Timberland Packing Corp.

National Labor Relations Board - Board Decisions

Nov 24, 1975

221 N.L.R.B. 728 (N.L.R.B. 1975)

728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Timberland Packing Corporation and Local 479,
Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO. Case 19-CA-
7615
November 24, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
Upon a charge and first amended charge filed on
March 14, 1975, and April 28, 1975, respectively, by
Local 469, Amalgamated Meat Cutters and Butcher
FL-CIO, hereinWorkmen of North America, AFL-CIO,'
called the Union, and duly served on Timberland
Packing Corporation, herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 19,
issued a complaint on May 28, 1975, against
Respondent, alleging that 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 Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing
before an Administrative Law Judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on May 31, 1974,
following a Board election in Case 19-RC-6824 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing about 6 months prior to March 15, 1975, and at
all times thereafter, Respondent has failed and
refused to reply to the Union's requests for collec-
tive-bargaining meetings, and has failed and refused
to meet with the Union and bargain in good faith
with the Union as the exclusive bargaining represent-
ative, although the Union has requested and is
requesting it to do so. Thereafter, Respondent filed
its answer to the complaint admitting in part, and
denying in part, the allegations in the complaint, and
raising affirmative defenses contesting the Board's
assertion of jurisdiction. On July 18, 1975, Respon-
dent sent an amended answer and by letter dated the
same day waived any defense based on its claim of
lack of Board jurisdiction and restricted its defense
of the refusal-to-bargain charge to its contention that
the certification of the Union was invalid.
I Official notice is taken of the record in the representation proceeding,
Case 19-RC-6824 as the term "record" is defined in Secs 102.68 and
102 69(g) of the Board's Rules and Regulations, Series 8, as amended See
LTV Electrosystems, Inc, 166 NLRB 938 (1967), enfd 388 F.2d 683 (C A 4,
221 NLRB No. 137
On July 24, 1975, counsel for the General Counsel
filed directly with the Board _a Motion for Summary
Judgment. Subsequently, on August 13, 1975,- the
Board issued an order transferring the proceeding to
the Board and a Notice To, Show Cause why the
General Counsel's Motion for Summary Judgment
should not be granted. Respondent failed to fle a
response to Notice To Show Cause.
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.
Upon the entire record in this proceeding, the
Board makes-the following:
Ruling on the Motion for Summary Judgment
In its answer and by way of its subsequently filed
amendments to its answer , Respondent admits the
election and certification by the Union , but denies
the validity of the certification and denies that the
-designation of the Union as, the exclusive representa-
tive of the employees in the stipulated unit was
lawful.
Our review of the record in this case , including that
of the underlying representation case , reveals that,
pursuant to a representation petition , hearings were
held concerning Board jurisdiction over the Respon-
dent. On February 12, 1-974, the Regional Director
for Region 19 issued a Decision and Direction' of
Election in which he found - that the Respondent is
engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to
assert jurisdiction over the Respondent . On February
25, 1974, Respondent filed a Request for Review of
the Decision and Direction of Election raising the
jurisdictional issue . The request was denied by the
Board on March 15 , 1974, as raising no substantial
issues warranting review . The Respondent then filed,
on April 17 , 1974, a Motion for Reconsideration
which was denied by the Board by telegraphic order
as containing nothing not previously considered. The
Union won the election conducted on April 17, 1974.
Respondent filed no objections to the election.
Accordingly, the Regional Director for Region 19
certified the Union on May 31, 1974, as the exclusive
collective-bargaining representative of the unit em-
ployees.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
1968); Golden Age Beverage Co, 167 NLRB 151 (1967), enfd . 415 F 2d 26
(C.A. 5, 1969), Intertype Co v. Penello, 269 F.Supp 573 (D .C Va, 1967),
Follett Corp , 164 NLRB 378 (1967), enfd 397 F .2d 91 (C A. 7, 1%8), Sec.
9(d) of the NLRA.
TIMBERLAND
to relitigate issues which were or could have been
litigated in a prior representation proceeding.2
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence, nor
does it allege that any special circumstances exist
herein which would require the Board to reexamine
the decision made in'the representation proceeding.
We therefore find that the Respondent has not raised
any issue which is- properly litigable in this unfair
labor practice proceeding.3 We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Timberland Packing Corporation is a Montana
corporation with its office and place of business in
Lewistown, Montana, where it is engaged in the
slaughtering, rendering, buying, and selling of live-
stock and the packing, curing, rendering, refining,
and selling of meats and meat products. Additional-
ly, it engages in the manufacture and sale of hides,
oil, glue, animal fertilizers, and other products
resulting from the slaughter of livestock. It sells its
products to the general public at retail, sells to other
wholesale and retail concerns at wholesale, performs
custom slaughtering on a commission basis, and buys
livestock on commission for one other wholesaler.
During the fiscal year ending September 30, 1973, as
more fully set forth in the Regional Director's
Decision and Direction of Election dated February
12, 1974, Respondent had indirect outflow in the
amount of $74,419.59 arising from sales of goods to
and receipt of commissions from concerns over
which the Board has previously asserted jurisdiction
or would assert jurisdiction.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
2 See Pittsburgh Plate Glass Co. v. N.L R B, 313 U S. 146, 162 (1941),
Rules and s Regulations of the Board, Secs 102 67(1) and 102 69(c) It is
further noted that the Respondent has specifically waived the jurisdictional
issue.
3 The complaint alleges and the Respondent admits that after several
requests to bargain from the Union beginning May 24, 1974, the parties met
on August 30,11974. Respondent denies, however, that this meeting was a
collective-bargaining meeting and asserts it had no collective obligation On
PACKING CORP. 729
II. THE LABOR ORGANIZATION INVOLVED
Local 479 , Amalgamated Meat Cutters and Butch-
er Workmen of North America , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act: All employees employed by the Employer at
its Lewistown, Montana, operations, excluding office
clerical employees, yard employees, guards and
supervisors as defined in the Act.
2. The certification
On April 17, 1974, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 19 designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified, as
the collective-bargaining representative of the em-
ployees in. said unit on May 31, 1974, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Since on or about September 30, 1974, and at all
times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about September 30, 1974, and
continuing at all times thereafter to date, the
Respondent has refused, and continues to refuse, to
recognize and bargain in good faith with the Union
as the exclusive representative for collective bargain-
ing of all employees in said unit.
Accordingly, we find that the Respondent has,
since September 30, 1974, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
September 30, 1974, and January 3, 1975, the Union again requested
bargaining meetings . The Respondent admits that for 6 months prior to
March 14, 1975, it has failed and refused to reply to the Union's requests for
collective-bargaining meetings made after August 30, 1974; and has failed
and refused to meet with the Union and bargain in good faith We,
therefore , find the request to bargain to have occurred on and after
September 30, 1974, and that Respondent refused to bargain in good faith
commencing on that date
730 DECISIONS OF NATIONAL, LABOR, RELATIONS BOARD
appropriate unit , and that, by such refusal, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1)'of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead' to labor disputes burdening and
obstructing -commerce and the free' flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section ,8,(4)(5) and. (1) of the Act, we
shall order that it, cease and desist therefrom, and,
upon request, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit,