Colchester Egg Farms, Inc.

National Labor Relations Board - Board Decisions

Sep 25, 1975

220 N.L.R.B. 661 (N.L.R.B. 1975)

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.