American Beef Packers, Inc., 1117 (1971)

AMERICAN BEEF PACKERS

American Beef Packers, Inc. and Arthur L. Morgan Union. Case 17-CA-4542

November 2, 1971 DECISION AND ORDER

BY MEMBERS FANNING, JENKINS, AND KENNEDY

On July 21, 1971, Trial Examiner Paul Bisgyer issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Trial Examiner's Decision attached hereto.

Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, 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 made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the 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 American Beef Packers, Inc., Omaha, Nebraska, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order.

TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

PAUL BISGYER, Trial Examiner : This proceeding, with all the parties represented, was heard on May 20 and 21, 1971, i The complaint is based on original and amended charges filed by the Union on January 14 and February 24, 1971, copies of which were duly served on the Respondent by registered mail on January 14 and February 25, 1971, respectively 2 Section 8(a)(I) of the Act makes it an unfair labor practice for an employer 'to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 ' Insofar as pertinent, Section 7 provides that '[e ]mployees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the 1117 at Omaha, Nebraska, on the complaint of the General Counsel, issued on March 5, 1971,1 as amended at the hearing, and the amended answer of American Beef Packers, Inc., herein called the Respondent or Company.

Litigated in this case is the question whether the Respondent, in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended,2 failed to perform its bargaining obligation owing to Arthur L.

Morgan Union, herein called the Union, the employees' conceded bargaining representative, by refusing to process and discuss with the Union three grievances submitted to the Company pursuant to the parties' collective agreement;

unreasonably delaying consideration of eight other grievances; and refusing to furnish certain information requested by the Union. Decision was reserved on the Respondent's motion to dismiss the amended complaint made and argued at the close of the hearing. Briefs were subsequently received from the General Counsel and the Respondent. As discussed below, I find merit in the unfair labor practice allegations of the amended complaint and accordingly deny the Respondent's motion.

Upon the entire record,3 and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following:

FINDINGS AND CONCLUSIONS

1. THE BUSINESS OF THE RESPONDENT The Respondent, an Iowa corporation, is engaged at its various plants in several States in the slaughtering, processing and wholesale distribution of meat and meat products. Only the Omaha, Nebraska, plant is involved in this proceeding. In the course and conduct of its business operations, the Respondent annually sells and ships products valued in excess of $50,000 to customers located outside Nebraska. It also annually purchases goods exceeding $50,000 from suppliers located outside the State.

The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

2. THE LABOR ORGANIZATION INVOLVED It is admitted that the Union is a labor organization within the meaning of Section 2(5) of the Act.

   purpose of collective bargaining or other mutual aid or protection... .

   Section 8(a)(5) makes it an unfair labor practice for an employer 'to refuse to bargain collectively with the representatives of his employees' designated by a majority of them in an appropriate unit.' 3 By motion attached as an appendix to his brief which was duly served upon the parties, the General Counsel requests that the transcript of testimony be corrected in certain respects No objection having been received , the motion is granted and the transcript is accordingly ordered to be corrected 193 NLRB No. 170

   111. THE ALLEGED UNFAIR LABOR PRACTICES A. Alleged Refusal to Process Grievances 1. The facts Since April 15, 1968, the Union has been the exclusive representative of the Respondent's employees. In effect at the time of the events herein was the collective-bargaining contract the parties executed effective from April 18, 1968, to April 18, 1971.4 This contract provided for a three-step procedure for the processing and handling of grievances of the 'union or any individual employee . . . pertaining to the violation of the Agreement, or violations of employees' working conditions....' Pursuant to these provisions, the Union submitted to the Respondent between November 11, 1970, and January 12, 1971, 11 written grievances for adjustment. There is no question that these complaints were proper subjects for discussion under the contractual grievance procedure.

   Not hearing from the Respondent with respect to eight grievances which were then pending undisposed,s the Union on December 18, 1970, sent a letter to the Respondent in which it sought the reason for the Respondent's failure to answer these grievances. As this letter was also ignored,6 the Union's president, Arthur L.

   Morgan, wrote the Respondent on January 4, 1971,7 complaining that its previously filed grievances had not yet been acted upon. The letter also called the Respondent's attention to the fact that One of my Stewards was threatened by the Manager in front of me, that he would get even with him for turning in a Safety grievance concerning the Manager running around the plant with a knife in his hand. I want to know if this is going to be the policy of the Company, to threaten my Steward for turning in grievances and refusing to answer them. If so I am forced to take other action.8

   Despite these reminders, the grievances went unanswered with the result that the Union on January 149 filed the unfair labor practice charge herein which was subsequently amended on February 24 to allege specifically, as violations of Section 8(a)(1) and (5) of the Act, the Respondent's failure to process grievances, as well as to furnish relevant information separately considered below.

   It appears that the Respondent did not act on any of the grievances in question until after the filing of the amended charge. At the hearing, the Union conceded that on undisclosed dates seven grievances had been adjusted and a See American Beef Packers, Inc, 180 NLRB No 97, where the Board, in dismissing the complaint , found, among other things, that the Respondent did not violate Section 8(a)(1), (2), and (3) of the Act in recognizing and executing this contract with the Union The appropriate unit is described in this contract , as follows [A111 production employees of American Beef Packers, Omaha Division, but excluding office clerical employees, salesmen, guards, truck drivers, helpers, shipping and receiving clerks, professional personnel , engineers, employees of independent contractors, and all management personnel on salary or hourly basis within the meaning of the Act It was stipulated that excluded from this unit were the fabrication division employees who were subsequently covered by a separate agreement executed by the parties 5 These were filed between November I I and December 16, 1970.

   that it was not presently pursuing an eighth one because the employee with which it was concerned was no longer in the Company's employ. However, according to the undisputed and credited testimony of Union President Morgan, the action on the resolved grievances was not taken within the time prescribed in the contract but was unnecessarily delayed for 30 to 60 days after submission. Moreover,

   Morgan credibly testified without contradiction that these responses were verbal and did not conform with past practices of reducing the Company's decision to writing and serving it on the Union within 2 or 3 days following the filing of a gnevance.10

   As for the remaining three grievances, it is contended that they have neither been processed by the Respondent nor otherwise explored or discussed with the Union. The first of these grievances was filed on December 7, 1970, by Steward K. L. Morgan, the union president' s son, complaining that safety precautions were still being violated by employees and management 'walking around on the kill floor with knives in their hands.' To be sure, this was not a new problem. On prior occasions, the Union had filed similar grievances and had discussions with the Company with the view of rectifying this situation. As a result, the Company had posted notices in the plant warning employees to refrain from walking around in the plant with unsheathed knives or risk being disciplined for infraction of this safety precaution. However, this warning apparently went unheeded and, in fact, it...