Excel DPM of Arkansas

National Labor Relations Board - Board Decisions

Oct 30, 1997

324 N.L.R.B. 880 (N.L.R.B. 1997)

880
324 NLRB No. 140
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent contends that the General Counsel’s Motion for
Summary Judgment should be rejected as untimely, because it was
not filed ‘‘promptly’’ as required by Sec. 102.24(b) of the Board’s
Rules and Regulations. We reject this contention. There is no indica-
tion, and the Respondent does not allege, that the Respondent has
suffered prejudice due to the 5 months that elapsed between the
General Counsel’s receipt of the answer and the filing of the motion.
In the absence of any showing of prejudice, we regard the motion
as having been filed within the requirements of the Rule. Addition-
ally, we reject the Respondent’s suggestion that Rule 6 of the Fed-
eral Rules of Civil Procedure in some way defines ‘‘promptness’’
and that that definition should apply here. The Board provides that
the Board proceedings are to be conducted pursuant to the FRCP
only ‘‘so far as is practicable.’’ Thus, the FRCP are not necessarily
controlling. See, e.g., M. J. Santulli Mail Services, 281 NLRB 1288,
1290 (1986); East Texas Motor Freight, 262 NLRB 868, 904 (1982).
Moreover, Rule 6(a) of the Federal Rules of Civil Procedure does
not contain any definition of promptness relevant to the summary
judgment motion at issue here.
2 The Respondent’s answer admits that Whipkey is a supervisor
within the meaning of Sec. 2(11) but denies that he is its agent with-
in the meaning of Sec. 2(13). It is well settled, however, that a 2(11)
supervisor of an employer is a 2(13) agent of that employer. E.g.,
Ideal Elevator Corp., 295 NLRB 347 fn. 1 (1989); Dorothy Sham-
rock Coal Co., 279 NLRB 1298, 1299 (1986), enfd. 833 F.2d 1263
(7th Cir. 1987). The Respondent also contends that although it ad-
mitted in its answer that ‘‘on or about July 17 and 20, 1996, Ed
Whipkey’s name appeared on memoranda addressed to all
Booneville employees and that purported copies of the memoranda
were attached as Exhibit A and B to the Complaint,’’ it did not
admit ‘‘the issuance of memoranda on July 17, 1996 and July 20,
1996 to all Booneville, Arkansas employees’’ and, therefore, the
General Counsel has failed to satisfy his burden of proof. This con-
tention is without merit. It is well settled that in order to put in issue
a fact established by an exhibit attached to a Motion for Summary
Judgment, the respondent may not rely on a general denial or failure
to admit but must specifically controvert the contents of that exhibit.
See, e.g., Westinghouse Electric Corp., 240 NLRB 731, 732 (1979),
and cases cited therein. The Respondent here has not denied the au-
thenticity of complaint Exhs. A and B or averred that they are any-
thing other than what they appear on their face to be: communica-
tions from a management official to unit employees conveying the
Respondent’s position regarding the consequences of unionization.
Accordingly, we deem the complaint allegations to be admitted inso-
far as they allege that the Respondent disseminated the memoranda
to unit employees. We further find that there are no material issues
warranting a hearing raised by those portions of the Respondent’s
answer that admit the essential allegations of complaint pars. 2, 4,
and 5, but deny ‘‘the remaining allegations’’ in those paragraphs. Fi-
nally, with regard to par. 1 of the complaint, the Respondent has ad-
mitted that it had received notice that the charge was filed against
it but also denied ‘‘the remaining allegations’’ of that paragraph,
presumably that ‘‘[t]he charge in this proceeding was filed by the
Union on July 29, 1996.’’ The Respondent has failed, however, to
refute the authenticity of the proof attached as exhibits to the Gen-
eral Counsel’s motion. Once again, therefore, we find that there is
no issue concerning the filing of the charge that warrants a hearing.
Excel DPM of Arkansas, Inc., a Division of Cargill,
Inc. and United Food and Commercial Work-
ers International Union, Local 2008, AFL–CIO.
Case 26–CA–17579
October 30, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Upon a charge filed on July 29, 1996, by United
Food and Commercial Workers International Union,
Local 2008, AFL–CIO (the Union), the General Coun-
sel of the National Labor Relations Board issued a
complaint and notice of hearing on August 12, 1996,
alleging that the Respondent has violated Section
8(a)(1) of the National Labor Relations Act by threat-
ening its employees with the loss of 401(k) pension
plan and Employee Stock Ownership Plan (ESOP)
benefits if the employees chose the Union as their bar-
gaining representative. On August 22, 1996, the Re-
spondent filed an answer admitting in part and denying
in part the complaint allegations and requesting that
the complaint be dismissed in its entirety.
On January 28, 1997, the General Counsel filed a
Motion to Transfer Case to Board and for Summary
Judgment, with exhibits attached. On January 30,
1997, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent
filed a response and a procedural memorandum in op-
position to the General Counsel’s motion.1
Ruling on Motion for Summary Judgment
The complaint alleges that the Respondent issued
memoranda on July 17 and 20, 1996, to its Booneville,
Arkansas employees, and that these memoranda unlaw-
fully threatened the loss of 401(k) pension plan and
Employee Stock Ownership Plan (ESOP) benefits if
the employees chose the Union as their bargaining rep-
resentative. The General Counsel contends that the Re-
spondent’s answer to the complaint does not raise any
issue warranting a hearing, that the Respondent has ad-
mitted making the statements at issue, and, under con-
trolling Board precedent, that these statements
undisputedly conveyed unlawful threats of the with-
drawal of benefits in violation of Section 8(a)(1).
The Respondent admits that Plant Manager Ed
Whipkey’s name appeared on the July 17 and 20
memoranda addressed to all Booneville employees.2
The Respondent contends that the memoranda, when
read in their entirety, did not express the Respondent’s
intent automatically to withdraw any 401(k) or ESOP
benefits if the employees voted for a union. Instead,
the Respondent argues, the memoranda abided by the
well-established principle that an employer may law-
fully tell employees that, if a union wins an election,
existing benefits are negotiable and may be lost as a
result of the negotiating process.
The July 17 memorandum, entitled ‘‘Union Author-
ization Cards,’’ stated, in relevant part:
Here we go again! Local 2008 and their support-
ers are back at it with their same old tired sayings
and empty promises. They would love to
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881EXCEL DPM OF ARKANSAS, INC.
3 The Respondent relies in part on Dayton Hudson Corp., 316
NLRB 85 (1995). We find that case inapposite. In the first place,
we note that the Board did not pass on the judge’s dismissal of the
8(a)(1) allegations in that case. Ibid. at fn. 1. Second, the case is
distinguishable on its facts. Although the employer there noted that
unrepresented employees had a savings plan, and unionized employ-
ees did not, the employer said that these matters were negotiable,
and the employer did not suggest than an intransigent position would
be taken in those negotiations.
have you believe that you can get something for
nothing. They would love to have you believe that
all you have to do is sign their authorization cards
and everything will be better. They would love to
have you believe that you have nothing to lose
and everything to gain. WRONG! Again, let there
be no misunderstanding. We strongly oppose
union representation in Booneville and will fight
hard to keep the union out.
1. All of you participate in the Employee Stock
Ownership Plan (ESOP) benefit. Some of you
participate in the 401k match benefit. All of you
have received quarterly benefit statements. Most
of you recognize that this is a superior benefit. If
you sign a union authorization card, you take a
good chance of losing this benefit. No Excel or
Cargill unionized facility has this benefit and it is
company policy that it not be a benefit in union-
ized facilities. Are you willing to go on STRIKE
during which there is NO WORK, NO WAGES,
NO BENEFITS if the company were to insist dur-
ing the negotiating process that this benefit be
eliminated.
2. All of you have superior benefits to Excel
unionized facilities in many areas: holidays, vaca-
tions, just to name a few areas. If you sign a
union authorization card, you take a chance on
having these benefits reduced. If you were rep-
resented by a union, do you really think that the
company would let the Booneville plant retain
these benefits when it doesn’t in any of its union-
ized facilities? Do you really think Booneville
would set the standard in benefits for Excel’s
unionized facilities? More importantly, are you
willing to go on STRIKE if the company were to
insist during the negotiating process that these
benefits be reduced?
The July 20 memorandum, entitled ‘‘401k/ESOP
Benefit,’’ stated in relevant part:
Union supporters are saying that the company
can’t take the 401k/ESOP match benefit away
from you. They are not telling you the truth. Here
are the facts:
1. FACT: The money you have personally in-
vested is yours and cannot be taken away.
. . . .
3. FACT: The 401k/ESOP benefit can be taken
away during the negotiating process. Again, ask
yourself if you truly believe that the company
won’t insist that the 401k/ESOP benefit be taken
away during the negotiating process when NO
other Excel unionized facility has this benefit. Do
you really think that the Booneville plant of 500
employees is going to set the standard for other
Excel plants? More importantly, you must ask
yourself, am I willing to go on STRIKE if the
company insists that this benefit be taken away
during the negotiating process?
After considering the two memoranda in their en-
tirety, as the Respondent has urged us to do, we agree
with the General Counsel that, as a matter of law, their
undisputed language conveys an unlawful threat to
withdraw 401(k) pension and ESOP benefits if the em-
ployees chose the Union as their bargaining representa-
tive. Contrary to the Respondent’s claims, the memo-
randa do not simply state that employees may lose
these benefits as a result of good-faith collective-bar-
gaining negotiations. Instead, they emphasize the inevi-
tability of loss and the intractability of the Respond-
ent’s view, in advance of any negotiations, that union-
ized employees are not entitled and will not be per-
mitted to participate in the Company’s 401(k) and
ESOP plans. It is unlawful for an employer to threaten
such a loss. See, e.g., Tappan Co., 228 NLRB 1389,
1390 (1977), enfd. 607 F.2d 764 (6th Cir. 1979);
Rangaire Corp., 157 NLRB 682, 683–684 (1966).3
We find no merit in the Respondent’s contention
that it gave affirmative assurances which clarified that
a loss of benefits was not inevitable. The statement in
the July 20 memorandum that ‘‘[t]he money you have
personally invested is yours and cannot be taken
away’’ sheds no light on the employees’ future partici-
pation in the benefit plans. Furthermore, the Respond-
ent’s token references to the negotiating process in
both memoranda do not convey any real sense of an
intent to bargain in good faith about the 401(k) and
ESOP benefits. Instead, employees reading the full text
of each memorandum would reasonably conclude that
the Respondent intended to enter any collective-bar-
gaining negotiations with an intransigent resolve to
eliminate those benefits for unit employees, not be-
cause of cost or any other nondiscriminatory factor,
but solely because of the employees’ unionized status.
As the Respondent most unequivocally stated in the
July 17 memorandum, ‘‘No Excel or Cargill unionized
facility has this benefit and it is company policy that
it not be a benefit in unionized facilities.’’ In sum, to
refer to the negotiating process after flatly stating that
unionized employees would not have the 401(k) and
ESOP benefits ‘‘is to underscore the power of the Em-
ployer to carry out its threat and to expose the Em-
ployer’s intention to skirt its duty to bargain in good
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882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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
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.’’
faith.’’ International Harvester Co., 258 NLRB 1162
fn. 3 (1981).
Based on the foregoing, we find that the Respond-
ent’s answer raises no issues warranting a hearing and
that the General Counsel is entitled to prevail on all
allegations of the complaint. We therefore grant the
General Counsel’s Motion for Summary Judgment.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation with an office and
place of business in Booneville, Arkansas, where it has
been engaged in the processing of beef products. Dur-
ing the 12-month period ending July 31, 1996, the Re-
spondent, in conducting its business operations, sold
and shipped from its facility goods valued in excess of
$50,000 directly to points located outside the State of
Arkansas. It has also purchased and received at its fa-
cility goods valued in excess of $50,000 directly from
points located outside the State of Arkansas. We find
that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
By memoranda dated July 17 and 20, 1996, signed
by Plant Manager Ed Whipkey and issued to all em-
ployees at the Respondent’s Booneville, Arkansas fa-
cility, the Respondent threatened its employees with
the loss of 401(k) pension plan and Employee Stock
Ownership Plan (ESOP) benefits if the employees
chose the Union as their bargaining representative. We
find that by this conduct the Respondent interfered
with, restrained, and coerced employees in the exercise
of the rights guaranteed them in Section 7 of the Act.
Such conduct violated Section 8(a)(1) of the Act.
CONCLUSION OF LAW
By issuing memoranda on July 17 and 20, 1996,
threatening employees with the loss of 401(k) pension
plan and Employee Stock Ownership Plan (ESOP)
benefits if the employees chose the Union as their bar-
gaining representative, the Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(1) of the Act, we shall order it to cease and
desist and to post the appropriate remedial notice to
employees.
ORDER
The National Labor Relations Board orders that the
Respondent, Excel DPM of Arkansas, Inc., a division
of Cargill, Inc., Booneville, Arkansas, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with the loss of
401(k) pension plan and Employee Stock Ownership
Plan (ESOP) benefits if the employees choose the
Union as their bargaining representative.
(b) 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 necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post
at its facility copies of the attached notice marked
‘‘Appendix.’’4 Copies of the notice, on forms provided
by the Regional Director for Region 26, 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 con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any mate-
rial. In the event that the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, 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 Re-
spondent at any time since July 29, 1996.
(b) 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 Re-
gional Director attesting to the steps that the Respond-
ent has taken to comply.
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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
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883EXCEL DPM OF ARKANSAS, INC.
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten employees with the loss of
401(k) pension plan and Employee Stock Ownership
Plan (ESOP) benefits if the employees choose the
Union as their bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
EXCEL DPM OF ARKANSAS, INC., A DI-
VISION OF CARGILL, INC.
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