Millard Processing Services

National Labor Relations Board - Board Decisions

Sep 22, 1992

308 N.L.R.B. 929 (N.L.R.B. 1992)

929
308 NLRB No. 138
MILLARD PROCESSING SERVICES
1 Member Oviatt did not participate in the underlying representa-
tion proceeding. 304 NLRB 770 (1991).
1 Millard Processing Services, supra.
1 All dates are in 1991, unless otherwise indicated.
Millard Processing Services, Inc. and UFCW Local
No. 271, affiliated with United Food and Com-
mercial Workers International Union. Case 17–
CA–15923
September 22, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On July 21, 1992, Administrative Law Judge Leon-
ard M. Wagman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
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 brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Millard Processing Serv-
ices, Inc., Omaha, Nebraska, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
MEMBER RAUDABAUGH, dissenting.
For the reasons stated in my dissent in the underly-
ing representation case,1 I would reverse the judge’s
decision and find that the Union was improperly cer-
tified.
Constance N. Traylor, Esq., for the General Counsel.
Patrick J. Barrett, Esq. (McGrath, North, Mullin & Kratz,
P.C.), of Omaha, Nebraska, for the Respondent.
Thomas F. Dowd, Esq. (Thomas F. Dowd & Associates), of
Omaha, Nebraska, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried in Omaha, Nebraska, on February 27, 1992.
The Union, UFCW Local No. 271, affiliated with United
Food and Commercial Workers International Union, filed the
unfair labor practice charge in this case on November 27,
1991,1 against Millard Processing Services (Millard). On De-
cember 10, the Regional Director for Region 17 issued a
consolidated complaint, which included the instant case with
Cases 17–CA–15133, 17–CA–25375, and 17–CA–15843.
The consolidated complaint, to the extent pertinent to the
instant case, alleged that Millard had violated Section 8(a)(5)
and (1) of the National Labor Relations Act (the Act) by re-
fusing to recognize and bargain with the Union, the certified
collective-bargaining representative of Millard’s employees,
and by failing and refusing to furnish the Union with nec-
essary information required by it for purposes of collective
bargaining. In its timely answer to the consolidated com-
plaint, Millard denies these allegations. Thereafter, on Feb-
ruary 27, 1992, on the motion of the Union, and on deter-
mining that the pleadings in this case did not raise issues of
fact warranting a hearing before me, I ordered this case sev-
ered to expedite resolution of the issues regarding the
Union’s certification, which Millard has raised in its plead-
ings.
On the entire record before me in this proceeding, includ-
ing the briefs filed by the General Counsel and Millard, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Millard, a corporation engaged in the processing and slic-
ing of bacon, has an office and place of business in Omaha,
Nebraska, where, in the course of its business, it annually
purchases and receives products, goods, and materials valued
in excess of $50,000 directly from points outside the State
of Nebraska. Millard admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
Millard also admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
In its answer to the consolidated complaint issued on De-
cember 10, Millard admits the alleged refusal to recognize
and bargain with the Union. However, Millard challenges the
Union’s certification following a secret-ballot election con-
ducted by the National Labor Relations Board in Case 7–
RC–10493. In its posthearing brief, Millard contends that the
Board erred in reversing a hearing officer’s recommendation
that the representation election held on June 29, 1990, in a
unit of Millard’s employees, be set aside, and that a second
election be held.
The issues regarding the Union’s certification were pre-
viously litigated and determined by the Board, in the rep-
resentation proceeding in Case 17–RC–10493. Well-settled
Board policy precludes me from permitting the relitigation of
those issues in the instant proceeding. Rutters Linen Service,
256 NLRB 1171 (1981).
Millard admits, and I find, that its employees in the fol-
lowing unit constitute a unit appropriate for collective-bar-
gaining purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time maintenance, produc-
tion, and sanitation employees employed by Millard, at
its facility located at 13076 Renfro Circle, Omaha, Ne-
braska, but excluding all office clerical employees,
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
guards, foremen and supervisors as defined in the Act,
and all other employees.
On June 9, 1990, a majority of Millard’s employees, in the
unit described above, designated and selected the Union as
their representative for collective-bargaining purposes, in a
secret-ballot election conducted by the Board in Case 17–
RC–10493. Thereafter on August 27, the Board certified the
Union as the exclusive representative of the employees in the
unit described above, for the purpose of collective bargaining
with Millard. The Union continues to be such exclusive rep-
resentative within the meaning of Section 9(a) of the Act.
By its letter dated September 6, the Union requested that
Millard recognize it and bargain with the Union as the exclu-
sive collective-bargaining representative of the unit described
above. Since about September 6, Millard has failed and re-
fused to recognize and bargain with the Union as the exclu-
sive collective-bargaining representative of the unit described
above.
I find that Millard has, since about September 6, refused
to bargain collectively with the Union as the exclusive rep-
resentative of the employees in the appropriate unit, and that
by such refusal, Millard has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
In further answer to the consolidated complaint of Decem-
ber 10, Millard admits that it refused to furnish the Union
with the following requested information listed in the
Union’s letter of September 6:
1. A list of all employees in the bargaining unit, in-
cluding their name, address, telephone number, date of
hire, job classification, department assignment, present
rate of pay, date and amount of any and all wage in-
creases, and the average number of hours worked per
week by each such employee for the past twelve (12)
months.
2. A copy of any and all group insurance covering
bargaining unit employees, and cost to each employee,
if any.
3. The number of holidays and qualifications to re-
ceive holiday pay for each employee.
4. Number of weeks of vacation pay and qualifica-
tions for such pay for each employee.
5. Method used in calculation of overtime pay.
6. Number of paid rest periods for employees and
duration of each rest period.
7. Amount of funeral leave pay for employees, if
any.
8. A list of all gear furnished to bargaining unit em-
ployees, namely, boots, gloves, coats, hats, aprons, safe-
ty gear, and any other working apparel furnished to the
employees; and if any of this gear is sold to employees,
we request the amount charged to the employees for
such gear.
9. Report in pay, and the amount of such pay, if any.
10. Premium pay, if any, for work performed on
holidays, Saturdays, Sundays, and night shift pay as
well.
11. Leave of absence policy and any time off work
paid for by the company.
12. A copy of any and all company rules and regula-
tions and/or policies, including safety rules that affect
bargaining unit employees.
13. Jury duty pay, if any, for bargaining unit em-
ployees, and the amount of such pay.
Millard also admits that since on or about October 8, it
has not complied with the Union’s request that Millard fur-
nish it with employee Stephanie Caballero’s personnel file.
In its letter, the Union recited that it had recently learned that
Millard had terminated Caballero, who was a bargaining unit
employee. The Union’s letter also included a request to meet
and discuss Caballero’s termination.
It is well settled that the items of information requested by
the Union are presumptively relevant for purposes of collec-
tive bargaining and must be furnished on request. Mobay
Chemical Corp., 233 NLRB 109, 110 (1977). Millard denied
that the requested information was necessary for, and rel-
evant to the Union’s performance of its role as the exclusive
collective-bargaining representative of Millard’s employees
in the unit described above. However, Millard has not at-
tempted to rebut the relevance of the information requested
by the Union. Accordingly, I find that no material issues of
fact have been raised regarding the bargaining information
sought by the Union in its letters of September 6 and Octo-
ber 8, and that its refusal to do so violated Section 8(a)(5)
and (1) of the Act.
CONCLUSIONS OF LAW
1. Millard Processing Services, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. UFCW Local No. 27, affiliated with United Food and
Commercial Workers International Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time maintenance, produc-
tion, and sanitation employees employed by Respondent,
Millard Processing Services, Inc., at its facility located at
13076 Renfro Circle, Omaha, Nebraska, but excluding all of-
fice clerical employees, guards, foremen and supervisors as
defined in the Act, and all other employees, constitute a unit
appropriate for the purposes of collective bargaining, within
the meaning of Section 9(b) of the Act.
4. Since August 27, 1991, the above-named labor organi-
zation has been and now is the certified and exclusive rep-
resentative of all employees in the aforesaid appropriate unit
for the purpose of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By refusing since about September 6, 1991, to bargain
collectively with the above-named labor organization as the
exclusive bargaining representative of all the employees of
Respondent in the appropriate unit, 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.
6. By failing and refusing to furnish the Union with the
information which it requested on September 6, 1991, con-
cerning the unit employees’ wages, hours, work assignments,
job classifications, dates of hire, names, addresses, telephone
numbers, benefits, company rules and regulations, and other
conditions of employment, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
931MILLARD PROCESSING SERVICES
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
3 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.’’
7. By refusing on or about October 8, 1991, and at all
times thereafter to furnish the Union with a copy of bargain-
ing unit employee Stephanie Cabllero’s personnel file, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the
Act.
8. By the aforesaid unfair labor practices, Respondent has
interfered with, restrained, and coerced, and is interfering
with, restraining, and coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act, and has
thereby engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act, I find that it must be ordered
to cease and desist, and take certain affirmative action de-
signed to effectuate the policies of the Act. I shall also rec-
ommend that Respondent be ordered to bargain collectively
on request with the Union as the exclusive representative of
all employees in the appropriate unit and, if an understanding
is reached, embody such understanding in a signed agree-
ment. I shall also recommend that Respondent, on request,
furnish the Union with the information it request by its let-
ters of September 6 and October 8, 1991.
In order to ensure that the employees in the appropriate
unit will be accorded the services of their selected bargaining
agent for the period provided by law, I shall recommend that
the Board construe the initial period of certification as begin-
ning on the date Respondent commences to bargain in good
faith with the Union as the recognized bargaining representa-
tive in the appropriate unit. See Mar-Jac Poultry Co., 136
NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1954), cert. denied 379
U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Millard Processing Services, Inc.,
Omaha, Nebraska, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with the Union, UFCW Local No. 271, affiliated
with United Food and Commercial Workers International
Union, as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All full-time and regular part-time maintenance, produc-
tion, and sanitation employees employed by Respond-
ent, at its facility located at l3076 Renfro Circle,
Omaha, Nebraska, but excluding all office clerical em-
ployees, guards, foremen and supervisors as defined in
the Act, and all other employees.
(b) Refusing to bargain collectively with the Union by re-
fusing to furnish it with the information sought in its letter
of September 6, 1991, concerning the unit employees’ wages,
hours, work assignments, job classifications, dates of hire,
names, addresses, telephone numbers, benefits, company
rules and regulations, and other conditions of employment.
(c) Refusing to bargain collectively with the Union by re-
fusing to furnish it with a copy of bargaining unit employee
Stephanie Caballero’s personnel file.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the aforesaid appropriate
unit concerning rates of pay, wages, hours, and other terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement.
(b) On request, furnish the Union with the information
sought in its letter of September 6, 1991, concerning the unit
employees’ wages, hours, work assignments, job classifica-
tions, dates of hire, names, addresses, telephone numbers,
benefits, company rules and regulations, and other conditions
of employment.
(c) On request, furnish the Union with with a copy of bar-
gaining unit employee Stephanie Caballero’s pesonnel file.
(d) Post at its facility in Omaha, Nebraska, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the notice,
on forms provided by the Regional Director for Region 17,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
932 DECISIONS 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 vio-
lated 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
concerted activities.
WE WILL NOT refuse to bargain collectively concerning
rates of pay, wages, hours, and other terms and conditions
of employment with the Union, UFCW Local No. 71, affili-
ated with United Food and Commercial Workers Inter-
national Union, as the exclusive bargaining representative of
our employees in the following appropriate unit:
All full-time and regular part-time maintenance, produc-
tion, and sanitation employees employed by Millard
Processing Services, Inc., at its facility located at 13076
Renfro Circle, Omaha, Nebraska, but excluding all of-
fice clerical employees, guards, foremen and super-
visors as defined in the Act, and all other employees.
WE WILL NOT refuse to bargain collectively with the
Union by refusing to furnish it with the information sought
in its letter of September 6, 1991, concerning the unit em-
ployees’ wages, hours, work assignments, job classifications,
dates of hire, names, addresses, telephone numbers, and
beneffits, company rules and regulations, and other condi-
tions of employment.
WE WILL NOT refuse to bargain with the Union by refus-
ing to furnish it with a copy of bargaining unit employee
Stephanie Caballero’s personnel file.
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, on request, bargain with the Union as the exclu-
sive representative of our employees in the bargaining unit
described above, concerning rates of pay, wages, hours, and
other terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a signed
agreement.
WE WILL, on request, furnish the Union with the informa-
tion sought in the 1etter of September 6, 1991, concerning
the unit employees’ wages, hours, work assignments, job
classifications, dates of hire, names, addresses, telephone
numbers, and benefits, company rules and regulations, and
other conditions of employment.
WE WILL, on request, furnish the Union with a copy of
bargaining unit employee Stephanie Caballero’s personnel
file.
MILLARD PROCESSING SERVICES, INC.