Spring Valley Farms of Alabama, Inc.

866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Spring Valley Farms of Alabama, Inc. and Teamsters Local Union No. 612, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 10- CA-12175 March 17, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge filed on August 9, 1976, by Teamsters Local Union No. 612, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Spring Valley Farms of Alabama, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 10, issued a complaint and notice of hearing on September 15, 1976, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(aX5) 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 an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on July 23, 1976, following a Board election in Case 10-RC-10685 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; I and that, commenc- ing on or about August 2, 1976, 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 requesting it to do so. On September 23 and 30,1976, respectively, Respon- dent filed its answer and amended answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On November 8, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 19, 1976, 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 there- after filed a response to Notice To Show Cause. I Official notice is taken of the record in the representation proceeding, Case 10-RC-10685, 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 Electrosystenr, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 228 NLRB No. 85 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 response to the Notice To Show Cause, Respondent attacks the appropriateness of the unit of live haul truckdrivers, the Union's majority status, and the validity of the Union's certification, all determined in the underly- ing representation case, on the grounds that the unit employees are agricultural laborers within the mean- ing of Section 3(b) of the Fair Labor Standards Act (FLSA) and Section 2(3) of the Act. On the other hand, counsel for the General Counsel contends that Respondent is attempting to relitigate issues which it raised or could have raised in the representation proceeding. We agree. Review of the record herein, including that in the representation proceeding, Case 10-RC-10685, re- veals that, after a hearing in which the issue of whether Respondent's live haul truckdrivers were agricultural laborers within the meaning of Section 3(b) of the Fair Labor Standards Act and Section 2(3) of the Act was litigated, the Acting Regional Direc- tor, on June 25, 1976, issued a Decision and Direction of Election in which he found that the truckdrivers were not agricultural laborers but were employees within the meaning of the Act and that they consti- tuted an appropriate unit under Section 9(c) of the Act. Respondent filed a timely request for review of the Acting Regional Director's Decision and Direc- tion of Election, reiterating its contention that the live haul truckdrivers were 'agricultural laborers and suggesting that the Board stay further proceedings pending decision by the United States Supreme Court in N.L.RB. v. Bayside Enterprises, Inc., 527 F.2d 436 (C.A. 1, 1975), involving the precise issue presented on review. On July 12, 1976, the Board denied Respondent's request for review as raising no sub- stantial issues warranting review. In the election conducted on July 15, 1976, the Union prevailed 20 to 1. Thereafter, on July 23, 1976, in the absence of objections to the tally of ballots or to the conduct of the election, the Acting Regional Director certified the Union as the exclusive representative of the employees in the appropriate unit. It thus appears that Respondent is attempting to relitigate herein 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 (1%7), enfd. 397 F.2d 91 (C.A. 7,1968); Sec. 9(d) of the NLRA, as amended. SPRING VALLEY FARMS OF ALABAMA 867 issues which were or could have been raised in the underlying representation proceeding.2 It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.3 All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and 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 Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding.4 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 RESPONDENT Respondent, a Delaware corporation, has its office and place of business located at Gadsden and Blountsville, Alabama, where it is engaged in the processing and sale of poultry. During the past calendar year, a representative period, the Respon- dent sold and shipped products valued in excess of $50,000 directly to customers located outside the State of Alabama. We find, on the basis 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 Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Teamsters Local Union No. 612, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor 2 In its amended answer to the complaint , Respondent denies that it was engaged "in the processing and sale of poultry" and alleges that it is engaged "in the raising and transportation of poultry." We note that in his Decision and Direction of Election the Acting Regional Director described Respon- dent as being engaged in the processing and sale of poultry and that Respondent did not question this finding in its request for review. Respon- dent may not relitigate this matter. Further, the Acting Regional Director found that Respondent is engaged in commerce within the meaning of the Act and Respondent so admits in its answer . Finally, assuming that Respondent is engaged in the raising and transportation of poultry, Respondent's operations would still come within the Board's legal jurisdic- tion and would meet the Board's discretionary monetary jurisdictional 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 Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All live haul truck drivers employed by the Respondent at its Gadsden and Blountsville, Alabama, operations, excluding all other employ- ees, office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. 2. The certification On July 15, 1976, 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 10, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on July 23, 1976, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about July 27, 1976, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about August 2, 1976, and continuing at all times thereafter to date, 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 Respondent has, since August 2, 1976, and at all times thereafter, refused to bargain collectively with the Union as the exclusive standard for nonretail enterprises, thereby warranting the assertion of jurisdiction over Respondent. Accordingly, the denial and allegation of the amended answer is of no significance as to the assertion of jurisdiction over Respondent. 3 See Pittsburgh Plate Glass Co. v. NLRB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(1) and 102.69(c). 4 We note that on January 11, 1977, the Supreme Court, in Bayside Enterprises, Inc., et al. v. N.LRB., 45 L.W. 4086 (1977), unanimously upheld the Board's holding, which had been sustained by the First Circuit (527 F.2d 436), that the company's truckdrivers were not agricultural laborers, but employees subject to the National Labor Relations Act. The Supreme Court's decision thus supports the Board's position herein , not Respondent's. 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 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); Burnett 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 I. Spring Valley Farms of Alabama, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local Union No. 612, affiliated with the International Brotherhood of Teamsters, Chauff- eurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All live haul truck drivers employed by Re- spondent at its Gadsden and Blountsville, Alabama, operations, excluding all other employees , office clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since July 23, 1976, 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 August 2, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of 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 meaning 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Spring Valley Farms of Alabama, Inc., Gadsden and Blountsville, Alabama, 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 Teamsters Local Union No. 612, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America , as the exclusive bargaining representative of its employees in the following appropriate unit: All live haul truck drivers employed by the Respondent at its Gadsden and Blountsville, Alabama, operations, excluding all other employ- ees, office clerical employees, professional em- ployees, 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: SPRING VALLEY FARMS OF ALABAMA (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 Gadsden and Blountsville, Alabama, operations, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provid- ed by the Regional Director for Region 10, 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 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. 5 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." 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 869 terms and conditions of employment with Team- sters Local Union No. 612, affiliated with the International Brotherhood of Teamsters, Chauf Ieurs, Warehousemen and Helpers of America, as the exclusive 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 representative of all employees in the bargaining unit 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 understanding in a signed agreement, The bar- gaining unit is: All live haul truck drivers employed by the Respondent at its Gadsden and Blounts- ville, Alabama, operations, excluding all other employees, office clerical employees, professional employees, guards, and supervi- sors as defined in the Act. SPRING VALLEY FARMS OF ALABAMA, INC.