Holly Farms Corp. v. N.L.R.B.
| Decision Date | 10 March 1995 |
| Docket Number | Nos. 93-1710,93-1882,s. 93-1710 |
| Citation | 48 F.3d 1360 |
| Parties | 148 L.R.R.M. (BNA) 2705, 129 Lab.Cas. P 11,298 HOLLY FARMS CORPORATION; Tyson Foods, Incorporated, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Chauffeurs, Teamsters and Helpers, Local 391, 29, 71, 355, 592, 657, 988, and all affiliated with the International Brotherhood of Teamsters, Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOLLY FARMS CORPORATION; Tyson Foods, Incorporated, Respondents, Chauffeurs, Teamsters and Helpers, Local 391, 29, 71, 355, 592, 657, 988, and all affiliated with the International Brotherhood of Teamsters, Intervenor. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Charles Preyer Roberts, III, Haynsworth, Baldwin, Johnson & Greaves, Greensboro, NC, for petitioners. Frederick Lee Cornnell, Jr., N.L.R.B., Washington, DC, for respondent; John David James, Smith, Follin & James, Greensboro, NC, for intervenor. ON BRIEF: William R. McKibbon, Jr., D. Christopher Lauderdale, Haynsworth, Baldwin, Johnson & Greaves, Greenville, SC, for petitioners. Jerry M. Hunter, Gen. Counsel, Yvonne T. Dixon, Acting Deputy Atty. Gen., Nicholas E. Karatinos, Acting Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, Frederick C. Havard, Supervisory Atty., N.L.R.B., Washington, DC, for respondent.
Before MURNAGHAN and NIEMEYER, Circuit Judges, and HARVEY, Senior United States District Judge for the District of Maryland, sitting by designation.
Order enforced by published opinion. Judge MURNAGHAN wrote the opinion, in which Senior Judge HARVEY joined. Judge NIEMEYER wrote an opinion concurring in part and dissenting in part.
Holly Farms Corporation and Tyson Foods, Inc. ("Holly Farms" and "Tyson"--collectively, "the Company") have petitioned for review of a decision and order of the respondent, the National Labor Relations Board ("NLRB" or "the Board"), which found that the Company had committed unfair labor practices in violation of Secs. 8(a)(1), (3), and (5) of the National Labor Relations Act ("the Act"), 49 Stat. 449, as amended, 29 U.S.C. Secs. 158(a)(1), (3) and (5). Holly Farms Corp., 311 N.L.R.B. 273 (1993). The NLRB has cross-applied for enforcement of its order, and the Chauffeurs, Teamsters and Helpers Local Union Nos. 29, 71, 355, 391, 592, 657, and 988 (collectively, "the Union") have intervened as respondents.
Tyson is engaged in the production, processing, and transportation of poultry. Tyson operates production facilities, as well as transportation terminals between Texas and North Carolina. From those terminals, drivers in Tyson's transportation department transport its poultry products to customers throughout the United States.
As of October 1988, Holly Farms was engaged in the production, processing, and transportation of poultry at its headquarters facility in Wilkesboro, North Carolina, and at other facilities in North Carolina, Virginia and Texas. At that time, Tyson submitted a bid to purchase Holly Farms' stock.
On July 18, 1989, Tyson acquired a controlling interest in Holly Farms, but Holly Farms continued its existence as a corporate entity. Holly Farms' business operations remained virtually unchanged for about two months. Eventually, Holly Farms announced that Tyson had decided to integrate part, but not all, of Holly Farms' operations into its own.
In December 1988, while Tyson's bid to purchase Holly Farms' stock was pending, the Union launched organizing campaigns in three separate units of Holly Farms employees. One of those units consisted of production employees at the Wilkesboro facility and elsewhere. The second unit ("the drivers-yardmen unit") consisted of drivers and yardmen at several facilities in Holly Farms' transportation department. And the third unit ("the live-haul unit") consisted of the Wilkesboro facility's live-haul crews and various workers at Holly Farms' facility in Roaring River, North Carolina.
The Board found that Holly Farms committed numerous unfair labor practices during those three organizing campaigns. See Holly Farms Corp. v. NLRB, supra. Many of the Board's findings are uncontested here. For example, it is uncontested that, during the Union's organizing campaign in the drivers-yardmen unit, Holly Farms officials, including its President, repeatedly threatened that Holly Farms would eliminate the transportation department and terminate all of its employees if the Union won the election. Even after the Union won the election and was certified to represent the unit, Holly Farms threatened employees with arrest for handing out union literature, and then it actually had three employees arrested when they distributed union literature in a company parking lot. In addition, the Company unlawfully discharged four pro-union activists in the production employees unit who had asked their co-workers to sign union authorization cards or to support the Union.
The Company does not dispute the above-described unfair labor practices, and the Board's order with respect to those uncontested violations can be summarily enforced. See NLRB v. Frigid Storage, Inc., 934 F.2d 506, 509 (4th Cir.1991). Of those findings that the Company does dispute, some are clearly supported by substantial evidence. Only two of the issues presented in the Company's petition for review merit extended discussion: (1) whether Tyson violated any duty that it may have had to bargain with the Union regarding the drivers-yardmen unit; and (2) whether the workers in the live-haul unit were "employees" protected by the Act or "agricultural laborers" excluded from the Act's coverage.
The Board's findings are conclusive "if supported by substantial evidence on the record considered as a whole." 29 U.S.C. Sec. 160(e). A reviewing court "may [not] displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951).
The first question presented is whether Tyson violated any duty that it may have had to bargain with the Union regarding the wages, hours, and other terms and conditions of employment for members of the drivers-yardmen unit. That question, in turn, can be divided into two sub-questions: whether (and, if so, when) Tyson had a duty to bargain with the Union; and whether Tyson violated that duty by unilaterally setting the terms and conditions of employment for Holly Farms employees who joined Tyson's newly-integrated transportation department.
On March 24, 1989, following a Board-conducted election, the Union was certified to represent Holly Farms employees in the drivers-yardmen unit. Thereafter, the Union and Holly Farms bargained unsuccessfully for a contract. On July 18, 1989, Tyson acquired a controlling interest in Holly Farms' stock. For the next two months-- until Tyson converted some of the drivers and yardmen to its own payroll on September 22--Tyson did not make any significant changes in Holly Farms' business operations.
By September 11, Tyson had decided to integrate the entire Holly Farms transportation department into its own transportation department. The following day, Holly Farms announced that decision to the Union. Holly Farms also announced to the employees--without bargaining with their duly elected Union representative--that they would be offered jobs as Tyson employees, under Tyson's pay plan and working conditions, which were substantially different from, and at least arguably inferior to, those of Holly Farms. Holly Farms also stated that its transportation department would no longer exist after the integration and that, therefore, the Union no longer represented the employees. Subsequently, Tyson sent the employees letters which offered them jobs as Tyson employees, on Tyson's terms, and which required them to respond by September 22. Forty-seven of the unit employees refused the offer because of those terms and lost their jobs as of September 22.
The Board found that Tyson came under a duty to bargain with the Union at the time of the stock purchase (on July 18, 1989) and that thereafter Tyson committed numerous violations of Sec. 8 of the Act. We hold that the evidence supports those findings.
Section 8(a)(5) of the Act, 29 U.S.C. Sec. 158(a)(5), in conjunction with Sec. 9(a) of the Act, id. Sec. 159(a), makes it an unfair labor practice for an employer to refuse to bargain with the union selected by the majority of its employees in an appropriate unit. A union that is certified by the Board after winning a Board-conducted election is entitled to a "conclusive presumption" of majority support among the employees for one year after certification. See Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 37, 107 S.Ct. 2225, 2232-33, 96 L.Ed.2d 22 (1987). Accordingly, absent unusual circumstances, an employer violates Sec. 8(a)(5) by withdrawing recognition from a union during its certification year. See id. at 37-39, 107 S.Ct. at 2232-34; Brooks v. NLRB, 348 U.S. 96, 98-99, 75 S.Ct. 176, 178-79, 99 L.Ed. 125 (1954).
The Board and Petitioners agree that on March 24, 1989, the Union became certified to represent certain Holly Farms employees. Thus Holly Farms had a duty to recognize and bargain with the Union until March of 1990. Further, the most recent Supreme Court case involving these issues explains:
"[A] mere change of employers or of ownership in the employing industry is not such an 'unusual circumstance' as to affect the force of the Board's certification within the normal operative period if a majority of employees after the change of ownership or management were employed by the preceding employer."
Fall River, 482 U.S. at 37, 107 S.Ct. at 2233 (quoting NLRB v. Burns Int'l Security Servs., Inc., 406 U.S. 272, 279, 92 S.Ct. 1571,...
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