The Farm Bureau Cooperative Association, Inc.

THE FARM BUREAU COOPERATIVE ASSOCIATION, INC. 367 In view of the foregoing, the Board finds no merit in the Primary Employer's contentions that the Petitioner's secondary activity may not be violative of Section 8(b) (4) of the Act; and that the Board's earlier declination of jurisdiction over the Primary Employer's oper- ations was res judicata, or should have estopped the Petitioner from filing the petition herein or that such declination deprived the Primary Employer of the benefits of Section 8(b) (7) and 301(a) and (b) of the Act. Nor is there any merit to the contention that the Board's Ad- visory Opinion procedures deprived the Employer of due process. By their very nature, such procedures do not contemplate holding a hear- ing as they were devised merely to give advice to parties in a State pro- ceeding and to the State court or agency before whom the proceeding may be pending as to whether, on the facts submitted, the Board would or would not assert jurisdiction. Accordingly, the parties are therefore advised, under Section 102.103 of the Board's Rules and Regulations, Series 8, that, on the facts here present, the commerce operations of the Primary Employer and those of the secondary employer at Mobile, Alabama, the location affected by the Petitioner's secondary conduct, are such that the Board would assert jurisdiction with respect to labor disputes cognizable under Sections 8 or 10 of the Act. ME11JBER RODCERS took no part in the consideration of the above Advisory Opinion. The Farm Bureau Cooperative Association, Inc. and United Steelworkers of America, AFL-CIO. Case No. 9-CA-2401. January 22, 1962 DECISION AND ORDER On November 6, 1961, Trial Examiner Frederick U. Reel issued his Intermediate Report herein, finding that the Respondent engaged in unfair labor practices in violation of Section 8 (a) (5) and (1) of the Act and recommending that it cease and desist therefrom and take affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. The Board' has considered the Intermediate Report, the exceptions and brief, and the entire record. The Board affirms the Trial Ex- 'Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its powers in this case to a three-member panel [Members Leedom , Fanning, and Brown]. 135 NLRB No. 52. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' aminer's rulings and adopts his findings, conclusions, and recommended order. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case, heard before Frederick U. Reel, the duly designated Trial Examiner, at Columbus, Ohio, on October 12, 1961, arises out of Respondent's admitted refusal to recognize and bargain with the Union certified by the Board in Case No. 9-RC- 4236, hereinafter termed "the representation case." The issues in the instant proceeding are whether the Board should assert jurisdiction over Respondent and whether Respondent's employees at its Ashville, Ohio, plant are agricultural laborers. These issues were developed at the hearing in the represen- tation case, were decided by the Board adversely to Respondent's contentions in that case, and were relitigated before me only to the extent that Respondent sought (un- successfully, as I find) to establish a material change in circumstances during the year which intervened between the hearing in the representation case and the hearing in the instant proceeding. At the conclusion of the hearing both sides argued orally on the record, and thereafter Respondent filed a brief which has been duly considered. On the basis of the pleadings, the exhibits, and the testimony before me, including the entire record in the representation case of which I take official notice (Paramount Cap Manufacturing Company v. N.L.R.B., 260 F. 2d 109, 113-114 (C.A. 8), and cases there cited),' I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a nonprofit Ohio corporation, is an agricultural cooperative operating alfalfa processing plants at Ashville, Defiance, and Payne, Ohio. The parties stipu- lated that during 1960, Respondent's gross sales were in excess of $1,000,000, and it shipped materials and commodities valued at more than $50,000 to points outside the State of Ohio. The record further establishes that during 1960, Respondent shipped over $50,000 worth of goods out of the State of Ohio from the Ashville plant alone. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, hereinafter called the Union, is a labor organization within the meaning of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519). III. THE UNFAIR LABOR PRACTICE Following the Board's Decision and Direction of Election in the representation case, the election was conducted August 17, 1961, and the Union received a majority of the votes cast. On August 25, 1961, the Regional Director for the Ninth Region, acting on behalf of the Board, certified the Union as the bargaining representative of Respondent's employees in the unit theretofore found appropriate. On August 29, 1961, the Union wrote Respondent, stating that the Union was "desirous of commencing negotiations" for a contract, and requesting that Respondent communicate with the Union to set a date for bargaining negotiations to commence. On September 5, 1961, Respondent, acting through its vice president, Wayne H. Shidaker, replied by letter stating that Respondent challenged the validity of the Board's certification, and that Respondent was therefore refusing to bargain with the Union. Respondent, at the hearing on the complaint and in its brief, challenged the Board's assertion of jurisdiction and alleged that all its Ashville employees were agricultural laborers, thus raising the identical contentions it had advanced in the representation case. The Board's decision in that case is binding upon me in the absence of evidence showing any material change in operations since the date of the previous decision. The evidence in the instant proceeding establishes no such material change. On the contrary, it establishes that Respondent's interstate sales from its Ashville plant in- 1 The transcript of testimony insofar as it attributes to me the statement that I would take official notice of the record "in any representation proceeding" (p. 9), is hereby corrected to read "in the representation proceeding." THE FARM BUREAU COOPERATIVE ASSOCIATION, INC. 369 creased to over $50,000 in 1960, thereby furnishing an additional alternative basis for the assertion of jurisdiction? As to the agricultural issue, the evidence establishes that the trend is in the direc- tion of drying alfalfa directly on the farm, and also that Respondent is handling less alfalfa from independent farmers and more from farms it has leased than it handled in the period examined in the representation case. Respondent, however, still per- forms at its Ashville plant the same functions it performed at the time of the hearing in the representation case, and still handles at that plant a substantial amount of alfalfa (over 1,500 acres worth in 1960) grown on the farms of independent farmers. Moreover, the projected decrease in the handling of alfalfa from independent farms was brought to the Board's attention in the representation case. I therefore find that the certification is binding upon me and is dispositive of the proceeding at this stage. Accordingly I conclude that Respondent's admitted refusal to recognize or bargain with the Union on and after September 5, 1961, constituted an unfair labor practice violative of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The Respondent's refusal to bargain set forth in section III, above , occurring in connection with the operations of the Respondent set forth in section I, above, has a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (5) and ( 1) of the Act, I will recommend that it cease and desist therefrom and (adopting the language prescribed by the Supreme Court in N.L.R.B. v. Express Publishing Company, 312 U.S. 426, 439 ) from "in any manner interfering with the efforts of the [Union ] to bargain collectively with [Respond- ent]." I will further recommend that Respondent take certain affirmative action in order to effectuate the policies of the Act. Upon the basis of the above findings of fact , and upon the entire record in the case, including the record in the representation case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. All production and maintenance employees at the Respondent 's Ashville, Ohio, plant, including truckdrivers, drum and pellet machine operators, and baggers, but excluding all office clerical employees, professional employees, agricultural em- ployees, watchmen, guards, and all supervisors as defined in the Act , constitute a unit appropriate for the purposes of collective bargaining. 3. The Union, since the date of its certification, August 25, 1961 , has been and now is the exclusive representative of all employees in the aforesaid appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing, on and since September 5, 1961 , to bargain collectively with the Union as the representative of the above employees , Respondent has engaged in and is engaging in an unfair labor practice affecting commerce within the meaning of Section 8(a) (5) and ( 1) and Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent , The Farm Bureau Cooperative Association , Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith concerning wages, hours, and other terms and conditions of employment with the United Steelworkers of America, AFL-CIO, as the exclusive representative of the employees in the following ap- propriate unit: All production and maintenance employees at Respondent 's Ashville, Ohio, plant, including truckdrivers, drum and pellet machine operators, and baggers, but excluding all office clerical employees, professional -eiriployees , agricultural em- ployees, watchmen , guards, and all supervisors as defined in the Act. In the representation case the Board determined to assert jurisdiction because of the amount of interstate business conducted by Respondent at its three plants considered as a whole 634449-62-vol 135-25 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any manner interfering with the efforts of the' above-named Union to bargain collectively with the above-named Company on behalf of the employees in the above-described unit 3 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union as the ex- clusive representative of all employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its plant at Ashville, Ohio, copies of the notice attached hereto marked "Appendix." 4 Copies of such notice, to be furnished by the Regional Director for the Ninth Region, shall, after being signed by an authorized repre- sentative of the Respondent, be posted immediately upon the 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 such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Ninth Region, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith .5 8 As noted in the section of this report captioned "The Remedy," the language of para- graph 1(b) of the Recommended Order follows that prescribed by the Supreme Court in the Express case, supra, 312 U.S. at 439. A In the event that this Recommended Order be 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 be enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 5 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Ninth Region, in writing, within 10 days from the date of this Order, what steps the Respondent- has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any manner interfere with the efforts of United Steelworkers of America, AFL-CIO, to bargain collectively as the exclusive representative of the employees in the bargaining unit described below. WE WILL, upon request, bargain with the United Steelworkers of America, AFL-CIO, as the exclusive representative of all the employees in the bargain- ing unit described below with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment, and, if an under- standing is reached , embody such an understanding in a signed agreement. The bargaining unit is: All production and maintenance employees em- ployed by us at our Ashville, Ohio, plant, including truckdrivers, drum and pellet machine operators, and baggers, but excluding all office clerical em- ployees, professional employees, agricultural employees, watchmen, guards, and all supervisors as defined in the Act. THE FARM BUREAU COOPERATIVE ASSOCIATION, INC., Employer. Dated------------------- By---------- (Represen --------tativ ----e ) (Ti --------------- tle) ------ This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office (Transit Building, Fourth and Vine Streets, Cincinnati 2, Ohio; telephone number Dunbar 1-1420 ) if they have any question concerning this notice or compliance with its provisions.