Packerland Packing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1975

218 N.L.R.B. 676 (N.L.R.B. 1975)

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Packerland Packing Company, Inc. and Local 248,
Amalgamated Meat Cutters and Butcher Work-
men of North America , AFL-CIO. Case 30-CA-
2743
June 19, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On October 11, 1974, Administrative Law Judge
John P. von Rohr issued his Decision in the above-
entitled proceeding, recommending that the com-
plaint be dismissed and that the dispute be deferred
to the grievance-arbitration procedures of the collec-
tive-bargaining contract between the Union and
Respondent, under the principles set forth in Collyer
Insulated Wire, A Gulf and Western Systems Co., 192
NLRB 837 (1971). Thereafter, the case was trans-
ferred to the Board in Washington, D.C.
On October 31, 1974, the General Counsel and the
Union each filed a motion to reopen the record and
to remand the case to the Administrative Law Judge
for the receipt of newly discovered evidence. There-
after, Respondent filed an opposition to the motions
of the General Counsel and the Union.
On March 4, 1975, the Board issued its Order
Denying Motions, 216 NLRB No. 128 (1975), of the
General Counsel and the Union as lacking in merit.'
Thereafter, the General Counsel and the Union
filed exceptions and supporting briefs, and Respon-
dent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed, provided,
however, that:
Jurisdiction of this proceeding is hereby retained
for the limited purposes stated in the Decision of the
Administrative Law Judge.
MEMBER FANNING, dissenting:
My colleagues err in adopting the Administrative
Law Judge's conclusion that the combination of
218 NLRB No. 81
Respondent's past and present misconduct does not
appear to be of such character as to render the use of
the available dispute-solving machinery to be futile
and unpromising.2 They ignore or fail to give
sufficient weight to the evidence which clearly
demonstrates that there has been a continuing
pattern of Respondent's efforts to, defeat or weaken
the Union; the relationship of the'parties has been
troubled and marred by distrust; . the arbitration
procedures have - functioned poorly; 3 Respondent
threatened to "stop collecting dues" on one occasion
when it opposed the Union's utilization of arbitration
machinery; Respondent on a number of other
occasions did resort to suspension of the checkoff as
a means of exerting pressure on the Union; and
Respondent's current refusal to check off dues
constituted an unlawful breach of its contract with
the Union4 which was not justified by the latter's
boycott of Respondent's products in support of a
sister local at another plant.
In view of the foregoing record, it is extremely
unlikely that the use of arbitration procedures herein
would properly resolve the current dispute. I would
therefore determine this proceeding in accordance
with the statutory mandate requiring the Board to
resolve unfair labor practices submitted to it .5
1 Member Fanning dissented.
2 See United Aircraft Corporation, 213 NLRB No. 22 (1974).
3 See United Aircraft Corporation, 204 NLRB 879 (1972).
4 Cavaler Spring Company, 193 NLRB 829 (1971); George E Light Boat
Storage, Inc., 153 NLRB 1209 (1965).
5 See the dissents in the United Aircraft cases, supra. See also Columbus
Coated Fabrics, Division of Borden Chemica4 Borden, Inc, 202 NLRB 932
(1973).
DECISION
STATEMENT OF THE CASE
JoHN P. vox RoHR, Administrative Law Judge: Upon a
charge filed on June 7, 1974, the General Counsel of the
National Labor Relations Board, by the Regional Director
for Region 30 (Milwaukee, Wisconsin), issued a complaint
on July 12, 1974, against Packerland Packing Company,
Inc., herein called the Respondent or the Company,
alleging that it had engaged in certain unfair labor
practices in violation of Section 8(axl), (5), and 8(d) of the
National Labor Relations Act, as amended, herein called
the Act. The Respondent filed an answer denying the
allegations of unlawful conduct alleged in the complaint.
Pursuant to notice, a hearing was held in Green Bay,
Wisconsin, on August 19 and 20, 1974. Briefs were received
from the General Counsel, the Charging Party, and the
PACKERLAND PACKING CO., INC.
Respondent on September 26, 1974, and they have been
carefully considered.'
Upon the entire record in this case, I hereby make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Wisconsin corporation engaged in the
processing, packing, and transportation of meat products.
The sole plant involved in this proceeding is located in
Green Bay, Wisconsin. During the year preceding the
hearing, Respondent sold and shipped products valued in
excess of $50,000 to points and places outside Wisconsin.
The Respondent concedes, and I find, that it is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 248 , Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, at times herein
called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The preliminary issue is whether, as Respondent con-
tends, the dispute in this case should be deferred to the
contractual grievance-arbitration machinery under the
principle set forth in Collyer Insulated Wire, 192 NLRB 827
(1971). In the event that deferral is inappropriate, which is
the position of the General Counsel and the Charging
Party, the issue on the merits is whether Respondent was
justified in refusing to honor a contractual reprovision
requiring it to check off employees" union dues and
initiation fees on the ground that the Union was conduct-
ing a so-called consumer boycott against it. Respondent
asserts that to honor the checkoff provision would but
serve to give financial assistance to the boycott being
conducted against it and that this it was not legally bound
to do. The complaint alleges that Respondent's unilateral
refusal to honor the checkoff provision was violative of
Section 8(a)(5) and (1) of the Act.
B. The Facts
As all parties concede in their briefs, the facts in this case
are not in material dispute. Packerland Packing Company,
Inc., the Respondent herein, has plants at three locations,
namely at Green Bay, Wisconsin, Chippewa Falls, Wiscon-
sin, and Pampa, Texas. The only plant involved in this
proceeding is the one located at Green Bay, Wisconsin.
The Union (Local 248) was certified as the collective-
bargaining agent for Respondent's maintenance and
production employees at this plant in September 1970. The
current collective-bargaining agreement covering this unit,
i The Charging Party's motion to correct the transcript is hereby
granted . The motion reflecting the corrections has been placed in the formal
file of this proceeding.
677
which is effective from June 1, 1971, to February 28, 1975,
contains the following provision:
Article 2 - Check Off Dues
The Company, for such employees who have signed
authorization cards on file with the Company, shall
deduct from the first pay of each month the Union
dues for the current month and initiation fee and
promptly remit the same to the duly designated officer
of the Union. The Union shall furnish forthwith signed
authorization cards for all employees for whom union
dues deductions are to be made, and will also furnish
authorization cards for Union members who join the
Union during the term of this Agreement.
Except for the alleged unfair labor practice involved
herein pertaining to the checkoff dues, the Green Bay plant
has no labor dispute with the Union. However, since late
September 1973, the International Union and its affiliated
Local 444 have engaged in an economic strike at and
against Respondent's Chippewa Falls plant. In furtherance
of this dispute, it is undisputed that commencing in
January 1974, the International Union, with the support of
its locals including Local 248, engaged in a consumer
boycott against the Respondent, this involving the urging
of consumers not to buy the Company's products,
including those produced at the Green Bay facility.2
By letter dated May 31, 1974, Respondent reacted to the
aforenoted boycott by advising the Union as follows:
MEAT CUTTERS & BUTCHER WORKMEN OF NORTH
AMERICA/ AFL-CIO
Gentlemen:
Although we have in force with you a valid labor
agreement , you have taken the liberty to engage in a
campaign of "Do Not Buy the Products of Packerland
Packing Co., Inc., Est. No. 562, Green Bay Wisconsin."
It is our position that this is a violation of our labor
agreement on your part and equal to stoppage,
slowdown, or suspension of work at our establishment
on the part of the Union.
When you entered into the agreement, and agreed that
there would be no strike, stoppage, slowdown, or
suspension of work, you assumed an obligation and
you cannot now eliminate that obligation by doing
indirectly, what you cannot do directly.
Until you end this boycott against establishment # 562,
we are compelled to discontinue providing you with
income by which you can do so. Accordingly, there will
be no further check off Union dues for your organiza-
tional until this campaign is terminated.
We reserve the right to take any additional action that
may be necessary.
2 In view of my disposition of this case under the Collyer doctrine, I do
not deem it necessary to herein recite the details concerning the full nature
and extent of the Union's boycott activity.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If any individual employee wishes to contribute to his
own JOB SUICIDE , he can do so directly to you.
VERY TRULY YOURS,
PACKERLAND PACKING
COMPANY
Is/ S. W. FRANKENTHAL
PRESIDENT
It is undisputed, that ever since the above notification
Respondent has refused to deduct union dues in accord-
ance with the contract provisions and employee checkoff
authorizations.
C. Contentions and Conclusions as to Applicability
of Collyer
The General Counsel , joined by the Charging Party,
contends that "Respondent's history of interference with
employees' rights under Section 8(a)(1) and (3) of the Act is
a reason for denying deferral ."3 In passing upon a similar
contention in United Aircraft Corporation (Pratt & Whitney
and Hamilton Standard Division), 204 NLRB 879 (1973),
the Board stated as follows:
In cases such as this, therefore, it is incumbent upon
us to review the past conduct and the present
allegations of misconduct so as to test whether it
appears sufficient to rebut the reasonableness of our
fundamental assumption that the parties' own proce-
dures will effectively resolve the current disputes in a
prompt and fair manner.
Turning then to a review of Respondent's history the
record shows that, aside from a representation proceeding,
the Respondent has become involved in two cases wherein
a Board order has been entered. The first of these, Case
30-CA-921, occurred prior to the Union's certification and
merely involved Board approval, on August 21, 1969, of a
settlement stipulation which had been arrived at by
agreement of the parties. The sole unfair labor practice
case to be brought to hearing before the Board is reported
in Packerland Packing Company, Inc., 203 NLRB 198
(1973),4 wherein the Board found one independent
violation of Section 8(a)(1) of the Act and also that
Respondent had discriminatorily assigned two employees
to different positions within the Company.5
3 G.C. brief.
4 Enfd. 494 F.2d 293 (CA. 7, 1973).
5 The General Counsel also introduced into evidence an unfair labor
practice charge filed against Respondent in Case 30-CA-2201, dated
January 11 , 1973. (G.C. Exh. 13.) However, this was resolved between the
parties, with certain concessions being made by the Union as well as
Respondent, and the charge was withdrawn . Clearly this matter provides no
basis for establishing past misconduct on Respondent 's behalf.
6 Robert Rotter, Respondent's plant superintendent , testified that the
Company records , which he checked prior to the hearing, disclose that the
dues collectible under the award were deducted in February 1973. Victor
Bobrowicz, business representative of Local 248, testified that he "thought
[compliance with the award ] was in the beginning of September 1973." " The
agreement between the parties dated August 16, 1973 (G.C. Exh 16) does
Aside from the foregoing, the record further reveals that
in December 1971, the Union requested the Respondent to
deduct one dollar in addition to the regular monthly dues
for the months of January, February, and March 1972.
Taking the position that the extra one dollar was an
"assessment" for which it had no contractual obligation to
check off, the Company refused to honor this request. The
dispute ansing out of this situation was taken to arbitration
under the contract's grievance and arbitration procedure.
Under date of February 13, 1973, the arbitrator issued his
award in favor of the Union. Significantly, at the
conclusion of the award the arbitrator deemed it appropri-
ate to add the following:
Special Note
The Union alleged at the time of the arbitration that
the Company had been guilty of a deliberate effort to
undermine the Union and was therefore, guilty of an
unfair labor practice. I feel it necessary to say I have
considered such allegation and I find that the evidence
does not support it. I think the Company had an honest
difference of opinion as to the meaning of the contract
as respects its duty to check off dues.
Although there is some question as to the date of
compliance, it is undisputed that Respondent complied
with the above award.6
At the hearing Plant Manager Robert Rotter testified
that Respondent is willing to have the instant dispute taken
to arbitration. Under all the circumstances of this case, I
see no reason why this dispute should not be resolved
through the parties' agreed upon grievance and arbitration
procedure under the principles enunciated in Collyer.
Applying the test set forth in United Aircraft Corporation,
supra, and as more fully explicated therein, I am persuaded
and fmd that the combination of Respondent's past and
presently alleged misconduct does not appear to be of such
character as to render the use of the available dispute
solving machinery to be unpromising or futile.? According-
ly, it is recommended that the complaint be dismissed but
that the Board retain jurisdiction in accordance with the
Collyer decision, supra.8
Upon the foregoing findings of fact, the entire record in
this case, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
not settle the matter , for this agreement arose out of a charge (30-CA-2201)
relating to an entirely different situation.
7 See also a subsequent UnitedAircraft case, UnitedAircraft Corporation
(Pratt and Whitney Division; Hamilton Standard Division), 213 NLRB No. 22
(1974).
3 At the hearing and in its brief Respondent appears to contend that, if
this matter is arbitrated, it would raise an additional defense before the
arbitrator ; namely, that its action wasjustified because the Union allegedly
breached the no-strike clause (article 20) of the collective-bargaining
agreement. The Charging Party, in urging that this case not be deferred to
arbitration, characterizes this defense as being frivolous. Assuming arguendo
that there may be merit to the Charging Party's characterization of this
defense, there is no reason why this argument cannot be made before the
arbitrator and decided by him.
PACKERLAND PACKING CO., INC.
ORDERS
The Board shall retain jurisdiction of this proceeding for
the purpose of entertaining an appropriate and timely
motion for further consideration upon a proper showing
that either (a) the dispute has not, with reasonable
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
679
promptness after the issuance of this, decision, either been
resolved by amicable settlement in the grievance procedure
or submitted promptly to arbitration,, or (b) the grievance
or arbitration procedures have not been fair and regular or
have reached a result which is repugnant to the Act.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes