Uncle Charlie's Sausage Co.

National Labor Relations Board - Board Decisions

Jun 11, 1969

176 N.L.R.B. 570 (N.L.R.B. 1969)

570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meat Foods, Inc. d/b/a Uncle Charlie 's Sausage Co.
and District Union Local 227 , Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO. Case 9-CA-4956,
June 11, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On March 25, 1969, Trial Examiner Charles W.
Schneider issued his Decision in the above -entitled
proceeding , finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended , and recommending that it cease
and desist therefrom and take certain affirmative
action , as set forth in the attached Trial Examiner's
Decision . Thereafter, Respondent filed exceptions to
the Trial Examiner ' s Decision.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed . The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision;
Respondent ' s exceptions, and the entire record in
this case , and hereby adopts the findings,
conclusions , and recommendations of the Trial
Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that Respondent , Meat Foods, Inc.
d/b/a Uncle Charlie's Sausage Co., Richmond,
Kentucky , its officers , agents, successors, and
assigns , shall take the action set forth in the Trial
Examiner' s Recommended Order.
'In adopting the Trial Examiner 's conclusion that Charles Reinhart was
the Charging Party's agent in requesting recognition from Respondent, we
note that the Regional Director found Reinhart to be "Petitioner's
representative" in his Report on Objections in the underlying
representation case . In its exceptions to this Report , attached as an exhibit
to Respondent's exceptions in this case , Respondent itself refers to
Reinhart as "an admitted representative of Petitioner." We reject
Respondent's contention that Reinhart was not the Charging Party 's agent.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding'
On December 5, 1967, an election was conducted at the
Richmond , Kentucky , plant of Meat Foods , Inc. d/b/a
Uncle Charlie's Sausage Co., herein called the
Respondent, pursuant to a Stipulation for Certification
Upon Consent of Election approved on November 3,
1967, by Respondent and District Union Local 227,
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, herein called the Union. Of an
appropriate unit of approximately 34 eligible voters, 33
ballots were cast, 20 in favor of and 13 against the Union.
No ballots were challenged.
Pursuant to timely objections to conduct affecting the
results of the election filed by Respondent on December
11, 1967, an investigation was conducted in accordance
with Section 102.69 of the Board's Rules and Regulations,
Series 8 , as amended . As a result of such investigation, a
Report on Objections to Election and Recommendations
to the Board was issued by the Regional Director on July
30, 1968, in which he found that the objections raised no
substantial or material issues with respect to the election,
recommended to the Board that the objections be
overruled in their entirety, and that the Union be certified
as the collective-bargaining representative of the
employees in the stipulated unit.
The Respondent filed timely exceptions to the Regional
Director's Report on Objections to Election and
Recommendations to the Board. On October 10, 1968, the
Board issued its Decision and Certification of
Representative in which it overruled Respondent's
exceptions in their entirety, and certified the Union as the
exclusive bargaining representative of the employees in the
appropriate unit.
The Complaint Case
On November 7, 1968, the Union filed the unfair labor
practice charge involved in the instant case, in which it
alleged , inter a/ia, that since on or about October 10,
1968, the Respondent refused to bargain with the Union.
On December 18, 1968, the General Counsel, by the
Regional Director of Region 9, issued a Complaint and
Notice of Hearing alleging that the Respondent had
committed unfair labor practices in violation of Section
8(a)(l) and (5) and Section 2(6) and (7) of the Act by
refusing to bargain with the Union upon request. In due
course the Respondent filed its Answer to the complaint
in which certain allegations of the complaint were
admitted and others denied.
In its Answer the Respondent admits the following
allegations of the complaint : ( 1) filing and service of the
charge, (2) certain jurisdictional facts, (3) that the union is
a labor organization within the meaning of Section 2(5) of
the Act, and (4) that H.N. Benton is an agent acting on
the Respondent's behalf and is a supervisor as defined in
Section 2(11) of the Act. Respondent denies the
allegations contained in the complaint to the effect that:
(1) the Union has requested the Respondent to bargain
collectively, (2) Respondent has refused to bargain with
the Union, and (3 ) it is engaging in unfair labor practices
'Administrative or official notice is taken of the record in the
representation proceeding , Case No. 9-RC-7482, as the term "record" is
defined in Section 102.68 and 102 .69(f) of the Board ' s Rules (Rules and
Regulations and Statements of Procedure , National Labor Relations
Board , Series 8 , as amended ). See LTV Electrosystems . Inc., 166 NLRB
No 81, enfd . 388 F .2d 683 (C.A. 4, 1968); Golden Age Beverage Co. 167
NLRB No. 24; Intertype Co. v. Penello, 269 F.Supp . 573 (D.C Va. 1967);
lntertype Co. v. N. L.R B. 401 F .2d 41 (C.A. 4, 1968X Follett Corp., et
al. 164 NLRB No. 47, enfd . 397 F.2d 91 (C.A. 7, 1968); Section 9(d) of
the NLRA.
176 NLRB No. 74
MEAT FOODS , INC. 571
affecting commerce within the meaning of the Act.
As to the allegations contained in paragraph 5(a) of the
Complaint and Notice of Hearing, which alleges that an
election was conducted by the Board, that the Union was
certified as the exclusive collective-bargaining
representative, and that the appropriate
collective-bargaining unit is all employees of Respondent
at its Richmond, Kentucky, plant, excluding all mechanics
and driver salesmen , all guards , office clericals, and
professional employees and all supervisors as defined in
Section 2(11) of the Act, Respondent neither admits nor
denies , but rather sets out an explanation . In this
explanation Respondent's Answer states that its
"Objections to the conduct of the election alleged in
paragraph 5(a), raise substantial and material issues of
fact on the basis of which such election should be either
set aside , or in the alternative , a hearing directed to
resolve such substantial material issues of fact."
As to paragraph 5(b) of the Complaint and Notice of
Hearing in which it is asserted that the Union is the
exclusive collective- bargaining representative of
Respondent's employees in the appropriate unit,
Respondent's Answer states that the Respondent is
without knowledge as to these allegations.
Under date of February 13, 1969, received February 17,
1969, Counsel for the General Counsel filed a Motion for
Summary Judgment in which he contends that the
pleadings considered together with the official Board
record in the underlying representation proceeding, Case
9-RC-7482 , raise no issues requiring hearing, that
Respondent ' s defense set forth in its Answer raises no
litigable question of fact and that, as a matter of law,
Respondent has no valid defense to the complaint and
therefore cannot submit an opposing affidavit, a position
which the Respondent suggests is particularly true in the
light of restrictions on discovery proceedings in unfair
labor practice cases.
Attached to the Motion for Summary Judgment as
exhibit (b) is a copy of a letter from Charles R. Reinhart,
Director of Organizing of the Union, to Mr. Herman
Benton, president of the Respondent. In this letter, dated
October 15, 1968, (5 days after certification) the Union
requested the Respondent to bargain with it as the
certified union in the appropriate unit. Attached to the
Motion for Summary Judgment as exhibit (c) is a copy of
a letter from H. N. Benton, on behalf of the Respondent,
acknowledging receipt of the Union's October 15 letter. In
its reply, dated October 25, 1968 the Respondent declined
to recognize the Union as the representative of its
employees on the ground, in sum, that the Union was not
the legal bargaining representative . Copies of these two
letters are attached hereto.
On February 20, 1969, 1 issued an Order returnable
March 3, 1969, and subsequently extended at the request
of the Respondent to March 14, 1969, directing the
parties to show cause as to whether or not the General
Counsel's Motion should be granted. On March 13, 1969,
Counsel for the Respondent filed a Response to General
Counsel's Motion for Summary Judgment. No other
responses have been received . Inter alia , the Response
admits the authenticity of exhibits (b) and (c).
Ruling on Motion for Summary Judgment
reasons . First, Respondent states that its "exceptions
when read in connection with the Report of the Regional
Director on Respondent's Objections to the conduct of the
election held in Case 9-RC-7482, clearly establishes
substantial and material issues of fact upon which the
hearing should be held, at which time witnesses will be
subjected to examination and cross-examination, thus
affording Respondent due process, and equal protection
under the law."
Secondly, Respondent questions the authority of
Charles Reinhart. Thus, while admitting the authenticity
of exhibit (b), the letter which Reinhart wrote to the
Respondent on behalf of the Union requesting recognition,
the Respondent does not admit the agency of Reinhart or
his authority to act for the Union in the matter set out in
exhibit (b). The Respondent correctly states that the
General Counsel has the burden to show that Reinhart is
in fact an agent of the Union, that this is a material fact,
and that no supporting affidavits are submitted by the
General Counsel in connection therewith. The Respondent
further asserts that under the Rules of Federal Procedure
concerning motions for summary judgment, Respondent
has no ability to determine whether Reinhart is in fact an
agent of the Union. and therefore cannot submit an
opposing affidavit, a position which the Respondent
suggests is particularly true in the light of restrictions on
discovery proceedings in unfair labor practice cases.
The Respondent's contentions concerning the agency of
Reinhart are not sustained. In the light of the whole
context of events, the letter of Reinhart to the Respondent
on behalf of the Union has a circumstantial guarantee of
trust worthiness and constitutes prima facie evidence of
the authority of Reinhart to request the Respondent to
bargain. The Respondent did not question Reinhart's
authority upon receipt of the letter but accepted it as
authentic and responded to it with an unequivocal refusal
to bargain. The Respondent suggests no facts casting
doubt on Reinhart's authority. That discovery may be
restricted in unfair labor practice cases would not have
prevented the Respondent from making an investigation
and representing in its Response to the Motion for
Summary Judgment (either by way of affidavit or by
certification of counsel) what its investigation disclosed
respecting Reinhart's authority. If such representations
raised genuine factual issues requiring the taking of
evidence respecting Reinhart's authority, hearing would be
provided. However, nothing of such nature is suggested
here. In the absence of any assertion that evidence exists
casting doubt on the authority of Reinhart to request
recognition on behalf of the Union, it must be concluded
that Reinhart was in fact authorized to make the request.
With respect to the Respondent's contention that its
objections raised issues upon which a hearing should be
held, it must be noted that that issue was resolved by the
Board to the contrary in the representation proceeding.
The Respondent thus seeks to relitigate the issue here.
This the Respondent may not do before the trial
examiner.
It is established Board policy, in the absence of newly
discovered or previously unavailable evidence, not to
permit litigation before a Trial Examiner in a complaint
case of issues which were or could have been litigated in a
prior related representation proceeding.' This policy is
Counsel for the Respondent opposes summary
judgment . In its Response Respondent urges that the
General Counsel's motion should be denied for two
'Krieger-Radsdale & Co. Inc. 159 NLRB 490, enfd 379 F.2d 517,
(C.A. 7, 1967), cert. denied 389 U.S. 1041; N L.R.B v. Macomb Pottery,
376 F.2d 450 (C.A. 7, 1967); Howard Johnson Company, 164 NLRB No.
121; Metropolitan Life Insurance Company. 163 NLRB No. 71. See
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applicable even though no formal hearing on objections
has been provided by the Board. Such a hearing is not a
matter of right unless substantial and material issues are
raised;' and that there are not such issues here has been
effectively decided by the Board.
In view of Respondent ' s admission of the authenticity
of General Counsel's Exhibit (c) (Respondent's letter of
October 25, 1968, to the Union), I find that the
Respondent has since October 25, 1968, refused to
recognize the Union as the exclusive bargaining agent of
the employees in the appropriate unit and has refused to
meet and bargain collectively with the Union concerning
the terms and conditions of employment of these
employees.
There thus being no unresolved matters requiring an
evidential hearing , the Motion of the General Counsel for
Summary Judgment is granted , and I hereby make the
following further:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Meat Foods, Inc., d/b/a Uncle Charlie's Sausage Co.,
the Respondent , is a Kentucky corporation engaged in the
business of processing and selling beef and other meat
products at its plant in Richmond, Kentucky.
During the past 12 months, which is a representative
period, Respondent had a direct inflow, in interstate
commerce , of goods and products valued in excess of
$50,000, which it purchased and caused to be shipped
directly to its Richmond, Kentucky, plant from points
outside the State of Kentucky.
Respondent is, and has been , at all times material
herein , an employer engaged in commerce and in
operations affecting commerce , within the meaning of
Section 2(6) and (7) of the Act.
[I. THE LABOR ORGANIZATION INVOLVED
the Regional Director of Region 9 of the National Labor
Relations Board.
On October 10, 1968 , the Board certified the Union as
the exclusive collective-bargaining representative of the
employees in the appropriate unit.
At all times since October 10 , 1968, and continuously
to the present , the Union has been the representative for
the purpose of collective bargaining of the employees in
the said unit, and by virtue of Section 9(a) of the Act, has
been , and is now , the exclusive representative of all the
employees in said unit for the purpose of collective
bargaining with respect to rates of pay, wages , hours of
employment , and other terms and conditions of
employment.
On or about October 15 , 1968, the Union requested the
Respondent to meet with it for the purpose of collective
bargaining with respect to the employees in the
appropriate unit , and on October 25, 1968, the
Respondent refused to do so.
By thus refusing to bargain collectively Respondent has
engaged in unfair labor practices in violation of Section
8(a)(5) of the Act and has interfered with , restrained and
coerced its employees in violation of Section 8(a)(1) of the
Act.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions , pursuant
to Section 10(c) of the Act, I recommend that the Board
issue the following:
ORDER
A. For the purpose of determining the duration of the
certification , the initial year of certification shall be
deemed to begin on the date the Respondent commences
to bargain in good faith with the Union as the recognized
exclusive bargaining representative in the appropriate unit.
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
The following employees of the Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All employees employed by the Respondent at its plant
located at Richmond, Kentucky, excluding all
mechanics and driver salesmen , all guards , office
clericals and professional employees and all supervisors
as defined in Section 2(11) of the Act.
On December 5, 1967, a majority of Respondent's
employees in the said unit designated and selected the
Union as their collective - bargaining representative in a
secret-ballot election conducted under the supervision of
Pittsburgh Plate Glass Co. v. N L R.B., 313 U.S. 146, 162 (1941); NLRB
Rules and Regulations , Sections 102.67(f) and 102 .69(c).
'D K. Van and Storage, inc., 127 NLRB 1537, enfd. 297 F.2d 74 (C.A.
5, 1961). See Air Control Window Products. inc., 355 F.2d 245, 249 (C.A.
5, 1964). "If there is nothing to hear , then a hearing is a senseless and
useless formality ." See also N L R B. v. Bata Shoe ('a, 377 F.2d 821, 826
(C A. 4, 1967): ". . . there is no requirement , constitutional or otherwise,
that there be a hearing in the absence of substantial and material issues
crucial to determination of whether NLRB election results are to be
accepted for purposes of certification."
B. Meat Foods, Inc., d/b/a Uncle Charlie's Sausage
Co., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with District Union
Local 227, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, as the exclusive
collective-bargaining representative of the employees in
the following appropriate bargaining unit:
All employees employed by the Respondent at its plant
located at Richmond, Kentucky, excluding all
mechanics and driver salesmen, all guards, office
clericals and professional employees, and all supervisors
as defined in Section 2(11) of the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent employees as such exclusive
collective-bargaining representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively with District
Union Local 227, Amalgamated Meatcutters and Butcher
Workmen of North America, AFL-CIO, as the exclusive
' i'l apurpose of this provision is to msure that the employees in the
appropriate unit will be accorded the services of their selected bargaining
agent for the period provided by law. See Mar-Jac Poultry Co , 136
NLRB 785; Commerce Co, d/b/a Lamar Hotel , 140 NLRB 226, 229,
enfd . 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817 ( 1964); Burnett
Construction Co, 149 NLRB 1419, 1421 , enfd . 350 F.2d 57 (C.A. 10,
1965).
MEAT FOODS , INC. 573
representative of the employees in the appropriate unit
with respect to rates of pay, wages , hours of employment,
and other terms and conditions of employment and
embody in a signed agreement any understanding reached.
(b) Post at its plant at Richmond, Kentucky, copies of
the attached notice marked "Appendix."' Copies of said
notice on forms provided by the Regional Director for
Region 9, shall, after being duly signed by an authorized
representative of the Respondent, be posted by the
Respondent 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 Region 9, in
writing, ,within 20 days from the receipt of this
Recommended Order what steps the Respondent has
taken to comply herewith.,
'In the event that this Recommended Order is adopted by the Board the
words "a Decision and Order " shall be substituted for the words "the
Recommendations of a Trial Examiner " in the notice . In the further event
that the Board ' s Order is 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."
'in the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 9 , in writing , within 10 days from the 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
WE WILL NOT refuse to bargain collectively with
District Union Local 227, Amalgamated Meatcutters
and Butcher Workmen of North America, AFL-CIO,
as the exclusive collective - bargaining representative of
all our following employees:
All employees employed by us at our plant located at
Richmond, Kentucky, excluding all mechanics and
driver salesmen , all guards , office clericals and
professional employees and all supervisors as defined
in Section 2(l 1) of the Act.
WE WILL NOT interfere with the efforts of the Union
to negotiate for or represent employees as exclusive
collective bargaining representative.
WE WILL bargain collectively with the Union as the
exclusive collective bargaining representative of the
employees in the appropriate unit and if an
understanding is reached sign a contract with the
Union.
MEATS FOODS, INC.,
D/B/A UNCLE CHARLIE S
SAUSAGE CO.
(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.
Any questions concerning this notice may be directed to
the Board ' s Regional Office, Room 2407 Federal Office
Building , 550 Main Street, Cincinnati, Ohio 45202,
Telephone 513-684-3686.
EXHIBIT (b)
October 15, 1968
Mr. Herman Benton
c/o Uncle Charlie' s Sausage Company
406 No. Estille Avenue
Richmond, Kentucky 40475
Dear Sir:
This Union having been certified by the National Labor
Relations Board, Washington, D. C., on October 10,
1968 as the exclusive bargaining agent of all employees
of the employer in the union found appropriate by the
National Labor Relations Board, hereby request that
you immediately bargain with said union concerning
wages, hours, and conditions of said employees and
further request that you contact the undersigned as to
the date, time, and place within five days so that a
conference can commence for the purpose of
consummating a collective bargaining agreement.
Very truly yours,
Charles R. Reinhart
Director of Organizing
District Union Local 227
CRR/g
cc:
Mr. Ronald Allen, Attorney
305 Union Federal Building, Evansville, Indiana 47708
EXHIBIT (c)
District Union Local 227
2140 Dixie Highway
Louisville , Ky 40210
ATTENTION: Charles R. Reinhart
Dear Mr. Reinhart:
Your letter of October 15 has been received. The
purpose of this letter is to inform you that we will not
recognize the Amalgamated Meat Cutters and Butcher
Workmen of North America as the representative of
our employees . The reason for this , as you are no doubt
aware of, is the fact that the results of the election held
on our premises do not accurately reflect the desires of
our employees . This situation has arisen due to the
conduct of the Amalgamated Meat Cutters and Butcher
Workmen of North America during the campaign
preceding the election.
We do not believe that the decision of the NLRB in
any way correctly represents the state of the law
applicable to the evidence submitted by us in support of
our objections. Therefore , we feel , as a matter of law,
that you do not represent a majority of our employees
and consequently , any recognition of your union by this
company would be illegal . We hereby inform you that
we will conduct no bargaining negotiations with the
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amalgamated Meat Cutters until the court of highest matter by the NLRB.
jurisdiction in these matters has not only determined Very truly yours,
that your conduct preceding the election was Uncle Charlie's Sausage
unobjectionable ; but also that we have received due Co.
process of law as guaranteed by the constitution of the /s/ H. N. Benton
United States in respect to the prosecution of this HNB/jw . H. N. Benton