Holly Farms Corp v. NLRB

Affirmed by Supreme Court on April 23, 1996.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HOLLY FARMS CORPORATION; TYSON

FOODS, INCORPORATED,

Petitioners,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent,

No. 93-1710

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,

No. 93-1882

CHAUFFEURS, TEAMSTERS AND

HELPERS, LOCAL 391, 29, 71, 355,

592, 657, 988, and all affiliated

with the International Brotherhood

of Teamsters,

Intervenor.

On Petition for Review and Cross-application

for Enforcement of an Order

of the National Labor Relations Board.

(11-CA-13184, 11-CA-13267, 11-CA-13520, 11-CA-13619,

11-RC-5583, 11-CA-13487)

Argued: April 12, 1994

Decided: March 10, 1995

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.

_________________________________________________________________

COUNSEL

ARGUED: Charles Preyer Roberts, III, HAYNSWORTH,

BALDWIN, JOHNSON & GREAVES, Greensboro, North Carolina,

for Petitioners. Frederick Lee Cornnell, Jr., NATIONAL LABOR

RELATIONS BOARD, Washington, D.C., for Respondent; John

David James, SMITH, FOLLIN & JAMES, Greensboro, North Caro-

lina, for Intervenor. ON BRIEF: William R. McKibbon, Jr., D.

Christopher Lauderdale, HAYNSWORTH, BALDWIN, JOHNSON

& GREAVES, Greenville, South Carolina, for Petitioners. Jerry M.

Hunter, General Counsel, Yvonne T. Dixon, Acting Deputy Attorney

General, Nicholas E. Karatinos, Acting Associate General Counsel,

Aileen A. Armstrong, Deputy Associate General Counsel, Frederick

C. Havard, Supervisory Attorney, NATIONAL LABOR RELA-

TIONS BOARD, Washington, D.C., for Respondent.

_________________________________________________________________

OPINION

MURNAGHAN, Circuit Judge:

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

2

Relations Board ("NLRB" or "the Board"), which found that the

Company had committed unfair labor practices in violation of

§§ 8(a)(1), (3), and (5) of the National Labor Relations Act ("the

Act"), 49 Stat. 449, as amended, 29 U.S.C. §§ 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.

I

Tyson is engaged in the production, processing, and transportation

of poultry. Tyson operates production facilities, as well as transporta-

tion terminals between Texas and North Carolina. From those termi-

nals, 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 depart-

ment. And the third unit ("the live-haul unit") consisted of the Wilkes-

boro facility's live-haul crews and various workers at Holly Farms'

facility in Roaring River, North Carolina.

3

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 termi-

nate 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 litera-

ture, and then it actually had three employees arrested when they dis-

tributed union literature in a company parking lot. In addition, the

Company unlawfully discharged four pro-union activists in the pro-

duction 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 vio-

lations can be summarily enforced. See NLRB v. Frigid Storage, Inc.,

934 F.2d 506, 509 (4th Cir. 1991). Of those findings that the Com-

pany does dispute, some are clearly supported by substantial evi-

dence. 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.

II

The Board's findings are conclusive "if supported by substantial

evidence on the record considered as a whole." 29 U.S.C. § 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 (1951).

III

The first question presented is whether Tyson violated any duty

that it may have had to bargain with the Union regarding the wages,

4

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 uni-

laterally setting the terms and conditions of employment for Holly

Farms employees who joined Tyson's newly-integrated transportation

department.

A

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 bar-

gained 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 signifi-

cant changes in Holly Farms' business operations.

By September 11, Tyson had decided to integrate the entire Holly

Farms transportation department into its own transportation depart-

ment. The following day, Holly Farms announced that decision to the

Union. Holly Farms also announced to the employees-- without bar-

gaining 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§ 8 of the Act.

We hold that the evidence supports those findings.

5

B

Section 8(a)(5) of the Act, 29 U.S.C. § 158(a)(5), in conjunction

with § 9(a) of the Act, id. § 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 certi-

fied by the Board after winning a Board-conducted election is entitled

to a "conclusive presumption" of majority support among the employ-

ees for one year after certification. See Fall River Dyeing & Finishing

Corp. v. NLRB, 482 U.S. 27, 37 (1987). Accordingly, absent unusual

circumstances, an employer violates § 8(a)(5) by withdrawing recog-

nition from a union during its certification year. See id. at 37-39;

Brooks v. NLRB, 348 U.S. 96, 98-99 (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 involv-

ing 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 nor-

mal 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 (quoting NLRB v. Burns Int'l Security

Servs., Inc., 406 U.S. 272, 279 (1972) (emphasis added)). Here, the

new owner, Tyson, employed exclusively Holly Farms employees in

unchanged Holly Farms units for two months. Thus the force of the

Union's certification remained in effect.

When there is "substantial continuity" between a new business

enterprise and a previous enterprise, a new employer may be obli-

gated to recognize and bargain with a certified union which repre-

sented the employees while they worked for the predecessor

employer. See Fall River, 482 U.S. at 43; Burns, 406 U.S. at 277-81;

Zady Natey, Inc. v. United Food and Commercial Workers Int'l

Union, 995 F.2d 496, 498 (4th Cir.), cert. denied, 114 S. Ct. 470

6

(1993). Such a new employer has been termed a "successor." E.g.,

Fall River, 482 U.S. at 41; Burns, 406 U.S. at 284. If the new

employer is not an entirely separate corporate entity, but rather has

purchased the stock of the predecessor employer, the new employer

may be further obligated to adhere to the terms of any existing collec-

tive bargaining agreement ("CBA") between the predecessor

employer and the union. See, e.g., Burns , 406 U.S. at 291 ("[I]n a

variety of circumstances involving a merger, stock acquisition, reor-

ganization, or assets purchase, the Board might properly find as a

matter of fact that the successor had assumed the obligations under

the old contract.") (dicta); Esmark, Inc. v. NLRB, 887 F.2d 739, 751

(7th Cir. 1989); see also Hendricks-Miller Typographic Co., 240

N.L.R.B. 1082, 1085 (1979) (holding that a new stockowner inherits

the previous owner's obligations to employees, specifically obliga-

tions formed by corporation membership in a multiemployer unit).

Some have called such an employer a "successor," Burns, 406 U.S.

at 291 (dicta); others have rejected this terminology in light of the fact

that an ordinary "successor" is not bound by any existing CBA,

Esmark, 887 F.2d at 751; Hendricks-Miller , 240 N.L.R.B. at 1085.

See also Golden State Bottling Co. v. NLRB, 414 U.S. 168, 180

(1973) (referring to a purchaser of a business as a"successor," but

calling the business itself a "continuing business enterprise"). When

the predecessor employer continues as a corporate entity, that

employer remains bound by its existing duties to the union, and has

been called a "continuing employer." EPE, Inc. v. NLRB, 845 F.2d

483, 487 (4th Cir. 1988). In such a situation, both the "continuing

employer" and the new stockowner have joint simultaneous duties to

the union. See Miami Foundry Corp. v. NLRB, 682 F.2d 587, 589 (6th

Cir. 1982) (per curiam) (holding a new managing corporation and two

stockholders, one owning 59 percent of the corporation and one own-

ing the remainder, to be three joint employers, jointly under a duty to

negotiate with the union which had been formed earlier, at a time

when the employees were employed by only one of the stockholders).

In the instant case, the Board found that Tyson became a "succes-

sor" to Holly Farms as of July 18, 1989, the date that Tyson pur-

chased Holly Farms' stock. In our review, we "must defer to the

NLRB's application" of successorship principles"so long as it is

rational and not inconsistent with the [Act]." EPE, 845 F.2d at

489-490 (quoting United Food and Commercial Workers Int'l Union

7

v. NLRB, 768 F.2d 1463, 1470 (D.C. Cir. 1985)). Looking beyond the

terminology to the principles at play here,

"[t]he real question in each of these `successorship' cases is,

on the particular facts, what are the legal obligations of the

new employer to the employees of the former owner or their

representative. The answer to this inquiry requires analysis

of the new employer and of the policies of the labor laws

. . . . There is, and can be, no single definition of `succes-

sor' which is applicable in every context."

NLRB v. General Wood Preserving Co., 905 F.2d 803, 819 (4th Cir.)

(quoting Howard Johnson Co. v. Hotel Employees , 417 U.S. 249, 262

n. 9 (1974)), cert. denied, 498 U.S. 1016 (1990). Whatever terms we

use -- whether we call Tyson a "successor," or a "new stockowner,"

or a "joint employer" -- substantial evidence and the policies of the

labor laws support the Board's finding here that Tyson came under a

duty to bargain with the Union when it purchased Holly Farms.

Although Tyson might also be obligated to adhere to the terms of any

existing CBA, see, e.g. Esmark, 887 F.2d at 751, we need not decide

that issue, as no CBA yet existed between the Union and Holly

Farms.

Although the Supreme Court has yet to decide the question, the

policies behind the labor laws compel the finding that a new stock-

owner acquires the duty to bargain with an existing union at the time

of a stock transfer. The policy underlying the National Labor Rela-

tions Act is to promote industrial peace. E.g. EPE, 845 F.2d at 489.

The successorship doctrine as expressed in Burns , supra, 406 U.S.

272, seeks to promote this policy "by forestalling the employee frus-

tration that could result if employees found themselves in substan-

tially the same job, but deprived of the representation of their union."

EPE, 845 F.2d at 489, citing Fall River, 482 U.S. at 38. From the per-

spective of the employees, a stock transfer is simply a shell game; as

we explained in EPE, supra:

[I]ndustrial peace may suffer if workers find themselves

working at the same job for the same corporation, but sud-

denly deprived of the benefits of a collective bargaining

8

agreement as the result of a stock transaction that, from the

workers' point of view, appears little more than an artifice.

Every change in corporate ownership cannot raise the

specter of disruption in the labor relations of the company

being bought or sold.

845 F.2d at 489. The Supreme Court has expounded further, in hold-

ing that an arbitration clause of a collective bargaining agreement

between a union and an employer binds a "successor employer" who

merges the first employing corporation into its own:

Employees, and the union which represents them, ordi-

narily do not take part in negotiations leading to a change

in corporate ownership. The negotiations will ordinarily not

concern the well-being of the employees, whose advantage

or disadvantage, potentially great, will inevitably be inci-

dental to the main considerations. The objectives of national

labor policy, reflected in established principles of federal

law, require that the rightful prerogative of owners indepen-

dently to rearrange their businesses and even eliminate

themselves as employers be balanced by some protection to

the employees from a sudden change in the employment

relationship. . . .

. . . While the principles of law governing ordinary contracts

would not bind to a contract an unconsenting successor to

a contracting party, a collective bargaining agreement is not

an ordinary contract. . . .

John Wiley & Sons v. Livingston, 376 U.S. 543, 549-50. Moreover,

"the usual corporate law rule is that the contracts of a corporation

remain in effect despite a sale of the corporation's stock." Esmark,

887 F.2d at 751; see also John Wiley, 376 U.S. at 550 n. 3.

In light of these labor policy concerns, the evidence amply supports

the Board's finding that as of July 18, 1989, the date that Tyson pur-

chased the Holly Farms' stock, Tyson came under a duty to bargain

with the Union previously formed by Holly Farms employees. For

9

two months after the purchase, Tyson made no significant changes in

Holly Farms' operations. Holly Farms -- under Tyson's ownership

-- continued to engage in the same business operations at the same

locations, selling the same products to the same customers, and it

retained all of its employees under the same supervision and the same

wages, hours, and working conditions. Those facts establish substan-

tial continuity between Holly Farms and Tyson. In view of that conti-

nuity, the employees would "understandably view their job situations

as essentially unaltered," and could reasonably be expected to con-

tinue their support for the Union. Fall River , 482 U.S. at 43; accord

General Wood Preserving Co., 905 F.2d at 819; Nephi Rubber Prods.

Corp. v. NLRB, 976 F.2d 1361, 1364-66 (10th Cir. 1992); cf. NLRB

v. Dent, 534 F.2d 844, 846 n.2 (9th Cir. 1976) (because the successor

had preserved the predecessor's wage rates for just two weeks follow-

ing a takeover, the successor could not thereafter alter those rates uni-

laterally).

Additionally, the employees at issue here were frustrated in their

attempts to negotiate with their employer by the fact that Tyson did

not negotiate with their Union. Holly Farms suspended serious negoti-

ations with the Union while Tyson was in the process of purchasing

Holly Farms' stock. The recently unionized employees remained in

identical jobs, yet were left in limbo, no employer having offered to

negotiate with their Union. Therefore, the Board reasonably found

that Tyson came under a duty to negotiate with the union as an

employer ("successor" or otherwise) in July 1989.1

C

Next we must determine whether Tyson violated its duty to bargain

with the Union when it unilaterally set certain terms and conditions

_________________________________________________________________

1 Other federal appellate courts have come to similar conclusions in the

stock purchase context. See, e.g., United Food & Commercial Workers

Int'l Union, 768 F.2d at 1474 (D.C. Cir.) (reversing, for lack of substan-

tial evidence, National Labor Relations Board decision that a new stoc-

kowner was not a "successor" employer, with duties to an existing

union); Miami Foundry Corp., 682 F.2d at 589 (6th Cir.) (holding new

stockowners and managers under a duty to bargain with pre-existing

union).

10

of employment for members of the drivers-yardmen unit. We con-

clude that the Board's finding that Tyson violated§ 8 of the Act was

supported by substantial evidence.

An employer's duty to bargain with its union encompasses the obli-

gation to bargain over the following mandatory subjects -- "wages,

hours, and other terms and conditions of employment." 29 U.S.C.

§ 158(d); see id. § 158(a)(5). That obligation includes a duty to bar-

gain about the "effects" on employees of a management decision that

is not itself subject to the bargaining obligation. See First Nat'l Main-

tenance Corp. v. NLRB, 452 U.S. 666, 679-82 (1981); NLRB v. Litton

Fin. Printing Div., 893 F.2d 1128, 1133-34 (9th Cir. 1990), rev'd in

part on other grounds, 501 U.S. 190 (1991). Where changes in

employee working conditions constitute such a bargainable effect, an

employer violates §§ 8(a)(5) and (1) of the Act by implementing

those changes without bargaining with the union. See Litton, 893 F.2d

at 1133-34. The employer also violates §§ 8(a)(5) and (1) if it negoti-

ates directly with its employees, rather than with their union represen-

tative, about such changes. See EPE, 845 F.2d at 491.

On September 12, 1989, the Company announced that the employ-

ees in the drivers-yardmen unit would be offered jobs as Tyson

employees under Tyson's working conditions. That announcement

plainly changed a wide range of matters -- including wages, hours,

work rules, work schedules, and work locations -- that go to the heart

of the bargaining obligation under § 8 of the Act. The Company

announced those changes in conjunction with its announcement of its

integration decision, merging Holly Farms' and Tyson's transporta-

tion departments. Thus, the Board concluded, the changes and the

offer to employees to work under those changes were"effects" of the

integration decision and were subject to the duty to bargain.

Following the announcements of September 12, the Company sent

letters to the employees offering them jobs as Tyson employees under

Tyson's working conditions, and it met with groups of employees to

discuss those working conditions. The Company did not give the

employees the option of remaining employed under their existing

working conditions. Forty-seven drivers who refused the offer

because it included Tyson's working conditions lost their jobs. Thus,

the Company bypassed the Union and negotiated directly with the

11

employees about their working conditions; and, as a result, forty-

seven members of the drivers-yardmen unit lost their jobs.

The Company and the Board have agreed that the decision to inte-

grate the two transportation departments was a management decision

that was not itself subject to the bargaining obligation. The Company

has argued that the establishment of new working conditions for the

Holly Farms employees was an integral part of that management deci-

sion. The Board has countered that the working conditions were "ef-

fects" of that decision, rather than intrinsic parts of the decision itself,

and therefore were subject to the duty to bargain.

The Supreme Court in First National Maintenance , supra, enun-

ciated a distinction between "economically-motivated" management

decisions, 452 U.S. at 680, and the "effects" of those decisions. Id. at

677 n.15, 682. In Litton, supra, the Ninth Circuit expounded upon that

distinction. On the one hand, there is the management decision itself,

including any subject that is "`inexorably'" intertwined with, or the

"inevitable consequence" of, that decision. 893 F.2d at 1133 n.3, 1134

(quoting First Nat'l Maintenance, 452 U.S. at 677). For example,

when a company decides to shut down a plant entirely, the resulting

layoff of the plant's workers may be an "inevitable consequence" of

the decision itself. On the other hand, there may be mere "effects,"

which are "not the inevitable consequence of the underlying manage-

ment decision." Id. at 1134 (emphasis added). Where a company had

feasible alternatives that it could have explored with the union, with-

out reconsidering its underlying management decision, those alterna-

tives are mandatory subjects of bargaining. The mere fact that the

alternatives may increase labor costs does not make them "infeasible."

See id. (citing First Nat'l Maintenance, 452 U.S. at 680).

Here, it was not inevitable for the Company to impose Tyson's pay

plan and working conditions upon Holly Farms' drivers. Generally,

Tyson's pay plan provided the truck drivers with lower pay per mile

but somewhat higher pay per delivery, or "drop," than Holly Farms'

pay plan. We are not convinced that the substitution of Tyson's pay

structure for Holly Farms' was an "inevitable consequence" of the

management decision to integrate the two transportation departments.

Furthermore, as Tyson concedes, it tried to accommodate the drivers'

individual preferences as to the duration and mileage of their hauls,

12

which tended to be much longer under Tyson's system than under

Holly Farms' -- a major point of contention between the Company

and the drivers. From those facts alone, it was reasonable for the

Board to infer that there was room for bargaining over the drivers'

working conditions, had Tyson been willing to bargain. Therefore, the

Board reasonably concluded that the changes unilaterally established

by Tyson concerned mandatory subjects of bargaining-- "effects" of

the nonbargainable decision to integrate Tyson's and Holly Farms'

transportation departments. Accordingly, we enforce the Board's

order to the extent that it found Tyson's refusal to bargain with the

Union to be a violation of the Act.

IV

The other significant question presented for review is whether any

of the employees in the live-haul bargaining unit fell outside the cov-

erage of the Act. The Company has argued that the unit was inappro-

priate because it contained "agricultural laborers," who are not subject

to the Act. Therefore, the Company has contended, the Board com-

mitted an error of law when it approved the bargaining unit.2

On review, our function is a "`limited'" one. Bayside Enters., Inc.

v. NLRB, 429 U.S. 298, 304 n.14 (1977) (quoting NLRB v. Hearst

Publications, Inc., 322 U.S. 111, 131 (1944)). The Board's determina-

tion that the employees in the live-haul bargaining unit were covered

by the Act "`is to be accepted if it has "warrant in the record" and a

reasonable basis in law.'" Bayside, 429 U.S. at 304 n.14 (quoting

Hearst Publications, 322 U.S. at 131). Regardless of how we, as a

federal court, might have resolved the question as an initial matter, we

must give appropriate weight to the judgment of the Board, whose

special duty is to apply the Act's broad statutory language to an

almost unlimited variety of fact patterns. See Bayside, 429 U.S. at

304; cf. NLRB v. United Ins. Co., 390 U.S. 254, 260 (1968); NLRB

v. Coca-Cola Bottling Co., 350 U.S. 264, 269 (1956); Universal Cam-

_________________________________________________________________

2 The Company also has contended that the Board compounded that

error when it issued a bargaining order in the live-haul unit pursuant to

NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), and when it recog-

nized unfair labor practices aimed at employees in that unit.

13

era Corp., 340 U.S. at 488; NLRB v. Pilot Freight Carriers, Inc., 558

F.2d 205, 207-08 (4th Cir. 1977), cert. denied , 434 U.S. 1011 (1978).

A

The live-haul unit, as approved by the Board, consisted of two

groups of North Carolina employees: the Wilkesboro facility's live-

haul crews; and the Roaring River facility's feed mill employees,

feed-haul drivers, and mechanics. The Company has conceded that

the Roaring River workers were statutory "employees" protected by

the Act. The Company's sole claim of error is that the live-haul work-

ers at the Wilkesboro facility -- i.e., the live-haul truck drivers, fork-

lift operators, and "chicken catchers" -- were agricultural laborers,

who fall outside the Act's coverage and therefore should not have

been included in the bargaining unit.

The Wilkesboro plant is a vertically integrated poultry operation.

In its hatchery operations, Holly Farms hatches pullets, or laying

hens. At twenty weeks of age, the pullets are transferred to "laying

houses" operated by independent "contract growers." The eggs pro-

duced by the pullets are transported back to the Holly Farms hatchery

operations, where they are hatched. The Company transports the

resulting chicks to independent contract growers who are paid to raise

the chicks into full-grown broiler chickens. When the birds are seven

weeks old, the live-haul crews catch, cage, and transport them to a

storage and cooling area near the processing plant, where they will be

slaughtered and prepared for market.

The employees in the live-haul unit serve as the Wilkesboro facili-

ty's chicken-catching crews. A crew consists of a live-haul truck

driver, a forklift operator, and about nine "chicken catchers."3 The

live-haul driver drives a flat-bed truck, which carries the entire crew

to the farms of the independent contract growers who raise the broiler

chickens. Under cover of darkness, the chicken catchers manually

catch and cage the chickens, the forklift operator places the steel

cages on the flat-bed truck, and the truck delivers the chickens to a

storage area near the Company's processing plant.

_________________________________________________________________

3 The entire bargaining unit consists of 27 live-haul drivers, 12 forklift

operators, and 118 chicken catchers.

14

B

The protections of the Act extend only to statutory"employees."

Section 9(a) of the Act provides that "[r]epresentatives designated or

selected for the purposes of collective bargaining by the majority of

the employees in a unit appropriate for such purposes, shall be the

exclusive representatives of all the employees in such unit." 29 U.S.C.

§ 159(a). A unit cannot be deemed appropriate unless it is comprised

of individuals who are "employees" within the meaning of the Act.

Section 2(3) of the Act defines the term "employee" to exclude

"any individual employed as an agricultural laborer." 29 U.S.C.

§ 152(3). Section 2(3)'s exemption for "agricultural laborer[s]" must

be narrowly construed, to favor the workers for whose protection the

Act was designed. See NLRB v. Cal-Maine Farms, Inc., 998 F.2d

1336, 1339 (5th Cir. 1993) (citing Wirtz v. Ti Ti Peat Humus Co., 373

F.2d 209, 212 (4th Cir.), cert. denied, 389 U.S. 834 (1967)).

The term "agricultural laborer" has the meaning specified in § 3(f)

of the Fair Labor Standards Act (FLSA), 29 U.S.C.§ 203(f). Bayside,

429 U.S. at 300 & n.6. That provision states that"agriculture" encom-

passes "farming in all its branches," including "the raising of . . . poul-

try, and any practices . . . performed by a farmer or on a farm as an

incident to or in conjunction with such farming operations, including

preparation for market, delivery to storage or to market or to carriers

for transportation to market." 29 U.S.C. § 203(f); see Bayside, 429

U.S. at 300.

Under that provision, agriculture is defined "in both a primary and

a secondary sense." Bayside, 429 U.S. at 300. The primary meaning

encompasses "farming in all its branches," including the raising of

poultry. Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S.

755, 762 (1949); accord Bayside, 429 U.S. at 300 n.7. The secondary

meaning encompasses a wider range of practices, so long as they are

linked in specific ways to primary agriculture. See Bayside, 429 U.S.

at 300 n.7, 301; Farmers Reservoir, 337 U.S. at 762-63. Thus, the

secondary meaning "includes any practices, whether or not them-

selves farming practices, which are performed either by a farmer or

on a farm, incidentally to or in conjunction with" primary farming

15

operations. Farmers Reservoir, 337 U.S. at 763; accord Bayside, 429

U.S. at 300 n.7.

Under the express language of the FLSA, an employer that raises

poultry on its own farm is engaged in primary agriculture. See 29

U.S.C. § 203(f). However, "`when an employer contracts with inde-

pendent growers for the care and feeding of the employer's chicks,

the employer's status as a farmer engaged in raising poultry ends with

respect to those chicks.'" Bayside, 429 U.S. at 302 n.9 (quoting Imco

Poultry, 202 N.L.R.B. 259, 260 (1973)).

C

The Company has conceded that the employees in the live-haul

unit are not engaged in primary agriculture. Rather, the Company has

claimed that the employees' work amounts to secondary agriculture.

The Board rejected that claim.

In reviewing the Board's decision, we must distinguish between

chicken catchers and forklift operators, on the one hand, and live-haul

drivers, on the other hand. The Company's strongest argument con-

cerns the former employees, who, the Board concedes, work "on a

farm," within the meaning of the statute. 29 U.S.C. § 203(f). There-

fore, with regard to the chicken catchers and forklift operators, we

must determine whether the activities of catching, caging, and loading

live chickens onto a truck for delivery are clearly performed as an

incident to or in conjunction with the primary farming operation of

raising poultry.

The Company has argued that the chicken catchers and forklift

operators' work is closely linked to the independent contract growers'

primary agricultural activity of raising poultry. By the Company's

account, because the chicken catchers and forklift operators perform

"on a farm," and because they perform work that is incidental to the

independent grower's farming activities on that farm, they must be

deemed "agricultural laborers."

The NLRB has countered that the chicken catchers and forklift

operators are not engaged in secondary agriculture because, by the

16

time they perform their work on the broiler chickens, their employer

-- Holly Farms -- is no longer engaged in primary agriculture with

respect to those chickens. Long before the chicken catchers catch and

cage the birds, the Company has turned the broiler chicks over to

independent contract growers and the Company's status as a farmer

engaged in raising poultry (a primary agricultural activity) has ended

with respect to those chicks. See Bayside, 429 U.S. at 302 n.9; Imco

Poultry, 202 N.L.R.B. at 260. Thus, the Board has reasoned, the

employees' activities are neither incidental to nor in conjunction with

Holly Farms' primary agricultural practices and, therefore, the

employees' work cannot amount to secondary agriculture.

The case at bar is not one of first impression. The Board's position

here is perfectly consistent with those it has taken in similar cases.

See, e.g., Draper Valley Farms, Inc., 307 N.L.R.B. 1440 (1992)

(rejecting a poultry company's contention that its"chicken catchers"

were engaged in primary or secondary agricultural activity, and stat-

ing that, "[w]hen employers have claimed that employees are agricul-

tural laborers because they are engaged in activity incidental to or in

connection with farming operations (the secondary definition of agri-

culture), the courts have generally rejected the claimed agricultural

status when the employees in question were handling or working on

agricultural products raised on farms other than their own em-

ployer's"); see also Seaboard Farms of Kentucky, Inc., 311 N.L.R.B.

No. 159 (1993) (requiring a poultry company to bargain with a unit

that included the company's "chicken catchers, . . . , live haul drivers,

[and] forklift operators").

Furthermore, other federal appellate decisions, squarely on point,

have held that employees in chicken-catching crews were statutory

"employees," not "agricultural laborers." See NLRB v. Hudson Farms,

Inc., 681 F.2d 1105, 1106 (8th Cir. 1982) (per curiam), cert. denied,

459 U.S. 1069 (1982) (holding that "truck drivers and yard workers

[who] transport [an integrated poultry producer's] poultry between

independent contract growers, which raise the chickens to market

weight, and the company's processing plant" were"employees,"

rather than "agricultural laborers," under the Act); Valmac Indus. v.

NLRB, 599 F.2d 246, 247, 249 (8th Cir. 1979) (holding that, because

a company's "live chicken haulers and chicken catchers" "transported

products away from the farm, their work was neither `primary' nor

17

`secondary' farming," and that they therefore were "employees"

within the meaning of the Act (emphasis added)). 4 We affirm the

Board's conclusion that none of the employees in the live-haul bar-

gaining unit were agricultural laborers, because that conclusion is

based on a reasonable interpretation of the Act and is consistent both

with the Board's prior decisions and with federal appellate case law.

V

We have considered the remaining arguments in the Company's

petition for review and find them meritless. Accordingly, the Compa-

ny's petition for review is denied, and the order of the Board is

ENFORCED.

NIEMEYER, Circuit Judge, concurring in part and dissenting in part:

The National Labor Relations Board (the Board) found that Holly

Farms Corporation violated sections 8(a)(1) and 8(a)(3) of the

National Labor Relations Act (NLRA) in connection with a represen-

tation election in the spring and summer of 1989. It also found that

after Tyson Foods, Incorporated, acquired all the stock of Holly

Farms, both Tyson Foods and Holly Farms violated sections 8(a)(1),

8(a)(3), and 8(a)(5) in connection with Tyson's disbanding Holly

Farms' transportation operations and integrating Holly Farms' truck

drivers into Tyson's existing transportation operations. Generally, I

agree with the majority's opinion that the findings of fact by the

Administrative Law Judge (ALJ), as affirmed by the Board, are sup-

ported by substantial evidence and, therefore, I agree that these fac-

tual findings should be affirmed under the appropriate standard of

review. See 29 U.S.C. § 160(e).

_________________________________________________________________

4 We decline to follow the case cited by the dissent, Coleman v.

Sanderson Farms, Inc., 629 F.2d 1077 (5th Cir. Unit A 1980). The Fifth

Circuit's decision that "loader operators and live haul drivers" for a poul-

try company were "employees employed in agriculture," and thereby

exempt from FLSA's overtime provisions, id. at 1078, fails to give proper

weight to the judgment of the Board, see Bayside, 429 U.S. at 304.

18

While I do not take issue with the purely factual findings, I never-

theless believe that the Board erred in two significant respects in

applying the law. First, I believe that the Board erred as a matter of

law when it concluded that chicken catchers, fork lift operators, and

live-haul drivers were properly included in the bargaining unit.

Instead, I would find that these individuals were agricultural employ-

ees excluded from coverage by the NLRA. Second, on an issue that

has far greater ramifications for our labor law jurisprudence than this

first narrow dispute over definitions, the majority opinion signifi-

cantly misconstrues the law of successorship liability when it refuses

to recognize the existence of two separate corporate entities for the

two months after the stock purchase by Tyson. I submit that Tyson

was not liable as a successor employer when it purchased 100% of the

stock of Holly Farms Corporation on July 18, 1989, because Holly

Farms Corporation continued as a separate entity and remained as a

continuing employer for two months, with no change in its relation-

ship with its employees. Tyson did succeed Holly Farms in Septem-

ber 1989 when it merged Holly Farms' operation into its own, and

thus became a substitute employer of Holly Farms' former employ-

ees. However, even then, Tyson did not incur successor liability under

the NLRA, because the restructuring, undertaken for independent and

valid economic reasons, was so substantial that an appropriate bar-

gaining unit did not survive. On these two matters, I would grant the

employer's petition for review and deny enforcement of the order to

the extent it depends on these erroneous conclusions by the Board. In

all other respects, I concur in the majority opinion.

I

Holly Farms Corporation was an integrated poultry business,

engaged in raising, processing, and distributing poultry products. As

part of its operations, it hatched chickens and placed them with con-

tract farmers to raise them until the chickens were"harvested" by

Holly Farms employees. Holly Farms employed 118 chicken catchers,

12 fork lift operators, and 27 live-haul drivers who, as a group, were

responsible for driving to the farms, catching chickens, loading them,

and transporting them back to the plants for processing. As found by

the ALJ, the chicken catchers went

to the farms where the chickens were raised where, under

cover of darkness, [they] would continuously catch chickens

19

with their hands and cage them during shifts of indetermi-

nate duration, which continued until the task was completed.

The fork lift operators worked on the farms with the chicken catch-

ers and were responsible for placing steel cages loaded with chickens

onto live-haul trucks. The live-haul drivers drove the crew from the

plant to the farms and, after the chickens were caught and the cages

were loaded, transported the chickens back to the plant for processing.

Occasionally, live-haul drivers assisted the chicken catchers in the

"harvesting." All of these employees, I submit, were agricultural

employees, as defined by the NLRA, and therefore were excluded

from the Act's coverage.

The NLRA excludes from its definition of "employee" any individ-

ual employed as an "agricultural laborer." 29 U.S.C. § 152(3). Thus,

agricultural laborers are not protected by section 8(a)(1), 8(a)(3), or

8(a)(5) of the NLRA. The definition of an agricultural laborer is to be

derived from § 3(f) of the Fair Labor Standards Act. See Bayside

Enterprises, Inc. v. NLRB, 429 U.S. 298, 300 n.6 (1977). The Fair

Labor Standards Act defines "agriculture," in pertinent part, to

include:

farming in all its branches and among other things .. . the

raising of livestock . . . or poultry, and any practices . . . per-

formed . . . on a farm as an incident to or in conjunction

with such farming operations, including preparation for mar-

ket, delivery to storage or to market or to carriers for trans-

portation to market.

29 U.S.C. § 203(f).

In this case, the work of chicken catchers and fork lift operators

was performed "on a farm as incident to or in conjunction with such

farming operations" and therefore clearly qualifies these individuals

as "agricultural laborers." Moreover, all these chicken catchers, fork

lift operators, and live-haul drivers were involved in "preparation for

market" and "delivery to storage or to market." Because they were

engaged as agricultural laborers, these employees are not covered by

the National Labor Relations Act. See Coleman v. Sanderson Farms,

Inc., 629 F.2d 1077, 1081 (5th Cir. 1980). But see, at least as to live-

20

haul drivers, NLRB v. Hudson Farms, Inc., 681 F.2d 1105 (8th Cir.),

cert. denied, 459 U.S. 1069 (1982).

II

With respect to the second error of law committed by the Board,

the facts were stipulated by the parties. Tyson acquired 100% of the

stock of Holly Farms on July 18, 1989, but Holly Farms nevertheless

continued in business for two months without change, under the same

management and with the same employees. The two corporations

remained separate corporations, and the only change Holly Farms

experienced was in stock ownership. These facts were recognized by

the Board. It stated, "[F]or 2 months following the purchase nothing

changed for the former Holly Farms employees, all of whom were

retained on the payroll under their existing wages, hours, and terms

and conditions of employment." (Emphasis added.) Thus, from the

employees' point of view, they still worked for Holly Farms under the

same conditions that existed before the stock purchase.

Necessarily following from these acknowledged facts is the fact

that Holly Farms alone retained the obligation to bargain with the

union, and it did so. Correspondingly, Tyson, as the sole stockholder

of Holly Farms, which at the time had implemented no changes in

Holly Farms' operations, had no obligation to bargain. It was a sepa-

rate corporation and therefore had not succeeded to any obligation of

Holly Farms to bargain simply by buying Holly Farms' stock. As was

stated by the Seventh Circuit in Esmark, Inc. v. NLRB, 887 F.2d 739

(1989):

The successorship doctrine is simply inapplicable to a stock

sale transaction. In the successor context, the question is

whether two different corporate entities, one succeeding to

the other's business, are bound in like measure by a contract

executed by only one of them; however "the stock transfer

involves no break or hiatus between two legal entities, but

is, rather, the continuing existence of a legal entity, albeit

under new ownership." The successorship doctrine is there-

fore of no relevance to the present case, which involves a

transfer of stock ownership in the employing corporation

from one party to another.

21

Id. at 751 (footnote omitted). This statement from Esmark is simply

a restatement of the successorship doctrine established by the

Supreme Court in NLRB v. Burns International Security Services, 406

U.S. 272 (1972). In Burns, the Court concluded that a corporation that

succeeded another corporation as the employer of a specific work

force may have the obligation to bargain with the union certified

when the employees were employed by the previous corporation. The

obligation arises for the successor corporation"when it select[s] as its

work force the employees of the previous employer to perform the

same tasks at the same place they had worked in the past." Id. at 278

(emphasis added). There must be a change of employer so that one

supplants the other. Obviously, if the previous corporation continues

in its existing form as the employer, no succession occurs. Conse-

quently, when Tyson became stockholder, but not employer, and

Holly Farms continued as employer, Tyson would have no obligation

to bargain because it had not yet succeeded Holly Farms. The Board

has in the past subscribed to these statements of the law. For example,

in Hendricks-Miller Typographic Co., 240 N.L.R.B. 1082, 1083 n.4

(1979), the Board stated:

The concept of "successorship" as considered by the

United States Supreme Court in N.L.R.B. v. Burns Inter-

national Security Services, Inc., et al., 406 U.S. 272 (1972),

and its progeny, contemplates the substitution of one

employer for another, where the predecessor employer

either terminates its existence or otherwise ceases to have

any relationship to the ongoing operations of the successor

employer.

(Emphasis added).*

_________________________________________________________________

*The majority opinion has glossed over factual and legal distinctions

between (1) the situation where a corporation continues in business, after

its stock changes hands, without any change in its relationship with

employees, and (2) the situation where a corporation moves through cor-

porate and factual changes so that in effect a new employer substitutes

for that of the former and exercises the "employer's authority" of the for-

mer. In the first situation, the employing corporation continues to have

an obligation to bargain with its employees, notwithstanding the change

in stock ownership which is irrelevant, and the stockholder does not

22

Under the stipulated facts here, the truck drivers in Holly Farms'

transportation operations remained employed with Holly Farms for

two months after Tyson's stock purchase. Their responsibilities and

conditions of employment remained unchanged for those two months.

When two separate corporate entities continue in separate form, as

they did here, we must conclude that there was no succession for pur-

poses of the successorship doctrine. See Esmark , 887 F.2d at 751.

In EPE, Inc. v. NLRB, 845 F.2d 483 (4th Cir. 1988), we examined

a case strikingly similar to this in which one company, Echlin, pur-

chased 100% of the stock of EPE, Inc. Other than the change of own-

ership from the stock sale, however, there were no changes in the

organization or operations of EPE's Fredericksburg plant. In that

case, we declined to find successorship and held that EPE was a "con-

tinuing employer" still liable under its collective bargaining agree-

ment. We emphasized that:

There was no termination of operations or employees at the

Fredericksburg plant. . . . Simply put, the Fredericksburg

workers both went to work on the morning of Tuesday,

October 22, and returned home later that afternoon as EPE

employees. During that same time there occurred not a sub-

stitution of one employer for another, but a change in the

ownership of a continuing employer.

***

_________________________________________________________________

become a substitute employer. In the second situation, successor liability

imposes a duty to bargain on the successor employer. The majority col-

lapses this distinction into an inquiry into a nebulous subscription to

labor policy, stating:

Whatever terms we use--whether we call Tyson a"successor,"

or a "new stockowner," or a "joint employer"--substantial evi-

dence and the policies of the labor laws support the Board's find-

ing here that Tyson came under a duty to bargain with the Union

when it purchased Holly Farms.

Slip op. at 8. Such an approach is clearly foreclosed by Burns, Esmark,

and Hendricks-Miller.

23

EPE was a continuing employer. Operations at the plant

were essentially unaffected by the stock transfer.

Id. at 488. We held that EPE was a "continuing employer" after the

stock sale and that there was no successor employer of the Fredericks-

burg workers after the sale.

The situation at Holly Farms for the two months after the July 18

stock sale was no different from that at EPE after it sold its stock.

There was no succession of Tyson as a new employer; rather, there

was only "a change in the ownership of a continuing employer." Id.

While I acknowledge that our holding in EPE"is a narrow one," I fail

to see any fact that distinguishes the employment relationships at

Holly Farms for the two months after July 18 from the situation we

examined in EPE.

The majority opinion concludes, erroneously I believe, that when

Tyson purchased the stock of Holly Farms on July 18, it became a

successor to Holly Farms because Holly Farms continued as a corpo-

rate entity without any significant changes in its operations. Indeed,

the majority acknowledges:

For two months after the purchase, Tyson made no signifi-

cant changes in Holly Farms' operations. Holly Farms--

under Tyson's ownership--continued to engage in the same

business operations at the same locations, selling the same

products to the same customers, and it retained all of its

employees under the same supervision and the same wages,

hours, and working conditions.

Those facts establish substantial continuity between Holly

Farms and Tyson.

Slip op. at 9-10. The problem with the majority's opinion is that it

failed to recognize that the termination of the previous employment

relationship must be established and that a determination of this

requirement should "precede[ ] the inquiry into the `substantial conti-

nuity' that must be shown for a new employer to be found a succes-

sor." EPE, 845 F.2d at 489. I agree with the factual observations

24

made by the majority opinion, but its conclusion that these facts give

rise to successor liability is simply a misinterpretation of the law. For

the two months during which Holly Farms' operations continued

unchanged, but with a different stockholder, both Tyson Foods, Inc.

and Holly Farms Corporation remained separate corporations, and

Tyson's ownership was simply a stock ownership position. By contin-

uing in existence, Holly Farms retained its obligations to negotiate

and bargain with exclusive representatives of the unit duly elected.

Holly Farms also retained its obligations to adhere to the specific

terms of the collective bargaining agreement already in place with its

employees. In sum, the employees' relationship with Holly Farms

remained the same, and in those circumstances it is well-established

that the successor liability doctrine does not apply. See Esmark, 887

F.2d at 751; Hendricks-Miller, 240 N.L.R.B. at 1083 n.4.

Without any obligation to bargain during the two months following

its acquisition of Holly Farms' stock, Tyson could not have violated

the labor laws for refusing to bargain. The Board's order imposing

such a duty thus constitutes error.

In mid-September 1989, Tyson determined, for sound business rea-

sons, to end Holly Farms' transportation operations. While the Board

acknowledged that the decision was a legitimate business decision, I

note further that Tyson's decision was economically compelling.

Before Tyson's acquisition of Holly Farms' stock, Holly Farms trans-

ported its poultry products to its customers through its own transpor-

tation operation. It often dispatched drivers and trucks to customers

with no load available for the return trip because the customer net-

work was not so vast as to supply that need. While Holly Farms made

an express effort to lower its transportation costs by securing addi-

tional back-haul business, its efforts were largely unsuccessful.

Indeed, the evidence shows that 50% of Holly Farms return miles

were "dead head," where the trucks returned empty, resulting in an

estimated annual loss to Holly Farms of approximately $5 to $6

million.

In contrast, Tyson's transportation operations were organized sub-

stantially differently, and they were profitable. Tyson hauled only

35% of its products through its own transportation system, making

only those deliveries where back-haul business would routinely be

25

available. Because it delivered only 35% of its products through its

own operations, the remaining transportation needs were filled

through common carriers. Thus, in contrast to Holly Farms' 50%

ratio, Tyson's dead-head ratio was in the range of 7-1/2% to 12%.

In order to eliminate the large losses resulting from Holly Farms'

transportation operations, Tyson decided to disband Holly Farms'

operations and restructure its own to serve the combined customer

base in the manner that Tyson had profitably established for its own

customers. Tyson implemented this decision on September 22, 1989,

at which time Holly Farms' drivers were terminated, but with an offer

to work in Tyson's operation, subject to Tyson's more efficient meth-

ods.

When Tyson disbanded Holly Farms' transportation operations and

merged those drivers into its own fleet, Tyson became a substitute

employer. At that time, the successorship principles of Burns might

have required Tyson to bargain with the union if Tyson had continued

with the same employees under a similar structure. But Tyson would

only have a duty to recognize a preexisting bargaining unit if Tyson's

structure and practices mirrored those of Holly Farms. See Burns, 406

U.S. at 280. In such circumstances, Tyson would be required to bar-

gain with the union, but Tyson would not be required to accept the

terms and agreements of Holly Farms' collective bargaining agree-

ment with the union because "a successor employer is ordinarily free

to set initial terms on which it will hire the employees of a predeces-

sor." Burns, 406 U.S. at 294.

In this case, when Tyson terminated the Holly Farms transportation

operation and hired its truck drivers, the new operational structure and

practices differed substantially from those of Holly Farms. Thus, the

inherited bargaining unit was no longer an appropriate one. Moreover,

the drivers assimilated from Holly Farms only constituted a portion

of Tyson's long-haul trucker group. In those circumstances, the Holly

Farms bargaining unit did not remain intact and would not be the

appropriate unit with which Tyson was required to bargain.

Deriving unfair labor practices from these circumstances would

imply that Tyson, as an acquiring and thereafter successor corpora-

tion, must carry the burden of an inefficient structure and inap-

26

propriate bargaining unit previously established by Holly Farms. The

jurisprudence of Burns, and the circuit court decisions interpreting it,

do not require this result. See, e.g. , NLRB v. Security-Columbian

Banknote Co., 541 F.2d 135, 139-40 (3d Cir. 1976). Therefore, I

would deny enforcement of the Board's order as it relates to Tyson's

conduct in acquiring and restructuring Holly Farms.

For these reasons, I dissent.

27