Agri Processor Co.

National Labor Relations Board - Board Decisions

Aug 31, 2006

347 N.L.R.B. 1200 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 107
1200
Agri Processor Co., Inc. and Local 342, United Food
and Commercial Workers Union. Case 29–CA–
27396
August 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND KIRSANOW
On May 12, 2006, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
Charging Party filed cross-exceptions and a supporting
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 With respect to the separate view of our colleague, we note that,
unless and until the employees are declared to be illegal and are dis-
charged and/or deported, they remain employees of the Respondent,
they remain employees under the Act, they lawfully voted in the elec-
tion that the Union won, and since the Union lawfully represents the
bargaining unit, we do not think it “peculiar” to require the Respondent
to bargain with the Union.
Member Kirsanow joins his colleagues in adopting the judge’s con-
clusion that the Respondent has violated Sec. 8(a)(5) by refusing to
bargain with the Charging Party Union, but would add the following
observations. Relying on evidence that most of its unit employees
presented social security numbers that do not match those in the Social
Security Administration’s records, the Respondent contends that these
employees are illegal immigrants and that its refusal to bargain is justi-
fied by that fact. Whether or not the Respondent’s employees are, in
fact, working in the United States illegally is not an issue we need to
address at this point. Assuming, however, that the Respondent’s con-
tention in this regard is correct, Member Kirsanow submits that an
order compelling the Respondent to bargain with a union representing
employees that the Respondent would be required to discharge under
the Immigration Reform and Control Act, 8 U.S.C. § 1324a (IRCA),
may reasonably be seen as somewhat peculiar by the average person.
Nonetheless, he acknowledges that, as the Board recently explained in
Concrete Form Walls, 346 NLRB No. 80, slip op. at 3–4 (2006), such
an order is compelled by Sec. 2(3)’s broad definition of “employees.”
Setting aside the specifics of this case and speaking more generally,
Member Kirsanow observes that although it may be more rational to
resolve the tension between Sec. 2(3) and the IRCA in a manner that
does not place employers in the position of having to bargain with a
representative of workers not lawfully entitled to work, the Board’s
duty is to enforce the Act as written. It is powerless to change the
meaning of Sec. 2(3). That is the province of Congress.
and to adopt the Order as modified and set forth in full
below.3
ORDER
The National Labor Relations Board orders that the
Respondent, Agri Processor Co. Inc., Brooklyn, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with
Local 342, United Food and Commercial Workers
Union.
(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 exclu-
sive representative of the employees in the following
appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, em-
body the understanding in a signed agreement:
All full-time and regular part-time production and
maintenance warehouse employees, including hi-lo
drivers, loaders, pickers, checkers and forklift opera-
tors, employed by the Employer at its facility located
at 5600 1st Avenue, Brooklyn, New York, excluding
all managers, office and clerical employees, sales-
men, truck drivers, guards, and supervisors as de-
fined in Section 2(11) of the Act.
(b) Within 14 days after service by the Region, post
at its facility in Brooklyn, New York, copies of the
attached notice marked “Appendix.”4 Copies of the
notice, on forms provided by the Regional Director for
Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent 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 altered, 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 facility involved in these pro-

3 We adopt the judge’s recommendation that the initial certifica-
tion year commence on the date that the Respondent begins to bar-
gain in good faith with the Union. We shall substitute the Board’s
standard language for portions of the judge’s recommended Order
and notice.
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
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.”
AGRI PROCESSOR CO. 1201
ceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondent
at any time since January 23, 2006.
(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.
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
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 bargain with Local 342, United
Food & Commercial Workers Union 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 exercise of the rights
listed above.
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 fol-
lowing bargaining unit:
All full-time and regular part-time production and
maintenance warehouse employees, including hi-lo
drivers, loaders, pickers, checkers and forklift opera-
tors, employed by us at our facility located at 5600 1st
Avenue, Brooklyn, New York, excluding all managers,
office and clerical employees, salesmen, truck drivers,
guards, and supervisors as defined in Section 2(11) of
the National Labor Relations Act.
AGRI PROCESSOR CO., INC.
Emily DeSa, Esq., for the General Counsel.
Richard M. Howard, Esq. and Jeffery A. Meyer, Esq., for the
Respondent.
Patricia McConnell, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard
this case in Brooklyn, New York, on April 25, 2006. The
charge was filed on January 30, 2006, and the complaint was
issued on March 21, 2006. In substance, the complaint al-
leged that after the Union had been certified by the Board,
the Respondent has refused to bargain.
The Respondent’s defense boils down to the claim that a
majority of the people who voted in the election “were sub-
sequently found to be illegal aliens” and therefore the elec-
tion should be declared a nullity because (a) the Union never
had a valid showing of interest and (b) the illegal aliens,
comprising most of the voting unit were not legally permitted
to work for the Company and therefore could not share a
community of interest with those employees who legally
could be employed.
Based on the entire record, including my observations of
the demeanor of the witnesses and after considering the ar-
guments of counsel, I make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
The parties agree and I find that the Respondent is an em-
ployer 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. UNFAIR LABOR PRACTICES
The Union filed its petition for an election on August 24,
2005. On September 7, 2005, the parties executed a Stipu-
lated Election Agreement that was approved by the Regional
Director on September 8, 2005. The parties agreed that the
unit was as follows:
Included: All full-time and regular part-time pro-
duction and maintenance warehouse employees, includ-
ing hi-lo drivers, loaders, pickers, checkers and forklift
operators employed by the Employer at its facility at
5600 1st Avenue, Brooklyn, New York.
Excluded: All managers, office and clerical em-
ployees, salesmen, truck drivers, guards and supervisors
as defined in Section 2(11) of the Act.
The election was held on September 23, 2005, and the
tally of ballots showed that 15 employees cast ballots for the
Union and that 5 employees cast ballots against union repre-
sentation. There was 1 challenged ballot but that was not
determinative.
On September 30, 2005, the Employer filed timely objec-
tions alleging that union representatives and/or agents en-
gaged in conduct affecting the results of the election.
On November 10, 2005, the Regional Director issued a
Report on Objections in which he overruled some but or-
dered that some other of the allegations to be sent to a hear-
ing. To the extent that the Regional Director held that cer-
tain of the objections were not meritorious, those conclusions
were adopted by the Board on December 21, 2005.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1202
On December 16, 2005, I issued a Decision on Objections
wherein I overruled those objections that were sent to a hearing.
I recommended that the appropriate certification be issued to
the Union.
The Respondent filed exceptions to my decision, but on
January 11, 2006, the Board, by its associate executive secre-
tary, dismissed the exceptions because they were untimely
filed.
On January 23, 2006, the Board issued a certification of rep-
resentative to the Union.
The Union has made various demands for bargaining com-
mencing on January 5, 2006, and continuing to date. The Re-
spondent has refused to commence bargaining and indicated on
the record that it would not do so.
At the hearing, I rejected the Respondent’s defenses but
permitted it to make an offer of proof. In essence, the Respon-
dent offered to prove (and offered exhibits in support of its
contentions), that a majority of the employees who were em-
ployed at the time of the election had submitted to the employer
social security cards (along with Resident cards); and that upon
a postelection check at a social security website, the Respon-
dent discovered that these individuals either did not have social
security numbers or that the numbers that they had submitted to
the employer did not match the numbers listed with the Social
Security Administration. The Respondent therefore opines that
this shows that these individuals were undocumented aliens,
having no permission to work legally in the United States.
When asked if the Respondent had any other proof of their
status, the Respondent’s counsel said that he did not.
In my opinion, the Respondent’s reliance on Hoffman Plastic
Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) is misplaced.
In Hoffman, the Court merely held that the Board may not
award backpay to undocumented workers because that would
run “counter to the policies underlying IRCA, policies the
Board has no authority to enforce or administer.” The Court
did not hold that such individuals should not be construed to be
employees within the meaning of the Act or that employers
could interfere with their Section 7 rights with impunity.
In Concrete Form Walls, Inc., 346 NLRB No. 80 (2006), the
Board rejected the Employer’s contention that it could legally
discharge employees because they were undocumented aliens.
The Board also held that these individuals were valid voters in
a Board election. Finally the Board concluded that the mere
fact that the Employer offered evidence to show that the
employees’ social security numbers did not match those in
the social security database, was not sufficient to show that
they were illegally working in the country.
CONCLUSIONS OF LAW
1. By refusing to bargain with Local 342, United Food
and Commercial Workers Union, the Respondent has vio-
lated Section 8(a)(1) and (5) of the Act.
2. The aforesaid violation affects commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that they must be ordered to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
To insure that the bargaining unit employees will be ac-
corded the services of their collective-bargaining representa-
tive for the full period provided by law, I shall recommend
that the initial 1-year period of certification commence on the
date the Respondent commences to bargain in good faith
with the Union. See Mar-Jac Poultry Co., 136 NLRB 785
(1962).
The General Counsel and the Charging Party request that
the Board order the Respondent to pay for their legal ex-
penses in contesting this case. They assert that this is justi-
fied because the Respondent’s defenses are frivolous. Citing
Frontier Hotel & Casino, 318 NLRB 857 (1995). Without
commenting on the Respondent’s defenses, I note that the
hearing in this case took less than an hour and that the prepa-
ration for the hearing would have amounted to the drafting of
the complaint, the copying of a number of documents and the
reading of a few cases. I suspect that the total amount of
time expended by either the General Counsel or the Charging
Party’s counsel to litigate this case could not have amounted
to more than several hours. Since, the legal expenses for this
amount of time is essentially nominal, I do not think that an
award of legal expenses would be justified.1
[Recommended Order omitted from publication.]

1 Although McConnell’s pay rate may or may not exceed the
General Counsel’s attorney, it is hard for me to imagine that the
legal cost to the Union could be anything other than nominal.