D. H. Farms Co.

National Labor Relations Board - Board Decisions

Jul 9, 1971

192 N.L.R.B. 53 (N.L.R.B. 1971)

D. H. FARMS CO. - 53
D. H. Farms Co . and United DairyWorkers, Local
83,,-Retail , - Wholesale and Department Store Union
(AFL-CIO). Case 7-CA-8604
July 9, 1971
DECISION AND ORDER
By CHAIRMAN MILLER, Alm.. M EMBERS;
FANNING AND BROWN
Upon a charge filed on April 1, 1971, by United
Dairy Workers, Local 83, Retail, Wholesale and
Department Store Union (AFL-CIO), herein, called
the Union, and duly served on D. H. , Farms Co.,
herein called the Respondent, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 7, issued a complaint on April 8,
1971, against Respondent, alleging thatRespondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(5)- 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 a
Trial Examiner were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on March 5, 1971,
'following a, Board election in Case 7-RC-10046, the
Union was duly certified as the'exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;1 and-that, commencing
on`. -or about March 18; 1971, 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 requestingit to, do so.'
On April 15, 1971, Respondent filed its answer to the
complaint admitting in part, and denying in part,' the
allegations in the complaint. -
On April 26, 1971, counsel for the General Counsel
filed directly with the _B,oard -a Motion for Summary
Judgment, characterized, as a Motion, for Judgment
on the Pleadings Subsequently; on May 4; 1971, 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 thereafter'filed a
response to Notice To Show Cause, characterized as
an Answer in opposition to General Counsel's Motion
for Judgment on the Pleadings.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended,, the
National Labor Relations Board - has delegated its
powers in connection with 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
By_ its denial of the Union's exclusive bargaining
representative status in its answer andby its response
to the Notice To. Show Cause , the Respondent is
raising againt the issue of the , eligibility of some 19
employees, who were laid off July 8, 1970,, to vote in
the representation election in which - the Union's
majority .status was established.
The record in Case 7-RC-10046 shows that, at the
hearing held on August 3.1 , 1970,-the only issue raised
was the eligibility of approximately 24 employees who
were laid' off on July 8, 1970 . Although the Respon-
dent argued that these employees had been laid off
indefinitely without any reasonable expectancy of
recall , the Regional Director, after careful evaluation
of the record evidence , concluded , in-his Decision and
Direction of Election of August 24,1970 , that-the July
8,.1970, layoff was intended to be temporary in nature
and that , the employees laid off at that time had, a
reasonable expectation of recall within , a reasonable
time in the future . Accordingly, - he found that these
laid-off, employees were eligible -to vote in the directed
election.
,On September 8, 1970 , the Respondent ;filed a
Request -for Review based upon the Regional Direc-
tor's allegedly erroneous eligibility finding. The
Board, on September 22, 1970, denied the request as
raising no substantial issues warranting-review.
The, election was conducted on September 23,197©.
The tally of ballots revealed that of approximately, 57
eligible voters, 10 cast votes for, and , 18 against, the
Union, with 20 ballots challenged . The Respondent
had challenged the ballots of 19 voters on the -ground
that they were permanently laid off with'no expectan-
cy of recall. After investigating , the challenges, the
Acting Regional Director on October 9, 1970 , issued
his Supplemental Decision on Challenged Ballots and
Order in which he found that the Respondent was
attempting, through the challenge procedure, to
relitigate the same issue fully litigated in the repre-
sentation hearing and , resolved by the Regional
Director ., He- also , found that , to the extent That the
Respondent's evidence submitted during the investi-
gation might arguably be considered "newly discov-
ered," it clearly did not warrant reversal . ' of the
Regional Director 's findings. Accordingly , he over-
1 Official notice is taken of the record in the representation proceeding, 1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello,
Case 7-RC-10064, as the term "record' is defined in Secs. 102.68 and 269 F:Supp 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 398, enfd. 397
102.69(f) of the Eoard's Rules and Regulations , Senes 8, as amended . See F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
LTV Eleetrosystems, Inc., 166 ' NtRB 938,' enfd. 388 F.2d 693 (C.A. 4,
192 NLRB No. 15
54 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
ruled the, challenges Rand directed that,the challenged
ballots be opened and counted and, that a revised tally
be issued.
On October',-23,' 1970,- the 'Respondent filed a
Request for Review contending 'that-the Acting
Regional ;Director's eligibility o.determination was
clearly erroneous and prejudicial to the rights of the
unit employees, and the Respondent. On February 5,
1971, the ; ,Board,.^denied the request as. raising no
substantial issues warranting review.
.Subsequently, on-February 20,1971, the challenged
ballots were opened and counted and a revised tally of
ballots' issued:. The revised- tally showed-that of
approximately 57 eligible `voters, 48- cast ballots of
which 29- were for, and 19 against, the Union.
Accordingly, the Regional Director, ,on' March 5,
1911, certified the Union as the exclusive representa-
tive of -all employees in, the appropriate unit for the
purposes of collective. bargaining. -
In its response' to the Notice To Show Cause, the
Respondent- requests- that the General Counsel's
Motion for Summary Judgment be denied and that
the case be remandedfor a hearing on new evidence
which ' was not previously-available pertaining to the
eligibility of,the laid-off-employees. The Respondent
offers Ito prove that the layoffs were permanent by
showing that since=July 8, 1970, only 2 of the 19 laid-
off employees were recalled, that, the Respondent's
work force has remained at a consistent level, that its
manpower needs will continue to remain constant for
an indefinite period of time, and,that it does, not
foresee ever"recalling,the remaining employees. We
deny the Re'spondent's request. It is well-established
Board law that' the voting eligibility of laid-off
employees 'depends on their expectancy of reemploy-
meilt'as of the date of the election 2 Assuming that-the
evidence , in the 'Respondent' s offer of proof would
establish that the laid-off employees have not now
been reemployed or "do-not now have a reasonable
expectancy of- recall in'the near future, it could not
imppugn -,' or invalidate the reasonableness of the
conclusions of the Regional Director and-the Acting
Regional ' Director, to which the Board denied,review,
that at, the time of the election the laid-off employees
had a'reasonable expectancy of reemployment in the
near future and, therefore, were eligible to vote.-
It 'is", well " s' ettled that in the absence of newly
discovered' 0'f' previously ;. unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled to
relitlgate- issues which were or could 'have been
Iitlgatedin a prior representation proceeding.4
? See, e.g.,, Snap-out Binding & Folding, Inc., 160 NLRB 161; M & S
Morenci "Corporation, 100 NLRB 1114;-F B. Rogers Silver Company, 95
NLRB 1430.
3 M & S Morenci Corporation, supra at 1117; F. B. Rogers Silver
All issues raised by the Respondent inthisproceed-
ing were,or,,could have been litigateddn;nthe: prior
representation proceeding,, and the 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- the 'Respondent -has' not raised any issue
which is properly litigablein this unfair labor practice
proceeding. We shall, ,accordin_ gly, grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF- FACT
I. THE BUSINESS OF THE RESPONDENT
At all times material herein,-, the ; Respondent, I -a
Michigan, corporation, with principal office and place
of business of 2755 TooleyRoad, Howell, Michigan,
hasp been,,^engaged in the manufacture, sale, and
distribution of disc reagents and in the processing of
animal blood solutions.
During the year ending December 31, 1970, , a
representative period, Respondent, in the course and
conduct of its business operations,:_,purchasedi and
caused to be transported and delivered at,its Howell
plant goods and materials;valued in excess of $75,000
of which goods and materials : valued in excess of
$50,000' were transported and delivered to its Howell,
Michigan, plant directly from outsidethe State .of
Michigan. During this same, representative period,
Respondent manufactured, sold, and distributedat its
Howell, Michigan, plant products. valued in excess of
$500,000 of which . products Valued in excess of
$50,000 were shipped from said -plant directly to
points located outside the State of Michigan. -
We find ,: on the basis s 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 SAct, and that it
will effectuate the policies of the - Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED''
United Dairy Workers, Local 83, Retail, Wholesale
and Department Store Union (AFL-CIO), is 'a labor
organization within the meaning of- Section 2(5) of, the
Act.
Company, supra at 1432. ' " '
4 See Pittsburgh Plate Glass Co. v. N .L R. B,; 313 US." 146„ 162 (1941);
Rules and Regulations of the Board , Sees. 102.67(f) and 102.69(c).
D. H. FARMS CO. 55
r, III, THE UNFAIR LABOR PRACTICES
A. The 'Representation Proceeding
1. The unit'
The following employees of the Respondent consti-
tute a unit-, appropriate for collective-bargaining
purposes, within,the meaning of Section 9(b) of the
Act:
All production and maintenance employees,
including animal care employees, employed by the
Respondent at its plant located at 2755 Tooley
Road, Howell, Michigan, but excluding office
clerical employees and guards and supervisors as
defined in the Act.,
2. The certification
On September 23,1970, 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 7, designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on March 5, 1971, 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 March 12,197 1, and at all
times thereafter, the Union has requested the, Respon-
dent to bargain collectively with it as the exclusive
collective--bargaining representative of all the employ-
ees in the above-described unit, Commencing on or
about March 18,,1971,,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, wee find that the Respondent has , since
March 18, 1,971, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
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 certification
as `beginning on the date Respondent commences to
bargain in good faith with the Union as the recognized
bargaining representative in the appropriate unit.
See Mar Jac Poultry Company, Inc., 136 NLRB 785;
Commerce Company d/b/a Lamar Hotel, 140 NLRB
226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379
U.S. 817; Burnett Construction Company, 149 NLRB
1419,1421, enfd. 350 F.2d 57 (C.A.10).
The Board, upon the-basis of the foregoing facts and
the entire record, makes thefollowing:
CONCLUSIONS OF LAW -
1. D. H. Farms Co. is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. United Dairy Workers, Local-83;Retail -Whole-
sale and Department Store Union (AFL-CIO), is a
labor organization within the meaning of Section 2(5)
of the Act. ,
3. All production and maintenance employees,
including animal care employees,;employed -by_ the
Respondent at its plant located at 2755 Tooley Road,
Howell, Michigan, but excluding, office clerical
employees and, guards and supervisors as defined in
the,Act constitute ,a unit appropriate for the,purposes
of collective bargaining within the meaning of Section
9(b) of the. Act. '
4. Since March 5, 1971, 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 March 18,1911, and at
all times thereafter, to bargain _collectively, with, the
above-named labor organization as - the exclusive
bargaining representative of, all, the employees of
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
meaningof 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, D.
H., Farms Co., 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 United Dairy Workers, Local 83,
Retail, Wholesale and Department Store Union
(AFL-CIO), as the exclusive bargaining representa-
tive of its employees in the following appropriate unit:
All production and, maintenance employees,
including animal care employees, employed by the
Respondent at its plant located at 2755 'Tooley
Road, ; Howell, Michigan, but excluding office
clerical employees and 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:
(a) Upon request, bargain withE the above=named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect-to'rates of pay, wl%ages, -hours, and other terms
and conditions of employment, and, if an understand-
ing is , reached, embody such understanding in a
signed agreement.
(b) Post at its Howell, Michigan,`plant copies of the
attached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional -Director
for Region 7, after beiing-duly'signed by Respondent's
representative, shall be posted by Respondent imme-
diately upon receipt thereof, and be maintained by it
for 60, consecutive days 'thereafter, in conspicuous
taken by Respondent to insure That saidz notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
In the event that the Board 's, Order is enforced by a Judgment of a
United States Court of Appeals, the words m-the dotice readmg "Posted" by
Order of the National Labor Relations Board" shall be- changed to 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 United
Dairy Workers, Local -83, Retail, Wholesale and
Department Store Union (AFL-CIO), as the
exclusive representative of the employees in the
bargaining unit described below.
Wn WILL NOT -in any like or related manner
interfere' with, restrain, or coerce our-employeesin
the exercise of the rights, guaranteed them by
Section 7'of'the Act.,,
WE WILL, upon request,_bargain with the abovo-
naxned'Union, as the exclusive representative of gall
employees in the bargainingunit 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' under-
standing in a signed agreement. The bargaining
antis:
All production and maintenance employ=
ees,, including animal' care employees, em=
ployed by the Respondent at its plant located
at 2755 Tooley Road, Howell, Michigan,=but
excluding office clerical employees and
guards, and supervisors as defined in the Act.
D. H. FARMS Co.
(Employer)
places, including all places where notices to employ- Dated ' ' By
ees are customarily posted. Reasonable steps shall be (Representative) ' (Title)
D. H. FARMS CO.
This isan official- notice andmustnotbe defaced by
anyone.
This notice must remain posted-for 60 consecutive
days from the date of posting and must not be altered,
defaced, or coveredby any other material.
57
Any questions concerning this notice or compliance
with its provisions may be directed to the ,Board's
Office, 500 Book Building, 1249 Washington Boule-
vard, Detroit, Michigan 48226, Telephone 313-226-
3200.