Jackson Packing Co.

National Labor Relations Board - Board Decisions

Mar 19, 1968

170 N.L.R.B. 504 (N.L.R.B. 1968)

504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jackson Packing Company and United Packing-
house , Food and Allied Workers, AFL-CIO.
Case 15-CA-3158
March 19, 1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On December 22, 1967, Trial Examiner Charles
W. Schneider issued his Decision in the above
proceeding , finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist
therefrom and take certain affirmative actions, as
set forth in the attached Trial Examiner 's Decision.
Thereafter , the Respondent filed exceptions to the
Trial Examiner 's Decision.
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
powers in connection with this case to a three-
member panel.
The Board has considered the Trial Examiner's
Decision , the exceptions and the entire record in
this case, and hereby adopts the findings, conclu-
sions, 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 Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Jackson Packing Com-
pany, Jackson, Mississippi, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THE REPRESENTATION PROCEEDING'
CHARLES W. SCHNEIDER , Trial Examiner: Upon
petition for certification as collective-bargaining
representative filed on January 12, 1967, by United
Packinghouse , Food and Allied Workers,
AFL-CIO, herein called the Union , the Regional
Director for Region 15 of the Board on February
16, 1967, approved a Stipulation for Certification
upon Consent Election, executed by Jackson
Packing Company, Jackson, Mississippi, herein
called the Respondent, and by the Union. The ap-
propriate bargaining unit was stipulated to be the
unit set out hereinafter.
On March 21, 1967, an election by secret ballot
was conducted in the appropriate bargaining unit
under the supervision of said Regional Director. At
the conclusion of the election, the parties were
furnished with a tally of ballots which showed that
of approximately 237 eligible voters, 237 cast bal-
lots, of which 119 were for, and 108 were against
the Union. There were 10 challenged ballots. The
challenged ballots were not sufficient to affect the
results of the election. On March 27, 1967, the
Respondent filed timely objections to the election,
based on alleged misrepresentations and other con-
duct occurring in connection with the election. On
May 19, 1967, the Regional Director, after in-
vestigation, issued a report on objections in which
he recommended that the objections be overruled
and that the Union be certified as the collective-
bargaining representative in the appropriate unit.
Thereafter, on June 15, 1967, Respondent filed
timely exceptions to the Regional Director's report,
and a supporting brief. On August 16, 1967, the
Board issued its decision and certification of
representative in which it found that Respondent's
exceptions "raise no issue which would warrant
reversal of the Regional Director's findings and
recommendations." Accordingly, the Board
adopted the Regional Director's findings and
recommendations and certified the Union as the ex-
clusive collective-bargaining representative of the
employees in the appropriate unit.
The Complaint Case
On September 13, 1967, the Union filed the un-
fair labor practice charge involved in the instant
case, in which it alleged that since on or about Au-
gust 29, 1967, and at all times thereafter, the
Respondent has refused to bargain collectively with
the Union.
On September 22, 1967, the General Counsel, by
the Regional Director of Region 15, issued a com-
plaint and notice of hearing alleging that commenc-
ing on or about August 29, 1967, and continuing to
date, and more particularly on or about September
6, 1967, Respondent had committed unfair labor
practices in violation of Sections 8(a)(1) and (5)
and 2(6) and (7) of the Act by refusing to bargain
with the Union upon request. In due course the
Respondent filed its answer and its corrected
answer to the complaint in which certain allega-
tions of the complaint were admitted and others de-
nied.'
In its answer the Respondent admits the follow-
' Administrative or official notice is taken of the representation proceed-
ing, Case 15-RC-3582 See Section 9(d) of the National Labor Relations
Act
2 The Respondent 's motion to correct its answer is granted
170 NLRB No. 74
JACKSON PACKING -COMPANY 505
ing allegations of the complaint : ( 1) jurisdictional , tober 26, and a supplemental ;letter ,dated October
( 2) that the Union is a labor organization within the 27.
meaning of Section 2(5) of the Act, and (3) that
the unit is appropriate. Respondent denies the al-
legations contained in paragraphs 8, 9, 10, 11, and
12 of the complaint wherein it is alleged: (1) that
the employees designated and selected the Union in
the March 21, 1967, election as their bargaining
representative, but admits an election was held in
the unit and that the Board issued a certification on
August 16, 1967, (2) that the Union has been and
is now the representative for purposes of collective
bargaining of a majority of the employees in the
unit, (3) that commencing on or about August 17,
1967, and at all times thereafter to date, the Union
requested and is continuing to request Respondent
to meet and bargain collectively but admits that-on
or about August 17, 1967, the Union requested
bargaining, in the appropriate unit and that Respon-
dent denied such request, (4) that commencing on
or about August 29, 1967, and continuing to date,
and more particularly on or about September 6,
1967, Respondent refused and continues to refuse
to recognize and/or bargain with the Union.
Respondent further denies each and every allega-
tion contained in paragraph 12, of the complaint,
wherein it is alleged that Respondent committed
unfair labor practices.
In its answer Respondent further alleges by way
of affirmative defenses (1) that the Regional
Director made factual findings based on conflicting
testimony resolving contested issues of fact and
made findings as to the credibility of witnesses on
the basis of an ex parte investigation findings to
which Respondent filed timely exceptions urging
their rejection where adverse to Respondent and, in
the alternative that a hearing be held, and that the
Board declined to reverse the said findings and
recommendations and declined to order a -hearing,
and (2) that the certification issued by the Board is
void and violative of Respondent's legal and con-
stitutional rights by reason of conduct alleged in
Respondent's objections, and that Respondent is
under no obligation to honor it.
On October 19, 1967, General Counsel filed a
motion for summary judgment on the pleadings
wherein he contends that the pleadings considered
together with the official Board record in the un-
derlying representation proceeding, Case
15-RC-3582, raise no issues requiring a hearing.
On October 13, 1967, 1 issued an order directing
the parties to show cause as to whether or not
General Counsel's motion should be granted. On
October 30, 1967, counsel for the Respondent filed
a response to the order to show cause, dated Oc-
RULING ON MOTION FOR SUMMARY JUDGMENT ON
THE °PIEADINGS
Respondent contends that summary judgment on
the pleadings should not be entered against it for
the reasons that (1) the Board's rules and regula-
tions make no provision -for a motion,for summary
on the pleadings, and the use of the procedure is
violative of the Administrative Procedure Act, (2)
the record made by the General Counsel in the
form of appendixes to the motion-is incomplete in
that (a) the affidavits considered by -the Regional
Director during the course of his exparte investiga-
tion are not among the attachments to the report
on objections and (b) the Respondent's brief in
support of its objections is not made an appendix to
General Counsel's motion, (3) -the Regional
Director made factual determinations on the basis
of an ex parte investigation and Respondent was not
given the right to subpena witnesses and examine
them orally under oath or to cross-examine wit-
nesses produced by other parties. Respondent
therefore moves for dismissal of the motion for
judgment or in the alternative that all statements
and affidavits considered by the Regional Director
in connection with the report -on objections be
.made part of the record.
The sum of the Respondent's contentions is that
its objections to the election should have been
sustained. If this is so -there is of course no valid
basis for the complaint: Such an issue, however, is
not one open to review by the Trial Examiner,
The -questions as to the validity of the election,
the merit of the Respondent's objections to it, and
whether the Union .should be certified were raised
by Respondent in its objections-to election, and in
its .exceptions to Regional Director's report on ob-
jections, and were decided, by the Regional
Director and the Board in -the representation
proceeding. Those issues have thus been adju-
dicated. It is established Board policy, in the
absence of newly discovered or, previously unavail-
able evidence or special circumstances, not to per-
mit litigation before a Trial Examiner in a com-
plaint case of issues which were litigated and de-
cided in a prior related representation -pr-oceeding.3
This policy is 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 by the ob-
jections.' The authorities cited -by -the Respondent
do not refute this proposition. They merely hold
3 Macomb Potterv Company 157 NLRB 1616, 376 F 2d 450 (C A 7, January 1, 1965, Sections 102.67(f), 102 69(c)
1967), Howard Johnson Company, 164 NLRB 801, Metropolitan Life In- 4 0 K Van Storage, Inc, 127 NLRB 1-537, 297 , F 2d 74 (C A, 5, 1961)
surance Company, 163 NLRB 579. See Pittsburgh Plate Glass Co v And see Air Control Products, Inc , 33-5 F 2d 245, 249 (C A 5, 1964) "If
N.L R B , 313 U S 146, 162 (1941), Rules and Regulations and State- there is nothing to hear, then a hearing s a senseless and useless formality
ments of Procedure, National Labor Relations Board, Series 8, as revised
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that where there are substantial and material -issues
a hearing is required.
The Trial Examiner has no authority to review
the Board's final disposition of the representation
issues or to question its conclusions made on the
existing record. The Respondent is free, in excep-
tions to this Decision, to request the Board to
reconsider its conclusions, and in the event of an
unfavorable final order by the Board may request
review in an appropriate court of appeals. At this
stage of the proceedings, however, absent newly
discovered or previously unavailable evidence or
special circumstances, the Board's disposition of
the representation matters is the law of the case
and binding on the Trial Examiner. No such
evidence or circumstances are asserted or offered
by the Respondent here.
The refusal to bargain being conceded, there is
no issue litigable before a Trial Examiner, and
therefore no matter requiring hearing. In such cir-
cumstances the Board and the Trial Examiner have
authority to enter summary judgment. In the recent
case of Harry T. Campbell Sons' Corporation, 164
NLRB 247, fn. 9, the Board said:
The Respondent's contention that Section 5 of
the Administrative Procedure Act, Section
10(b) of the Labor Management Relations
Act, as amended, and the Board's own Rules
and Regulations, all guarantee an absolute
right to hearing is without merit. In circum-
stances such as these, where no litigable issues
have been properly raised, the Board may en-
tertain and rule upon motions for summary
judgment or judgment on the pleadings.
Moreover, the Board has exercised these
powers in numerous cases. See Collins & Aik-
man Corp., 160 NLRB 1750; Brush-Moore
Newspapers, Inc., 161 NLRB 1620; E-Z Davies
Chevrolet, 161 NLRB 1380; Herbert Harvey,
Inc., 162 NLRB 890; Carl Simpson Buick, Inc.,
161 NLRB 1389; The Puritan Sportswear
Corp., 162 NLRB 13; and Frito-Lay, Inc., 161
NLRB 950.5
Summary judgments in such circumstances have
recently been enforced by the courts. See Neuhoff
Brothers, Packers, Inc. v. N.L.R.B., 362 F.2d 611
(C.A. 5, 1966); N.L.R.B. v. Tennessee Packers, Inc.,
379 F.2d 172 (C.A, 6, 1967); Macomb Pottery
Company, 376 F.2d 450 (C.A. 7, 1967); Krieger-
Ragsdale & Company, Inc., 379 F.2d 517 (C.A. 7,
1967).
It is concluded that summary judgment on the
pleadings is appropriate here.
There remains the Respondent's motion and
request that all affidavits and statements considered
by the Regional Director in disposing of the objec-
tions to the election, and also the Respondent's
brief in-support of its exceptions to the report on
objections be made part of the record. The General
Counsel objects to production of the affidavits as
"contrary to the practices and procedures of the
Board," but does not object to the inclusion of the
Respondent's brief.
The Respondent's motion as to the brief is
granted. With respect to the request for the state-
ments and affidavits it is to be noted that directions
or orders by the Trial Examiner granting similar
requests were reversed by the Board in LTV Elec-
trosystems, Inc., 166 NLRB 938, and Golden Age
Beverage Company, 167 NLRB 151. In the LTV
case the Board said , in part:
The documents requested by Respondent in its
Supplemental Motion are- not part, of the
record in either the Representation Case
1'l-RC-2223, or the instant unfair labor prac-
tice proceeding within the meaning of Sections
102.68 and 102.45(b) of the Rules and Regu-
lations of the Board, nor are such documents
encompassed within the requirements of Sec-
tion 9(d) of the Act.
In view of this authority the Respondent's request
for inclusion in the record of the statements and af-
fidavits is denied . See also Intertype Company v.
Pennello, 64 LRRM 2590 (D.C. W.D. Va., 1967).6
The General Counsel's Motion for Summary
Judgment on the Pleadings is granted, and I hereby
make the following further
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Jackson Packing Company, the Respondent, is a
Delaware corporation with its principal office and
place of business located in Jackson, Mississippi,
where it is engaged in meat packing operations.
During the -past 12-month period, which period is
representative of all times material herein , Respon-
dent purchased and received goods and products
valued in excess of $50,000 directly from States
other than the State of Mississippi.
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union is now and has been at all times
material herein a labor organization within the the
meaning of Section 2(5) of the Act.
LII. THE UNFAIR LABOR PRACTICES
The following employees of Respondent con-
stitute a unit appropriate for the purpose of collec-
5 See also Union Brothers, Inc , 162 NLRB 1505 and cases there cited,
Metropolitan Life Insurance Co , 163 NLRB 579, Red-More Corporation
d/b/a Disco Fair, 164 NLRB 638, Ore-Ida Foods, Inc, 164 NLRB 438,
Continental Nut Co., 164 NLRB 508 LTV Electrosystems, Inc , 166
NLRB 938
8 The General Counsel 's motion to strike the Respondent's response to
the order to show cause as not fully responsive in that it fails to urge the ex-
istence of additional evidence is denied
JACKSON PACKING COMPANY 507
tive bargaining within the meaning of Section 9(b)
of the Act: All production and maintenance em-
ployees at Respondent's Jackson, Mississippi , plant,
including truck drivers, garage employees, sign
shop employees, and barn employees; excluding of-
fice clerical employees, salesmen , buyers, head
warehousemen, day and night head shippers, extra
casual employees, guards, and supervisors as
defined in the Act.
On March 21, 1967, a majority of Respondent's
employees in the appropriate unit selected the
Union as their collective-bargaining representative
in a secret-ballot election conducted under the su-
pervision of the Regional Director for Region 15 of
the National Labor Relations Board.
On August 16, 1967, the National Labor Rela-
tions Board, after consideration of Respondent's
objection to the above-described election, certified
the Union as the exclusive collective-bargaining
agent of the employees in the said unit.
At all times since August 16, 1967, the Union, by
virtue of Section 9(a) of the Act, has been and is
now the exclusive representative of all employees in
the appropriate unit for the purposes of collective
bargaining with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment.
On or about August 17, 1967, the Union
requested Respondent to bargain collectively with
the Union as the exclusive collective-bargaining
representative of Respondent's employees in the
appropriate unit.
On or about August 17, 1967, Respondent
refused to bargain collectively with the Union as
such representative.
By such action the 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)(l) of the Act.
The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7)
of the Act.
Upon the foregoing findings of fact, conclusions
of law, and the entire record in the case, I recom-
mend that the Board issue the following:
RECOMMENDED 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 Respon-
dent commences to bargain in good faith with the
Union as the recognized bargaining representative
in the appropriate unit.'
B. Jackson Packing Company, its officers,
agents, successors, and assigns, shall,:
1. Cease and desist from:
(a) Refusing to bargain collectively with United
Packinghouse, Food and Allied Workers,
AFL-CIO, as the exclusive collective-bargaining
representative of the employees in the following ap-
propriate bargaining unit: All production and main-
tenance employees at Respondent's Jackson, Mis-
sissippi, plant, including truck drivers, garage em-
ployees, sign shop employees, and barn employees;
excluding office clerical employees, salesmen,
buyers, head warehousemen, day and night head
shippers, extra casual employees, guards, and
supervisors as defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent employees as an exclu-
sive collective-bargaining representative, or in any
like or related manner interfering with employee ef-
forts at self-organization.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with
United Packinghouse, Food and Allied Workers,
AFL-CIO, as the exclusive 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 em-
body in a signed agreement any understanding
reached.
(b) Post at its Jackson, Mississippi, office, copies
of the attached notice marked "Appendix."8 Copies
of said notice, on forms provided by the Regional
Director for Region 15, after being duly signed by
Respondent's representative, shall be posted by the
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 the
Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 15,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.'
' The purpose of this provision is to insure that the employees in the ap-
propriate unit will be accorded the services of their selected bargaining
agent for the period provided by law See Mar-Jac Poultry Co , Inc , 136
NLRB 785, Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229,
328 F 2d 600 (C A. 5), cert denied 379 U S 817 (1964), Burnett Con-
struction Company, 149 NLRB 1419, 1421, 350 F 2d 57 (C A 10, 1965)
9 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
Recommended Order 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 Ap-
peals 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 15, in writing, within l Q days from the date of this Order, what steps
Respondent has taken to comply herewith "
508 DECISIONS OF NATIONAL
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT refuse to bargain collectively
with United Packinghouse, Food and Allied
Workers, AFL-CIO, the Union, as the exclu-
sive bargaining representative of all the follow-
ing employees:
All production and maintenance em-
ployees at our Jackson, Mississippi, plant,
including truck drivers, garage employees,
sign shop employees, and barn employees;
excluding office clerical employees,
salesmen , buyers, head warehousemen,
day and night head shippers, extra casual
employees, guards, and supervisors as
defined in the Act.
WE WILL NOT interfere with efforts of the
Union to negotiate for or represent employees
as an exclusive collective-bargaining represen-
LABOR RELATIONS BOARD
tative, or in any like or related manner inter-
fere with, restrain, or coerce employees in the
exercise of their rights under the Act.
WE WILL bargain collectively with the Union
as the exclusive collective-bargaining represen-
tative of these employees, and if an un-
derstanding is reached WE WILL sign a contract
with the Union.
JACKSON PACKING
COMPANY
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 6024 Federal Building (Loyola), 701
Loyola Avenue, New Orleans, Louisiana 70113,
Telephone 527-6391.