Mead Foods, Inc.

National Labor Relations Board - Board Decisions

May 11, 1964

146 N.L.R.B. 1515 (N.L.R.B. 1964)

MEAD FOODS, INC. 1515
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , you are notified that:
WE WILL NOT interfere with, restrain , or coerce our employees in the exercise
of their right to engage in or to refrain from engaging in union activities by
interrogating them concerning their union activities without legitimate purpose
and without using proper safeguards.
WE WILL NOT in any like or related manner interfere with , restrain , or coerce
our employees in the exercise of their right to self-organization , to form labor
organizations or to join or assist Local 1922, International Brotherhood of Elec-
trical Workers, AFL-CIO, or any other labor organization , to bargain collec-
tively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid
or protection , or to refrain from engaging in such activities as 'guaranteed in
Section 7 of the Act, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as authorized in Sec-
tion8 (a)(3) of the Act.
All our employees are free to become or remain , or refrain from becoming or
remaining, members of any labor organization.
THE LORBEN CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Fifth
Floor , Squibb Building, 745 Fifth Avenue , New York, New York , Telephone No.
751-5500, if they have any question concerning this notice or compliance with its
provisions.
Mead Foods, Inc. and Chauffeurs, Teamsters and Helpers Local
Union No. 47, and General Drivers, Chauffeurs & Helpers
Local Union No . 886. Case No . 16-CA-1940. May 11, 1964
DECISION AND ORDER
On March 10, 1964, Trial Examiner Thomas N. Kessel issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and a supporting
brief.
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 [Members Leedom, Fanning, 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
146 NLRB No. 175.
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings,l conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Recommended
Order of the Trial Examiner and orders that Respondent, Mead
Foods, Inc., its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order.
'We find no merit in the Respondent 's contention that the Hearing Officer in the
representation proceeding , Case No . 16-RC-33613 , erred in rejecting its offer of proof. In
essence, the Respondent maintains that the proof , if accepted , would have established that
the Unions did not have the "capacity " to represent the employees in the appropriate
unit as joint representatives , and therefore that the Unions were improperly certified as
the statutory representative of these employees . We have carefully reexamined all of the
factors set forth in the Respondent 's offer of proof as evidence of the Unions ' Incapacity,
and find , as we did originally , that none furnishes a basis for a finding that the Unions
are incapable of acting jointly in bargaining collectively with the Respondent . Obviously,
the filing by the Unions of a joint petition indicates their belief that there is a common
ground on which they could effectively act as a joint representative . We find that the
Respondent was not prejudiced by the rejection of its offer of proof.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Upon a charge filed October 7, 1963 , by Chauffeurs , Teamsters and Helpers Local
Union No . 47 and General Drivers, Chauffeurs & Helpers Local Union No. 886,
herein collectively called the Union , against Mead Foods, Inc., herein called the
Respondent , the General Counsel of the National . Labor Relations Board, herein
called the Board , by the Regional Director for the Sixteenth Region , issued his com-
plaint dated November 15, 1963, alleging that the 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 Rela-
tions Act, 61 Stat . 136, herein called the Act . The Respondent 's answer denies the
allegations of statutory violation therein . Copies of the complaint , the charge,
and a notice of hearing were duly served upon the parties . Pursuant to said notice
a hearing was held before Trial Examiner Thomas N . Kessel at Wichita Falls , Texas,
on December 4, 1963 . All 'parties were represented at the hearing by counsel.
Full opportunity to. be heard , to examine , to cross-examine witnesses , and to in-
troduce evidence was afforded all parties. After the close of the hearing the Respond-
ent filed a brief which has been duly considered.
Upon the entire record in the case I make the following:
FINDINGS OF FACT
1. PERTINENT COMMERCE FACTS
The Respondent is a Texas corporation having its principal place of business in
Amarillo, Texas, and branch plants elsewhere throughout Texas and Oklahoma
where it manufactures and distributes bread and bread products. In the year preced-
ing the issuance of the complaint the Respondent purchased materials and supplies
valued in excess of $50 ,000 which were transported to its Wichita Falls, Texas,
branch , also referred to as a division , from points outside the State of Texas. The
Respondent concedes and I find from the foregoing facts that it is an employer en-
gaged in interstate commerce within the meaning of the Act, and that the purposes
of the Act will be effectuated by the Board 's assertion of jurisdiction in this case over
its business.
MEAD FOODS, INC. 1517
II. THE LABOR ORGANIZATIONS INVOLVED
Chauffeurs, Teamsters and Helpers Local Union No. 47 and General Drivers,
Chauffeurs & Helpers Local Union No. 886 are each a labor organization admitting
to membership the Respondent's employees.
III. THE UNFAIR LABOR PRACTICES
The Respondent's alleged violation consists of its refusal to honor the Union's
June 14, 1963, certification by the Regional Director as the exclusive bargaining
representative of an appropriate unit of certain employees employed at the Respond-
ent's Wichita Falls, Texas, division. The Respondent admittedly has refused and
failed to meet with and to bargain collectively with the Union concerning terms and
conditions of employment for these employees notwithstanding the Union's bargain-
ing request. The Respondent, maintaining it was justified in its refusal and failure
to meet and bargain as requested, claims that while Local 47 and Local 886 are
separately labor organizations capable of representing employees on an individual
basis they are incapable jointly of representing the employees in the appropriate
unit and hence do not together constitute a labor organization to whom the cer-
tificate should have been issued by the Regional Director. In effect, the Respond-
ent attacks the validity of the certificate.
Admittedly, the representation hearing was held under the auspices of the Regional
Director at which the Respondent was represented by counsel. Following the hear-
ing the Regional Director ordered a secret ballot election in a unit consisting of all
route salesmen, transport drivers, and relief drivers employed by the Respondent at
its Wichita Falls, Texas, division, excluding office clerical employees, guards, watch-
men and supervisors as defined in the Act. The appropriateness of this unit for
collective-bargaining purposes is also admitted. A majority of the employees vot-
ing in the election selected Locals 47 and 886 as their joint bargaining representa-
tive and the Regional Director thereupon certified them as the joint bargaining
representative of the employees in the appropriate unit.
By letter, dated August 20, 1963, Local 47 requested the Respondent.to meet and
bargain collectively. The Respondent's August 24, 1963, letter stated its declina-
tion on the ground that Local 47 was not the proper representative under the Act
of the unit employees. A September 10, 1963, letter to the Respondent from Local
886 gave notification of Local 47's authority to act in its behalf in contract negotia-
tions. Local 47's September 11, 1963, letter to the Respondent renewed its demand
for a meeting and contained a reminder that it had power of attorney to act as
representative for Local 886 in collective bargaining. The Respondent replied by
letter dated September 18, 1963, informing Local 47 that it would advise later con-
cerning its position and stated that the date requested for a meeting in Local 47's
September 11 letter was inconvenient. The Respondent's follow-up letter, dated
September 30, 1963, declared its refusal to meet as requested on the ground that
Locals 47 and 886 do not jointly constitute a proper bargaining representative under
the Act. A letter by the Respondent's attorneys to the Regional Director, dated
October 11, 1963, advised that the Respondent refuses to meet and bargain with
the Union for the reason that Locals 47 and 886 do not together constitute a labor
organization which can appropriately under the Act represent the employees in the
unit for which they were certified. An October 31, 1963, letter by these attorneys
to the Regional Director reiterated the same position.
At the hearing before me the Respondent introduced into evidence a portion of
the transcript of the proceedings at the representation hearing in Case No. 16-RC-
3366. The transcript shows the rejection of the Respondent's offer of proof in that
proceeding attacking the capacity of Locals 47 and 886 to act as the joint representa-
tive of the employees in the appropriate unit. In substance the Respondent had
offered to prove that the Locals have different constitutions and bylaws; that they
have different officials and representatives who are selected by the members of each
Local; that they have different policies concerning organization, collective bargain-
ing, wages, hours, and working conditions; that they have different policies con-
cerning grievances and methods of processing them; that Local 47 is headquartered in
Fort Worth, Texas, and Local 886 in Oklahoma City, Oklahoma; that the functions
of each Local are governed by the laws of the- State in which it is located and these
laws differ as to checkoff, right-to-work "statutes and matters pertaining to union
security; that each Local's activities are limited by geographical bounds with neither
having jurisdiction to function beyond the State in which it is located; that their
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jurisdictional limitations are fixed by agreement between them or by other authority;
that the requirements for membership in each Local are different; that these differ-
ing requirements would affect the eligibility of membership of the represented em-
ployees; that the Locals have agreements concerning transfer of membership be-
tween them; that they have different dues requirements; that each has its own method
for handling grievances and arbitration proceedings within its own geographical
jurisdiction; that they have differing policies concerning welfare funds, retirement
plans, and other matters which are bargaining subjects; that each Local is independent
of the other "so far as the representation of members in the respective unions is
concerned, and are each autonomous within themselves for any purpose involved
in this case."
The Respondent's defense in the instant proceeding is identical with the issue it
sought to raise in the foregoing representation hearing. That issue having been
considered and resolved by the Regional Director in behalf of the Board may not
be relitigated in the current proceeding before me. Accordingly, as no other de-
fense is raised in this case, I find that the Respondent has since August 24, 1963,
refused without legal justification to meet and bargain with the certified representa-
tive of its employees as requested. By such refusal the Respondent has violated
Section 8(a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the 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 thereof.
V. THE REMEDY
Having found that the Respondent engaged in unfair labor practices violative of
Section 8(a)(5) and ( 1) of the Acts I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the
Act. It has been found that the Respondent has refused and still refuses . to bargain
collectively with the Union as the exclusive representative of the employees in the
appropriate unit described herein . It will therefore be recommended that the
Respondent bargain collectively , upon request , with the Union as the exclusive
representative of the employees in the appropriate unit, and , if an understanding is
reached , embody such understanding in a signed agreement.
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. Mead Foods, Inc., is an employer within the meaning of Section 2(2) of the
Act, and is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Chauffeurs, Teamsters and Helpers Local Union No. 47 and General Drivers,
Chauffeurs & Helpers Local Union No. 886 are labor organizations within the mean-
ing of Section 2(5) of the Act.
3. All route salesmen , transport drivers, and relief drivers employed by Mead
Foods, Inc., at its Wichita Falls, Texas, division, excluding office clerical employees,
guards, watchmen, and supervisors as defined in the Act constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
4. On June 14, 1963, and at all times thereafter, the Union was and now is the
representative of a majority of the Respondent's employees in the appropriate unit
described above for the purposes of collective bargaining .within the meaning of
Section 9(a) of the Act.
5. By refusing on August 24, 1963, and thereafter to bargain collectively with the
Union as the exclusive representative of all its employees in the above-described
appropriate unit , Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a) (5) and (1) 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.
MEAD FOODS, INC. 1519
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this proceeding , I recommend that Mead Foods, Inc., at its
Wichita Falls , Texas, division , its officers , agents, successors , and assigns , shall:
1. Cease and desist from refusing to bargain collectively with Chauffeurs, Team-
sters and Helpers Local Union No. 47 and General Drivers, Chauffeurs & Helpers
Local Union No. 886 as the exclusive representative of all its employees in the ap-
propriate unit with respect to rates of pay, wages, hours of employment , and other
terms and conditions of employment.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act.
(a) On request, bargain collectively with Chauffeurs, Teamsters and Helpers
Local Union No. 47 and General Drivers, Chauffeurs & Helpers Local Union No.
886 as the exclusive representative of the employees in the appropriate unit and
embody any understanding reached in a signed contract.
(b) Post at its place of business in Wichita Falls, Texas, the attached notice
marked "Appendix." I Copies of said notice to be furnished by the Regional Director
for the Sixteenth Region shall, after being duly signed by an authorized representa-
tive, of the Respondent, be posted by it immediately upon receipt thereof and be
maintained by it for a period of 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted . Reasonable
steps shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for the Sixteenth Region , in writing , within 20
days from the receipt of this Decision what steps it has taken to comply therewith?
1 In the event that this Recommended Order shall be adopted by the Board , the words
"A Decision and Order" shall be substituted for the words "The Recommended Order 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 "A Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "A Decision
and Order."
21n the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of receipt of this Order , what steps the Respondent
has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL bargain collectively upon request with Chauffeurs,' Teamsters and
Helpers Local Union No. 47 and General Drivers, Chauffeurs & Helpers Local
Union No . 886, as the exclusive bargaining representative of all our employees in
the appropriate unit described below with respect to rates of pay, wages, hours
of employment and other terms and conditions of employment , and if an agree-
ment is reached , embody such understanding in -a signed contract . The ap-
propriate unit is:
All route salesmen , transport drivers, and relief drivers employed by us
at our Wichita Falls, Texas, division, excluding office clerical employees,
guards, watchmen , and supervisors as defined in the Act.
MEAD FOODS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No.
Edison 5-4211, Extension 2131, if they have any question concerning this notice
or compliance with its provisions.
744-670-05-vol. 146-97