Sanderson Farms

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex­ ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Sanderson Farms, Inc. (Production Division) and United Food and Commercial Workers Union, Local 1529. Case 15–CA–16437 June 6, 2002 DECISION AND ORDER BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND COWEN This is a refusal-to-bargain case in which the Respon­ dent seeks to contest the Union’s certification as bargain­ ing representative in the underlying representation pro­ ceeding. Pursuant to a charge filed on January 22, 2002, the General Counsel issued a complaint on January 28, 2002, and an amended complaint on February 22, 2002, alleging that the Respondent has violated Section 8(a)(1) and (5) of the Act by refusing the Union’s request to bar- gain following the Union’s certification in Case 15–RC– 8359. (Official notice is taken of the “record” in the rep­ resentation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allega­ tions in the amended complaint. On March 12, 2002, the General Counsel filed a Mo­ tion for Summary Judgment. On March 14, 2002, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the certification based on the Board’s determination in the representation proceeding that the Respondent is not a farmer within the meaning of Sec­ tion 3(f) of the Fair Labor Standards Act (FLSA) and that its employees are not agricultural laborers exempt from coverage under the Act by Section 2(3) of the Act.2 All representation issues raised by the Respondent were or could have been litigated in the prior representa­ tion proceeding. The Respondent does not offer to ad­ duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir­ cumstances that would require the Board to reexamine 1 On March 28, 2002, the Respondent filed a Cross-Motion for Summary Judgment and a memorandum in support of its cross-motion and in opposition to the General Counsel’s motion. 2 Member Cowen did not participate in the Board’s denial of the Employer’s request for review of the Regional Director’s Decision and Direction of Election in the representation proceeding. He finds, how- ever, that the Respondent has not raised any new matters that are prop­ erly litigable in the instant proceeding. the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un­ fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord­ ingly, we grant the Motion for Summary Judgment.3 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation with an office and place of business at McComb, Missis­ sippi, has been engaged in the production, processing, and preparation of poultry. During the 12-month period ending January 31, 2002, the Respondent, in conducting its operations, purchased and received at its McComb, Mississippi facility goods and materials valued in excess of $50,000 directly from points located outside the State of Mississippi and during the same period, sold and shipped from its McComb, Mississippi facility goods valued in excess of $50,000 directly to points outside the State of Mississippi. At all material times, the following individuals held the positions set forth opposite their respective names and have been supervisors of the Respondent within the meaning of Section 2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act: Coit Coleman West Jr. Director of Production Derrick Fletcher Personnel Supervisor We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held November 30, 2001, the Union was certified on January 24, 2002, as the exclu­ sive collective-bargaining representative of the employ­ ees in the following appropriate unit: All live-haul and pull-up drivers employed by the Em­ ployer at its McComb, Mississippi facility; excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive representative un­ der Section 9(a) of the Act. B. Refusal to Bargain About January 14, 2002, the Union, by letter, re- quested the Respondent to recognize it and bargain, and, 3 The Respondent’s Cross-Motion for Summary Judgment is there- fore denied. 337 NLRB No. 92 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD since January 24, 2002, and continuing to date, the Re­ spondent has refused. We find that this refusal consti­ tutes an unlawful refusal to bargain in violation of Sec­ tion 8(a)(1) and (5) of the Act. CONCLUSION OF LAW By refusing, on and after January 24, 2002, to recog­ nize and bargain with the Union as the exclusive collec­ tive-bargaining representative of emp loyees in the ap­ propriate unit, the Respondent has engaged in unfair la­ bor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(1) and (5) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the cer­ tification as beginning on the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poul­ try Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Sanderson Farms, Inc. (Production Divi­ sion), McComb, Mississippi, its officers, agents, succes­ sors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with United Food and Commercial Workers Union, Local 1529 as the exclusive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive representative of the employees in the following appro­ priate unit on terms and conditions of employment, and if an understanding is reached, embody the understanding in a signed agreement: All live-haul and pull-up drivers employed by the Em­ ployer at its McComb, Mississippi facility; excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in McComb, Mississippi, copies of the at­ tached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al­ tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil­ ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no­ tice to all current employees and former employees em­ ployed by the Respondent at any time since January 24, 2002. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re­ sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. June 6, 2002 Peter J. Hurtgen, Chairman Wilma B. Liebman, Member William B. Cowen, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio­ lated the Federal labor law and has ordered us to post and obey by this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist any union Chose representatives to bargain with us on your behalf 4 If 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 Na­ tional Labor Relations Board” shall read “Posted Pursuant to a Judg­ ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” SANDERSON FARMS, INC. 3 Act together with other employees for your bene­ fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to recognize and bargain with United Food and Commercial Workers Union, Local 1529 as the exclusive representative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exe rcise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bar- gaining unit: All live-haul and pull-up drivers employed by us at our McComb, Mississippi facility; excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. SANDERSON FARMS, INC. (PRODUCTION DIVISION)