D. H. Farms Co.

D. H. FARMS CO. - 53 D. H. Farms Co. and United DairyWorkers, Local 83,,-Retail, -Wholesale and Department Store Union (AFL-CIO). Case 7-CA-8604 July 9, 1971 DECISION AND ORDER By CHAIRMAN MILLER, Alm.. M EMBERS; FANNING AND BROWN Upon a charge filed on April 1, 1971, by United Dairy Workers, Local 83, Retail, Wholesale and Department Store Union (AFL-CIO), herein, called the Union, and duly served on D. H. , Farms Co., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on April 8, 1971, against Respondent, alleging thatRespondent 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 a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on March 5, 1971, 'following a, Board election in Case 7-RC-10046, 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 March 18; 1971, 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 requestingit to, do so.' On April 15, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part,' the allegations in the complaint. - On April 26, 1971, counsel for the General Counsel filed directly with the _B,oard -a Motion for Summary Judgment, characterized, as a Motion, for Judgment on the Pleadings Subsequently; on May 4; 1971, 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: Respondent thereafter'filed a response to Notice To Show Cause, characterized as an Answer in opposition to General Counsel's Motion for Judgment on the Pleadings.' 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 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 By_ its denial of the Union's exclusive bargaining representative status in its answer andby its response to the Notice To. Show Cause, the Respondent is raising againt the issue of the , eligibility of some 19 employees, who were laid off July 8, 1970,, to vote in the representation election in which -the Union's majority.status was established. The record in Case 7-RC-10046 shows that, at the hearing held on August 3.1 , 1970,-the only issue raised was the eligibility of approximately 24 employees who were laid' off on July 8, 1970. Although the Respon- dent argued that these employees had been laid off indefinitely without any reasonable expectancy of recall, the Regional Director, after careful evaluation of the record evidence, concluded, in-his Decision and Direction of Election of August 24,1970, that-the July 8,.1970, layoff was intended to be temporary in nature and that , the employees laid off at that time had, a reasonable expectation of recall within ,a reasonable time in the future. Accordingly, - he found that these laid-off, employees were eligible -to vote in the directed election. ,On September 8, 1970, the Respondent ;filed a Request -for Review based upon the Regional Direc- tor's allegedly erroneous eligibility finding. The Board, on September 22, 1970, denied the request as raising no substantial issues warranting-review. The, election was conducted on September 23,197©. The tally of ballots revealed that of approximately, 57 eligible voters, 10 cast votes for, and, 18 against, the Union, with 20 ballots challenged . The Respondent had challenged the ballots of 19 voters on the -ground that they were permanently laid off with'no expectan- cy of recall. After investigating , the challenges, the Acting Regional Director on October 9, 1970 , issued his Supplemental Decision on Challenged Ballots and Order in which he found that the Respondent was attempting, through the challenge procedure, to relitigate the same issue fully litigated in the repre- sentation hearing and , resolved by the Regional Director., He- also, found that, to the extent That the Respondent's evidence submitted during the investi- gation might arguably be considered "newly discov- ered," it clearly did not warrant reversal .'of the Regional Director's findings. Accordingly, he over- 1 Official notice is taken of the record in the representation proceeding, 1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello, Case 7-RC-10064, as the term "record' is defined in Secs. 102.68 and 269 F:Supp 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 398, enfd. 397 102.69(f) of the Eoard's Rules and Regulations, Senes 8, as amended . See F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. LTV Eleetrosystems, Inc., 166 'NtRB 938,' enfd. 388 F.2d 693 (C.A. 4, 192 NLRB No. 15 54 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD ruled the, challenges Rand directed that,the challenged ballots be opened and counted and, that a revised tally be issued. On October',-23,' 1970,- the 'Respondent filed a Request for Review contending 'that-the Acting Regional ;Director's eligibility o.determination was clearly erroneous and prejudicial to the rights of the unit employees, and the Respondent. On February 5, 1971, the ; ,Board,.^denied the request as. raising no substantial issues warranting review. .Subsequently, on-February 20,1971, the challenged ballots were opened and counted and a revised tally of ballots' issued:. The revised- tally showed-that of approximately 57 eligible `voters, 48- cast ballots of which 29- were for, and 19 against, the Union. Accordingly, the Regional Director, ,on' March 5, 1911, certified the Union as the exclusive representa- tive of -all employees in, the appropriate unit for the purposes of collective. bargaining. - In its response' to the Notice To Show Cause, the Respondent- requests- that the General Counsel's Motion for Summary Judgment be denied and that the case be remandedfor a hearing on new evidence which ' was not previously-available pertaining to the eligibility of,the laid-off-employees. The Respondent offers Ito prove that the layoffs were permanent by showing that since=July 8, 1970, only 2 of the 19 laid- off employees were recalled, that, the Respondent's work force has remained at a consistent level, that its manpower needs will continue to remain constant for an indefinite period of time, and,that it does, not foresee ever"recalling,the remaining employees. We deny the Re'spondent's request. It is well-established Board law that' the voting eligibility of laid-off employees 'depends on their expectancy of reemploy- meilt'as of the date of the election 2 Assuming that-the evidence , in the 'Respondent's offer of proof would establish that the laid-off employees have not now been reemployed or "do-not now have a reasonable expectancy of- recall in'the near future, it could not imppugn -,' or invalidate the reasonableness of the conclusions of the Regional Director and-the Acting Regional ' Director, to which the Board denied,review, that at, the time of the election the laid-off employees had a'reasonable expectancy of reemployment in the near future and, therefore, were eligible to vote.- It 'is", well " s' ettled that in the absence of newly discovered' 0'f' previously ;. unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitlgate- issues which were or could 'have been Iitlgatedin a prior representation proceeding.4 ? See, e.g.,, Snap-out Binding & Folding, Inc., 160 NLRB 161; M & S Morenci "Corporation, 100 NLRB 1114;-F B. Rogers Silver Company, 95 NLRB 1430. 3 M & S Morenci Corporation, supra at 1117; F. B. Rogers Silver All issues raised by the Respondent inthisproceed- ing were,or,,could have been litigateddn;nthe: prior representation proceeding,, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the `Board to reexamine the decision made in the representation proceeding. We therefore find that- the 'Respondent -has' not raised any issue which is properly litigablein this unfair labor practice proceeding. We shall, ,accordin_ gly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF- FACT I. THE BUSINESS OF THE RESPONDENT At all times material herein,-, the ; Respondent, I -a Michigan, corporation, with principal office and place of business of 2755 TooleyRoad, Howell, Michigan, hasp been,,^engaged in the manufacture, sale, and distribution of disc reagents and in the processing of animal blood solutions. During the year ending December 31, 1970, , a representative period, Respondent, in the course and conduct of its business operations,:_,purchasedi and caused to be transported and delivered at,its Howell plant goods and materials;valued in excess of $75,000 of which goods and materials : valued in excess of $50,000' were transported and delivered to its Howell, Michigan, plant directly from outsidethe State .of Michigan. During this same, representative period, Respondent manufactured, sold, and distributedat its Howell, Michigan, plant products. valued in excess of $500,000 of which . products Valued in excess of $50,000 were shipped from said -plant directly to points located outside the State of Michigan. - We find,: on the basis s of, the" ,foregoing, that Respondent 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 SAct, and that it will effectuate the policies of the - Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED'' United Dairy Workers, Local 83, Retail, Wholesale and Department Store Union (AFL-CIO), is 'a labor organization within the meaning of- Section 2(5) of, the Act. Company, supra at 1432. ' " ' 4 See Pittsburgh Plate Glass Co. v. N .L R. B,; 313 US." 146„ 162 (1941); Rules and Regulations of the Board, Sees. 102.67(f) and 102.69(c). D. H. FARMS CO. 55 r, III, THE UNFAIR LABOR PRACTICES A. The 'Representation Proceeding 1. The unit' The following employees of the Respondent consti- tute a unit-, appropriate for collective-bargaining purposes, within,the meaning of Section 9(b) of the Act: All production and maintenance employees, including animal care employees, employed by the Respondent at its plant located at 2755 Tooley Road, Howell, Michigan, but excluding office clerical employees and guards and supervisors as defined in the Act., 2. The certification On September 23,1970, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the ^ supervision of the Regional Director- for Region 7, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on March 5, 1971, and the Union continues to be, such `exclusive representative' within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about March 12,197 1, and at all times thereafter, the Union has requested the, Respon- dent to bargain collectively with it as the exclusive collective--bargaining representative of all the employ- ees in the above-described unit, Commencing on or about March 18,,1971,,and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative, for collective bargaining of all employees in said unit. Accordingly, wee find that the Respondent has , since March 18, 1,971, 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 engaged 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 operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States-and tend to lead to labor disputes burdening and obstructing. com- merce 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 meaning of Section 8(aX5) and (1),of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the- Union as the exclusive representative of, all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as `beginning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419,1421, enfd. 350 F.2d 57 (C.A.10). The Board, upon the-basis of the foregoing facts and the entire record, makes thefollowing: CONCLUSIONS OF LAW - 1. D. H. Farms Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Dairy Workers, Local-83;Retail -Whole- sale and Department Store Union (AFL-CIO), is a labor organization within the meaning of Section 2(5) of the Act. , 3. All production and maintenance employees, including animal care employees,;employed -by_ the Respondent at its plant located at 2755 Tooley Road, Howell, Michigan, but excluding, office clerical employees and, guards and supervisors as defined in the,Act constitute ,a unit appropriate for the,purposes of collective bargaining within the meaning of Section 9(b) of the. Act. ' 4. Since March 5, 1971, the above-named labor organization, has been and now is the-certified and exclusive representative of all employees in the aforesaid appropriate unit for-the purpose of collec- tive bargaining within the meaning,of Section 9(a)-of the Act. 5. ; By refusing on or ,about March 18,1911, and at all times thereafter, to bargain _collectively, with, the above-named labor organization as - the exclusive bargaining representative of, all, the employees of 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent in 'the' appropriate unit, Respondent has engaged in and-is engaging in unfair°labor practices within the meaning of Section 8(a)(5) of the Act. 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 meaningof Section 8(a)(1)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 Relations Board hereby orders that Respondent, D. H., Farms Co., 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 conditions of employment with United Dairy Workers, Local 83, Retail, Wholesale and Department Store Union (AFL-CIO), as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All production and, maintenance employees, including animal care employees, employed by the Respondent at its plant located at 2755 'Tooley Road, ; Howell, Michigan, but excluding office clerical employees and guards and supervisors" as defined`in^the Act., - (b) 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 withE the above=named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect-to'rates of pay, wl%ages, -hours, and other terms and conditions of employment, and, if an understand- ing is , reached, embody such understanding in a signed agreement. (b) Post at its Howell, Michigan,`plant copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional -Director for Region 7, after beiing-duly'signed by Respondent's representative, shall be posted by Respondent imme- diately upon receipt thereof, and be maintained by it for 60, consecutive days 'thereafter, in conspicuous taken by Respondent to insure That saidz notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. In the event that the Board's, Order is enforced by a Judgment of a United States Court of Appeals, the words m-the dotice readmg "Posted" by Order of the National Labor Relations Board" shall be- changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an 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 concerning rates of pay, wages,,hours, and other terms and conditions of employment with United Dairy Workers, Local -83, Retail, Wholesale and Department Store Union (AFL-CIO), as the exclusive representative of the employees in the bargaining unit described below. Wn WILL NOT -in any like or related manner interfere' with, restrain, or coerce our-employeesin the exercise of the rights, guaranteed them by Section 7'of'the Act.,, WE WILL, upon request,_bargain with the abovo- naxned'Union, as the exclusive representative of gall employees in the bargainingunit described below, with respect to rates of pay,- wages; hours, and other terms and conditions of employment; and, if an understanding is reached, embody such' under- standing in a signed agreement. The bargaining antis: All production and maintenance employ= ees,, including animal' care employees, em= ployed by the Respondent at its plant located at 2755 Tooley Road, Howell, Michigan,=but excluding office clerical employees and guards, and supervisors as defined in the Act. D. H. FARMS Co. (Employer) places, including all places where notices to employ- Dated ' ' By ees are customarily posted. Reasonable steps shall be (Representative) ' (Title) D. H. FARMS CO. This isan official- notice andmustnotbe defaced by anyone. This notice must remain posted-for 60 consecutive days from the date of posting and must not be altered, defaced, or coveredby any other material. 57 Any questions concerning this notice or compliance with its provisions may be directed to the ,Board's Office, 500 Book Building, 1249 Washington Boule- vard, Detroit, Michigan 48226, Telephone 313-226- 3200.