American Ham Co., Inc.

National Labor Relations Board - Board Decisions

Dec 5, 1978

239 N.L.R.B. 578 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Ham Company, Inc. and Amalgamated
Meat Cutters and Butcher Workmen of North
America, Local No. 545, AFL-CIO. Case 14-CA-
11648
December 5, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
Upon a charge filed on July 12, 1978, by Amalga-
mated Meat Cutters and Butcher Workmen of North
America, Local No. 545, AFL-CIO, herein called the
Union, and duly served on American Ham Compa-
ny, Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 14, issued a com-
plaint and notice of hearing on August 28, 1978,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 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 be-
fore an Administrative Law Judge were duly served
on the parties to this proceeding. Respondent failed
to file an answer to the complaint.
On September 25, 1978, counsel for General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on October 6, 1978,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted. Respondent failed to
file a response to Notice To Show Cause and there-
fore the allegations in the Motion for Summary
Judgment stand uncontroverted.
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.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file and answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the com-
plaint, unless the respondent is without knowl-
edge, in which case the respondent shall so state,
such statement operating as a denial. All allega-
tions in the complaint, if no answer is filed, or
any allegation in the complaint not specifically
denied or explained in an answer filed, unless
the respondent shall state in the answer that he
is without knowledge, shall be deemed to be ad-
mitted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint and notice of hearing served on the
Respondent specifically stated that unless an answer
was filed to the complaint within 10 days from the
service thereof "all of the allegations of the com-
plaint shall be deemed to be admitted to be true and
may be so found by the Board." Further, according
to the uncontroverted allegations of the Motion for
Summary Judgment, the Regional Director for Re-
gion 14, pursuant to Section 102.22 of the Board's
Rules and Regulations, warned Respondent in writ-
ing that unless an answer was filed by September 14,
1978, a motion would be made before the Board for
entry of an order based on the undenied allegations
of the complaint. Respondent has failed to file an
answer to the complaint or to respond to the Notice
To Show Cause. Thereafter, on September 25, 1978,
no answer having been filed, counsel for the General
Counsel filed the instant Motion for Summary Judg-
ment.
As Respondent has filed no answer within 10 days
from the service of the complaint, or within the ex-
tended time afforded it by the Regional Director,
and as no good cause for the failure to do so has
been shown, in accordance with the rule set forth
above, the allegations of the complaint herein stand
undenied and are deemed to be admitted to be true
and are so found to be true, and we shall grant the
General Counsel's Motion for Summary Judgment.'
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent, American Ham Company, Inc.,
is, and has been at all times material herein, a Mis-
souri corporation with an office and place of busi-
ness at Allen Street and DeSoto Road in the city of
Bonne Terre, Missouri, and is engaged in the manu-
facture, sale, and distribution of ham, meat, and re-
lated products. Respondent's plant located at Bonne
Eagle Truck and Trailer Rental Dirtision Ef T Y T Leasing, Inc., 211
NLRB 804 (1974).
578
AMERICAN HAM COMPANY, INC.
Terre, Missouri, is the only facility involved in this
proceeding. During the fiscal year ending June 1978,
which period is representative of its operations dur-
ing all times material herein, Respondent, in the
course and conduct of its business operations, per-
formed services valued in excess of $40,000, of which
services valued in excess of $40,000 were performed
for various enterprises located in States other than
the State of Missouri. Also during the fiscal year end-
ing June 1978, which period is representative of its
operations during all times material herein, Respon-
dent, in the course and conduct of its business opera-
tions, caused to be manufactured, sold, and distrib-
uted at its Bonne Terre, Missouri, plant products
valued in excess of $10,000, of which products valued
in excess of $10,000 were furnished to enterprises,
each of which, in turn, meets other than a solely indi-
rect standard for the assertion of the Board's jurisdic-
tion.
We find, on the basis of the foregoing, that Re-
spondent 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 juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Work-
men of North America, Local No. 545, AFL-CIO, is
a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
At all times material herein, Kenneth Byington has
been and is now a supervisor and agent of Respon-
dent, within the meaning of Section 2(11) of the Act.
On April 11, 1978, a majority of Respondent's em-
ployees designated and selected the Union as their
representative for the purposes of collective bargain-
ing with Respondent in the following described ap-
propriate unit:
All production employees, all plant scalers and
clerks, clean-up personnel, dock workers, truck
loading and receiving employees, maintenance
and labor, and all delivery truckdrivers, em-
ployed by Respondent at its Allen Street and
DeSoto Road, Bonne Terre, Missouri, facility;
excluding office clerical employees, professional
employees, guards and supervisors as defined in
the Act.
The Union is now, and at all material times since
April 11, 1978, has been, the exclusive bargaining
representative of the employees in the unit within the
meaning of Section 9(a) of the Act. Respondent on
April 11, 1978, recognized the Union as the exclusive
collective-bargaining representative in the unit de-
scribed above. Thereafter, on May 2, 1978, Respon-
dent and the Union mutually agreed upon rates of
pay, wages, hours of employment, and other terms
and conditions of employment affecting employees
in the above unit. At all times material herein since
May 5, 1978, and continuing to date, the Union has
requested that Respondent execute the above-de-
scribed written collective-bargaining agreement.
However, since May 11, 1978, and continuing to
date, Respondent has failed and refused, and contin-
ues to fail and refuse, to execute the written agree-
ment agreed upon between the Respondent and the
Union.
Accordingly, we find that Respondent has, since
May 11, 1978, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has en-
gaged 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, inti-
mate, 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 commerce.
v. THE REMEDY
Having found that 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, we shall
order that it cease and desist therefrom and take cer-
tain affirmative action designated to effectuate the
policies of the Act.
To remedy Respondent's violation of Section
8(a)(5) and (1) of the Act, we shall order that it exe-
cute, sign, and give effect to all the terms and condi-
tions of said contract or, if the Union does not re-
quest such execution, we shall order that Respondent
be ordered to bargain collectively in good faith, upon
request, with the Union, as the exclusive collective-
bargaining representative of its employees in the said
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed contract.
579
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall further order that Respondent make
whole the employees, in the unit found appropriate
herein, for any loss of benefits they may have suf-
fered from May 11, 1978, by reason of Respondent's
failure to give effect to said contract, to the date of
compliance with the Order herein. All moneys to be
paid to such employees shall be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon to be com-
puted in the manner prescribed in Florida Steel Cor-
poration, 231 NLRB 651 (1977).2
We shall also order, if required by their contract,
that Respondent reimburse the Union for all mem-
bership dues which, since May 11, 1978, Respondent
has failed to withhold and transmit to the Union pur-
suant to signed dues-deduction authorizations and in
accordance with a checkoff provision of the collec-
tive-bargaining agreement, with interest computed
thereon in the manner prescribed in Florida Steel
Corporation, supra.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. American Ham Company, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Amalgamated Meat Cutters and Butcher Work-
men of North America, Local No. 545, AFL-CIO, is
a labor organization within the meaning of Section
2(5) of the Act.
3. All production employees, all plant scalers and
clerks, clean-up personnel, dock workers, truck load-
ing and receiving employees, maintenance and labor,
and all delivery truckdrivers, employed by Respon-
dent at its Allen Street and DeSoto Road, Bonne
Terre, Missouri, facility; excluding office clerical em-
ployees, professional employees, guards and super-
visors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since April 11, 1978, the above-named labor or-
ganization has been and now is the exclusive repre-
sentative of all employees in the aforesaid appropri-
ate unit for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing on or about May 11, 1978, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit and by refusing to
execute and implement provisions of the agreed-
2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
upon written agreement with the said labor organiza-
tion, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) of the Act, as amended.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
American Ham Company, Inc., Bonne Terre, Mis-
souri, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Amalgamated Meat Cut-
ters and Butcher Workmen of North America, Local
No. 545, AFL-CIO, as the exclusive bargaining rep-
resentative of all its employees in the appropriate
unit.
(b) Refusing to sign or execute, in writing, the
written agreement reached with the Union or any
other collective-bargaining representative of its em-
ployees.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
organization as exclusive representative of all em-
ployees in the aforesaid appropriate unit by execut-
ing forthwith the agreed-upon contract and by
honoring and complying with the provisions thereof
or, if the Union does not request such execution, bar-
gain collectively in good faith, upon request, with the
Union, as the exclusive representative of its employ-
ees in the unit found appropriate, and, if an under-
standing is reached, embody such understanding in a
signed contract. The appropriate bargaining unit is:
All production employees, all plant scalers and
clerks, clean-up personnel, dock workers, truck
loading and receiving employees, maintenance
and labor, and all delivery truckdrivers, em-
580
AMERICAN HAM COMPANY, INC.
ployed by Respondent at its Allen Street and
DeSoto Road, Bonne Terre, Missouri, facility;
excluding office clerical employees, professional
employees, guards and supervisors as defined in
the Act.
(b) Make whole the employees in the unit found
appropriate herein for any loss of benefits they may
have suffered from May 11, 1978, by reason of Re-
spondent's failure to execute and give effect to said
contract, in the manner set forth in the section of this
Decision entitled "The Remedy."
(c) If provided by their contract, reimburse the
Union for all membership dues which, since May I 1,
1978, Respondent has failed to withhold and trans-
mit to the Union pursuant to signed dues-deduction
authorizations and in accordance with the checkoff
provisions of the agreed-upon collective-bargaining
agreement, in the manner set forth in the section of
this Decision entitled "The Remedy."
(d) Post at its place of business at Allen Street and
DeSoto Road in the city of Bonne Terre, Missouri,
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the Re-
gional Director for Region 14, after being duly
signed by Respondent's representative, shall be post-
ed by Respondent immediately upon receipt thereof
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
In the event that 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 Judg-
ment of the United States Court of Appeals Enforcing and Order 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
WE WILL NOT refuse to bargain collectively
with Amalgamated Meat Cutters and Butcher
Workmen of North America, Local No. 545,
AFL-CIO as the exclusive bargaining represen-
tative of all our employees in the appropriate
unit.
WE WILL NOT refuse to sign or execute, in writ-
ing, collective-bargaining agreements reached
with the Union or any other collective-bargain-
ing representative.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them in
Section 7 of the National Labor Relations Act.
WE WILL. upon request of the aforesaid Union,
execute and give retroactive effect to the collec-
tive-bargaining contract on which agreement
was reached on May 5, 1978, or, if the Union
does not request such execution, WE WILL bar-
gain collectively in good faith, upon request,
with the aforesaid Union as the exclusive collec-
tive-bargaining representative of our employees
in the unit found appropriate, with respect to
rates of pay, wages, hours, and other terms and
conditions of employment, and embody in an
agreement any understanding reached. The bar-
gaining unit is:
All production employees, all plant scalers
and clerks, clean-up personnel, dock workers,
truck loading and receiving employees, main-
tenance and labor, and all delivery truckdriv-
ers, employed by us at our Allen Street and
DeSoto Road, Bonne Terre, Missouri, facil-
ity; excluding office clerical employees, pro-
fessional employees, guards and supervisors
as defined in the Act.
WE WILL reimburse our employees in the unit
found appropriate herein, for any loss of bene-
fits they may have suffered because we failed to
sign, execute, and give effect to such contract on
May 11, 1978, with interest.
WE WILL reimburse said Union for all mem-
bership dues which, since May 11, 1978, were
authorized by our employees to be deducted but
which we failed to deduct and transmit to said
Union, with interest.
AMERICAN HAM COMPANY. INC.
581