Milwaukee Independent Meat Packers Association

National Labor Relations Board - Board DecisionsApr 15, 1976

223 N.L.R.B. 922 (N.L.R.B. 1976)

922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Milwaukee Independent Meat Packers Association, Employer-Petitioner and Meat & Allied Food Workers Local Union No. 248 , AFL-CIO, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case 30- RM-343 April 15, 1976 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Shirley A. Bednarz. Following the Union's request, and pur- suant to Section 102.67 of the National Labor Rela- tions Board Rules and Regulations, Series 8, as amended, by direction of the Regional Director for Region 30, this case was transferred to the National Labor Relations Board for decision. Thereafter, the Petitioner and the Union filed briefs. 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. The Board has considered the entire record in this case and makes the following findings: 1. The Milwaukee Independent Meat Packers As- sociation, hereinafter MIMPA or the Employer, is an association of companies engaged in the meat proc- essing and packaging industry. The association was established in 1959 to promote and advance the meat packing industry by various means, including the es- tablishment of stable labor relations. The parties stip- ulated that during the course of the past calendar year, a representative period, MIMPA collectively, through its members, purchased and received goods valued in excess of $50,000 directly from points lo- cated outside the State of Wisconsin. The parties stipulated, and we find, that the Em- ployer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(l) and 2(6) and (7) of the Act. 4. The Employer seeks an election in a unit of all production and maintenance employees, including truckdrivers, employed by members of MIMPA, and excluding office clerical employees, buyers, and su- pervisors as defined in the Act. MIMPA further ar- gues that employees presently working at the former Northern Packing Company, Inc., hereinafter North- ern, and United Packing Corp. Inc., hereinafter United, facilities, now operated by MIMPA member Peck Meat Packing Corporation, hereinafter Peck, and its wholly owned subsidiary, Moo-Battue, Inc., are an accretion to the bargaining unit. The Meat & Allied Food Workers Local Union No. 248, affiliated with Amalgamated Meat Cutters and Butcher Work- men of North America, AFL-CIO, hereinafter the Union, on the other hand, asserts that the only ap- propriate units are the employees at each of the member companies. Stressing that it became collec- tive-bargaining representative on a plant-by-plant and employer-by-employer basis, the Union argues that, upon proper notice, it can withdraw from col- lective bargaining with MIMPA and resume bargain- ing with the association members on an individual basis. Further, the Union contends that at no time has it consented to bargain with Moo-Battue, and the Board should not compel it to do so contrary to its wishes. In the alternative, the Union asserts that the employees at Moo-Battue and Peck's expanded facil- ities are not an accretion to the unit. Since 1959 the Union and MIMPA have engaged in collective bargaining. Over the years they have en- tered into successive collective-bargaining agree- ments, the latest of which expired on January 10, 1975. Member companies signing that contract were: August Born & Son, Inc.; City Dressed Beef Compa- ny; Donner Packing Company; Milwaukee Dressed Beef Company; Milwaukee Meat & Provision Co.; Nacker Packing; Northern Packing Company, Inc.; Peck Meat Packing Corporation; South Side Compa- ny; Strauss Bros. Packing Company; United Packing Corp, Inc.; and Wisconsin Packing Co. Since execu- tion of the last, now expired, agreement, a number of the above companies have either left the association or gone out of business, and at the time of the hear- ing MIMPA consisted of seven members. On January 25, 1975, when the Union commenced an economic strike against MIMPA and its mem- bers,' the bargaining unit consisted of approximately 750 employees. During the course of the strike many MIMPA members replaced the strikers with new em- ployees, and just prior to the filing of the RM peti- tion several member companies discharged approxi- mately 45 employees for alleged strike misconduct. The Union filed unfair labor practice charges con- 1 There is no evidence before the Board that the strike has been terminat- ed during or subsequent to the hearing. 223 NLRB No. 155 MEAT PACKERS ASSN. 923 cerning these discharges .2 Additionally, during the course of the strike, two MIMPA members, North- ern and United, ceased doing business and terminat- ed their some 192 employees. Another member, Peck, in its own name and through a wholly owned subsidiary, Moo-Battue, Inc., took over facilities pre- viously utilized by the defunct companies. To oper- ate the new facilities, Peck and Moo-Battue transfer- red employees from Peck's old plant, as well as hired new employees. Upon the present state of record, the issues before the Board are the propriety of the Hearing Officer's rulings at the hearing and the appropriate unit in which to conduct the election. 1. PROCEDURAL ISSUES At the preelection hearing held on January 12, 1976, Hearing Officer Bednarz limited the issues to whether the employees working at the expanded Peck and Moo-Battue facilities were an accretion to the unit. The Union, however, unsuccessfully sought to ex- pand the range of issues to be litigated. Initially, the Union moved to dismiss the petition on the basis that "objective considerations" necessary to support the RM petition were absent. Upon the Hearing Officer's denial of its motion, the Union requested that the Hearing Officer state on the record the basis for the Regional Director's determination of objec- tive considerations. The Hearing Officer denied this request, ruling that the finding of objective consider- ations is an administrative determination not subject to litigation. The Union now excepts to the Hearing Officer's refusal to state on the record the basis for the Regional Director's determination that objective considerations supporting the RM petition exist, as- serting that it must be apprised of the reasons for the Regional Director's conclusion so that it might raise the legal sufficiency of that determination. We find the Union's exception is without merit. The Regional Director's finding that objective considerations exist, like the showing of interest in a petition for certifica- tion, is an administrative determination not subject to litigation.' The Union further sought to litigate the eligibility to vote of: (1) striker replacements, (2) the 192 termi- nated employees of Northern and United, and (3) the approximately 45 discharged striking employees. With regard to the former Northern and United em- ployees, the Union argues that the Peck and Moo- Battue operations at the newly acquired plants are 2 At the time of the hearing the Union had been advised of the Regional Director's decision to proceed on five of the cases and to dismiss the re- mainder. 3 United States Gypsum Company, 161 NLRB 601 (1966). successors to the two former MIMPA companies. Thus, the Union asserts that the former Northern and United employees' employment rights continue to date and that as unit members these employees are eligible to vote. We find no merit to the Union's ex- ceptions to the Hearing Officer's ruling precluding litigation of this issue. Any rights to continued em- ployment that the former Northern and United em- ployees might presently have are directly related to the propriety of the cessation of Northern and United's business and transfer of the facilities to Peck and Moo-Battue. As such, these rights and the former employees' eligibility to vote are the subject of unfair labor practice charges 4 It is well-estab- lished Board policy that an unfair labor practice alle- gation may not be litigated in a representation pro- ceedings Thus, we find that the Hearing Officer properly precluded the litigation of an unfair labor practice allegation in this representation proceeding. Accordingly, we affirm the Hearing Officer's ruling that eligibility of the former Northern and United employees to vote was not a proper issue at the hear- ing herein. As to the other eligibility issues, the Union urges that since the large number of strike replacements and discharged employees involved will necessarily affect the election results, the Board should make a preelection determination of their eligibility to vote. We find no merit in the Union's contention. Well- established Board policy provides for the resolution of the eligibility of strike replacements 6 and dis- charged employees' by the postelection challenge procedure. Accordingly, we affirm the Hearing Officer's rulings precluding litigation of these issues. The Union also excepts to the Hearing Officer's revocation of the subpoenas duces tecum served on MIMPA and its members.' The Union contends that ° The Union filed unfair labor practice charges in which the Union's successorship claim was in issue. The Regional Director dismissed those charges. The Union, in its brief, asserts that this dismissal is now being appealed to the General Counsel. Texas Meat Packers, Inc., Texas Meat and Provision Co., et ai., 130 NLRB 279 (1961). 6 The Pipe Machinery Company, 76 NLRB 247 (1948). McCarthy Enterprises, Inc., t/a Community Motors, 128 NLRB 60 (1960). The Union sought to obtain the following information: (1) employers payroll records after January 25, 1975, including name, address, job classification, hourly wage rate, hours worked, gross weekly earnings and any other payments made to employees; (2) written documents or memoranda relating to (a) MIMPA re- cruitment of employees after December 1, 1974 and (b) the terms of any offers of employment made after January 1, 1975; (3) written documents relating to the discharge of any striking em- ployee after January 25, 1975; (4) written documents and memoranda referring or relating to (a) any employee joining the strike who subsequently returned to work, (b) the conduct, and (c) any such employee's resignation from the Union; and (5) written documents and memoranda concerning (a) the cessation of production operations and resignation from MIMPA by Northern, Continued 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the information sought therein was not only related to its successorship theory, precluded from litigation by the Hearing Officer, but was also relevant to the accretion issue. We find, in agreement with the Hear- ing Officer, that, while some of the information sought by the Union relates to the accretion issue, the record developed at the hearing contains suffi- cient evidence upon which to decide this case. Ac- cordingly, we find that the Hearing Officer's ruling revoking the subpoenas duces tecum did not prejudice the Union. Thus, the Board has reviewed the rulings of the Hearing Officer made at the hearing and finds those rulings free from prejudicial error. The rulings are hereby affirmed.9 If. APPROPRIATE UNIT In determining the appropriate unit for conducting the election, we note, as indicated above, that since 1959 MIMPA and the Union have engaged in collec- tive bargaining. on a multiemployer basis and that over the years they have executed successive collec- tive-bargaining agreements covering MIMPA mem- bers' employees. Further, common work rules, manu- al, and grievance procedure are in effect at each of the member companies. In such circumstances, we find no merit in the Union's contention that only single-company units are appropriate. There is no dispute that the parties have enjoyed an uninterrupted successful history of multiemployer collective bargaining. While the Union is correct in its assertion that upon proper no- tice it can withdraw from the multiemployer bargain- ing, the Union herein has failed effectively to with- draw from this multiemployer bargaining relationship. In order to extricate itself from mul- tiemployer bargaining, the Union must notify MIMPA of its withdrawal from bargaining with the Association before the commencement of negotia- tions for a new agreement.1° Here, the Union first (b) the commencement of operations by Peck at facilities previously operated by Northern and (c ) the name, address , terms of employment, hourly wages, hours worked and job classifications of any employee working at the facilities formerly operated by Northern after August 1, 1975. 9 Following the Hearing Officer 's rulings limiting the hearing to the accre- tion issue , the Union sought special leave to appeal . After arguments before him, the Regional Director for Region 30 granted leave to appeal . Follow- ing further arguments on the merits , the Regional Director affirmed the Hearing Officer 's rulings, but also granted the Union 's request to transfer the case to the Board. 10 Cf. Hearst Consolidated Publications, Inc., 156 NLRB 210 (1965); The Evening News Association , Owner and Publisher of "The Detroit News," 154 NLRB 1494 (1965). indicated its desire to discontinue bargaining with MIMPA during the midst of ongoing negotiations and only after the RM petition was filed. Such notice does not satisfy the Board's requirements for effec- tive withdrawal from multiemployer bargaining. Thus, we find that the Union has not effectively withdrawn from bargaining with MIMPA. There- fore, we find that in light of the lengthy and success- ful bargaining history the appropriate unit consists of all the employees of MIMPA companies. As noted above, during the course of the January 1975 strike, Northern and United went out of busi- ness, and Peck and Moo-Battue, Inc., Peck's wholly owned subsidiary, acquired the facilities of the two defunct companies. Following the change in control, the Union and striking employees continued to pick- et Peck and Moo-Battue at these facilities. Contrary to the Union's contentions that the employees at these facilities are not properly included in the unit, we find that the most recent collective-bargaining agreement in effect between MIMPA and the Union indicates an intent that these employees be included within the unit. In this regard, the expired contract provides: 30. Change in ownership, management or leas- ing of any plant shall not serve to invalidate the terms of this agreement. The new owner, new management or new leassee or lessor shall im- mediately assume all obligations under this agreement. While Peck has recently undergone a substantial change in employee complement, it is still engaged in the meat packing business at the former Northern and United facilities. Thus we find that, pursuant to the parties' intent as expressed in the applicable con- tractual provision, Moo-Battue and Peck's expanded operations fall under the scope of the collective-bar- gaining agreement and that the employees at the newly acquired facilities are properly included within the bargaining unit. Accordingly, we find that the following employees constitute a unit appropriate for purposes of collec- tive bargaining within the meaning of Section 8(b) of the Act. All production and maintenance employees, in- cluding truckdrivers, employed by members of the Milwaukee Independent Meat Packers Asso- ciation and excluding office clerical employees, buyers and supervisors as defined by the Act, as amended. [Direction of Election and Excelsior footnote omit- ted from publication.]