Spring Valley Farms of Alabama, Inc.

National Labor Relations Board - Board Decisions

Mar 17, 1977

228 N.L.R.B. 866 (N.L.R.B. 1977)

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.