Holly Farms Poultry Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 8, 1971

189 N.L.R.B. 663 (N.L.R.B. 1971)

HOLLY FARMS POULTRY INDUSTRIES 663
Holly Farms Poultry Industries, Inc. and Amalgamated
Meat Cutters and Butcher Workmen of North
America, Local 272, AFL-CIO. Case 5-CA-5025
April 8, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a charge filed on December 31, 1970, by
Amalgamated Meat Cutters and Butcher Workmen
of North America, Local 272, AFL-CIO, herein
called the Union, and duly served on Holly Farms
Poultry Industries, Inc., herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 5, issued
a complaint on January 20,1971, against Respondent,
alleging that Respondent 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 or about
December 7, 1970, following a Board election in Case
5-RC-6286, the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate;'
and that, commencing on or about December 21,
1970, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative although the Union has requested
and is requesting it to do so. On January 27, 1971,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in the
complaint, and requesting that the complaint be
dismissed in its entirety. More specifically, Respon-
dent admits the allegations of the complaint setting
forth the jurisdictional facts, that the Union is a labor
organization within the meaning of the Act, and that
the unit described in the complaint is appropriate for
purposes of collective bargaining. Respondent asserts
that it is without knowledge as to whether it is
engaged in commerce within the meaning of the Act
and in all other respects denies the allegations of the
complaint. Respondent additionally avers that the
Union has never represented an uncoerced majority
of the employees in the appropriate unit.
On February 11, 197 1,counsel for the General Coun-
sel filed directly with the Board a Motion for
Summary Judgment, asserting that there are no issues
of fact or law in this case warranting an evidentiary
hearing. Counsel for the General Counsel therefore
moves that the Board enter a Summary Judgment,
finding that Respondent, as a matter of law, has
violated Section 8(a)(5) and (1) of the Act, and
prescribe an appropriate remedy therefor. Subse-
quently, on February 18,1971, 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 and motion for oral argument
before the Board.2
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 case to a three-member
panel.
Upon the entire record in this proceeding, the Board
makes the following:
RULING ON THE MOTION FOR SUMMARY
JUDGMENT
The record in the underlying representation case,
Case 5-RC-6826, reflects that in the election
conducted on August 15, 1969, under the direction
and supervision of the Regional Director for Region
5, a majority of the employees in the stipulated
appropriate unit cast ballots in favor of the Union.
Thereafter, Respondent filed timely objections to the
election. Following administrative investigation, the
Regional Director on December 31, 1969, issued a
Report on Objections and Notice of Hearing, in
which he recommended that all but one of the
objections be overrulled. He further recommended
that a hearing be directed on the remaining objec-
tion. Respondent thereafter filed exceptions to the
Regional Director's report and on January 22, 1970,
filed a motion requesting that the Regional Director
be required to produce for Respondent' s examina-
tion copies of all affidavits and documents obtained
during the Region's investigation of the objections.
The latter motion was referred to the Board for
disposition. On March 24, 1970, the Board issued its
Decision and Order in Holly Farms Poultry Indus-
tries, Inc., 181 NLRB No. 134, wherein it denied
Respondent's motion to produce, found that the
issues raised by two of the objections could best be
resolved by a hearing, and otherwise adopted the
Regional Director's recommendation that the re-
maining objections be overruled. The Board accord-
ingly remanded the case to the Regional Director for
further proceedings.
Pursuant to due notice, a hearing was conducted on
1 Official notice is taken of the record in the representation proceeding , Supp. 573 (D.C. Va, 1967); Follett Corp., 164 NLRB 378, enfd. 397 F.2d 91
Case 5-BC-6826 as the term "record" is defined in sees. 102.68 and (C A. 7, 1968); Sec. 9(d) of the NLRA.
102.69(f) of the Board 's Rules and Regulations , Series 8, as amended , See 2 The Respondent's request for oral argument is denied as the record
LTV Electrosystems, Inc., 166 NLRB 938, enfd . 388 F.2d 683 (C.A 4, 1968); adequately sets forth the issues and positions of the parties.
Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello, 269 F.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 26 and 27, 1970, before Trial Examiner Joseph
1. Nachman on the issues raised by the two outstand-
ing objections. Following said hearing, Trial Examin-
er Nachman, on May 21, 1970, issued a Report and
Recommendation on Objections to Election, in which
he concluded that the objections were without merit
and recommended that they be overruled in their
entirety and that the Union be certified. Respondent
thereafter filed exceptions to the Trial Examiner's
Report, and on December 7, 1970, and Board issued
its Decision and Certification in Holly Farms Poultry
Industries, Inc., Case 5-RC-6826,3 wherein it adopted
the Trial Examiner's findings and conclusions, over-
ruled the remaining objections, and certified the
Union as collective-bargaining representative of
Respondent's employees in the appropriate unit.
In its answer to the complaint herein, Respondent
denies paragraphs 8 and 9 of the complaint which
allege that the Union has requested and that Respon-
dent has refused to bargain. Respondent affirmatively
asserts, however, that "the request by the union to
bargain as described in paragraph numbered VIII of
the Complaint was improperly made and that
Respondent's refusal to bargain as described in
paragraph numbered IX of the complaint was lawful
under all of the circumstances." Attached to General
Counsel's Motion for Summary Judgment are two
letters, one from the Union to Respondent dated
December 14, 1970, and the other from Respondent
to the Union dated December 21, 1970, which
respectively purport to be the Union's request for
bargaining and Respondent's refusal thereof. Al-
though Respondent asserts in its Response to the
Notice To Show Cause that there is an outstanding
issue of fact in this proceeding concerning whether the
Union has requested and Respondent thereafter
refused to bargain, it does not contest the authenticity
or contents of the letters attached to the Motion for
Summary Judgment, nor does it deny that they were,
respectively, sent and received. It thus appears clear
that, while Respondent by the denial in its answer
challenges the legal effect of the request and refusal to
bargain, it does not dispute that such request and
refusal were in fact made. In these circumstances, and
particularly in view of Respondent's express acknowl-
edgement of the existence of the request and refusal to
bargain in its answer, we shall deem paragraphs 8 and
9 of the complaint to be admitted.4
Respondent further asserts that it is entitled, as a
matter of law, to a hearing before a Trial Examiner
and that the instant proceeding is therefore improper-
ly before the Board. We reject this contention. The
Board's authority to utilize summary judgment
procedures where there are no material issues of fact
or law warranting hearing is well established.5
Respondent, however, further contends that there
indeed are substantial and material questions of fact
existent in this case warranting a hearing; namely (1)
whether Respondent at all material times herein has
been engaged in commerce within the meaning of
Section 2(6) of the Act, (2) whether a majority of
Respondent's employees designated the Union as
their collective-bargaining representative at the elec-
tion on August 15, 1969. (3) whether the Union at all
times since August 15, 1969, has been the exclusive
representative of the employees in the appropriate
unit, (4) whether the Board's certification of the
Union was legal and valid, and (5) whether the Union
in fact requested and Respondent thereafter refused
to bargain. Except for the latter contention, which we
have already considered, none of the issues raised by
Respondent involve questions of fact which would
warrant a hearing, and in any event each of these
issues was previously decided in the representation
proceeding.
In its Response to the Notice To Show Cause,
Respondent also reiterates numerous contentions that
it previously advanced in connection with its objec-
tions in the representation proceeding. It is well
settled, however, 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.6 Conse-
quently, to the extent that Respondent herein seeks to
raise matters that were or could have been raised in
the representation proceeding, its assertions are
rejected as they are not properly litigable in this unfair
labor practice proceeding.
Respondent additionally submits that newly discov-
ered evidence has come to its attention which
allegedly establishes that it no longer has an obliga-
tion to bargain with the Union. Respondent thus
offers to prove that less than one-third of the
employees who were eligible to vote in the election on
August 15, 1969, are presently employed, and that
"the remaining employees presently employed do not
wish [the Union] to represent them." This assertion,
however, even if true, does not constitute a valid
defense to the refusal to bargain. It is thus well settled
that absent "special circumstances," which clearly are
not present here, a union's continued majority status
3 Not published in the bound volumes of the Board's Decisions . and cases cited therem at fn . 6 of the Trial Examiner's Decision; Union
4 See The May Department Stores Company, 186 NLRB No. 17; Carl Carbide Caribe, Inc., 173 NLRB No. 131.
Simpson Buick, 161 NLRB 1389, enfd. 395 F.2d 191 (C.A. 9). 6 See Pittsburgh Plate Glass Co. v. NLRB. 313 U.S . 146, 162 (1941);
5 See , e.g, Lyman Printing and Finishing Company, 183 NLRB No. 105 , Rules and Regulations of the Board , Sees. 102.67(f) and 102.69(c).
HOLLY FARMS POULTRY INDUSTRIES 665
is conclusively presumed to exist for 1 year following
certification.? To entertain this defense, moreover,
would produce the anomalous result of permitting
Respondent to benefit from a lapse of time, emanat-
ing from litigation of the objections, for which
Respondent is itself responsible.
Respondent does not otherwise offer to adduce at a
hearing any newly discovered or previously unavaila-
ble 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
litigable in this unfair labor practice proceeding. 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 THE RESPONDENT
Respondent, a North Carolina corporation, has at
all material times herein been engaged in the
operation of a facility at Glen Allen, Virginia, where it
processes poultry and related products. During the
past year, a representative period, Respondent sold
and shipped products, valued in excess of $150,000,
from its Glen Allen facility to points located directly
outside the Commonwealth of Virginia.
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
Amalgamated Meat Cutters and Butcher Workmen
of North America, Local 272, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
III. 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 of the
Employer at its Glen Allen, Virginia, plant, including
local truck drivers and cafeteria employees, but
excluding all office clerical employees, farm workers,
hatchery employees, chicken-catchers, over-the-road
drivers, all other employees, guards and supervisors as
defined in the Act, as amended.
2. The certification
On August 15, 1969, 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 5, 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 December 7, 1970, 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 14, 1970, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about December 21, 1970, 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 employ-
ees in said unit.
Accordingly, we find that the Respondent has,
since December 21, 1970, 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, Respon-
dent 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(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom, and, upon
7 See Ray Brooks v N L.R B, 348 U.S 96.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 recogniz-
ed bargaining representative in the appropriate unit.
See Mar-Jac Poultry Company, Inc., 136 NLRB 785;
Commerce Company d/bla 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 the following:
CONCLUSIONS OF LAW
1. Holly Farms Poultry Industries, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Amalgamated Meat Cutters and Butcher Work-
men of North America, Local 272, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All production and maintenance employees of
the Employer at its Glen Allen, Virginia, plant,
including local truckdrivers and cafeteria employees,
but excluding all office clerical employees, farm
workers, hatchery employees, chicken-catchers, over-
the-road drivers, all other employees, guards and
supervisors as defined in the Act, as amended,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since December 7, 1970, 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(b) of
the Act.
5. By refusing on or about December 21, 1970, 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 had
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
s 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 be changed to read "Posted
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)(l) 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,
Holly Farms Poultry Industries, Inc., 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 Amalgamated Meat Cutters and
Butcher Workmen of North America, Local 272,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All production and maintainence employees of
the Employer at its Glen Allen, Virginia, plant,
including local truckdrivers and cafeteria employ-
ees, but excluding all office clerical employees,
farm workers, hatchery employees, chicken-catch-
ers, over-the-road drivers, all other employees,
guards and supervisors as defined in the, Act,
as amended.
(b) In any like or related manner interfering with,
restraining, or coercing employees in 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at Respondent's Glen Allen, Virginia,
facility copies of the attached notice marked
"Appendix."8 Copies of said notice, on forms
provided by the Regional Director for Region 5, 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
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
HOLLY FARMS POULTRY INDUSTRIES 667
by Respondent to insure that said notices are not
altered , defaced , or covered by any other material.
(c) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Amal-
gamated Meat Cutters and Butcher Workmen of
North America, Local 272, AFL-CIO, 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 representa-
tive 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 agree-
ment . The bargaining unit is:
All production and maintenance employ-
ees of the Employer at its Glen Al-
len,Virginia, plant, including local truckdri-
vers and cafeteria employees, but excluding
all office clerical employees , farm workers,
hatchery employees , chicken-catchers, over-
the-road drivers, all other employees, guards
and supervisors as defined in the Act, as
amended.
HOLLY FARMs POULTRY
INDUSTRIES, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office , Federal Building , Room 1019, Charles Center,
Baltimore , Maryland 21201, Telephone
301-962-2822.