Valleydale Packers, Inc. of Bristol

National Labor Relations Board - Board Decisions

Feb 7, 1967

162 N.L.R.B. 1486 (N.L.R.B. 1967)

1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own choosing, or to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or refrain from any
or all such activities.
Our employees are free to become or remain, or refrain from becoming or
remaining , members of the above -named , or any other labor organization.
R. G. BARRY CORPORATION,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or' compliance with its,
provisions , they may communicate directly with the Board 's Regional Office„
Room 2023 , Federal Office Building, 550 Main Street , Cincinnati , Ohio 45202,
Telephone 684-3627.
Valleydale Packers, Inc., of Bristol and Meat Cutters , Packing
House Workers & Food Handlers, District Union No. 657,
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO. Case 12-CA-31P25. February 7, 1967
DECISION AND ORDER
On December 15, 1965, Trial Examiner Robert L. Piper issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. ' Thereafter, the Respondent and the General Counsel filed
exceptions and supporting briefs and the Respondent filed an answer-
ing brief.
The National Labor Relations Board has reviewed the rulings of
the Trial Examiner made at the hearing and finds no prejudicial error
was committed. The rulings are hereby affirmed. The Board has con-
sidered the Trial Examiner's Decision, the exceptions and briefs, and
the entire record in this case , and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner, with the follow-
ing modifications and additions.2
I The Trial Examiner did not decide whether the Respondent was bound by its predeces-
sor's collective-bargaining agreement with the Union ; he referred that issue directly to the
Board. The Board is of the opinion that in view of the agreement ' s expiration date of
March 6, 1967, and the Board 's affirmative bargaining order herein , no useful purpose
would be served in determining the Respondent 's liabilities , if any, under its predecessor's
collective-bargaining agreement in this case.
2 We find, in agreement with the Trial Examiner , that Respondent's unilateral changes
were violations of the Act. In addition , we find that these changes might have resulted
in financial losses to the employees for which they should be reimbursed in accordance
with F. W. Woolworth Company, 90 NLRB 289, and Iaros Plumbing c€ Heating Co., 138
NLRB 716.
162 NLRB No. 139.
VALLEYDALE PACKERS, INC. - 1487
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Add the following paragraphs 2(b) and 2(c) relettering the
present paragraphs 2(b) and 2(c) as 2(d) and 2(e) :
[" (b) Make employees whole for any loss of pay or other bene-
fits they may have suffered as a result of the unilateral changes in
working conditions subsequent to January 18, 1965.
[" (c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records relevant or necessary to facilitate a determina-
tion of whatever payments may be required to make employees whole."
[2. Add the following paragraph before the last full paragraph of
the notice attached to the Trial Examiner's Decision :
[WE WILL make our employees whole for any loss of pay or
other benefits they may have suffered as a result of our unilateral
changes in working conditions subsequent to January 18, 1965.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act was
heard before Trial Examiner Robert L. Piper at Miami, Florida, on July 12 and
13, 1965, pursuant to due notice. The complaint, which was issued on May 26,
1965, on a charge dated January 18, 1965, as amended May 24, 1965, alleged in
substance that Valleydale Packers, Inc. of Bristol' (hereinafter Respondent),
engaged in unfair labor practices proscribed by Section 8(a)(5) and (1) of the
Act by refusing to bargain with Meat Cutters, Packing House Workers & Food
Handlers, District Union No. 657, Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO' (hereinafter the Union), by (1) refusing to
recognize, meet, or negotiate with the Union, (2) unilaterally changing the teams
and conditions of employment of the employees represented by the Union, (3)
refusing to give force and effect to the collective-bargaining agreement between
the Union and Respondent's predecessor, and (4) refusing to negotiate with the
Union pursuant to the wage reopening provision contained therein. Respondent's
answer denied the alleged unfair labor practices. Both parties filed proposed find-
ings and briefs.
Upon the entire' record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent, a Virginia corporation licensed to do business in the State of
Florida, is engaged in the manufacture and wholesale distribution of meat and
related products. It annually purchases and receives goods, supplies, and mate-
rials valued in excess of $50,000 directly from out-of-State suppliers. Since Janu-
ary 18, 1965,2 Respondent has maintained an office, plant, and place of business
at Miami, Florida, where it has purchased and received goods and material
shipped to this location directly from points outside the State of Florida. Pro-
jected on an annual basis, the value of such extrastate purchases will exceed
1 The parties stipulated these to be the correct names of Respondent and the Union,
rather than those found in the caption of the pleadings.
2 All dates hereinafter refer to 1965 unless otherwise indicated.
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$50,000 . Respondent admits and I find that it is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and issues
The issues herein are (1) whether Respondent is a "successor employer" within
the meaning of the decisional law, and, as such, required to bargain with the
Union as the exclusive representative of its employees, formerly employees of
Tobin Packing Co., Inc., Respondent's predecessor; (2) whether Respondent, as
such successor employer, refused to bargain with the Union by unilaterally
changing the terms and conditions of employment of such employees; (3) whether
Respondent, as such successor employer, is bound by the terms of the collective-
bargaining agreement entered into between the Union and Tobin; and (4)
whether Respondent, as such successor employer, refused to bargain with the
Union by refusing to negotiate with it pursuant to the wage-opening provision
contained in said contract. Respondent, denying that it is a successor employer
within the meaning of the decisional law, admitted that it refused to recognize or
bargain with the Union as the exclusive representative of its employees, admitted
that it refused to give force and effect to the collective-bargaining contract between
the Union and Tobin, including the wage-reopening provision contained therein, and
denied that it refused to bargain by unilaterally changing the terms and conditions
of employment of the employees in the alleged appropriate unit. Respondent,
assuming arguendo that it is bound by terms of the collective-bargaining con-
tract, further contends that there was no refusal to bargain with respect to the
wage-opening provision therein because the Union failed to give the notice
required thereunder.
B. Refusals to bargain
The facts are substantially undisputed, Respondent having called no witnesses
and offered no proof other than its cross-examination of the witnesses called by
the General Counsel. On January 18, Respondent, by means of real and personal
property leases described more fully hereinafter, acquired from Tobin the office,
plant, and place of business where Tobin had been engaged in the manufacture
and wholesale distribution of meat, and related products in Miami, Florida, since
October 1962. On December 5, 1963, Tobin recognized the Union as the exclusive
representative of its gmployees in the appropriate unit described below as the
result of a card check conducted by an independent third party arbitrator. Of 56
eligible employees, 31 selected the Union as their representative. Tobin and the
Union then stipulated, the complaint herein alleges, and I find, that the following
constitutes a unit appropriate for the purposes of collective bargaining within the
meaning of the Act:
All maintenance, production, and processing employees, including drivers and
shippers, but excluding all salesmen, office and clerical employees, executives,
guards, and supervisors as defined in the Act.
On May 7, 1964, Tobin and the Union entered into a collective-bargaining
agreement, with wage provisions retroactive to March 2, 1964, for a term of 3
years expiring March 6 1967. This agreement was in full force and effect at the
time of the transfer to Respondent on January 18.,It contained provisions recog-
nizing the Union as the exclusive representative of the employees in the appropri-
ate unit and covering wages, union dues checkoff, grievances, arbitration, and
other matters common to such contracts. It contained no provision making it
binding upon successors and assigns. It is undisputed that Respondent did not
assume this contract. Although the contract was to run until March 6, 1967, it
contained a wage-reopening provision permitting the parties to reopen negotiations
for wages only on March 1, 1965, by giving 60 days notice of such intention.
During November and December, 1964, Gerald Greenfield, president of the
Union, and Al St. Germaine, its business representative, orally notified John M.
Watson, vice president and general manager of the Miami division of Tobin, that
the Union desired, pursuant to the contract, negotiations for wages to be effective
March 1, 1965. This occurred during a discussion between Tobin and the Union
VALLEYDALE PACKERS, INC. 1489
of various merit and progressive wage increases under the contract. Watson sug-
gested that they defer such matters temporarily in view of the fact that the
parties were planning to negotiate new wages under the reopening provision in a
short time. Early in January Watson agreed that the parties ought to meet as
soon as possible so that any agreement reached would be effective as of March 1.
Sometime during January or earlier, Tobin decided to cease operating in Miami
and to try to sell or lease its plant and equipment. As a result, negotiations
occurred between Tobin and Respondent. These facts, were not known by the
Union. On January 12, Greenfield wrote Watson a letter confirming Greenfield's
and St. Germaine's prior conversations with Watson concerning the proposed gen-
eral wage increases as of March 1, pursuant to the contract, and suggesting that
they should fix an early date to meet inasmuch as the negotiations might take
some time. On January 13, between 4 and 5 p.m., pursuant to orders from their
supervisors, substantially all of Tobin's employees assembled at a meeting in the
plant lunchroom. Watson presided. He told the employees that Tobin was turning
the business over to Valleydale and introduced the new plant superintendent, F.
Goodrich Wright. Wright told the employees that everything would be the same,
all of them would be retained and nothing would be changed except that Valley-
dale, which operated seven or eight other plants, would take over the firm on
January 18, the following Monday morning. However he advised the employees
that they would lose their seniority, they would be considered new employees
and would be required to fill out an application for employment, they would have
to take a physical examination and be interviewed by him personally, there would
be no paid vacations, there would be no wage increases until the firm showed an
increase in profits, and they should submit any grievances or complaints to him
or their foreman.
Sometime on January 13 or 14, St. Germaine learned from one of the employ-
ees of the proposed change in management and in turn informed Greenfield.
Greenfield called Watson on either January 13 or 14 and asked him about it.
Watson told Greenfield that there had been some talks but that nothing had been
consummated, and he expected to hear shortly from Tobin' s management whether
a deal had been completed. Greenfield called Watson again on the 15th. Watson
then confirmed that a deal had been made and said that, while it was not yet
official, Respondent would take over the operations on Monday morning, Janu-
ary 18. On Monday morning, January 18, Greenfield wrote Respondent at Tobin's
Miami address (then Respondent's address), advising it that the Union was the
exclusive representative of the employees, that it had an existing collective-
bargaining contract with Tobin, and complaining about Wright telling the employ-
ees on January 13 that their terms and conditions of employment would be
changed when Respondent took over the plant. The letter further requested recog-
nition, compliance by Respondent with the terms of the collective-bargaining
agreement, and commencement of negotiations by the Respondent with the Union
under the wage-reopening provision pursuant to the notice given to Watson.
Greenfield enclosed a copy of the contract and his letter of January 12 to Watson.
The contractual arrangements between Tobin and Respondent consisted of a
real estate property sublease and a personal property lease. Tobin had leased the
premises from its third party owners, and with their written consent subleased the
premises to Respondent for a substantial period of time, with an option to extend
the number of years three times the original period. In addition, Tobin leased to
Respondent for a like period of time all of the equipment, machinery, and per-
sonal property used in the operation of the business, with an option to purchase
crediting the payments under the lease to the purchase price. While both leases
were dated January 18, the consent to sublease was executed on or before Decem-
ber 31, 1964, and accepted by Tobin and Respondent on December 31, 1964, and
January 4, respectively.
On Monday morning, January 18, Respondent took over the operation of the
entire plant. The record establishes that there was substantially no change in per-
sonnel within the appropriate unit or in any of the other personnel, including the
salesmen , supervisors, and office and clerical help, other than the fact that Wright
replaced Watson in charge of the plant. The duties and wages of the employees
and their various supervisors remained unchanged. Respondent continued to pro-
duce the same products in the same way in the same plant with the same equip-
ment. Respondent continued to service and sell the same customers as Tobin. In
fact Respondent continued to market its products under the Tobin label for
264-047--67-vol. 162-95
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approximately 5 months after the transfer . In all essential respects the operation
remained exactly the same. In sum, there was no change in product , plant, loca-
tion , equipment , personnel , wages , customers, supervision, method of operation,
method of delivery, maintenance , uniform , and even labels . As predicted by
Watson and Wright to the employees, everything remained the same except that
Respondent replaced Tobin and Wright replaced Watson.
After Respondent took over the operation on January 18, it did not deduct
the union dues of the employees who were members of the Union, as provided
in the checkoff provision of the contract between the Union and Tobin. None
of the employees advised Respondent to discontinue deducting such dues. None
of the employees instructed Respondent to continue deducting such dues. No
actual changes in the employees' terms and conditions of employment were made
until about a week or 10 days later. In fact some of the employees, apparently
those who missed the meeting on January 13, when they came to work on Janu=
ary 18 were unaware that they had a different employer and learned of it later
as a result of gossip in the plant . About a week or 10 days after January 18, the
employees were required to fill out applications for employment and take a physi-
cal examination . About a week thereafter, each employee was interviewed individ-
ually by Wright. At this time they were required to sign a form providing that
they would be probationary employees for 180 days and a set of work rules
changing the terms and conditions of employment.
Because Greenfield received no reply to his letter of January 18 to Respondent
requesting recognition and compliance with the contract, on January 25 he and
St. Germaine went to the plant to see Wright. Wright refused to meet with them
in his office but told them in the reception lobby that he could not discuss the
matter, it was out of his hands and had been referred to Respondent's attorney
who would reply to Greenfield's letter. Wright admitted receiving the letter and
turning it over to Respondent's officials. On February 22, more than a month
after Greenfield's letter, counsel for Respondent replied that Respondent refused
to abide by the contract between the Union and Tobin, refused to recognize the
Union, doubted that the Union represented a majority of the employees, and
suggested that the Union seek a Board election after giving Respondent an
opportunity to see if it could establish a profitable business in Miami.
C. Concludi ig findings
1. Successor employer and duty to bargain
The record establishes beyond doubt that Respondent was a "successor
employer" within the meaning of the decisional law. The crucial question in such
determinations is whether the employing industry remains essentially the same
after a transfer .3 Unlike most of the reported cases where there were some dif-
ferences in the employing industry after the transfer, here the employing industry
or successor remained exactly the same, with the exception only of a change in
the top management official. Respondent contends that because this transfer did
not involve a sale or merger of the business, Respondent purchased no accounts
receivable, customer lists or good will, Respondent assumed no obligations of its
predecessor, and the transfer was effected by means of a real property lease and
a lease of equipment and personal property with an option to purchase, it is not
a successor employer within the meaning of the decisions. It is not the form of
transfer which controls but whether or not the employing industry remained
essentially the same. Several of the reported cases involved leases rather than
sales .4
It is well established that such a successor employer is obligated to bargain
with a union which is the exclusive representative of the employees acquired
9 N.L.R.B. v. Downtown Bakery, 330 F.2d 921 (C.A. 6 1964) ; N.L.R.B. v. McFarland,
F. G., and S. R. Hullinger, d/b/a McFarland & Hullinger, 306 F.2d 219 (C.A. 10 1962) ;
N.L.R.B. v. Auto Vent8hade, Inc., 276 F,2d 303 (C.A. 5 1960) ; N.L.R.B. v. Lunder Shoe
Corp., d/b/a Bruce Shoe Co., 211 F.2d 284 (C.A. 1 1954) ; N.L.R.B. v. Armato, Albert, and
Wire & Sheet Metal Specialty Co., 199 F.2d 800 (C.A. 7 1952) ; Burlington Roadbuilder8,
149 NLRB 791 (1964 ) ; Consolidated American Services, Inc., 148 NLRB 1521 (1964) ;
Maintenance, Incorporated , 148 NLRB 1299 (1964 ) ; Johnson Ready Mix Co., 142 NLRB
437 (1963) ; Cruse Motors , Inc., 105 NLRB 242 (1953).
4 N.L.R.B. v. Armato; N.L.R.B. v. Lunder Shoe Corp., Supra , footnote 3.
VALLEYDALE PACKERS, IN C. 1491
from the predecessor, absent a reasonable and good-faith doubt that such union
represents a majority of the employees .5 This is so whether such representative
status is evidenced by a Board certification or by recognition and the existence of
a collective-bargaining contract. Where a union has been certified by the Board,
a conclusive presumption exists for one year, and a continuing presumption there-
after that such union is the exclusive representative of the employees, subject to
rebuttal only by a showing of reasonable and good-faith doubt as to such status.&
While most of the reported decisions deal with a situation where the union has
previously been certified,7 it is equally well settled that a successor employer is
required to bargain with a union whose majority status is evidenced by a collective-
bargaining contract, and that in such circumstances a continuing presumption that
the union represents a majority likewise exists.8 Where an employer has granted
recognition and entered into a collective-bargaining contract with a union, its
majority status has been recognized. Because an employer is forbidden by. law to
recognize a union unless it represents a majority of his employees, it is presumed
that such employer acted pursuant to law and that the union did in fact represent
a majority of the employees, which presumption continues during the life of the
contract .9 Thus, although a majority of the employees had withdrawn from the
union more than one year after certification, an employer was found to have
refused to bargain by withdrawing recognition from the union during the term
of the contract.10
Even if majority status as the result of a collective-bargaining agreement be con-
sidered a rebuttable presumption, as in the case of a certification more than one
year old, there is not a scintilla of evidence that Respondent had any reasonable
or good-faith doubt that the Union represented a majority of its employees, other
than Respondent's self-serving declaration on February 22 when it refused to recog-
nize or bargain with the Union. Upon receipt of Greenfield's letter of January 18
enclosing the collective-bargaining contract with Tobin, if not before, Respondent
knew that the Union had such a contract with its predecessor, that it was still in
full force and effect with more than a year to run, that it included a checkoff pro.-
vision of the dues of the union members, and that the Union had advised Respond-
ent that the Union was the exclusive representative of the employees. Thereafter
Respondent, as it admitted, refused to recognize and bargain with the Union.
Accordingly it is concluded and found that Respondent by refusing to recognize
and bargain with the Union violated Section 8(a)(5) and (1) of the Act.
2. Unilateral changes in terms and conditions of employment
As hereinabove found, Wright advised the employees on January 13 and later
that when Respondent took over the plant they would be considered new proba-
tionary employees and lose their seniority rights, there would be no paid vacations,
there would be no wage increases until the business showed a profit, and they
were to submit their grievances to him or their foremen. All of these actions con-
stituted changes in the terms and conditions of employment set forth in the
collective-bargaining contract. Respondent contends that there is no evidence that
it or Wright knew of the existence of the Union in the plant or the contract on
January 13. Although there is no direct evidence that on January 13 Respondent
knew that the Union represented the employees or had a contract with Tobin, on
cross-examination one of the employees testified that he did not tell Wright that
day that he belonged to the Union because he assumed that Wright knew this,
inasmuch as a notice of a union meeting was posted in the plant that day. It
strains credulity to believe that Respondent, taking over the operation of the entire
plant from Tobin, was unaware of the status of the Union or Tobin's contract with
it. As Respondent's brief states: "A prospective purchaser or merger candidate
6 Footnote 3, supra.
6 Ray Brooks v. N.L.R.B., 348 U.S. 96 (1954).
7 Footnote 3, supra.
8 N.L.R.B. V. International Union, Progressive Mine Workers of America, and Local
No. 403, 319 F.2d 428 (C.A. 7 1963), affd., 375 U.S. 396 (1964) ; N.L.R.B. v. Auto Vent-
8hade Inc., 276 F.2d 303 -(C.A. 5 1960) ; Chemrock Corporation, 151 NLRB 1074 (1965) ;
Burlington Road builders, 149 NLRB 791 (1964) ; and Rohlik, Inc., 145 NLRB 1236 (1964).
8 Shamrock Dairy, Inc., 119 NLRB 998 (1957).
'°Hexton Furniture Company, 111 NLRB 342 (1955) ; see also Roman Stone Construc-
tion Company, and Kindred Concrete Products, Inc., 153 NLRB 659, footnote 3 (1965)..
1492 DECISIONS OF, NATIONAL' LABOR. RELATIONS BOARD
would (invariably have investigated the, seller's records and, files, and would -have
had opportunity to discover an existing labor.!agreement or, at least the checkoff
provision through the payroll journal." '
In any event, Respondent's knowledge on January 13 makes no real difference
-because Respondent did not put into effect any unilateral changes in working con-
ditions until approximately a week or two later, after the receipt of the letter from
Greenfield advising Respondent of the status of the Union and its contract. The
employees were not required to fill out their applications for employment, or sign
their probationary employment forms and the new work rules pursuant to inter-
views with Wright, until a week or more after Respondent took over the plant and
had received the letter from the Union. The speech of January 13 did not consti-
tute the act of changing the terms and conditions of employment but was a state-
ment of what Respondent intended to do after it took over the operations. Even if
Respondent had taken "such action on January 13, which obviously it could not
have because Tobin was still operating the plant, the Board has recently held that
such 'unilateral action by a successor employer with respect. to applicants for
employment constitutes a 'refusal to bargain. and such applicants for employment,
under principles well established by the Supreme Court, are employees within the
meaning of the Act."
Assuming such unilateral changes were put' into effect on Janua'ry' 18 prior to
the receipt of this letter, after its receipt Respondent continued them' in full force
and effect, thereby adopting and-confirming' such unilateral changes in the terms
and conditions of employment after it knew that the Union represented the employ-
ees and had a collective-bargaining contract with its predecessor. There can be no
question that 'Respondent knew that the Union represented the employees and had
a collective-bargaining contract when Respondent made or confirmed the unilateral
changes in the terms and conditions of employment. It is well settled that a succes-
sor employer violates the duty to bargain when it makes changes in the terms and
conditions of employment without consulting, notifying, or bargaining with the
exclusive representative of its employees.12 -Accordingly, it is concluded and found
that Respondent, by unilaterally changing the terms and conditions of employment,
including seniority, vacations, grievance procedures and wages, refused to bargain
with the Union in violation of Section 8(a)(5) and (1) of the Act.
3. The collective-bargaining agreement
In addition to the refusals to bargain by refusing to recognize, meet, or negotiate
with the Union and by making unilateral changes in the terms and conditions of
employment, the complaint also alleged that Respondent refused to bargain by
refusing to give effect to the collective-bargaining agreement between the Union
and Tobin. The General Counsel contends that Respondent as a successor employer
is bound by the terms of the contract. It is undisputed that Respondent did not
assume the collective-bargaining contract. While there are several Board decisions
to the effect that a successor is not bound by the terms of a collective-bargaining
contract which it has not agreed to assume,13 the General Counsel bases his con-
tention upon the more recent decision of the Supreme Court in the Wiley case,14
and the subsequent interpretations of that opinion by the Courts of Appeals in the
Wackenhut and Reliance cases."
In the light of the holding of the Supreme Court in Wiley, the position of the
General Counsel appears to have considerable merit. The Court there found that
a successor employer was bound by the arbitration provisions of a collective-
bargaining contract, when the union brought suit for arbitration of a number of
the substantial provisions in the contract, including seniority rights,- contributions
to pension funds and security plans, job security and grievance procedures, sev-
erance pay, and vacation pay, even though the successor employer had not assumed
the contract, there was no successors and assigns clause, and the union did not
11 Chemrock Corporation, 151 NLRB 1074 (1965).
12 N L R.B. v. Armato, supra, footnote 3 ;- Chemrock Corporation, supra, footnote 12.
13 General Extrusion Company, Inc, 121 NLRB 1165 (1958) ; Rohltk, 145 NLRB 1236,
footnote 15 (1964)
14 Wiley v Ltivingston, 376 U.S. 543 (1964).
15 Wackenhut Corporation , v. International Union, United 'Plant 'Guard Workers of
America, 332 F.2d 954 (C A. 9 1964) ; and United Steelworkers of America v. Reliance
Universal Inc of Ohio, 335 F 2d 891 (C.A. 3 1964).
VALLEYDALE PACKERS, INC. 1493
claim to represent a majority of the successor's employees because by merger the
unit had been consolidated with a much larger unit which was not represented by
a union. The Court said:
While the principles of law governing ordinary contracts would not bind to a
contract an unconsenting successor to a contracting party, a collective bar-
gaining agreement is not an ordinary contract. ". . . It is a generalized code
to govern a myriad of cases which the draftsman cannot wholly anticipate
the collective agreement covers the whole employment relationship. It
calls into being a new common law-the common law of a particular industry
or of a particular plant.t " . . . Central to the peculiar status and functions of
a collective bargaining agreement is the fact, dictated both by circum-
stances, . . . and by the requirements of the National Labor Relations Act,
that it is not in any real sense the simple product of a consensual relation-
ship. Therefore, although the duty to arbitrate, as we have said, . must
be founded on a contract, the impressive policy considerations favoring arbi-
tration are not wholly overborne by the fact that'Wiley.did not sign the con-
tract being construed.
Thus, the General Counsel contends, where as here the successor employer is
obligated to bargain with the union as the continuing representative of a majority
of its employees, the facts are stronger to support a holding that the successor
employer is bound by the contract. The Board has noted in two recent decisions
that the decision in Wiley raises a question concerning the Board's prior rulings
that a contract is not binding upon a successor employer unless it has assumed
it. However, because of other controlling facts, the Board was not required to,
and did not, pass upon the question.ls In the Triumph Sales case, the Board found
that Triumph was not a successor employer and hence stated: "We therefore find
it unnecessary to reexamine at the present time the General Extrusion rule in the
light of the Wiley v. Livingston decision." 17 The contract between Tobin and the
Union contained a provision for arbitration substantially the same as that con-
strued in the Wiley, Wackenhut, and Reliance decisions.
However, the two decisions of the Courts of Appeals differ in their construction'
of Wiley. In Wackenhut,18 the Court of Appeals for the 9th Circuit, in a suit under
Section 301 of the Act for specific performance of an arbitration provision of a
collective-bargaining agreement not assumed by the successor employer, as in:
Wiley, held that the policy of the national labor laws obligated Wackenhut, the-
successor employer, to honor the collective-bargaining agreement entered into by
its predecessor. The court, holding that this conclusion was required by the decision
of the Supreme Court in Wiley, stated: ". . where there is a substantial similarity
of operation and continuity of identity of the business enterprise before and after
a change in ownership, a collective bargaining agreement containing an arbitration
provision, entered into by the predecessor employer is binding upon the successor
employer." In Reliance,19 the Court of Appeals for the 3rd Circuit, also in a suit
under Section 301 for specific performance of an arbitration provision of a
collective-bargaining contract not assumed by the successor employer, held that
the successor, while obligated to arbitrate under the contract in view of the decision
in Wiley, was not necessarily bound by the terms of the contract itself. The court
felt that the arbitrator, because of new circumstances created by the transfer of
ownership, could reach results at variance with the terms of the contract. The court
stated: "The requirements of the contract remain basic guides to the law of the
shop, but the arbitrator may find that equities inherent in changed circumstances
require an award in a particular controversy at variance with some term or terms
of that contract."
While the position of the General Counsel appears to have considerable merit, in
view of the prior holdings of the Board and the differing views of the import of
Wiley by the two Courts of Appeals, discussed above, it would appear appropriate
to defer such a conclusion to the discretion of the Board. Accordingly, no finding
is made herein that Respondent refused to bargain with the Union in violation of
the Act by refusing to give force and effect to the collective bargaining agreement
between the Union and Tobin.
16 Chemrock Corporation, 151 NLRB 1074 (1965) ; Triumph Sales, Inc., 154 NLRB 916
(1965).
17 Triumph Sales, Inc., 154 NLRB 916, footnote 12 (1965).
18 Footnote 15, supra.
19 Footnote 16, supra.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The wage reopening provision in the contract
The complaint alleged that Respondent also refused to bargain with the Union
by refusing to meet and negotiate with it under the wage-reopening provision con-
tained in the contract. While the above disposition of the allegation that the refusal
to abide by the contract was a refusal to bargain also disposes of this allegation,
Respondent has further contended, assuming arguendo that it is bound by the
collective-bargaining contract, that the Union did not give adequate notice to Tobin
under the applicable section of the contract. This of course amounts to a contention
that Tobin would not have been required to negotiate under the wage-reopening
provision because of lack of proper notice and that therefore Respondent as the
successor employer would not be either. In view of the fact that the Board may
agree with the General Counsel in his interpretation of the import of the Wiley
decision, it seems appropriate to dispose of this issue which was fully litigated in
this proceeding. Section 20 of the contract between the Union and Tobin, entitled
"Wage Reopening and Termination," contained the following provision : "However,
this agreement is subject to negotiations for wages only on March 1, 1965 and again
on February 28, 1966 by giving the usual sixty (60) days notice of intention to
negotiate a new wage agreement."
As found hereinabove, the Union through St. Germaine and Greenfield gave
Watson, Tobin's vice president , oral notice more than 60 days prior to March 1
of the Union's intention to reopen the contract for wage negotiations under this
provision. Respondent contends that the notice must be in writing, based upon the
preceding provision in Section 20 dealing with reopening at the time of expiration
of the contract. That provision reads: "This Agreement may be reopened sixty
(60) days prior to expiration by giving notice in writing prior to such termination
and in accord with usual National Labor Relations Board procedure." Because this
notice was required to be in writing, Respondent contends that the phrase "usual
sixty (60) days notice" for reopening wage negotiations also required such notice
to be in writing. The Union on the other hand takes the position that oral notice
was adequate since the provision did not state that the notice must be in writing.
In this connection of course Respondent's position must be that of Tobin. It is
clear from the record that Tobin was satisfied that it had adequate notice from the
Union with respect to the wage-reopening provision. In the oral discussions between
Greenfield and Watson, when various merit and progressive wage increases under
the contract were under consideration, Watson suggested that the parties defer
consideration of them until the wage-reopening discussion which was about to com-
mence and under which new wages would be effective March 1. Watson thus con-
ceded that the oral notice he had been given by St. Germaine and Greenfield was
adequate under the contract and agreed to negotiations with respect to the wage
reopening thereunder. Greenfield's letter of January 12 to Watson referred to these
prior conversations and was undisputed and unchallenged by Tobin. Inasmuch as
the contract does not specify written notice in connection with wage reopening,
more than 60 days oral notice was given, and Tobin accepted such notice and
agreed to negotiate the wage reopening under the contract, it is concluded and
found that the Union gave adequate notice of wage reopening under the contract.
Respondent also contends that if the contract is binding upon it, its refusal to
negotiate under the wage reopening provision because of its contended lack of
notice on the part of the Union should be the subject of arbitration under the con-
tract rather than a refusal to bargain under the Act. Respondent admittedly refused
to meet and bargain with the Union under the wage-reopening provision. Such
refusal in effect amounted to a unilateral change in the terms and conditions of
employment set forth in the contract, specifically the provision covering wage
renegotiations. The Board has held that a refusal to abide by the terms of a
collective-bargaining contract, while a breach of contract, also constitutes a uni-
lateral change in the terms and conditions of employment and thus violates Section
8(a)(5) of the Act.2°
As hereinabove found, Respondent admitted that it refused to honor the con-
tract or meet and negotiate with the Union under the wage-reopening provision.
Accordingly, a resolution of this allegation will depend upon the Board's determi-
nation of whether the contract is binding upon Respondent and no finding is
here made that Respondent's refusal to meet and negotiate with the Union under
the wage-reopening provision constituted a refusal to bargain in violation of the Act.
20 George E. Light Boat Storage, Inc., 153 NLRB 1209 ( 1965).
VALLEYDALE PACKERS, INC. 1495
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce , and the Union is a labor organization,
within the meaning of the Act.
2. All maintenance, production and processing employees, including drivers and
shippers, but excluding all salesmen, office and clerical employees, executives,
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.
3. At all times on and after December 5, 1963, the Union has been and now is
the exclusive representative for the purposes of collective bargaining of the
employees in the above unit within the meaning of Section 9(a) of the Act.
4. By refusing to bargain with the Union on and after January 18, 1965,
Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action of the type which is conventionally ordered in such cases as provided in
the Recommended Order below, which I find necessary to remedy and remove the
effects of the unfair labor practices and to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law and the entire record,
and pursuant to Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
Valleydale Packers, Inc., of Bristol, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as the exclusive repre-
sentative of its employees in the appropriate unit found herein.
(b) Instituting changes in wages, seniority, vacation pay, grievance procedures,
or other terms and conditions of employment of its said employees without first
notifying, consulting, and bargaining with the Union concerning such changes.
(c) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action:
(a) Upon request, bargain collectively with the Union as exclusive representa-
tive of its employees in the appropriate unit found herein with respect to wages,
hours, seniority, vacation pay, grievance procedures, and all other terms and con-
ditions of employment, and, if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its plant in Miami, Florida, copies of the attached notice marked
"Appendix." 21 Copies of said notice to be furnished by the Regional Director for
Region 12, after being duly signed by Respondent's representative, shall be posted
by Respondent immediately upon receipt thereof and maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by any other material.
(c) Notify said Regional Director, in writing, within 20 days from date of
receipt of this Decision what steps Respondent has taken to comply herewith.22
21 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
22 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith."
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National
Labor Relations Board , and in order to effectuate the policies of the National
Labor Relations Act, as amended , we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Meat Cutters , Packing
House Workers & Food Handlers , District Union No. 657, Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the
exclusive representative of our employees in the appropriate unit noted below
with respect to wages, hours , or any other terms and conditions of
employment.
WE WILL NOT institute changes in wages, seniority , vacation pay, grievance
procedures , or any other terms and conditions of employment of our employ-
ees in the said appropriate unit without first notifying , consulting , and bar-
gaining with the Union concerning such changes.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of any of the rights guaranteed them
by the National Labor Relations Act.
WE WILL, upon request , bargain with the above-named Union as the
exclusive representative of our employees in the appropriate unit noted below,
with respect to wages, hours , seniority , vacation pay, grievance procedures,
and all other terms and conditions of employment , and if an understanding
is reached , embody such understanding in a signed agreement . The appropri-
ate unit is:
All maintenance , production and processing employees, including drivers
and shippers , but excluding all salesmen , office and clerical employees,
executives , guards, and supervisors as defined in the Act.
All of our employees are free to become, remain , or refrain from becoming or
remaining members of the above -named or any other labor organization.
VALLEY DALE PACKERS INC., OF BRISTOL,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Resident Office, 826
Federal Office Building, 51 South West First Avenue, Miami , Florida 33130, Tele-
phone 350-5391.
White Superior Division , White Motor Corporation and Herbert
T. Baker, John E. Rightsell , Robert F. Langen , Paul A. Mealy,
Virgil A. Young, John Yencho , Walter A. Lewe, and James
Malahy. Cases 9-CA-3922-1 through -8. February 7, 1967
DECISION AND ORDER
On November 7, 1966, Trial Examiner Paul E. Weil issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices within the meaning
of the National Labor Relations Act, as amended, and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. Thereafter the
Respondent filed exceptions to the Decision and a supporting brief.
162 NLRB No. 138.