Abbott Farms, Inc.

472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Abbott Farms, Inc. and Teamsters Local Union 612, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America. Case 10-CA-9558 October 2, 1972 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on April 26, 1972, by Team- sters Local Union 612, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, herein called the Union, and duly served on Abbott Farms, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 10, issued a complaint on May 17, 1972, 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 Na- tional 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 April 21, 1972, following a Board election in Case 10-RC-9051 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about May 8, 1972, and at all times thereafter, Respondent has refused, and continues to date to re- fuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Un- ion has requested and is requesting it to do so. On May 30, 1972, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the alle- gations in the complaint. On June 5, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on June 16, 1972, 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 'Official notice is taken of the record in the representation proceeding, Case l0-RC-9051, as the term "record" is defined in Secs. 102 68 and 102 69(f) of the Board's Rules and Regulations , Serves 8, as amended. See LTV Electrosystems, Inc, 166 NLRB 938, enfd. 388 F 2d 683 (C.A. 4, 1968); Golden Age Beverage Co, 167 NLRB 151; Intertype Co. v. Penello, 269 F. Supp, 573 (D.C. Va., 1967); Follett Corp, 164 NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. Notice To Show Cause. 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 au- thority 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 and in its response to the Motion for Summary Judgment, Respondent ad- mits its refusal to bargain with the certified Union and concedes that the issues herein are identical to those litigated in the underlying representation proceeding. Respondent contends, nevertheless, that it is not ob- ligated to bargain with the Union since its employees are agricultural workers and thus exempt from coverage by the National Labor Relations Act. Respondent fur- ther argues that even if its employees were covered by the Act, the unit found by the Regional Director is inap- propriate. The General Counsel contends that the is- sues raised by the Respondent have been decided by the Board and may not be relitigated here. We agree. The record in Case 10-RC-9051 indicates that the Regional Director, after hearing, issued a Deci- sion and Direction of Election in which he found that the feed mill employees requested by the Union were not agricultural employees, but employees within the meaning of the Act. He also found appropriate the unit requested by the Union rather than the broader unit urged by the Respondent. Thereafter the Respon- dent filed a request for review of the Regional Director's decision contending that its employees were agricultural workers and thus outside the cover- age of the Act and that other employees should be included in the unit. In a telegraphic order of April 11, 1972, the Board denied Respondent's request for re- view on the ground that it raised no substantial issues warranting review. In the directed election, the Union received a majority of the votes cast and the Regional Director thereupon, on April 21, 1972, certified the Union. It thus appears, and the Respondent concedes, that it is raising here the identical issues considered and determined by the Regional Director and the Board in the representation proceeding. It is well settled that in the absence of newly discovered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding alleg- ing a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigat- ed in a prior representation proceeding.' All issues raised by the Respondent in this pro- 2 See Pittsburgh Plate Glass v. N L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102 67(f) and 102.69(c). 199 NLRB No. 60 ABBOTT FARMS, INC. ceeding were or could have been litigated in the 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 litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, an Alabama corporation with its principal office and place of business at Empire, Ala- bama, is engaged in the operation of a feed mill, egg processing plant, and poultry houses. During the past calendar year Respondent sold and shipped eggs val- ued in excess of $50,000 directly to customers located outside the State of Alabama. We find, on the basis of the foregoing, that Re- spondent 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 Act, and that it will effectuate the policies of the Act to assert juns- diction herein. II. THE LABOR ORGANIZATION INVOLVED Teamsters Local Union 612, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All feed mill in-haul and out-haul truckdrivers, all feed mill employees , and feed mill operators at Respondent's Empire, Alabama, location, but exclud- ing all other employees , office clerical employees, pro- fessional employees, guards, and supervisors as defined in the Act. 2. The certification 473 On April 13, 1972, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 10, 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 April 21, 1972, and the Union contin- ues 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 April 24, 1972, and at all times thereafter, the Union has requested the Respon- dent to bargain collectively with it as the exclusive col- lective-bargaining representative of all the employees in the above-described unit. Commencing on or about April 25, 1972, and continuing at all times thereafter to date, the Respondent has refused, and continues to re- fuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since April 25, 1972, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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 com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce 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(a)(5) 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 appro- priate unit, and, if an understanding is reached, em- body such understanding in a signed agreement. In order to insure that the employees in the ap- 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD propriate 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 recog- nized 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; Brunett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Abbott Farms, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local Union 612, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All feed mill in-haul and out-haul truckdrivers, all feed mill employees, and feed mill operators at Respondent's Empire, Alabama, location, but exclud- ing all other employees, office clerical employees, pro- fessional employees, 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 April 21, 1972, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about April 25, 1972, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respon- dent 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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 meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning 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 Rela- tions Board hereby orders that Respondent, Abbott Farms, Inc., its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and condi- tions of employment with Teamsters Local Union 612, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All feed mill in-haul and out-haul truckdrivers, all feed mill employees, and feed mill operators at Respondent's Empire, Alabama, location, but exclud- ing all other employees, office clerical employees, pro- fessional employees, 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 with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its location in Empire, Alabama, cop- ies of the attached notice marked "Appendix."3 Cop- ies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by Re- spondent 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " ABBOTT FARMS, INC. 475 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 Team- sters, Local Union 612, affiliated with Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, as the ex- clusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union , as the exclusive representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay , wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, em- body such understanding in a signed agreement. The bargaining unit is: All feed mill in-haul and out-haul truckdrivers, all feed mill employees, and feed mill operators at Respondent's Empire, Alabama, location, but excluding all other employees, office cleri- cal employees, professional employees, guards, and supervisors as defined in the Act. Dated By ABBOTT FARMS, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Peachtree Building, Room 701, 730 Peachtree Street, N.E., Atlanta, Georgia 30308, Tele- phone 404-526-5760.