Opposition Brief — Holly Farms Corp. v. NLRB

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

HOLLY FARMS CORPORATION;

TYSON FOODS, INCORPORATED,

Petitioners,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent,

CHAUFFEURS, TEAMSTERS AND HELPERS,

et al.,

Intervenors.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

INTERVENORS’ BRIEF IN OPPOSITION

J. David James

Smith Follin & James, L.L.P.

P.O. Box 990

Greensboro, NC 27402

(910) 274-2992

Counsel for Intervenors/

Respondent

QUESTIONS PRESENTED

1. Did the Petitioner Tyson Foods become legally

obligated to bargain with the unions representing the

employees of Petitioner Holly Farms following its purchase

of the stock of Holly Farms on July 18, 1989?

2. Did the NLRB and the Fourth Circuit Court of

Appeals properly require Petitioners to negotiate over the

effects of their decision to transfer the driver/yardmen

employees to Petitioner Tyson Foods?

3. Was the NLRB’s remedy of reinstatement and

back pay proper for employees who were unlawfully

discharged?

4. Did the NLRB properly exercise its expertise in

determining, under the facts in this case, that live haul

drivers, forklift drivers and chicken catchers are not

agricultural employees?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............-50000 i

TABLE OF CONTENTS ...........50+eee00s ii

TABLE OF AUTHORITIES ............-+06. iv

STATEMENT OF THE CASE AND FACTS....... |

A. The Driver/Yardmen Unit............... |

B. The Live-Haul Unit.................. 12

REASONS WHY THE PETITION SHOULD

Ps «bb he Caen OLED OS Ro oes 14

I. THE NLRB AND THE FOURTH CIRCUIT

CORRECTLY FOUND THAT TYSON FOODS

BECAME A "SUCCESSOR" EMPLOYER. .... 17

A. Neither the Fourth Circuit Nor the NLRB Decision

Raises the First Question Presented in the

B. The Fourth Circuit’s Decision Does Not Conflict

With the Decisions of Other Circuits....... 19

C. The Fourth Circuit and NLRB Decision on This

a re 26

II. THE NLRB AND THE FOURTH CIRCUIT

PROPERLY REQUIRED THE PETITIONER TO

BARGAIN OVER THE EFFECTS OF THEIR

DECISION TO TRANSFER THE DRIVERS TO

TYSON FOODS. ... ccc cc vcccccscvcee 29

Ill. REINSTATEMENT WITH BACK PAY WAS

THE PROPER REMEDY FOR EMPLOYEES

DISCHARGED IN VIOLATION OF THE NLRA . 32

IV. THE NLRB PROPERLY EXERCISED ITS

EXPERTISE IN DETERMINING THAT LIVE-

HAUL DRIVERS, FORKLIFT DRIVERS AND

CHICKEN CATCHERS ARE NOT AGRICUL-

Des PUES oc ccc ccc ccecsceccs 33

A. The Fourth Circuit Correctly Deferred to the

NLRB’s Decision on This Issue.......... 33

B. There is No Conflict Between the Circuits

thd dew eaeeéade'céee et 35

Se 37

eee

TABLE OF AUTHORITIES

Page

CASES

Bayside Enterprises, Inc, v. NLRB, 429 U.S. 298

, SSAA rr ry re 16, 34, 35, 36, 37

Coleman vy. Sanderson Farms, Inc., 629 F.2d 1077

lo i FP PPerrrrrrrire ce 36, 37

EPE, Inc, v. NLRB, 845 F.2d 483

rc S —n rar 20, 21, 23, 26

Fall River Dyei ‘Finishing C NLRB.

Ge 0600640400 6 emskase oo 23

First National Maintenance Corp, v. NLRB,

GS UB. GEO CISED co ccc ccccccccececse 15, 30, 31

G iT Union No. 249 y. Bill’

Trucking, Inc., 493 F.2d 956 (3d Cir. 1974)....... 22

H ‘Jol C Detroit Local Joi

Executive Board, 417 U.S. 249 (1974)... ....... 18

NLRB vB —_—

Services, 406 U.S. 272 (1972)... 2. ee ee es 17, 18

NLRB vy. Cal-Main Farms, Inc., 998 F.2d 1336

Sh Ve oc ccendecdcesadenenuneesss 35

NLRB y. Edijo, Inc., 631 F.2d 604 (9th Cir.

1980), enforcing 238 NLRB No. 207 (1978). ...... 27

NLRB vy, Food Store Employees Local 347, 417 U.S.

SEED Scccedécbesemstecaeubéentekes 32

NLRB vy. Hudson Farms, Inc., 681 F.2d 1105

(8th Cir. 1982) cert. denied, 459 U.S. 1069 (1982)... 35

NLRB vy. Litton Fin, Printing Division, 893 F.2d 1128

(9th Cir. 1990), rev'd in part on other grounds,

RE PTT TET TUTTE 30

., 471 F.2d 20

SS SCE Sd ES So de cbc bw Ue Wocees 36

NLRB vy. Winco Petroleum, 668 F.2d 973

Ae a re 27

Valmac Industries v. NLRB, 599 F.2d 246

ee 36

Virginia Elec, & P. Co, v. NLRB, 319 U.S. 533

REE TTP CTerTTrrTieee 33

Wirtz vy. Ti Ti Peat Humus Company, Inc., 373 F.2d

209 (4th Cir.) cert. denied, 389 U.S. 834 (1967)... . 35

STATUTES

SP Dn Sek doaeteceectoosecese 32

STATEMENT OF THE CASE AND FACTS

The NLRB found that the Petitioners had

committed dozens of unfair labor practices. Petitioners

did not appeal most of those findings to the Fourth Circuit

and raise even fewer in their Petition for Writ of

Certiorari. This Statement of Facts discusses only those

facts important to the issues raised by Petitioners.

A. The Driver/Yardmen Unit.

On March 27, 1989' the NLRB certified the

Intervenors as the exclusive bargaining representative for the

employees in the driver/yardmen unit. Shortly thereafter,

the Intervenors and Holly Farms began negotiations for a

collective bargaining agreement. The parties met numerous

times during the late spring and early summer and had

scheduled negotiations for July 10 through 12. Just prior to

July 10, Jesse Hogg, the chief negotiator for Holly Farms,

‘All dates are 1989 unless otherwise noted.

l

called the Intervenors’ chief negotiator and advised that

Holly Farms was being purchased by Tyson Foods, Inc.

(hereinafter "Tyson") and suggested the negotiating sessions

be postponed because he did not know whether he would be

retained as the chief negotiator following the purchase by

Tyson and did not know what position would be taken at the

bargaining table following the purchase by Tyson.

The parties stipulated that on July 18 Tyson

purchased all of the stock of Holly Farms and thereafter

engaged in the same business operations at the same

locations having the same product and substantially the same

customers and had, as a majority of its employees,

individuals who were previously employees of Holly Farms.

However, the management employees who had previously

supervised the drivers in the driver/yardmen unit

immediately became Tyson supervisors, wearing Tyson

uniforms and carrying out Tyson orders.

The negotiations resumed on August 8, 9 and 10 (A-

602-608) and at that time, Hogg continued as chief

negotiator for the employer. He advised the Intervenors that

Holly Farms was now fully owned by Tyson and that Tyson

had full control over the operation of Holly Farms, including

labor relations. At those renewed negotiations, the

individuals who had formerly been negotiating on behalf of

Holly Farms had now become part of the Tyson management

team and, in addition, individuals who were Tyson

employees and who had not been present at the earlier

negotiations, were now present and participating.

While the employees continued to receive their pay

by way of Holly Farms checks, it was readily apparent to the

employees in the driver/yardmen unii that they were being

supervised and their destinies controlled by Tyson.

At the August 8 negotiating session, Hogg stated that

the Company had decided to make certain changes which

would affect certain employees in the driver/yardmen unit.

3

The Intervenors objected to, and sought a chance to bargain

about, those unilateral changes. Hogg also announced that

Tyson was withdrawing the 4% pay increase that Holly

Farms had proposed in the June 22 negotiating session.

At the negotiating session on September 12, (A-618-

628) Hogg opened the meeting by stating that he was not

there to negotiate but to make an announcement. He said

Tyson was going to integrate the drivers into Tyson's

Transportation Division and that they would become Tyson

employees and be paid under the Tyson pay scale. The

Intervenors objected, asked questions and requested

information from the Petitioners. The Petitioners told the

Intervenors that they did not intend to integrate any other

division of Holly Farms employees into Tyson. When the

Intervenors asked what the Petitioners intended to do with

respect to the yardmen in the driver/yardmen unit, Hogg

stated they would do whatever was feasible in placing those

employees.

On the day following the September 12 meeting,

Petitioners met with the driver employees and told them of

the proposed merger of the Transportation Division. During

the course of one of those meetings, an employee asked

about the status of the Union, and supervisor Howard Baird

stated: "There is no more Union."

While the Petitioners continue to maintain that these

changes were necessary because the Holly Farms driver/

yardmen operation was operating with an annual loss of $5

to $6 million, that figure is simply incorrect. That loss

figure comes from Respondents’ Exhibit 14, which is a

recalculation of the Holly Farms driver/yardmen unit

Operating expenses. The first column of that exhibit shows

the total revenue to Holly Farms based upon a mileage rate

of $1.28 per mile. There was no actual revenue to this unit

since these were all intercompany transactions. However,

using a figure of $1.28 per mile was reasonable because that

was comparable to what Holly Farms was having to pay to

5

have outside carriers haul their product. One of the former

Holly Farms supervisors, David Hayes, testified that by the

summer of 1989, Holly Farms had reduced its cost per mile

for the Company trucks to $1.20 to $1.21 per mile and that

at this figure, he felt they were competitive with outside

carriers. Mr. Hayes stated that any difference which the

Company would have saved by using outside carriers was

well worth paying in order to have the better service

rendered by having Holly Farms’ own employees deliver the

product. Thus a comparison of that $1.28 per mile figure

with the actual expense figure shows that Holly Farms was

not losing money as claimed by the Petitioners. However,

instead of using a revenue figure based upon what an outside

carrier would charge or what the actual expenses were to

Holly Farms, the Tyson officials changed the Holly Farms

revenue figures to a per-mile charge of $1.005 per mile.

This is shown in the third column of Respondents’ Exhibit

14. Petitioners gave no explanation as to how they arrived

6

at that $1.005 per mile figure. However, by claiming

revenue at the artificially low $1.005 per mile rate, and

comparing that figure to actual expenses, Petitioners claimed

that Holly Farms was suffering a $480,000 per month loss

— some $5 to $6 million per year. Of course, had

Petitioners used as a revenue rate the rates at which outside

carriers would haul this freight — $1.30 to $1.40 per mile

— then Holly Farms would show a profit rather than a loss.

The Petitioners also claimed that the integration was

necessary because Holly Farms was driving a large number

of empty (deadhead) miles and that this adversely affected

their profitability. Again, Petitioners’ own exhibits showed

that the deadhead miles driven by Holly Farms were less

than 21% of all miles driven and that Tyson’s own deadhead

miles averaged 10% and had been, in the late 1980's, as

high as 12%. Thus Holly Farms’ deadhead miles were only

9% to 10% greater than were Tyson Foods’ deadhead miles.

While there would be some savings if the Holly Farms

7

deadhead miles could be reduced to the Tyson levels, this

would not result in anywhere near the large amount of

savings Petitioners claimed would result from the transfer of

drivers from Holly Farms to Tyson.

The Petitioners also claimed that following September

22, the driver/yardmen unit was fully merged and integrated

into the Tyson operation. The Board disagreed and found

that the driver/yardmen unit remained a separate appropriate

unit. (A-127-131) That decision was affirmed by the Fourth

Circuit. At the time of the ALJ’s hearing, there was

virtually no interaction between the former Holly Farms

drivers and drivers who worked for Tyson prior to

September 22. Since September 12, there have been no

transfers between Tyson’s divisions and the former Holly

Farms unit and the former Holly Farms drivers virtually

never even see any of the Tyson drivers on the road. The

former Holly Farms drivers are under separate supervision

from the remaining Tyson drivers and are paid on Holly

Farms checks; receive the same benefits as other Holly

Farms drivers, benefits which were greater than those paid

to Tyson drivers; former Holly Farms drivers were generally

paid more than Tyson drivers; and all records for the former

Holly Farms drivers are kept in Wilkesboro, whereas the

records for other Tyson drivers were kept in Arkansas.

Moreover, until at least January 1990, the trucks driven by

these former Holly Farms drivers were operated under Holly

Farms’ ICC operating authority.

Many of the other changes which Petitioners claimed

they made in the alleged integration were purely cosmetic

and demonstrate that the former Holly Farms drivers still

work in much the same way in the same separate unit as

they did before the claimed “integration". Thus, for

example, Petitioners claim that they changed the Holly

Farms system to a fleet manager concept for dispatching

drivers. However, testimony showed that the fleet managers

are primarily responsible for the assignment of freight loads

9

to particular drivers, that the fleet managers are assigned to

work at their respective terminals and report to an operations

manager, and that below the fleet manager are two dispatch

coordinators for every 50 to 60 trucks. Thus the fleet

managers under the Tyson system are virtually identical to

the dispatchers under the Holly Farms system, and those

fleet managers not only do the same work as previously done

by dispatchers, but were themselves previously dispatchers

for Holly Farms. Likewise, other positions formerly at

Holly Farms remained the same under Tyson, except for a

change in title.

Other evidence also showed that the former Holly

Farms drivers maintained a separate identity from the Tyson

drivers. The Holly Farms drivers work out of a previously

existing Holly Farms facility in Wilkesboro, North Carolina,

though they are still allowed to park their vehicles at the

terminals at which they worked and continue to have the first

leg of their trip begin at the terminal near their home. The

10

former Holly Farms drivers continue to take their original

loads from the same plants as they had prior to September

22, drive the same routes they had for Holly Farms, and

ultimately return to those plants and park their vehicles just

as they had done prior to September 22. The Tyson drivers

do not keep their vehicles at those locations, do not begin

their trips at those locations, and do not return to those

locations. Based upon these facts, as well as others, the ALJ

and the Board found that the Holly Farms driver/yardmen

unit remained identifiable and separate from the remainder

of the Tyson drivers and was an appropriate unit for

negotiating purposes. (A-722-738, A-127-131)

Following the September 12 meeting, Intervenors sent

several letters to Petitioners in an attempt to meet and

bargain and to secure relevant information. The Petitioners

took the position that the Intervenors were not entitled to the

requested information, and Tyson refused to meet or

negotiate with the Intervenors on any subject. Some 209

drivers were sent letters by the Petitioners offering them

employment with Tyson under terms unilaterally set by

Tyson. Some 47 drivers rejected these employment terms

set forth in that letter (which included reductions in their rate

of pay) and refused to accept the juo offered in that letter.

The remainder of the drivers signed the statement in the

September 12 letter accepting employment, but shortly

thereafter commenced a strike against the Petitioners because

of the unfair labor practice of the Petitioners, including

refusal to bargain with their union.

B. The Live-Haul Unit.

On February 16, one of the Intervenors, Chauffeurs,

Teamsters and Helpers Local 391 (hereinafter “Local 391")

filed a petition seeking to represent the live haul, feed haul,

feed mill and service center employees at the Holly Farms

facilities in Wilkesboro and Roaring River, North Carolina

(hereinafter referred to as the “live-haul unit"). At the

election in that unit, there were 95 ballots cast for the Union

12

and 95 ballots cast against the Union, with one challenged

ballot, which the ALJ ultimately determined should not be

counted.

As part of its production process, Holly Farms

operates an egg hatchery at its Wilkesboro facility. Shortly

after the chicks are hatched, Holly Farms transports them to

the farms of independent contract farmers who receive

payment to raise the chicks into full-grown broiler chickens.

The contract farmer feeds the chicks with feed produced at

Holly Farms’ feed mill facility in Roaring River, North

Carolina. At that facility, feed mill employees process grain

into feed and feed haul drivers transport it to the contract

farms. The Roaring River facility also employs mechanics

who service the trucks that haul the feed.

After the contract farmers have raised the chicks to

full-grown broiler chickens, Holly Farms sends “live-haul”

crews from its Wilkesboro facility to the contract farms. A

live-haul crew consists of a live-haul truck driver, a forklift

13

operator, and about nine “chicken catchers." At the contract

farm, the chicken catchers manually catch and box the

chickens, and the forklift operator places the boxes on the

truck. The crew then delivers the chickens back to the

processing plant at the Wilkesboro facility. On occasion, the

live-haul crews also transport to the processing plant

chickens that Holly Farms purchases from outside sources.

At the processing plant, Holly Farms production employees

slaughter the chickens and prepare them for market. The

sole issue regarding this unit is whether certain of the

employees within the unit are agricultural employees.

REASONS WHY THE PETITION

SHOULD BE DENIED

The Petitioners bring forward four issues in their

Petition. However, none of these issues warrant review by

this Court. First, the issue of whether Tyson Foods became

a successor to Holly Farms solely through its purchase of the

stock of Holly Farms was not addressed by the Fourth

14

Circuit below. Instead, it and the Board made their

determination based upon all the facts and found that Tyson

Foods became obligated to deal with the unions representing

Holly Farms employees following its purchase of the Holly

Farms stock. That decision was clearly correct under this

Court’s earlier decisions and does not conflict with any

decision of any other circuit court.

Similarly, the Fourth Circuit used the correct

standard in hoiding that the Petitioners must bargain about

any “effects” which are “not the inevitable consequence” of

the Petitioners’ decision to transfer drivers from Holly Farms

to Tyson Foods. That standard meets the policies underlying

this Court’s decision in First National Maintenance Corp, v.

NLRB, 452 U.S. 666 (1981) and is the same standard used

by the only other circuit to have considered the issue.

The third issue raised by the Petitioners concerns

whether the Board was correct in ordering reinstatement with

back pay to some 47 employees unlawfully discharged. As

15

Congress gave the Board the exclusive power to determine

remedial relief under the National Labor Relations Act (the

"Act") and as § 10(c) of the Act specifically provides that

the Board can grant reinstatement with back pay, this issue

does not present, in any way, an issue which needs this

Court’s attention.

The last issue raised by the Petitioners similarly does

not require this Court’s review. That issue, regarding

whether certain employees in the live-haul unit are

agricultural workers and thus exempt from the Act, has been

addressed and answered in Bayside Enterprises, Inc, v.

NLRB, 429 U.S. 298 (1977). The Fourth Circuit correctly

deferred to the Board’s decision as required by this Court in

Bayside, and its decision does not conflict with any other

circuit decision reviewing a Board decision on this issue.

16

I. THE NLRB AND THE FOURTH CIRCUIT

CORRECTLY FOUND THAT TYSON

FOODS BECAME A _ "SUCCESSOR"

EMPLOYER.

A. Neither the Fourth Circuit Nor the NLRB

Decision Raises the First Question P { in the Petition.

The first question presented in the Petition (p. i) is:

"Does a purchaser of the stock of an ongoing corporation,

solely by virtue of its stock ownership interest, become a

successor under NLRB_y, Burns International Security

Services, 406 U.S. 272 (1972), to the employing corpora-

tion’s bargaining obligation with an existing union at the

time of the stock purchase?” However, neither the Fourth

Circuit nor the Board decided that narrow issue. Instead of

focusing on whether a company can become a successor

"solely by virtue of its stock ownership interest,” both the

Fourth Circuit and the Board followed this Court’s directions

to determine whether, under all of the facts and in light of

prevailing labor law policies, the Petitioner Tyson Foods

17

became legally obligated to the employees of the Petitioner

Holly Farms following its purchase of the stock of Holly

Farms on July 18, 1989.

This Court has repeatedly stated that the obligations

of a company to employees of another company arise under

"a variety of circumstances involving a merger, stock

acquisition, reorganization or assets purchase.” NLRB v,

Burns International Security Services, Inc., 406 U.S. 272,

291 (1972). Whether such an obligation arises “requires

analysis of the new employer and of the policies of the labor

laws in light of the facts in each case." Howard Johnson

Co, v. Detroit Local Joint Executive Board, 417 U.S. 249,

262 n. 9 (1974).

While the Fourth Circuit correctly followed these

directives in rendering its decision, the Petitioners focus only

on Tyson’s purchase of the Holly Farms stock and argue that

with a stock purchase, Tyson could never become a

“successor” at the time the stock is purchased. Petitioners’

18

—

view of who can become a “successor” is far too narrow and

conflicts directly with this Court’s mandate that the NLRB

and the courts engage in a much broader inquiry.

Thus the narrow issue set out in Petitioners’ first

Question Presented was not resolved either by the Fourth

Circuit or the NLRB. This case therefore is not appropriate

for review.

B. The Fourth Circuit Decision Does Not Confli

With the Decisi ¢ Other Circuits.

Petitioners are also incorrect when they claim that the

Fourth Circuit “decision is inconsistent with the decisions of

all other circuits that have considered the issue.” (Petition

for Writ of Certiorari, p. 25) Thus, since no conflict exists,

this petition does not afford an opportunity to resolve a

conflict among the circuits.

The decisions relied upon by the Petitioners from the

Sixth, Seventh, Tenth and District of Columbia circuits do

not stand for the proposition espoused by the Petitioners —

19

that is, none of those decisions hold that a company which

purchases the stock of another company (rather than

purchase its assets or merge with it) can never be found to

have an obligation to deal with the union for the employees

of the purchased company. The factual situations in those

cases simply did not give rise to this narrow question.

Instead, those decisions support, rather than conflict with,

the decision rendered by the Fourth Circuit in this case.

Similarly, the Petitioners incorrectly assert that the

Fourth Circuit decision in this cas. conflicts with the earlier

Fourth Circuit decision in EPE, Inc. v. NLRB, 845 F.2d

483 (4th Cir. 1988). (See Petition at p. 40 n. 3) Under the

Fourth Circuit rules, one panel of the Court cannot overrule

a decision previously made by another panel. The Fourth

Circuit obviously did not believe it was overruling EPE in

this case — in fact, it cited EPE in support of several of its

conclusions. While the Petitioners, in both their motion for

reconsideration en banc and their motion to stay mandate,

20

claimed that the Fourth Circuit decision in this case

conflicted with EPE, the Fourth Circuit denied both the

request for rehearing en banc and the motion to stay

mandate. It would not have done that had it believed that

the decision in this case overruled EPE.

Similarly, in their motion for reconsideration and

rehearing en banc and its motion to stay mandate, the

Petitioners asserted to the Fourth Circuit that its decision

conflicted with the decisions of other circuits. In its decision

in this case the Fourth Circuit specifically did not find that

its position conflicted with those of the other circuits.

Instead, it took the position that its decision conformed to the

tenets espoused in the other circuits. Just as the Fourth

Circuit decision in this case did not conflict with its earlier

opinion in EPE, the Fourth Circuit decision does not conflict

with the opinions rendered by other circuits.

The Fourth Circuit and the Board both found that

Tyson became a “successor” to Holly Farms as of July 18,

21

1989. They used the term “successor” in the sense of “the

extent to which an employer is obligated to honor the legal

relations established between another employer and a union."

G LT Union No. 249 v. Bill's Trucking. Inc..

493 F.2d 956 (3d Cir. 1974). The issue of when an

employer becomes obligated to honor legal relations

previously existing between another employer and its

employees and their bargaining representative arises in a

multitude of contexts, and the Board and the courts have

utilized a variety of formulae to resolve the issue.

Underlying all of these formulae (single employer, joint

employer, alter egos, successor employers, etc.) is a basic

policy that attempts to promote "industrial peace underlying

the National Labor Relations Act by forestalling the

employee frustration that would result if employees find

themselves in substantially the same job, but deprived of the

representation of the union." EPE, Inc, v. NLRB, 845 F.2d

483, 489 (4th Cir. 1988). See also Fall River Dyeing and

22

Finishing Corp, v. NLRB, 482 U.S. 27, 39-40 (1987).

This Court and the Board have recognized that with

the wide variety of corporate transformations possible, an

employer should not be able to use a successor enterprise as

a way a getting rid of a labor contract or union

representation. While an employer is free to structure its

business in a variety of ways, it cannot do so in such a way

as to thwart union representation. Thus the Board and the

Courts look to the employees’ perceptions and “if the

employees find themselves in essentially the same job after

the employer transition and if their legitimate expectation

and continued representation by their union is thwarted,"

Fall River Dyeing, supra at 43, the surviving (or, in other

words, “successor") employer is bound to recognize and

bargain with the employees’ union. In some instances, the

old employing enterprise will disappear or have no further

relationship to the employee. In other cases, the old

employing enterprise will continue to have some relationship

23

to the employees.

Following July 18, 1989, management employees

who had previously supervised the drivers in the driver/

yardmen unit immediately became Tyson supervisors,

wearing Tyson uniforms and carrying out Tyson orders.

Tyson also took ver control of the negotiations with the

chosen collective bargaining representative. While the

employees continued to receive their pay by way of Holly

Farms checks, it was readily apparent to the employees in

the driver/yardmen unit that they were being supervised and

their destinies controlled by Tyson. The Board and the

Fourth Circuit correctly recognized that from July 18

forward, Tyson controlled and directed the employees in the

driver/yardmen unit, regardless of what corporate name they

ascribed as the employees’ employer, and that Tyson was

therefore an employer with a duty to negotiate with the

employees’ chosen bargaining representative. That decision

does not conflict with the decisions of this Court or the other

24

The Petitioners’ argument is also premised on a false

factual claim — that is, that there were no substantial

changes in the operation affecting the employees. What the

Fourth Circuit and the Board found was that there was a

substantial continuity between Holly Farms and Tyson. (See

Fourth Circuit decision at A-25) But that does not mean that

there was not a broader form of reorganization than a mere

stock transfer. The Board, in particular, made extensive

findings concerning Tyson’s involvement in the operation of

the driver/yardmen unit as of the time of its purchase of the

stock on July 18, 1989. (See NLRB decision, A-110-114)

It was this involvement of Tyson in the operation of the

Holly Farms Transportation Division, along with the other

facts in the case and the labor policies governing this area of

the law, which the Board and the Fourth Circuit found

warranted the application of successorship principles to

Tyson.

25

C. The Decisions of the NLRB and the Fourth

Circuit on This I are C

Whether a title was ascribed to Tyson (either as

successor, joint or single employer or whatever), the critical

determination was that Tyson had an obligation to bargain

with the union representing the driver/yardmen employees.

This determination by the Fourth Circuit is completely in

concert with the decisions of this Court and the other

circuits.

The Petitioners argue that where there is a stock

transfer, successorship principles can never be applied.

While it argues that this principle has been recognized by

other circuit courts (and the Fourth Circuit in EPE), that

claim is simply wrong. None of those courts have held that

a company which purchases the stock of another can not be

obligated to honor the legal relations established between that

other employer and a union. When all the facts are

considered and the legal policies which control are brought

26

into play, a company which has purchased the stock of

another may have an obligation to bargain with the union

that represents employees of that other corporation. This

principle is found not only in the cases cited by the

Petitioners, but also in a number of other decisions. Thus in

NLRB v. Edijo, Inc., 631 F.2d 604 (9th Cir. 1980),

enforcing 238 NLRB No. 207 (1978), Costa Trucking had

a collective bargaining agreement with a union. The stock

in Costa Trucking was purchased by Edjo, Inc. Costa

Trucking continued to exist and was not merged into Edjo.

The Board and the Ninth Circuit agreed that Edjo was a

“successor” employer with a duty to bargain with the union:

before making unilateral changes in working conditions.

Similarly, in NLRB vy, Winco Petroleum, 668 F.2d

973 (8th Cir. 1982), the Board and the Eighth Circuit found

that a purchasing “»mpany was a “successor” corporation

even though its purchase was made through a stock transfer.

In that case, Cooper Oil bought all of the stock of Winco

27

and operated the business in the same way with the same

employees and the same equipment at the same location from

the date of the sale on March 6, 1979 until Winco was

merged into Cooper Oil on April 2, 1979. Both the Board

and the Eighth Circuit held that Cooper Oil became a

successor on the date of sale.

Thus the Petitioners are incorrect when they claim

that a “successorship” analysis is not appropriate in this case

simply because there was a transfer of the stock in Holly

Farms to Tyson. Both the Board and the Fourth Circuit took

that factor into consideration but also looked at the other

factors and how those factors affected the employees in the

driver/yardmen unit. The Fourth Circuit properly found that

the application of successorship principles was appropriate

under all of those facts and in light of the labor policies

governing these decisions. Because that decision is in accord

with this Court’s pronouncements in this area, this case does

not present a case which is appropriate for this Court’s

28

Il. THE NLRB AND THE FOURTH CIRCUIT

PROPERLY REQUIRED THE

PETITIONERS TO BARGAIN OVER THE

EFFECTS OF THEIR DECISION TO

TRANSFER THE DRIVERS TO TYSON

EQODS.

The Petitioners seek to limit the effects about which

they are required to bargain following their determinauon to

transfer the drivers to Tyson Foods. While Petitioners admit

they must bargain over effects, they claim that the “effects”

over which they must bargain are limited and few. The

Petitioners’ argument is directly contrary to this Court's

pronouncements and the decisions of the other circuit courts

of appeals.

The Fourth Circuit required that the Petitioners

negotiate about any “effects” which are “not the inevitable

consequence of the underlying management decision.” (A-

33-34) This is the same standard used by the Ninth Circuit

in NLRB v. Litton Fin, Printing Division, 893 F.2d 1128

29

(9th Cir. 1990), rev'd in part on other grounds, 501 U.S.

190 (1991). The decision of both the Fourth and Ninth

Circuits is based directly on this Court's prior decisions and

fully comports with those decisions.

Petitioners point to no conflict between the circuits,

and while they claim the Fourth Circuit decision is

inconsistent with this Court's opinion in First National

Maintenance Corp, v. NLRB, 452 U.S. 666 (1981), they

point to no specific language within that decision which

requires a test different from that used by the Fourth Circuit

here. Moreover, Petitioners do not propose any rule or

standard to replace the one used by the Fourth and Ninth

Circuits. This is not surprising given that it would be

impossible to fashion such a rule which would remain

faithful to this Court’s opinion in First National Maintenance

while achieving the limited result Petitioners desire.

The standard followed by the Fourth and Ninth

Circuits arises out of and is consistent with this Court’s

30

opinion in First National Maintenance and presents a rational

and workable standard to use in determining the “effects”

which are the subject of bargaining.

This case therefore does not present an appropriate

vehicle to address a question which is not in conflict between

the circuits and which complies with this Court’s earlier

directives.

Finally, Intervenors believe that Petitioners were

obligated to bargain over the original decision to transfer the

Holly Farms drivers to Tyson Foods (the “integration

decision") based upon this Court’s decision in First National

Maintenance, supra. If that is correct, then Petitioners

cannot limit the bargaining to the “effects,” but must

bargain over all possible issues. This is a further reason

why Petitioners’ argument must fail and why the Petition

should therefore be denied.

31

Ill. REINSTATEMENT WITH BACK PAY

WAS THE PROPER REMEDY FOR

EMPLOYEES DISCHARGED IN

VIOLATION OF THE NATIONAL LABOR

RELATIONS ACT,_

The NLRB found that in transferring the drivers from

Holly Farms to Tyson, the Petitioners had unlawfully

discharged some 47 employees and ordered Petitioners to

reinstate those drivers with back pay. (A-178-179) Though

the Petitioners do not now contest the finding that these

employees were unlawfully discharged, they ask this Court

to grant certiorari in order to determine if the Board could

grant such a remedy. On that issue there is no doubt but

that the Board has that authority, and the Petition should

therefore be denied.

Congress has given the Board the exclusive power to

grant remedial relief. NLRB vy. Food Store Employees

Local 347, 417 U.S. 1, 8 (1974). If the Board determines

that an unfair labor practice has occurred, § 10(c) of the

Act, 29 U.S.C. § 160(c), requires the Board, among other

32

things, "to take such affirmative action § including

reinstatement of employees with or without back pay, as will

effectuate the policies of [the Act]." Therefore, the Board’s

remedy will not be sustained only if it is in excess of the

Board’s authority. Virginia Elec, & P. Co, v. NLRB, 319

U.S. 533, 540 (1943). Here, the Board’s remedy was

specifically that granted to it by Congress — reinstatement

with back pay. Petitioners cite no circuit court decision

holding otherwise, and the Fourth Circuit felt the issue was

so settled, it did not even mention it in the decision. Thus

this issue is not one which requires this Court’s attention,

and the Petition should be denied.

IV. THE NLRB PROPERLY EXERCISED ITS

EXPERTISE IN DETERMINING THAT

LIVE-HAUL DRIVERS, FORKLIFT

DRIVERS AND CHICKEN CATCHERS

ARE NOT AGRICULTURAL EMPLOYEES,

A. The Fourth Circuit Correctly Deferred to the

NLRB’s Decisi This Issue.

33

The Petitioners seek to avoid bargainiiig with Local

391 concerning the “live-haul" unit by claiming that among

those employees are agricultural workers.2 The NLRB

found that under the facts in this case the employees in

question were not agricultural workers. This decision was

consistent with its rulings in other cases raising this issue.

It is the NLRB’s special duty to apply the Act’s

exemption for agricultural laborers “to varying fact

patterns." Bayside Enterprises, Inc. v, NLRB, 429 U.S.

298, 304 (1977). In performing that duty, the NLRB must

construe the provisions of the Act liberally in favor of the

workers for whose protection those laws were designed and

“narrowly construe" any exemption from the terms of those

laws. Wirtz v, Ti Ti Peat Humus Company, Inc., 373 F.2d

?The Petitioners do not now contest that they committed

numerous unfair labor practices in this unit or that a

bargaining order is appropriate under these circumstances.

Instead, they attempt to avoid the effect of these rulings by

claiming that the unit is inappropriate because it contains

agricultural employees.

34

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

Board’s construction of the agricultural laborer exemption is

entitled to deference on review because it presents a question

that is “particularly unsuitable" for a reviewing court.

NLRB vy, Cal-Main Farms, Inc., 998 F.2d 1336, 1339 (Sth

Cir. 1993). Accord, Bayside Enterprises, 429 U.S. at 304

n. 14. The Fourth Circuit gave proper deference to the

NLRB’s decision, which it found was consistent with those

the Board had made in similar cases. (A-49) Thus this case

is not one that needs further appellate review.

B. There Is No Conflict Between the Circuits On

This Issue.

The Fourth Circuit also recognized that the other

federal appellate decisions which were squarely on point had

found that employees engaged in the type of tasks involved

in this case were not agricultural laborers. (A-50-51) NLRB

v. Hudson Farms, Inc., 681 F.2d 1105, 1106 (8th Cir.

1982) cert. denied, 459 U.S. 1069 (1982); Valmac Industries

35

vy. NLRB, 599 F.2d 246, 247, 249 (8th Cir. 1979). While

the Fourth Circuit refused to follow the decision in Coleman

yv. Sanderson Farms, Inc., 629 F.2d 1077 (Sth Cir. 1980) —

the case relied upon by the Petitioners to claim a split in the

circuits’ — it did so because of a fundamental difference in

the cases. As the Fifth Circuit itself recognized in Coleman,

that case arose under the FLSA and not the NLRA.

Accordingly, it had not been subject to overview by the

NLRB and was not subject to the policy of judicial deference

to NLRB determinations. The Fourth Circuit found this fact

crucial when it determined that Coleman was not binding

because it "fails to give proper weight to the judgment of the

*The Petitioners also cite NLRB v. Victor Ryekebosch,

Inc., 471 F.2d 20 (9th Cir. 1972) as a conflicting decision.

However, that case was cited by this Court in Bayside as a

case in conflict with the circuit court opinion in Bayside.

429 U.S. at 299 n. 4. Thus by affirming the Board’s

decision in Bayside, this Court found that the Ninth Circuit's

decision in Ryekebosch was wrong. That decision thus

cannot be considered as a viable conflict with the Fourth

Circuit decision in this case.

36

Board," citing this Court’s opinion in Bayside Enterprises,

429 U.S. at 304. (A-52) Therefore, the Petitioners are

incorrect when they claim that the Fourth Circuit’s decision

in this case conflicts with the decision in Coleman.

As there is no real conflict between the circuits, as

the Board’s decisions in this area are completely consistent,

and as the Board’s determinations are entitled to great

deference from reviewing courts, this issue has been

properly determined by the Fourth Circuit and does not

require review by this Court.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

a subenitis,

fi J

mith, Folin & James, L.L.P.

“s O. Box

Greensboro, 7402

(910) 274-

Counsel for Intervenors/

Respondents

37