Northern States Beef, Inc., 711 (1977)

NORTHERN STATES BEEF, INC.

Northern States Beef, Inc. and District Union No. 271 of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case 17-CA7402

July 8, 1977 DECISION AND ORDER

BY CHAIRMAN FANNING AND MEMBERS

PENELLO AND MURPHY

Upon a charge filed on November 26, 1976, by District Union No. 271 of Amalgamated Meat Cutters and Butcher Workmen of North America,

AFL-CIO, herein called the Union, and duly served on Northern States Beef, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17, issued a complaint and notice of hearing on December 23, 1976, 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 November 4, 1976, following a Board election in Case 17-RC7731, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencing on or about November 17, 1976, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On January 3, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint.

On February 24, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 7, 1977, 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. Responi Official notice is taken of the record in the representation proceeding,

Case 17-RC-7731, as the term 'record' is defined in Secs. 102.68 and 10

2 .6

9 (g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosvsrems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1%967).enfd. 415 F.2d 26

230 NLRB No. 110 dent failed to file a response to the 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 to the complaint, Respondent admits that it has refused to furnish information requested by the Union but denies the request and refusal to bargain and the Union's status as a labor organization and as the exclusive bargaining representative of Respondent's employees in the appropriate production and maintenance unit. In her Motion for Summary Judgment, counsel for the General Counsel contends that the pleadings raise no factual issues litigable in this proceeding and that summary judgment is appropriate. We agree.

Review of the record, including that in the underlying representation proceeding, Case 17-RC7731, shows that the Respondent moved for dismissal of the Union's petition for a production and maintenance unit on the grounds that the petition was prematurely filed because the employee complement was an insubstantial and unrepresentative segment of an expanding unit. After a hearing, the Regional Director issued his Decision and Direction of Election on July 3, 1975, concluding that the current employee complement was representative and substantial for purposes of conducting an immediate election because Respondent's expansion plans were largely conjectural and contemplated changes would not involve any skills significantly different from those currently required of employees.

Respondent filed a timely request for review basically contending that the record did not support the Regional Director's conclusion. By telegram of August 6, 1975, the Board denied Respondent's request for lack of substantial issues warranting review.

The election was held on August 8, 1975, and the tally of ballots showed 14 votes for the Union, 15 against, and 6 challenged ballots.2

The Union filed timely objections to the election alleging, inter alia, that Respondent had coerced employees by its conduct, including (1) threats to close the plant if the Union won, (2) discharge of employees because of their organizational campaign activities, and (3) (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);

Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.

9(d) of the NLRA, as amended.

2 The Arthur L. Morgan Union had been permitted to intervene and was on the ballot but received no votes.

711

DECISIONS OF NATIONAL LABOR RELATIONS BOARD increasing wages immediately before the election.

The Union also filed an unfair labor practice charge in Case 17-CA-6715 alleging that Respondent's preelection conduct violated the Act. Subsequently, the Regional Director issued a complaint on October 28, 1975, alleging, inter alia, that Respondent had violated Section 8(a)(1) by its conduct including threats to close the plant if the Union won the election, and Section 8(a)(3) by discriminatorily discharging three employees who had cast three of the six challenged ballots. On November 3, 1975, the Regional Director issued an order directing a hearing on the objections and challenges and consolidating the representation and unfair labor practice cases.

After the consolidated hearing, the Administrative Law Judge issued his Decision on June 30, 1976, in which he found, inter alia, that Respondent had violated Section 8(a)(l) and (3) of the Act and in which he recommended that the challenges to five of the six challenged ballots be overruled and the ballots be opened and counted, and that, since certain of the Union's objections constituted grounds for setting aside the election, a new election be held if a majority of the votes were not cast for the Union.

Respondent filed exceptions to the Administrative Law Judge's Decision and a brief in support, basically reiterating its position with respect to the objections, challenges, and unfair labor practices.

After considering the record and the Administrative Law Judge's Decision in light of the exceptions and briefs, the Board on October 13, 1976, issued a Decision, Order, and Direction, 226 NLRB 365, in which it affirmed the Administrative Law Judge's rulings, findings, and conclusions, adopted his recommended Order remedying the unfair labor practice violations found,3 and directed that the overruled challenged ballots be opened and counted and, if the revised tally of ballots showed that the Union received a majority of the votes cast, that it be certified, otherwise that a second election be held.

On October 21, 1976, the revised tally of ballots issued showing that the Union had won and, absent objections to the revised tally, the Regional Director certified the Union on November 4, 1976.

It is well settled that in the absence of newly discovered or previously...