Claxton Poultry Co., Inc.

National Labor Relations Board - Board DecisionsNov 17, 1976

226 N.L.R.B. 966 (N.L.R.B. 1976)

966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Claxton Poultry Company , Inc. and Meat Cutters, Packinghouse and Allied Food Workers, District Union 433. Case 10-CA-11870 November 17, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Upon a charge and amended charge filed on March 29 and May 7, 1976, respectively, by Meat Cutters, Packinghouse and Allied Food Workers, District Union 433, herein called the Union, and duly served on Claxton Poultry Company, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 10, issued a complaint and notice of hearing on May 10, 1976, against Re- spondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the, National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on March 2, 1976, following a Board election in Case 10-RC- 10226, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about March 5 and 15, 1976, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represen- tative, although the Union has requested and is re- questing it to do so. The complaint also alleges that commencing on or about March 5 and 15, 1976, and all times thereafter, Respondent has refused and con- tinues to date to refuse to bargain collectively with the Union by refusing to furnish information prepa- ratory to collective bargaining concerning rates of pay, wages, hours of employment, and other terms and conditions of employment although the Union has requested and is requesting it to do so. On May ' Official notice is taken of the record in the representation proceeding, Case 10-RC-10226, as the term "record" is defined in Secs 102 68 and 102 69(g) of the Board's Rules and Regulations , Series 8 , as amended See LTV Electrosystems, Inc, 166 NLRB 938 (1967), enfd 388 F.2d 683 (C A 4, 1968), Golden Age Beverage Co, 167 NLRB 151 (1967), enfd 415 F 2d 26 (C A. 5, 1969); Intertype Co v Penello, 269 F Supp 573 (D.C.Va, 1967), Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA, as amended 24, 1976, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the alle- gations in the complaint. On June 22, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 1, 1976, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint and its response to the Notice To Show Cause, Respondent avers that the unit which the Union is certified to represent is vague, ambiguous, and contradictory. Respondent also raises affirmatively that it has been denied the opportunity to present relevant and material new evi- dence concerning its election objections, and further that it has been denied a full and complete hearing on two of its election objections. Respondent submits that it has also been deprived of its right to a ruling and the reasons therefor on each election objection. Finally, Respondent denies that its refusal to supply requested bargaining information to the Union or to respond to the Union's bargaining demands consti- tutes an unfair labor practice under Section 8(a)(5) of the Act. For the foregoing reasons, Respondent sub- mits that it is entitled to a hearing in this proceeding. Review of the record herein, including the record in Case 10-RC-10226, reveals that on January 16, 1975, the Union and the Respondent entered into a Stipulation for Certification Upon Consent Election, which was approved on January 20, 1975, by the Re- gional Director, providing that the determinative payroll period for voter eligibility purposes would be the period ending January 10, 1975. Pursuant to the stipulation; an election was held on February 21, 1975, in the unit stipulated to be appropriate. The tally of ballots revealed 136 votes for the Union, 95 against, and 17 challenged ballots. Respondent filed timely objections alleging that the Union threatened economic reprisal for those employees not "support- ing/voting" for the Union, that supervisors had par- ticipated in the Union's organizing effort, that union agents had made misrepresentations substantially de- parting from the truth under circumstances which 226 NLRB No. 142 CLAXTON POULTRY CO. 967 prevented the Employer from reply, and that union agents made promises of benefits contingent on em- ployee support for the Union. On April 16, 1975, after investigation the Regional Director issued his Report on Objections. His report stated that contradictory evidence among the Employer' s witnesses and contrary statements in Re- spondent's own campaign material clearly belied any claims that the Union had power, once elected, over employee fob tenure, and therefore that the Employ- er's economic reprisal objections (Objections I and 2) were without merit. He also ruled that Respon- dent's Objection 3, alleging supervisory participation, was without merit based on a finding that one of the incidents involved the presence of a supervisory line foreman during a solicitation made by another em- ployee, and the other, union activities by an employ- ee who ceased such activity after becoming a supervi- sor. Finally, the Regional Director found that Respondent's Objections 4 and 5, alleging misrepre- sentation and promise of benefits, were without merit based on his findings that they involved a misstate- ment by the Union concerning Employer's obligation to pay the minimum wage. Accordingly, the Region- al Director recommended that the objections be overruled in their entirety and that the Union be cer- tified. Respondent filed a timely appeal from the Region- al Director's report and recommendations, contend- ing that he had improperly dismissed its objections and requested a hearing in order to resolve the al- leged substantial and material issues of fact involved therein. The Board considered Respondent's submis- sion and on June 24, 1975, adopted the Regional Di- rector's recommendation overruling Respondent's Objections 2 and 4, but remanded the case to the Regional Director for a hearing on Respondent's Ob- jections I and 5. The hearing was held in Savannah, Georgia, on July 16, 1975, before Hearing Officer Lewis Wolberg. The Hearing Officer's report, issued on October 21, 1975, found on the basis of the testimony and the credibility of the witnesses that neither Respondent's Objection 1 nor 5 was meritorious and recommended certification of the Union. Thereafter, Respondent filed timely exceptions to the Hearing Officer's re- port. The Board considered Respondent's exceptions and on March 2, 1976, adopted the Hearing Officer's recommendations. Accordingly, on March 2, 1976, the Union was certified as the exclusive bargaining representative of Respondent's employees in the ap- propriate unit. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding? All issues raised by the Respondent in this pro- ceeding were I or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly dis- covered or previously unavailable 4 evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Georgia corporation with an of- fice and place of business located at Claxton, Geor- gia, where it is engaged in the processing and sale of poultry products. During the past 12 months, a repre- sentative period, Respondent has purchased and re- ceived goods and supplies valued in excess of $50,000 directly from suppliers located outside the State of Georgia. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material 2 See Pittsburgh Plate Glass Co v N L R. B, 313 U S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67 (f) and 102 69(c) 3 In specific response to the allegations raised by Respondent in its an- swer to the General Counsel's complaint and Notice To Show Cause, we point out first that Respondent stipulated to the description of the unit which it now contends is so vague and ambiguous as to be contrary to the policies of the Act . Second, Respondent has argued that it has no knowl- edge of the Union's majority at this time Employer has a duty to bargain with the Union during the first year following its certification regardless of majority status Ray Brooks v N L R B, 348 U S 96 (1954) Finally, Re- spondent has raised affirmatively in its answer that it has been deprived of its right to a full hearing and a specific ruling, supported by reasons , on each matter it raised pursuant to its election objections It is well established that parties do not have an absolute right to a hearing on objections, and that denial of a hearing where , as here , certain objections raise no substantial or material issues does not constitute a denial of due process GTE Lenkurt, Incorporated, 218 NLRB 929 (1975), Abbott Laboratories, Ross Laboratories Division, 217 NLRB 859 (1975) It is also established that when the Board, as here, adopts as its own the analysis and articulation of reasons of a Hearing Officer it has adequately provided a party with rulings, and the reasons therefor , on that party 's objections Diamond Crystal Salt Company. 222 NLRB 714 (1976) 4 Respondent contends that it has been denied an opportunity to present new and relevant evidence pursuant to its election objections , specifically, the affidavit of its witness Irene Mayner. Respondent is attempting to reliti- gate an issue which has already been resolved by our adoption of the Hear- ing Officer's report in Case 10-RC-10226 In that report. Hearing Officer Wolberg specifically stated his ruling that Ms Mayner was not a hostile witness and consequently denied Respondent's request to cross-examine the witness and/or to introduce her affidavit. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act , and that it will effectuate the policies of the Act to assert juris- diction herein. H. THE LABOR ORGANIZATION INVOLVED Meat Cutters , Packinghouse and Allied Food Workers , District Union 433, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent con- stitute a unit appropriate for collective -bargaining purposes within the meaning of Section 9 (b) of the Act: All production and maintenance employees at the Respondent 's Claxton , Georgia , plant, in- cluding plant clerical employees , rendering de- partment employees , all truck drivers and ware- housemen , employed at the Sales Distribution Center of Respondent at Augusta , Georgia, but excluding all salesmen , office clerical employees, buyers , professional employees , guards and su- pervisors as defined in the Act. 2. The certification On February 21, 1975 , a majority of the employees of Respondent in said unit , in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 10 , designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective -bargain- ing representative of the employees in said unit on March 2 , 1976, and the Union continues to be such exclusive representative within the meaning of Sec- tion 9(a) of the Act. B. The Request To Bargain and Respondent 's Refusal Commencing on or about March 5 and 15, 1976, and at all times thereafter , the Union has requested the Respondent to bargain collectively with it as the exclusive collective -bargaining representative of all the employees in the above-described unit. Com- mencing on or about March 5 and 15, 1976, and con- tinuing at all times thereafter to date , the Respon- dent has refused , and continues to refuse, to recognize and bargain with the Union as the exclu- sive representative for collective bargaining of all employees in said unit. Commencing on or about March 5 and 15, 1976, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective -bargaining representative of all the employees in the above -described unit by fur- nishing it with information preparatory to collective bargaining concerning rates of pay , wages, hours of employment, and other terms and conditions of em- ployment . Commencing on or about March 5 and 15, 1976, and continuing at all times thereafter to date, the Respondent has refused , and continues to refuse, to recognize and bargain with the Union as the ex- clusive representative for collective bargaining of all employees in said unit by failing to furnish such in- formation preparatory to collective bargaining. Accordingly, we find that the Respondent has, since March 5 , 1976, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit , and has also refused to bargain by failing to furnish information preparatory to collec- tive bargaining and that, by such refusals , Respon- dent has engaged in and is engaging 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 activities of Respondent set forth in section III, above , occurring in connection with its opera- tions described in section I, above, 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 and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and ( 1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the ap- propriate unit , and, if an understanding is reached, embody such understanding in a signed agreement. We shall also order that Respondent , upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit by furnishing the Union with the information it has requested preparatory to collective bargaining. CLAXTON POULTRY CO In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur- nett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Claxton Poultry Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Meat Cutters, Packinghouse and Allied Food Workers, District Union 433, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Respondent's Claxton, Georgia, plant including plant clerical employees, rendering department em- ployees, all truckdrivers and warehousemen, em- ployed at the Sales Distribution Center of Respon- dent at Augusta, Georgia, but excluding all salesmen, office clerical employees, buyers, professional em- ployees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. Since March 2, 1976, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about March 5 and 15, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive 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 refusing on or about March 5 and 15, 1976, and at all times thereafter, to furnish information preparatory to collective bargaining Respondent has refused to bargain collectively with the above-named labor organization as the exclusive bargaining repre- sentative of its employees in the appropriate unit and has engaged in and is engaging in unfair labor prac- 969 tices within the meaning of Section 8(a)(5) of the Act. 7. By the aforesaid refusals to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with , restraining , and coercing , employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that Respondent, Clax- ton Poultry Company, Inc., Claxton, Georgia, its of- ficers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Meat Cutters, Packing- house and Allied Food Workers, District Union 433, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All production and maintenance employees at the Respondent's Claxton, Georgia, plant, in- cluding plant clerical employees, rendering de- partment employees, all truck drivers and ware- housemen, employed at the Sales Distribution Center of Respondent at Augusta, Georgia, but excluding all salesmen , office clerical employees, buyers, professional employees, guards and su- pervisors as defined in the Act. (b) Refusing to furnish information preparatory to collective bargaining to said labor organization as the exclusive bargaining representative of its employ- ees, said information being set forth in paragraph 2(b) of this Order. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Furnish the Union with the following informa- tion: names, addresses, social security numbers, se- 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD niority hiring date, classifications, and current pay rates of all employees on the payroll for the week ending February 28, 1976; paid holidays, vacation benefits, and the point at which daily overtime be- gins ; hospital, medical, and sick leave program; whether said program requires employee contribu- tion and, if so, what amount for what coverage; pen- sion plan; whether said plan requires employee con- tribution and, if so, what amount; information as to any profit-sharing plan and a copy of same; compa- ny policy concerning seniority in job promotions; job-posting procedure; information as to the exis- tence of a night shift, together with premium pay and the amount. (c) Post at its Claxton and Augusta, Georgia, fa- cilities copies of the attached notice marked "Appen- dix." I Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be post- ed 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Meat Cutters, Packinghouse and Allied Food Work- ers, District Union 433, as the exclusive repre- sentative of the employees in the bargaining unit described below. WE WILL NOT refuse to furnish information preparatory to collective bargaining to the above-named Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL furnish the Union with information concerning our employees in the bargaining unit, with respect to terms and conditions of their employment; specifically, names , address- es, social security numbers, seniority hiring date, classifications, and current pay rates of all em- ployees on the payroll for the week ending Feb- ruary 28, 1976; paid holidays, vacation benefits, and the point at which daily overtime begins; hospital, medical, and sick leave program; whether said program requires employee contri- bution and, if so, what amount for what cover- age; pension plan; whether said plan requires employee contribution and, if so, what amount; information as to any profit-sharing plan and a copy of same; company policy concerning se- niority in job promotions; job-posting proce- dure; information as to the existence of a night shift, together with premium pay and the amount. The bargaining unit is: All production and maintenance employees at Respondent's Claxton, Georgia, plant including plant clerical employees, rendering department employees, all truckdrivers and warehousemen employed at the Sales Distribution Center of Respondent at Augusta, Georgia, but excluding all salesmen , office clerical employees, buyers, professional employees, guards and supervisors as defined in the Act. CLAXTON POULTRY COMPANY, INC.