondent failed
and refused to bargain collectively with the Union, in
violation of Section 8(a)(5) and (1) of the Act, by failing
and refusing to meet, deal with, or bargain with Union
Representative Pierman. I further conclude that, as part
of its failure and refusal to bargain collectively with the
Union, the Respondent’s denial of access to Pierman to
its Brooklyn facility was violative of Section 8(a)(5) of
the Act.
Contrary to the judge and my colleagues, however, I
do not find that the Respondent additionally violated
Section 8(a)(5) by unilaterally abrogating the parties’
contractual visitation provision. Thus, without reaching
the “merits” of this issue, I find that as a procedural mat-
ter, this “unilateral abrogation” issue was neither raised
by the complaint nor fully litigated by the parties. There
is a distinction between a unilateral change in a term or
condition of employment (in violation of Sec. 8(a)(5))
and an abrogation of a contractual provision (in violation
of Sec. 8(d)–8(a)(5)). The former gives rise to an order
to restore the status quo ante and to bargain about any
change. The latter gives rise to an order to restore the
status quo ante and to adhere to the contract for its term.1
The General Counsel failed to make it clear that he
was making the latter allegation. Indeed, the complaint

1 It appears that the judge, affirmed by my colleagues, recommended
such an order. See pars. 1(a) and 2(b) of the judge’s Order.
makes no mention of the parties’ collective-bargaining
agreement in general or of the visitation provision in
particular. And, contrary to my colleagues’ findings,
paragraphs 9 and 10 of the complaint were insufficient to
put the Respondent on notice that it was being charged
with abrogating a portion of the parties’ contract and,
further, that such action was alleged to violate the Act.
Nor did the General Counsel at any time seek to amend
the complaint to include the “unilateral abrogation” alle-
gation. Further, contrary to my colleagues’ assertions,
nothing said at the hearing constituted notice to the Re-
spondent that this contract-based violation was being
alleged. Although the General Counsel made a passing
and background reference to the existence of the contrac-
tual visitation provision, the General Counsel at no time
alleged an abrogation of that provision as the basis for an
unfair labor practice. Indeed, in its posthearing brief to
the judge, the General Counsel did not argue that the
Respondent had violated Section 8(a)(5) based on a con-
tract abrogation. Significantly, even when the Respon-
dent argued on exception that contract abrogation had
neither been alleged in the complaint nor litigated at
hearing, the General Counsel remained silent as to
whether this unfair labor practice had been pled or prose-
cuted.
Based on this record and noting the absence of any
claim to the contrary by the General Counsel, I conclude,
contrary to my colleagues, that the “unilateral abroga-
tion” issue was not properly before the Board. I would,
therefore, modify the judge’s decision and recommended
Order accordingly.

Kevin Kitchen Esq., for the General Counsel.
Martin Gringer, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was heard by me in Brooklyn, New York, on October 19,
1999. The charge was filed on November 10, 1998, and the
complaint was issued on July 23, 1999. In substance, the com-
plaint alleges that since on or about September 2, 1998, the
Respondent has refused to meet or deal with the Union’s
representative, John Pierman, and has refused to permit him
access to its Brooklyn facility. The Respondent asserts that it
was justified in refusing to give him access and refusing to deal
with Pierman because of “his violent, threatening and disrup-
tive behavior.”
On the entire record, including my observation of the de-
meanor of the witnesses and after reviewing the briefs filed by
the parties, I make the following
VICTORIA PACKING CORP. 599
FINDINGS OF FACT
I. JURISDICTION
The parties agree and I find that the Respondent an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. It also is agreed and I find that the Charging
Party, United Food and Commercial Workers Local 174, AFL–
CIO is a labor organization within the meaning of Section 2(5)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
The Company and the Union have had a collective-
bargaining history for at least 37 years. The most recent con-
tract contains a provision at article 26 which reads:

The Business Agent or other representative of the Union shall
have the right to enter any of the work rooms of the Employer
during the time the establishment is open, for the purpose of
investigation or for the purpose of discussing with the Em-
ployer or its employees any complaint or any other matter af-
fecting the relations between the Employer’s employees and
the Union.

Pierman has been the union representative designated to ser-
vice this shop for about 3 years. The evidence shows that the
bargaining relationship has been good and that for a consider-
able amount of time, grievances, when they arise, have been
settled before arbitration. Pierman has a practice of visiting
the shop on a somewhat regular basis and, in accordance with
the contract, can and has talked to employees during worktime.
On or about August 19, 1998, an employee named Jeff
Collins made a complaint to the Union that he was suspended
because he refused to work an additional amount of overtime
after already having already worked 2 overtime hours. This is
not in dispute. This matter was then delegated to Pierman.
On August 24, 1998, Pierman spoke to Jeff Collins in the
shop who told what happened. Pierman then spoke to the night-
shift foreman, Marvin Campbell, and asked him why he had
suspended Jeff Collins, particularly as Collins had already
worked 2 overtime hours. The foreman, after explaining his
reason, refused to discuss the matter further and this apparently
angered Pierman who turned around at one point and asked if
the foreman was ignoring him. In addition to talking to Collins
at his work station for a couple of minutes, Pierman also spoke
to some of the other workers in the facility, asking them how
things were going and if they had any problems. The most ex-
tended conversation he had concerned an employee who didn’t
have a medical card and Pierman got the man’s name and social
security number. The evidence indicates that, at most, Pierman
spent perhaps 20 minutes in the plant talking individually to the
10 or 15 employees working there. To the extent that his pres-
ence in the work area may have caused some delay in produc-
tion, it could not have been significant and the contract’s broad
language contemplates that a de minimis impact on production
was permissible. Before leaving, Pierman spoke to the foreman
who told him that he should leave the plant and that he should
only talk to employees on their break time or after work. Pier-
man, in view of the contract, rightly pointed out that he had a
right to be there at a time of his own choosing and did not have
to schedule his visits to conform to the Company’s wishes.
While talking to the foreman two employees appeared at the
door and the foreman, told them to go back to work. At the
same time, he touched them on the shoulders. Pierman blew up
and essentially accused the foreman of assaulting the two men.
What I think happened here was that Pierman got increas-
ingly angry as the evening progressed and finally exploded with
the verbal accusation. Pierman came to the factory convinced
that the suspension of Jeff Collins was unjustified. And when
he tried to talk to the foreman about it, the foreman, in Pier-
man’s mind, did not show him the proper respect when he
refused to talk at any length about the issue. Then at the end of
his visit, the foreman asserted that Pierman had no right to be
there, whereupon he ushered two employees out of the area. It
is no wonder that Pierman was extremely put off.
On the following morning, August 25, Pierman came to the
plant and attended a meeting with the shop steward, Mae
Swann, and two company representatives. This concerned
Pierman’s assertion that he was going to file a police report
against Campbell. Pierman also demanded that the foreman be
discharged for shoving the two employees. (However, as the
two employees subsequently said that they were only lightly
touched and did not want to pursue the matter, Pierman let it
drop.)
At some point during the meeting on August 25, the Com-
pany’s owner, Ben Aquilina, who has a heart condition, entered
the room whereupon a shouting match ensued between him and
Pierman. The testimony of Aquilina is that Pierman got up
very close to his face, and while pointing his finger, yelled “I’m
going to get you and you’re [sic] fucking company.” Pierman
acknowledges that there was an argument, but insists that it was
provoked by Aquilina’s comments about his alleged stoppage
of production and statements indicating that Aquilina wanted to
fight. In any event, despite some very brief shouting, no physi-
cal contact was made by either party and the entire incident
transpired in probably less than a minute. The two people were
separated by the others whereupon Aquilina went to his office
and Pierman left the building.1
On September 2, 1998, the Company wrote a letter to Union
Treasurer Steve Micelli detailing the events that took place on
August 24 and 25 and stating that it no longer would allow
Pierman on the premises.
III. ANALYSIS
Pierman clearly is no shrinking violet and he no doubt came
on pretty strong when Marvin Campbell, the foreman, appeared
to be ignoring him during his attempt to handle an employee’s
grievance. Moreover, in view of the contract’s broad visitation
clause, the foreman, perhaps unknowingly, was incorrect in
ordering Pierman to leave the premises and stating that he
could only talk to employees on their break times or after work.
This is clearly not what the contract contemplates, nor does the
evidence indicate to me that Pierman abused his visitation
rights by the amount of time that he spent with employees dur-
ing his visit on August 24, 1998.

1 On balance, I am inclined to credit Aquilina’s account of the trans-
action on August 25.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 600
Things went from bad to worse on August 25 when, at a
meeting at the Company’s premises, Pierman demanded that
the foreman be discharged for allegedly shoving two employ-
ees. Then when the Company’s owner, Aquilina, entered the
room, he and Pierman exploded into a verbal contrempts which,
however, never led to any physical confrontation. Thankfully it
was quickly dissipated within a minute or two and the two prin-
ciples went their separate ways.
Nevertheless, this unfortunate incident had no precedent as
the evidence shows that the working relationship between the
Union and the Company had been quite good for over 37 years
and that there were no other untoward events between company
representatives and Pierman in the past. Nor were there any
subsequent incidents involving Pierman.
The Board in Fitzsimons Mfg. Co., 251 NLRB 375, 379
(1980), stated:

It is well established that each party to a collective-bargaining
relationship has both the right to select the representative for
bargaining and negotiations and the duty to deal with the cho-
sen representative of the other party. However, where the
presence of a particular representative in negotiations makes
collective bargaining impossible or futile, a party’s right to
choose its representative is limited, and the other party is re-
lieved of its duty to deal with that particular representative.2

In Sahara Datsun, 278 NLRB 1044, (1986), the Board found
that a refusal to deal with a particular individual may be justi-
fied where there were egregious situations involving (a) an
unprovoked physical assault and (b) unsubstantiated allegations
to the affect that the company’s owners made false bank loan
applications and were involved in other crimes and misde-
meanors.
In Long Island Jewish Medical Center, 296 NLRB 51, 71
(1989), the Board held that the employer could not bar a union
representative from its premises where that person lightly
pushed a manager, cursed at this and another manager, and was
involved in a shoving match.
Finally, in People Care, Inc., 327 NLRB 814 (1999), the
Board affirmed the conclusions of the administrative law judge
that the conduct of various employees brought to the bargaining
table did not justify the company’s refusal to deal with the un-
ion’s attorney who was present in the room when a virtual riot
broke out. The company argued that the attorney, by his hostile
criticism of the company’s bargaining position, triggered the
riot. But the judge concluded that he neither directly caused the
assaults that ensued or that he engaged in any threats or assaults
of his own.
As I read these cases, the point is that given the duty to bar-
gain with the other party’s chosen agents, either an employer or
a union can only refuse to bargain with a designated agent, if
that person’s conduct is so egregious and beyond the pale as to
make the bargaining process itself untenable. For better or

2 See also KDEN Broadcasting, 225 NLRB 25 (1976), where the
Board stated that the test to determine whether a party can refuse to
deal with a particular representative is “whether there is persuasive
evidence that the presence of the particular individual would create ill
will and make good-faith bargaining impossible.”
worse, the obligation to bargain also imposes the obligation to
thicken one’s skin and to carry on even in the face of what oth-
erwise would be rude and unacceptable behavior.
In my opinion, even crediting the Company’s version of
events entirely, I would not conclude that Pierman’s conduct,
on either August 24 and/or 25, 1998, constituted the type of
conduct which could reasonably be construed as tainting the
bargaining process as long as he was personally involved. His
conduct may have been rude and even excessive in a social or
business context. But it was of an extremely short duration, did
not involve any kind of physical contact or explicit threat of
force, and it was a one time event in an otherwise business like
and productive relationship between the Union and the Em-
ployer. Accordingly, I conclude that the Respondent violated
the Act by refusing to meet and bargain with Pierman as the
Union’s representative.3 I further find that the Respondent
violated the Act by unilaterally abrogating the collective-
bargaining agreement’s visitation provisions set forth in article
26 of the contract. Lihli Fashions, 317 NLRB 163, 165 (1995),
and West Lawrence Care Center, 308 NLRB 1011 (1992).
CONCLUSIONS OF LAW
1. By refusing to meet and bargain with the designated repre-
sentative of United Food and Commercial Workers Local 174,
AFL–CIO, the Respondent has violated Section 8(a)(1) and (5)
of the Act.
2. By unilaterally failing to abide by the visitation clause in
the collective-bargaining agreement with the Union, the Re-
spondent has violated Section 8(a)(1) and (5) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, Victoria Packing Corp., Brooklyn, New
York, its officers, agents, successor, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to meet and bargain with Union Rep-
resentative John Pierman.
(b) Refusing to adhere to the terms of the collective-
bargaining agreement’s visitation clause by refusing to permit
Pierman to visit the Company’s premises in accordance with
the terms of the collective-bargaining agreement.
3 Nevertheless, I caution the Union that any similar outburst by
Pierman in his future dealings with Respondent’s management may
very well result in his disqualification to be the representative.
4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
VICTORIA PACKING CORP. 601
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request bargain with the Union as the exclusive repre-
sentative of the employees in the recognized bargaining unit
and meet with and bargain with its designated representatives
including John Pierman.
(b) In accordance with the provisions of its collective-
bargaining agreement, permit union representatives, including
John Pierman access to the Company’s premises.
(c) Within 14 days after service by the Region, post at its fa-
cility in Brooklyn, New York, copies of the attached notice
marked “Appendix.”5 Copies of the notice on forms provided
by the regional Director for Region 29, after being signed by
the respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since August 25, 1998.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply

5 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment 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

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT refuse to meet and bargain with Union Rep-
resentative John Pierman or any other representative selected
by United Food and Commercial Workers Local 174, AFL–
CIO.
WE WILL NOT refuse to adhere to the terms of the collec-
tive-bargaining agreement’s visitation clause at article 26 by
refusing to permit Pierman to visit the Company’s premises in
accordance with the terms of that agreement.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights
guaranteed by Section 7 of the Act.
WE WILL, on request, meet and bargain with the representa-
tives chosen by the Union, including John Pierman.
WE WILL permit the Union’s designated representatives to
visit our facility in accordance with the terms of the collective-
bargaining agreement.

VICTORIA PACKING CORP.