Colchester Egg Farms, Inc.

COLCHESTER EGG FARMS, INC. Colchester Egg Farms, Inc. and Local 531, Service Employees' International Union, AFL-CIO. Case 1-CA-10461 September 25, 1975 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO Upon a charge filed on February 21, 1975, by Lo- cal 531 , Service Employees' International Union, AFL-CIO, herein called the Union, and duly served on Colchester Egg Farms , Inc., herein called the Re- spondent, the General Counsel of the National La- bor Relations Board, by the Regional Director for Region 1, issued a complaint on March 28, 1975, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practic- es 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 an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices , the com- plaint alleges in substance that on or about Decem- ber 3, 1974, following a Board election the Union was duly certified as the exclusive collective -bargain- ing representative of Respondent 's employees in the unit found appropriate;' and that, commencing on or about December 17, 1974, 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 Union has requested and is requesting it to do so. On April 3, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and raising a special de- fense. On June 2, 1975, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on June 9, 1975, 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 failed to file a response to Notice To Show Cause. 'Official notice is taken of the record in the representation proceeding, Case 1 -RC-13131, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C A 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D C. Va., 1967); Follett Corp., 164 NLRB 378 ( 1967), enfd. 397 F.2d 91 (C.A. 7, 1968), Sec 9(d) of the NLRA. 661 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, Respondent asserts it is appearing specially without waiving the right to contest Board jurisdiction in the case. Respondent denies the appropriateness of the unit found in Case 1-RC-13131 and, by way of special defense, alleges the Respondent's employees, including the unit of truckdrivers and mechanics, are agricultural workers exempt from Board jurisdiction. By way of its letter of March 4, 1975, to the Region, Respondent also claims that, since the hearing in the representation proceeding, its operations have significantly changed and that the Board has no jurisdiction in this matter. Our review of the record in this case reveals that a representation hearing was held in Case 1-RC-13131, after which the Regional Director for Region 1 transferred the case to the Board for a de- termination as to whether the Respondent's opera- tion of processing and selling of eggs constituted agriculture under section 3(f) of the Fair Labor Stan- dards Act. The Respondent filed a brief contending, in essence, the unit employees are agricultural labor- ers within the 2(3) exemption of the National Labor Relations Act, as amended, because they performed functions incidental to its farming operation in Con- necticut and delivery of farm products to market. On November 4, 1974, the Board issued a Decision and Direction of Election 2 in which it found that the Respondent's operation, insofar as it involves em- ployment of truckdrivers and mechanics, does not constitute agriculture and that the employees in the unit sought to be represented were not agricultural laborers but were employees within the meaning of the Act. The Union won the election conducted on December 3, 1974, and was certified on December 11, 1974, in the absence of objections. It is well settled that in. the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding .3 All issues, except as discussed hereinafter, raised by the Respondent in this proceeding were or could 2 214 NLRB No. 64 (Majority of Members Fanning, Jenkins, and Penel- lo, with Chairman Miller and Member Kennedy dissenting). J See Pittsburgh Plate Glass Co. 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). 220 NLRB No. 97 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have been litigated in the prior representation pro- ceeding, and the Respondent does not offer to ad- duce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any spe- cial circumstances exist herein which would require the Board to reexamine the decision made in the rep- resentation proceeding. After the charge had been filed in this case and before issuance of the complaint herein, Respondent's counsel sent a letter dated March 4, 1975, to the Regional Office in which it alleged sig- nificant changes in Respondent's operations in Con- necticut had occurred since the hearing in the under- lying representation case . It was alleged that eggs were no longer purchased from outside sources in the State of Maine and that the percentage of egg pur- chases from contract farms was greatly diminished. Counsel therefore urged that these changes altered the facts relied on by the Board majority in the Deci- sion and Direction of Election and that, on these changed facts, the Respondent's operations consti- tuted agriculture and therefore the Board had no ju- risdiction over the Respondent. We take official notice of the record in Case 1-RC-13720 where, at the March 11, 1975, hearing involving a unit of the Respondent's dockworkers, the Respondent alleged that its altered operations since the hearing in Case 1-RC-13131 warranted a finding that its employees were agricultural laborers exempt under Section 2(3) of the Act. In his Decision and Direction of Election in Case 1-RC-13720, the Acting Regional Director found that there was no substantial alteration in operations since the hearing in Case 1-RC-13131 and that the dockworkers were not agricultural laborers but were employees within the meaning of the Act. Thereafter, on April 14, 1975, the Board, with Member Kennedy dissenting, denied the Respondent's request for review because it raised no substantial issues warranting review. Since the Respondent's claim of changed opera- tion, based principally on the changes in the percent- age of egg purchases from contract farms and from outside sources, were considered at the March 11, 1975, hearing in Case 1-RC-13720 and were found not to be substantial, we find no merit in the Respondent's contention herein that the alteration in operations warrant a finding that the unit employees are no longer employees but agricultural laborers. We therefore find that the Respondent has not raised any issue which is properly litigable in this 4 Respondent denies the allegations of the complaint that the Union re- quested bargaining on or about December 17, 1974, and January 24, 1975. Appended to the Motion for Summary Judgment and uncontroverted by Respondent is the Union's December 17 letter requesting bargaining and unfair labor practice proceeding.4 We shall, accord- ingly, 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 Colchester Egg Farms, Inc., is and has been at all material times herein a Connecticut corporation en- gaged in processing and selling eggs at its principal office and place of business in Franklin, Connecti- cut. Colchester Egg Farms annually ships goods val- ued in excess of $50,000 from its place of business to points located outside Connecticut and it annually purchases goods valued in excess of $50,000 from points located outside the State of Connecticut. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED Local 531, Service Employees' International Union, AFL-CIO, is a labor organization 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 truckdrivers and mechanics employed by the Employer at its Franklin, Connecticut, location, excluding all other employees. the followup letter of January 24, 1975, again requesting negotiations. We find that the Union requested bargaining on those dates. Also appended to the motion is Respondent's letter of March 4, 1975, to a Board examiner in which Respondent acknowledges receipt of the refusal-to-bargain charge filed by the Union. Respondent therein agrees that the Union's charge is consistent with Respondent's position that the Board has no jurisdiction over its employees and urges the charge be dismissed. In light of Respondent's expressed views to the Board and its position that its employ- ees could not be considered employees under'the Act, it is clear Respondent has chosen not to bargain with the Union. A refusal to bargain is found as of March 4, 1975. COLCHESTER EGG FARMS, INC. 663 2. The certification On December 3, 1975, 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 1 , designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on December 11, 1975, 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 December 17, 1974, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about March 4, 1975, 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, we find that the Respondent has, since March 4, 1975, 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 opera- tions described in section I, above, have a close, inti- mate, and substantial relationship to trade , traffic, and commerce 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 mean- ing 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jac Poultry Company, Inc, 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur- nett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Colchester Egg Farms, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 531, Service Employees' International Union, AFL-CIO, is an labor organization within the meaning of Section 2(5) of the Act. 3. All truckdrivers and mechanics employed by the Employer at its Franklin, Connecticut, location, excluding all other employees, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since December 11, 1974, the above-named la- bor 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 4, 1975, 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 Re- spondent in the appropriate unit, Respondent has en- gaged 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 mean- ing of 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. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Colchester Egg Farms, Inc., Franklin, Connecticut, 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 con- ditions of employment with Local 531, Service Em- ployees' International Union, AFL-CIO, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All truckdrivers and mechanics employed by the Employer at its Franklin, Connecticut, loca- tion, excluding all other employees. (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 Franklin, Connecticut, place of business, copies of the attached notice marked "Ap- pendix." I Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by Respondent 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 Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 1, in 5In 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." 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 Local 531, Service Employees' International Union, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described be- low. 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All truckdrivers and mechanics employed by the Employer at its Franklin, Connecticut, location excluding all other employees. COLCHESTER EGG FARMS, INC.