Sterling Processing Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 208 (N.L.R.B. 1988)

208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sterling Processing Corporation and Local 424,
United Food And Commercial Workers Union
Case 5-CA-14592
September 30 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On June 9 1983 Administrative Law Judge Joel
A Harmatz issued the attached decision The Re
spondent filed exceptions and a supporting brief
and the General Counsel and the Charging Party
filed answering briefs
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings findings 1 and
conclusions only to the extent consistent with this
Decision and Order
The essential facts as credited by the judge are
as follows the Respondent is a poultry dressing fa
cility in Oakland Maryland The plant opened in
1957 and since 1958 the employees have been rep
resented jointly by Local 424 United Food and
Commercial Workers Union (Local 424) and Local
Union No 453 affiliated with the International
Brotherhood of Teamsters Chauffeurs Warehouse
men and Helpers of America AFL-CIO (Local
453) 2 In 1969 the present operators of the plant
acquired ownership and the existing collective bar
gaining relationship continued without interruption
The most recent collective bargaining agreement
was effective from March 1 1979 to March 2
1982 The collective bargaining agreement provid
ed inter alia that the agreement would remain in
effect from year to year unless either party gave
written notice of termination at least 60 days prior
to March 1 1982
On January 21 1981 the Respondent closed its
facility due to economic conditions and notified the
Unions that Sterling Processing Corporation will
be closed as of January 22 1981 until further
i The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judges credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
We correct the following inadvertent errors in the judge s decision
The judge states the facility opened in 1952 and that the employees have
been represented by the Unions since that time Actually the facility
opened in 1957 and the Unions were recognized in 1958
2 Local 424 represented the production and maintenance employees
and Local 453 represented truckdrivers and certain warehouse and ship
ping employees in the combined unit
notice At the time of closing the bargaining unit
consisted of 185 employees
Between the time of the closedown and the re
opening of the facility on August 19 1982 the Re
spondent s vice president and general manager
Gilman Sylvester examined various options to
resume production at Sterling on a sound economic
basis During this same period of time there was
substantial contact between Sylvester and repre
sentatives of the Unions Thus shortly after the
closedown Sylvester informed Edward J Man
ning Local 424 s business agent that he would at
tempt to arrange a deal that would enable the plant
to reopen as soon as possible Thereafter Manning
telephoned Sylvester several times and met with
Sylvester on March 5 June 25 and September 24
1981 to inquire whether any progress had been
made on reopening the facility As a result of infor
mation from a former employee on June 16 1982
Manning and William Peterson secretary treasurer
of Local 424 visited Sylvester indicating they had
heard the plant was going to reopen Sylvester
would not confirm this report and indicated he still
had some irons in the fire Manning then stated
that he had heard that the Respondent planned to
operate the plant on a nonunion basis Sylvester
stated that Manning did not hear this from Sylves
ter but he observed (before any employees were
hired) that 70 percent of the employees did not
want a union In response Manning insisted that a
contract was in effect and that employees should
be recalled by seniority Sylvester declined to take
any position and stated that he would get in touch
with Local 424 before taking any action
On August 3 1982 Manning and Local 424 s
president Edward Steinmetz located Sylvester at
his home They told Sylvester that they heard the
plant was scheduled to open Sylvester acknowl
edged that this was true but indicated that it was
his position that there was no contract Manning
expressed a willingness to sit down and discuss any
help Sylvester might need but Sylvester declined
The meeting ended by Manning stating that he
would do what was necessary to protect the mem
bership and urging that employees be recalled in
accordance with the provisions of the collective
bargaining agreement On August 19 1982 the Re
spondent began full scale production at the facility
with 92 employees including 79 who had been on
the Respondents payroll in January 1981 The em
ployees were hired through an arrangement Syl
vester developed with the employment division of
the Maryland Department of Employment Securi
ty Thus anyone who came into the state employ
ment office seeking employment could make out an
employment application for these positions at Ster
291 NLRB No 30
STERLING PROCESSING CORP 209
Y3
ling For those persons with prior experience in
poultry processing the state office set up interviews
with the Respondent In addition to a brief individ
ual interview with the job applicants Sylvester de
livered a prepared statement to groups of potential
employees at the orientation sessions Sylvester
asked the applicants for their help so the Re
spondent could continue to operate He stressed
the need for employees willing to work for good
wages and limited benefits Sylvester then listed
the benefits to the applicants that included a basic
wage rate of $4 per hour and a single paid hole
day 3
When the Respondent closed its facility in Janu
ary 1981 it was a fully integrated poultry producer
and processor Thus, it purchased for its own ac
count live chickens and then at its facility killed,
plucked eviscerated cut packaged stored or im
mediately loaded the meat aboard the Respondents
own vehicles for delivery to customers The fin
fished product was marketed under the Sterling
trademark through the Respondents own sales
force The Respondent was engaged primarily in
the production of broilers 7 to 9 weeks of age
weighing about 4 to 5 pounds live The finished
product mix consisted of 50 percent whole birds
25 percent knife cut parts (eight pieces) for the
general market and 25 percent saw cut (nine
pieces) for Kentucky Fried Chicken (KFC) outlets
On reopening the Respondent had the same
ownership corporate form plant location and tele
phone number The Respondents processing is
now limited to custom processing of broilers
heavy fowl and roasting chickens (5 to 7 pounds)
all owned by and processed for an unidentified
contractor The Respondent no longer sells to
KFC thus it does not saw cut chickens and does
not use KFC equipment The old KFC area is now
occupied by an expansive Cry 0 Vac process 4
The ultimate responsibility for management of the
Respondent remains in Sylvester the general man
ager and former Plant Superintendent Karol
Schroyer The personnel manager Jerry Sanders
has also remained in the same capacity The labor
8 The wages and benefits offered by Sylvester differed substantially
from those under the terms of the collective bargaining agreement The
basic wage rate was lower than the one in the collective bargaining
agreement and the agreement had eight paid holidays protective assur
ances of seniority premium pay for hours worked in excess of eight
grievance arbitration funeral pay and health and welfare protection
4 Cry 0 Vac is a partially automated packaging process that permits
whole poultry to be sold either fresh or frozen It utilizes whole chickens
evaluated as meeting grade A standards and entails some 40 to 60 per
cent of the Respondents entire output The balance of the chickens are
shipped after being hand cut into parts Some years prior to the close
down Sterling for a brief period maintained a Cry 0 Vac operation for
the processing of turkeys The most recent collective bargaining agree
ment includes the classification Cry 0 Vac operator Seventeen to
twenty employees work on the Cry 0 Vac line
intense segment of the Respondents facility is basi
cally unaltered except for the addition of the Cry
O Vac line 5 Thus an employee testified without
contradiction that the basic procedure for process
ing these chickens has remained the same and that
the employee jobs have remained the same On
cross examination Sylvester admitted that the Re
spondent still processes live chickens and that there
was no formal training (or retraining) of the em
ployees on reopening He also admitted that al
though the sales and purchasing departments had
been eliminated when the Respondent reopened
those departments employees had never been in
the bargaining unit
Shortly after the Respondent was informed that
a complaint was to issue on the pending unfair
labor practice charge in this case Bonnie Chap
man an employee circulated and urged employees
to sign a petition that indicated that they preferred
a nonunion shop 6 About 65 employees signed the
petition that was circulated on October 14 1982
On October 18 the Respondent conducted a poll of
the employees that resulted in a vote of 69 against
and 23 for union representation 7
The General Counsel and the Charging Party
argue that the Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to recognize the
joint representative and by unilaterally abrogating
the terms set forth in the collective bargaining
agreement8 while unilaterally setting its own terms
on reopening The Respondent contends inter alia
that there was and is no obligation to recognize
and bargain with the Unions because the plant re
opened after a lengthy hiatus and the reopening
was accompanied by substantial changes in oper
ation
The first issue we address is whether the Re
spondent had an obligation to bargain with the
Unions before it modified the preexisting wages
and working conditions prior to reopening its facil
b At the hearing Sylvester admitted that the employees who work on
the Cry 0 Vac line receive the same wages and benefits and that they
received no prior special training to operate the line
6It is undisputed that all employees who were represented by Local
424 received withdrawal cards from Local 424 in January 1981 when the
Respondent closed and that none of these employees paid any dues there
after
' The judge incorrectly stated in his decision that the vote was 69 for
and 23 against union representation
8 The General Counsel and the Charging Party contended at the hear
ing that the collective bargaining agreement remained in effect during the
shutdown by operation of the automatic renewal clause in the agreement
Based on the Boards decision in Cen Vi Ro Pipe Corp 180 NLRB 344
346-347 (1969) enfd 457 F 2d 775 (9th Cir 1972) the judge found that
the agreement lapsed by its terms on March 1 1982 and was not auto
matically renewed by the failure of the Respondent to provide 60-day
notice during the shutdown No exceptions were filed to this finding As
explained below the Cen Vr Ro rationale also applies to the question
whether the Respondent was obligated to bargain before setting initial
terms
210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ity The judge concluded that the Respondent had
such an obligation We disagree
When the Respondent closed its facility in Janu
ary 1981 the employees were discharged Thereaf
ter as found by the judge they had no reasonable
expectation of being recalled For 19 months the
facility remained closed and there were no employ
ees Although Sylvester wanted to reopen Sterling
Processing at some future point if he could obtain a
workable financial arrangement the closedown was
certainly indefinite in nature and substantial in du
ration The judge found that the Unions presump
tion of majority status, as the incumbent represent
atives of the Respondents employees continued in
spite of the 1 1/2 year closedown In so doing, the
judge looked at the composition of the work force
at the time the Respondent reopened and conclud
ed that because a majority of the work force had
been retained to perform essentially the same work
for the same employer the 19 month closedown
did not refute the presumption of continuing major
ity status In this regard, the judge noted that as of
the date of the reopening, the Respondent had no
objective evidence of employee dissatisfaction with
the Unions, that employee choice would not logi
cally be affected by the shutdown, and that where
a majority of the prior work force has been hired
to perform essentially the same work for the same
employee, the continuation of the bargaining proc
ess should not become a prerogative of manage
ment
The difficulty with the judge s conclusion is that
at the time the Respondent modified the preexisting
wages and working conditions there were no em
ployees The entire prehiatus work force had been
discharged or laid off with no reasonable expecta
tion of recall There in fact were no employees
for the Unions to represent during the hiatus The
Respondents ultimate hiring of a majority of its
prehiatus work force is not relevant in determining
whether the Respondent is obligated to bargain
with the Unions concerning terms and conditions
set prior to the hiring of that work force As the
Board held in Cen Vi Ro Pipe supra under very
similar circumstances a union cannot be the exclu
sive bargaining representative prior to the hiring of
a representative complement of employees We rec
ognize that, in other circumstances the Board has
presumed, as did the judge that new employees
support the union in the same ratio as old employ
ees The Board however implicitly rejected the
application of this presumption in Cen Vi Ro Pipe
in which it found that after a lengthy hiatus during
which there were no employees for the union to
represent, the employer violated Section 8(a)(2)
and (1) when it recognized the union before hiring
a representative complement of the old work force
Therefore we dismiss the portion of the complaint
that alleges that the Respondent had an obligation
to bargain with the Unions when it modified the
preexisting wages and working conditions before
August 19 1982
We reach a different result with respect to the
Respondents obligation to recognize and bargain
with the Unions after August 19 1982 In agree
ment with the judge we find that as of that date
the Respondent s bargaining obligation with the
Union revived As found by the judge, the Re
spondent had resumed production under the same
ownership corporate form and management and
was engaged in the same business at the same loca
tion with basically the same production process as
prior to the shutdown Further the Respondent
had in fact rehired substantially the same work
force as that in the historic bargaining unit Under
these circumstances where the employing entity
remains the same after the hiatus as it was before
we find that the hiatus, standing alone , does not re
lieve the Respondent from its bargaining obliga
tions See Food & Commercial Workers Local 152 v
NLRB, 768 F 2d 1463 1471-1472 (D C Cir 1985)
denying enf 268 NLRB 1483 (1984) 9 Indeed, we
agree with the judge that where, as here the
identity and location of the employer is unchanged
the legal import of any supervening change in cir
cumstances to an established bargaining relation
ship ought to be assessed in terms of whether or
not the employer denied recognition upon objec
tive factors furnishing a reasonably based doubt
that the union continued to represent a majority
ALJD fn 30 1° We further agree with the judge
for the reasons set forth by him that the Respond
ent failed to establish by objective evidence that it
held a good faith doubt of the Unions majority
status as of the reopening on August 19 1982 11 or
9 To the extent that the Boards decision is inconsistent with the
court s opinion we overrule the Board s decision
10 The Respondents contention that its bargaining obligation should be
evaluated under the successorship doctrine approved by the Supreme
Court in NLRB Y Burns Security Services 406 U S 272 (1972) is without
merit Although we acknowledge that in assessing the Respondents bar
gaining obligation we have reviewed factors also relevant under the
successorship doctrine the fact remains that the Respondent was the
same entity in ownership corporate form management business and
production on reopening as it had been prior to the shutdown Thus no
logical or legal basis exists for treating the Respondent as a new employ
er when it reopened See Food & Commercial Workers Local 152 v
NLRB supra We therefore do not decide whether a 19 month hiatus
would warrant not imposing a bargaining obligation on an employer that
was a different corporate entity from its putative predecessor
i i As evidence of its good faith doubt of the Unions majority status
the Respondent relies on employee expressions after the reopening of
their desire not to be represented by the Unions including the employee
petition circulated on October 14 1982 and the poll taken by the Re
spondent on October 18 1982 The Respondents reliance is misplaced
because as noted supra these expressions occurring after the Respond
Continued
STERLING PROCESSING CORP
that the Union abandoned the unit or failed to
make a bargaining demand
Accordingly we find that the Respondent violat
ed Section 8(a)(5) and (1) of the Act by refusing to
recognize and bargain with the Unions as of
August 19 1982
THE REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act we shall order it
to cease and desist to bargain collectively with the
Unions as of August 19 1982, and if an under
standing is reached to embody the understanding
in a signed agreement In agreement with the judge
but for somewhat different reasons we reject the
Respondents assertion that the preferred remedy is
an election rather than the issuance of a bargaining
order because the employees expressed sentiment
against the Unions in the petition circulated on Oc
tober 14 and in the subsequent secret ballot poll on
October 18 1982 Once the Respondent unlawfully
refused to recognize and bargain with the Unions
on and after August 19 1982 it was not free to
rely on subsequent events to assert a doubt as to
the Unions majority status Guerdon Industries
supra The Board has long held that it would be
wholly contrary to the purposes of the Act for this
Board to rely upon the fruits of an unfair labor
practice to justify a dishonoring of a bargaining ob
ligation Montgomery Ward & Co 210 NLRB 717
at 717 (1974) Thus we find a bargaining order is
the appropriate remedy in this case
ORDER
The National Labor Relations Board orders that
the Respondent Sterling Processing Corporation
Oakland Maryland its officers agents successors
and assigns shall
1 Cease and desist from
(a) Refusing to recognize and bargain collective
ly with Local 424 United Food and Commerciial
Workers Union and Local Union No 453 affiliated
with the International Brotherhood of Teamsters
Chauffeurs Warehousemen and Helpers of Amer
ica AFL-CIO as the exclusive joint bargaining
representative of the employees in the appropriate
unit
(b) In any like or related manner interfering
with restraining or coercing employees in the ex
ercise of the rights guaranteed them by Section 7
of the Act
ent s unlawful refusal to recognize and bargain with the Unions were
tainted by the Respondents unfair labor practices Fall River Dyeing
Corp v NLRB 482 U S 27 51 fn 18 (1987) Guerdon Industries 218
NLRB 658 660-661 (1975)
211
2 Take the following affirmative action neces
nary to effectuate the policies of the Act
(a) On request recognize and bargain with the
Unions as the exclusive representative of the em
ployees in the following appropriate unit concern
ing terms and conditions of employment and if an
understanding is reached embody the understand
ing in a signed agreement
All employees of the Employer excluding the
plant superintendent foremen clerical work
ers executives and guards
(b) Post at its facility in Oakland Maryland
copies of the attached notice marked Appen
dix 12 Copies of the notice on forms provided by
the Regional Director for Region 5 after being
signed by the Respondents authorized representa
tive shall be posted by the Respondent immediate
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered defaced
or covered by any other material
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
i 2 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT refuse to recognize and bargain
with Local 424 United Food and Commercial
Workers Union and Local Union No 453 affiliated
with the International Brotherhood of Teamsters
Chauffeurs Warehousemen and Helpers of Amer
ica AFL-CIO as the exclusive joint bargaining
representative of the employees in the bargaining
unit
WE WILL NOT in any like or related manner
interfere with restrain or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL on request bargain with the joint rep
resentative and put in writing and sign any agree
ment reached on terms and conditions of employ
ment for our employees in the bargaining unit
All employees of the Employer excluding the
plant superintendent foremen clerical work
ers executive and guards
STERLING PROCESSING CORPORATION
II THE LABOR ORGANIZATIONS INVOLVED
Local 424 United Food and Commercial Workers
Union (Local 424) and Local Union No 453 affiliated
with the International Brotherhood of Teamsters Chauf
feurs Warehousemen and Helpers of Amenca (Team
sters Local 453) exist for the purpose of representing em
ployees in connection with fixing through negotiation
with employers terms and conditions of employment
Accordingly it is concluded that they are and have
been at all times material labor organizations within the
meaning of Section 2(5) of the Act
Mark Carissimi Esq for the General Counsel
Clifford R Oviatt Jr and Robert Mittendorf Esqs (Cum
mings & Lockwood) of Washington D C for the Re
spondent
Melvin P Stein Esq (Kuhn Engle and Stein) of Pitts
burgh Pennsylvania for the Charging Party
DECISION
STATEMENT OF THE CASE
JOEL A HARMATZ Administrative Law Judge This
proceeding was heard in Oakland Maryland on January
4 5 and 6 1983 upon an original unfair labor practice
charge filed on August 9 1982 and a complaint issued
on October 22 1982 which as amended alleged that
Respondent violated Section 8(a)(5) and (1) of the Act
by (1) refusing to recognize and bargain collectively
with the statutory representative of its employees and (2)
effecting certain unilateral changes in conditions of em
ployment In its duly filed answer Respondent denied
that any unfair labor practices were committed Follow
ing close of the hearing briefs were filed on behalf of
the General Counsel the Charging Party and the Re
spondent
On consideration of the entire record in this proceed
ing including consideration of the posthearing briefs and
particularly my opportunity directly to observe the wit
nesses while testifying and their demeanor I make the
the following
FINDINGS OF FACT
I JURISDICTION
Respondent is a Maryland corporation with a place of
business in Oakland Maryland from which it is engaged
in the processing of chickens for market on a contract
basis Based on a projection of revenues and other as
pects of its operations commencing from August 18
1982 Respondent on an annual basis will receive at the
facility products goods and services valued in excess of
$50 000 from points beyond the State of Maryland and
will provide services valued in excess of $50000 to
others located outside the State of Maryland
The complaint alleges Respondent at the hearing stip
ulated and it is concluded that at all times material Re
spondent is and has been an employer engaged in coin
merce within the meaning of Section 2(2) (6) and (7) of
the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background and the Issues
This case raises questions concerning whether an em
ployer after a 19 month economic shutdown violated
Section 8(a)(5) and (1) of the Act by failing to extend
recognition to the historic exclusive representative of
employees and by unilaterally changing preestablished
terms and conditions of work
In this regard it appears that Respondent maintains a
poultry dressing facility in Oakland Maryland Since the
opening of that plant in 1952 production employees
have been represented jointly by Local 424 of the Amal
gamated Meatcutters and Butcher Workmen of North
America AFL-CIO i and Teamsters Local 453 2 In
1969 it appears that present operators of the plant ac
quired ownership and the existing collective bargaining
relationship was continued without disruption thereafter
until the events giving rise to this proceeding
The most recent collective bargaining negotiations
took place in 1979 Following a 7 week strike which
took place in March and April of that year on October
29 1979 a new 3 year collective bargaining agreement
was executed That contract was retroactive to March 1
1979 and had a stated expiration date of March 1 1982
During the term of the contract on January 21 1981
Respondent due to economic conditions closed down
notifying the Union by letter the next day as follows
Sterling Processing Corporation will be closed as of
January 22 1981 until further notice
At the time the historic bargaining unit consisted of
some 185 employees
During the period following the closedown Respond
ent through Gilman Sylvester its vice president and
general manager explored various possibilities with an
1 In June 1979 a merger at the International level was effected be
tween the Amalgamated Meatcutters and Butcher Workmen of North
America AFL-CIO and the Retail Clerks International Union which re
suited in the formation of the United Food and Commercial Workers
International Union
2 Teamsters Local 453 and Local 424 had separate interests within the
unit Thus truckdrivers and certain warehouse and shipping employees
were members of Teamsters Local 453 while Local 424 had within its
membership employees in the production and maintenance unit Obvious
ly Local 424 represented the predominant group Historically negotia
Lions were conducted jointly concerning a master agreement but a Team
sters addendum was separately negotiated to cover the latter s member
ship base
STERLING PROCESSING CORP 213
eye toward resumption of production on sound economic
footing On August 19 1982 the plant was reopened and
processing operations resumed with 92 employees per
forming work which for the most part corresponded to
that always performed in the appropriate unit Of that
group 79 had been on Respondents payroll in January
1981 3 Prior to the reopening the Unions acting on
rumors contacted Respondent on several occasions to
express their continuing interest in the employees How
ever Respondent declined recognition and failed to
adhere to the terms prescribed in the prior collective
bargaining agreement instead choosing to present its uni
laterally defined employment package to job applicants
while clearly expressing that only those willing to accept
those terms would be hired Those agreeing to these con
ditions began work on August 19 1982 with all contrac
tual benefits except wages overtime premiums and holi
day eliminated and the latter significantly if not substan
tially reduced
Later on October 12 1982 Respondents attorney was
informed by a representative of the Board s Regional Di
rector that a complaint was to issue on the pending
unfair labor practice charge in this proceeding 4 Bonnie
Chapman an employee shortly thereafter circulated a
petition urging employees to sign if they preferred a non
union shop Some 65 employees obliged Chapman did
not testify and exactly what prompted her to take such a
step at that time remains a mystery The petition was cir
culated on October 14 1982 only 2 days after the above
notification by the Board s Regional Office that a com
plaint would issue
Subsequently on October 18 1982 Respondent itself
conducted a poll of employees Its purpose was made
evident in the following expression communicated by
Respondent to the employees
We think it would be best to double check our con
clusion that a majority of our employees do not
want the union So today we are going to conduct a
secret ballot
By a vote of 69 for 23 against representation Respond
ent obtained confirmation of its view
B Contentions of the Parties
The General Counsel and Charging Party in effect
contend that the October manifestations by the employ
ees were a byproduct of Respondents earlier unfair labor
practices They argue that before that time Respondent
violated Section 8(a)(5) and (1) of the Act by refusing to
recognize the joint representative and by unilaterally ab
rogating all conditions of employment set forth in the
governing collective bargaining agreement while setting
3 Between August 19 and October 18 1982 the size of the work force
expanded to 132 including 90 who were on Respondent s payroll in Jan
uary 1981 The work force on August 19 1982 is deemed controlling to
the assessment of Respondent s right to abort the historic bargaining rela
tionship Those employed on that date constituted a representative com
plement of those ultimately hired See Hudson River Aggregates 246
NLRB 192 fn 3 198 fn 15 (1980)
4 See G C Exh 16 This document implies strongly that Respondent
and the attorney since October 12 1982 were in consultation concerning
this development
unilaterally its own terms on reopening Remedially the
General Counsel in addition to a conventional bargain
ing order urges that the Respondent be ordered retro
actively to apply the terms of that contract and to con
tinue to apply the contract through its expiration date
and afterwards to bargain in good faith to a new agree
ment or impasse [and to] make whole the em
ployees in the appropriate unit for any losses they have
suffered as a result of the unilateral changes instituted by
Respondent with interest Respondent on the other
hand advances a number of grounds supporting its claim
for dismissal of the complaint in its entirety First it is
argued that the existence of any obligation to recognize
the joint representatives is nonexistent as the reopening
of the plant in August 1982 occurred after a lengthy
hiatus and was accompanied by substantial changes in
operation This it is asserted was linked with inaction or
a failure by the joint representative to press its interests
in the unit with diligence so as to warrant a conclusion
that its status as employee representative during the
period prior to the reopening was abandoned In the al
ternative Respondent argues that in view of employee
manifestations in October 1982 they no longer wish rep
resentation by the Unions the instant dispute should be
resolved through the conduct of an election rather than
an affirmative bargaining order
C Concluding Analysis
1 Controlling principles
Respondent appears to concede that under established
Board policy an exclusive statutory representative even
after the benefits of the certification year have lapsed
continues to enjoy a rebuttable presumption of continu
ing majority support 5 It is also clear that during the
term of a valid subsisting collective bargaining agree
ment a union s representative status is insulated from
challenge and the presumption of majority support is it
rebuttable See e g Shamrock Dairy 119 NLRB 998
1002 (1957) and 124 NLRB 494 (1959) enfd 280 F 2d
665 (D C Cir 1960) However when no contract is in
effect the status of the statutory representative may be
rebutted on a showing of objective considerations evi
dencing a reasonably based doubt that the Union contin
ues to represent a majority 6
2 Automatic renewal
The initial question presented is whether Respondent
on reopening of the plant in August 1982 was free to
question the representative status of the Unions In this
regard the General Counsel and Charging Party contend
that at that time the collective bargaining agreement re
mained in effect and hence the presumption of majority
was irrebuttable It will be recalled that the most recent
collective bargaining agreement included a stated expira
tion date of March 1 1982 which was several months
before the August 1982 reopening However article 13
5 Celanese Corp 95 NLRB 664 672 (1951)
6 NLRB v Laystrom Mfg Co 359 F 2d 799 800 (7th Cir 1966)
214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of that agreement entitled TERM OF AGREEMENT
also provided as follows
This Agreement shall remain in effect
from year to year thereafter unless either party
gives written notice of termination to the other
at least 60 days prior to March 1 1982 or prior to
March 1 of any year thereafter
No notice of termination was extended by either party
thus forming the predicate for the contention that the
contract remained in effect and binding on Respondent
when the plant reopened in August 1982
Neither party cites authority that provides clear con
clusive guidance regarding the effect accorded automatic
renewal clauses in such circumstances The General
Counsels view is drawn from principles articulated by
the Board in implementing its contract bar policy That
doctrine is relevant to preelection controversies and
bears directly on the question of whether a petition on
behalf of a rival labor organization shall give rise to a
question concerning representation In such a context an
automatic renewal clause has been honored by the Board
in concluding that a prior collective bargaining agree
ment barred an election
Thus in Road Materials 193 NLRB 990 (1971) an in
cumbent union was party to a collective bargaining
agreement having a term of March 4 1968 to March 4
1971 and from year to year thereafter absent written
notice Neither party gave the required notice After the
scheduled expiration date on March 9 1971 a rival
union filed an RC petition The Board dismissed the peti
tion as raising no question concerning representation be
cause the contract was automatically renewed prior to
the filing 7
That holding together with the established policy of
the Board that it will not permit a withdrawal of recog
nation at a time when under the Board s contract bar
rules it would not entertain a representation petition 8
are the constitutent elements of the argument on which
the General Counsel and Charging Party urge a conclu
save presumption of continuing majority
Such precedent however appears to assume an ongo
ing continuous business operation A contrary result has
been reached in other circumstances Thus in Sheets &
Mackey 92 NLRB 179 (1950) the Board declined to
honor extension of a contract pursuant to an automatic
renewal clause in circumstances where renewal would
have transpired during a shutdown In that case produc
tion resumed after a lapse of some 10 months but with
different employees The Board directed election on the
following grounds
Under all the foregoing circumstances including
the shutdown for an indefinite period the actual du
ration of the shutdown and the resumption of oper
ations with new employees because the former em
I See also Deluxe Metal Furniture Co 121 NLRB 995 (1958) Moore
Drop Forging Co 168 NLRB 984 (1967 ) and Empire Screen Printing 249
NLRB 718 719 (1980)
8 See Hexton Furniture Co 111 NLRB 342 (1955) Westwood Import
Co 251 NLRB 1213 1214 (1980)
ployees were no longer available and on the basis
of the entire record we are of the opinion that we
should not give effect to the automatic renewal to
find the contract a bar 9
The General Counsel would distinguish Sheets &
Mackey on grounds that here unlike in that case the
majority of the employees on reopening were formerly
employed by the Respondent prior to the shutdown
However the materiality of this difference is not entirely
clear For under well established authority new em
ployees are presumed to support the union in the same
ratio as those whom they have replaced See e g Bell
wood General Hospital 243 NLRB 88 90 (1979) Accord
ingly changes in the employee complement do not alone
bear adversely on statutory considerations favoring sta
bility in existing bargaining relationships the policy
which generated the Board s contract bar rules In any
event a more recent holding of the Board further dam
pens the efficacy of automatic renewal during plant shut
downs Thus in Cen Vi Ro Pipe Corp 180 NLRB 344
(1969) enfd 457 F 2d 775 (9th Cir 1972) the latest of a
series of collective bargaining agreements was executed
on May 1 1964 with the scheduled expiration date of
May 1 1966 subject to annual renewal absent 60 days
notice On June 28 1964 the plant was closed The evi
dence revealed that although the employer intended to
reopen it did not know when and would do so only in
the indefinite future when business conditions improved
Some four years later in 1968 the plant was reopened
Prior to the actual opening of the plant on May 1 1968
the union that had represented employees historically
agreed with the employer to update their 1964 agree
ment An unfair labor practice complaint charged that
this contract was executed prematurely and that the
agreement and recognition conferred on the union in the
circumstances constituted unlawful assistance In de
fense the contention was made that because the requisite
notice was absent during the interim between 1964 and
1968 the 1964 contract was automatically renewed on
May 1 1966 and again on May 1 1967 and that conse
quently the union throughout continued to be the repre
sentative of employees at the plant at all times material
This contention was rejected and the complaint was
upheld on the basis of rationale articulated by the trial
examiner as follows
The whole trouble with this argument is that on
each of these dates the Employer had no employees
at Lockeford Any alleged contracts between a
union and an employer covering wages hours and
working conditions of non existent employees are a
nullity From the time of the shutdown in 1964
there is no evidence that there were any employees
who had even an unreasonable expectancy of recall
It was not even finally decided until 1968 to rebuild
and reopen the plant In 1966 and 1967 there was
still only a possibility that the plant might reopen in
the unforseeable future I find it most unrealistic to
conceive that labor contracts covering wages hours
9 See also Decca Records 93 NLRB 819 821 (1951)
STERLING PROCESSING CORP
and working conditions between unions and an em
ployer who had no employees and might never
have any kept on renewing themselves The Em
ployer was not an employer at Lockeford in 1966
and 1967 The Unions were not the collective bar
gaining representative of nonexistent employees
The Employer and the Unions could not have had
collective bargaining agreements covering the
wages hours and working conditions of no employ
ees [Id at 346-347 ]
Quite obviously this reasoning spurns reliance on wheth
er employees ultimately hired were new or a part of the
historic unit In enforcing the Board s Order in the above
case the court of appeals also reasoned that the hiatus
alone foreclosed a continuity of contracts through auto
matic renewal Thus the Court stated in 457 F 2d 775 at
776
Respondents argue that the 1968 agreement was
merely a reiteration of the 1964 agreement which
was still in effect because never officially terminat
ed However an automatic renewal clause cannot
keep a collective bargaining relationship alive when
the employers business has been discontinued in
definitely When the plant closed in 1964 the rela
tionship between the Company and the Union dis
appeared there were no employees for the Union to
represent
It is concluded that the logic expressed in Cen Vi Ro
Pipe Corp supra precludes a finding of automatic re
newal Here as there on the date of closure the pros
pect of reopening was hoped for by management but de
pended on unforseeable contingencies Here on January
21 1981 employees were terminated unconditionally and
without firm prospect of rehire As in Cen Vi Ro Pipe
Corp it was simply a matter for the indefinite future
that business conditions might change and [the employer]
might possibly reopen 10 In the circumstances there is
no material basis for distinguishing Cen Vi Ro Pipe
Corp 11 and as there is no indication that the authority is
no longer viable based thereon it is concluded that the
governing collective bargaining agreement lapsed by its
terms on March 1 1982 and was not automatically re
newed by the failure of Respondent to provide the 60
day notice during the shutdown 12 Thus there is no
basis for concluding that an agreement was in effect
which at the time of reopening precluded Respondent
from asserting a doubt of majority
10 180 NLRB 344 346
11 In Cen Vi Ro Pipe Corp supra the employer s ultimate work com
plement as in Sheets & Mackey supra, did not include a majority of those
working at the time of the closedown See 180 NLRB 344 347 at fn 14
However no reference to this fact is made in the rationale thereof and
hence the case is not distinguishable on that ground
12 Cf Frasier v Magic Chef Food Giant Markets 324 F 2d 853 (6th Cir
1963)
3 The defense
215
a The rebuttable presumption
As indicated before absent a binding collective bar
gaining agreement the presumption of continuing major
ity is one that Respondent may refute by objective evi
dence I am not entirely certain that the various theories
urged on me by Respondent here include a claim that
such proof was available on August 19 1982 In any
event it is noted that as of that date the record fails to
disclose that Respondent possessed evidence reflective of
any affirmative unambiguous manifestation on the part
of those hired or rehired concerning their personal senti
ment on the issue of continued representation 13 An
employers claim of good faith doubt must be something
more than a self serving assertion 14
Nonetheless although not cited for this purpose in Re
spondent s brief Cen Vi Ro Pipe Corp supra in addition
to the nullification of automatic renewal also is suscepti
ble to interpretation that the presumption of continuing
majority is rebutted by a closedown of 4 year duration
where at its inception there were no plans for reopen
ing in the forseeable future [nor] a reasonable expec
tation of reemployment by the laid off employees 180
NLRB at 346 Thus the 8(a)(2) remedy provided there
required the employer to cease and desist recognizing
the union until certified as majority representative Obvi
ously had the presumption of majority survived such
relief would have been unjustified as irreconcilable with
the employers continuing duty to recognize the incum
bent union Thus in Cen Vi Ro Pipe Corp supra by im
plication the presumption was nullified solely on the
basis of a closedown indefinite in nature and substantial in
duration The result is troublesome No other authority
or line of reasoning is called to mind which even tends
to lend support to such a result on those facts and its
soundness seems at odds with established policy in this
area Obviously a decision to close for economic reasons
is as a matter of employer discretion just as is the assess
ment of whether business conditions make resumption of
operations economically feasible If such factors have a
13 Respondent in its brief cites a number of alleged facts supporting its
view that the unions no longer enjoyed the majority support of Sterl
ing s employees in the plant once it opened in August 1982 Those fac
tors do not bear repeating here It is sufficient to observe that they were
either afterthought unsubstantiated by record proof or limited to em
ployee action which fell short of any clear uncoerced repudiation of their
choosen representative on August 19 1982 the critical date for determin
ing the alleged refusal to bargain
14 NLRB v The Little Rock Downtowner 414 F 2d 1084 1091 (8th Cir
1969) Sylvester testified that in response to union overtures that he abide
by the contract he as of August 3 1982 had taken a position that the
contract was not in effect When I made an inquiry as to the basis for
Sylvester s position in that regard he responded as follows
To answer your question Judge I did not feel after a year and a half
of being down and people from we will say the first of January or
in fact from the time we were closed anybody who would come into
the plant would say if we get started again we certainly would not
want to have a union
This point of view was not shown to have been based on anything
beyond assumption There was no other testimony as to the evidence on
which Respondent acted in rejecting the Union s requests at times critical
to this complaint Note however the explicit proof presented regarding
the subsequent expression of employee preference in October
216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
relationship to employee sentiment it is difficult to grasp
just what that connection might be Does it make sense
to conclude that where a majority of the prior work
force has been retained to perform essentially the same
work for the same employer that despite the absence of
any expression on their part continuation of the bargain
ing process ought be a prerogative of management)
Indeed all else being equal can one assume to the point
of rationally founded interference that employee choice
would be altered by the duration of a shutdown And if
that is so just how long must the hiatus continue before
the presumption of majority will be defeated9 No logical
reference point is available to aid in resolving that ques
tion in this or in any other given case and as formula
tion has not been made available by the Board in that
regard it is my conclusion that Cen Vi Ro Corp supra
should be restricted to its facts Accordingly I am un
willing to find that the 1 1/2 year closedown in this case
though indefinite from its inception refutes the presume
tion of continuing majority in this instance
b The remaining defenses
Respondent argues that the basic duty to recognize
was excused here by interaction of (1) the length of the
closedown (2) operational changes in the reopened oper
ations and (3) the Unions having abandoned their inter
est in continued representation of the employees
1 Abandonment and alleged failure to demand recogni
tion The assertion on behalf of the defense that the
unions abandoned both their status as a joint bargaining
representative of the Sterling employees and any pre
sumption to that effect is plainly at odds with the un
disputed evidence The interest asserted by the Unions in
furtherance of their continued representational interest
was made evident to Respondent throughout the shut
down Gilman Sylvester Respondents vice president
confirms testimony by various union representatives as to
direct confrontations with Sylvester concerning a posse
ble reopening of the plant and their continued interest in
representation between January 21 1981 and August 19
1982
Thus shortly after the closedown Sylvester informed
Edward J Manning Local 424 s business agent that the
plant had been closed due to adverse economic condi
tions and that Sylvester would attempt to arrange a deal
which would enable the plant to reopen as soon as possi
ble Manning s testimony that he then met with Sylvester
at least once monthly inquiring whether there had been
any change in status was not denied directly by Sylves
ter 15 More specific evidence in the form of the credited
testimony of Manning indicates that he participated in
face to face contacts with Sylvester on March 5 June
25 and September 24 1981
Despite these meetings and the phone calls after Re
spondent decided to reopen it failed to take the initiative
15 Although Sylvester initially testified that he could not recall or had
no knowledge of contacts from the union during the period September
24 1981 through January 21 1982 he later noted that he did have tele
phone calls during that timeframe from Manning inquiring whether
any progress had been made On those occasions according to Sylvester
he responded that hopefully something will break that will get us start
ed again
to inform either Union of its intention in that regard The
latter were kept in the dark and forced to rely on rumors
concerning activity at the plant In mid June 1982 Local
424 received a report from a former employee to that
effect Accordingly on June 16 1982 according to the
credited testimony of Manning and William Peterson
then secretary treasurer of Teamsters Local 453 they
visited Sylvester indicating that they had heard the plant
was going to reopen Based upon a composite of the tes
timony of Manning and Peterson Sylvester did not con
firm that this was so indicating instead that he still had
some irons in the fire that nothing had been decided
as yet and the possibility still remained that the plant
might be sold or merged with someone else Manning
also informed Sylvester that he had heard that the latter
was going to reopen the plant and operate it on a non
union basis Sylvester indicated that if Manning had
heard that he did not hear it from Sylvester but did ob
serve that 70 percent of the employees did not want a
union Manning insisted that a contract was in effect and
that employees should be recalled by seniority Sylvester
declined to take a definite position but told the union
representatives that if he did any hiring it would not be
until August 1 and he would get in touch with them
before taking any action 16
Thereafter on August 3 1982 Manning together with
Local 424 s president Edward Steinmetz ran down Syl
vester at his home Manning then indicated again that he
had heard that the plant was to open Sylvester respond
ed in the affirmative while indicating that it was his po
sition that there was no contract Manning expressed a
willingness to sit down and discuss any help Sylvester
might need Sylvester expressed his appreciation but de
clined Manning indicated that he would do what was
necessary to protect the membership and again urged
that employees be recalled in accordance with senion
ty 17
On August 9 the initial unfair labor practice charge
was filed alleging a refusal to bargain in good faith since
August 2 1982
Thereafter full scale production began on August 19
when 92 employees including 79 with prior employment
history were placed on the payroll This was followed
by a further visit to the plant by Manning on August 24
1982 this time in the company of an International repre
sentative of the United Food and Commercial Workers
George Nestler On that occasion Nestler and Manning
were rebuffed with Sylvester preempting any and all
discussion by commenting that he had nothing to say to
them
16 Sylvester testified that during the third week of June it is possible
that he may have had a visit from Manning and Peterson in which they
asked if he was going to honor the agreement According to Sylvester
he indicated that he had nothing to talk about Also in his testimony Syl
vester conceded that at the time work had commenced on revitalization
of the refrigeration system in anticipation of reopening the plant No tes
timony was offered by Respondent to mitigate my strong impression that
at all times material Sylvester confronted the Unions from a posture of
evasiveness and secrecy regarding just what was going on at the plant
17 Sylvester acknowledged that this meeting took place on August 3
and indicated that he at that time conveyed his position that the con
tract was not in effect
STERLING PROCESSING CORP
In the face of this clear evidence based largely on
matters confirmed by Sylvester himself the contention
that the Unions professed disinterest in continued repre
sentation of Sterling employees was plainly contrived if
not frivolous In contrast considering the evasive pos
ture of Respondent the joint representative cannot be
faulted with indifference inaction or injudiciousness in
the effort to preserve the representational interest of em
ployees during this entire period 18 Accordingly the
claim of abandonment either considered alone or in con
junction with other evidence in this record offers no
substantial basis for negating any obligation held by the
Respondent to recognize the joint representative as of
August 19 1982
Also rejected is Respondents contention that prior to
August 19 1982 the Unions failed to make an effective
demand for recognition While conceding that the
Unions requested that Respondent honor the contract
the latter argues that such requests did not entail a re
quest for recognition However a demand for adherence
to a contract by an incumbent representative fails to fur
nish a defense to a denial of recognition where an obliga
tion to recognize would on other grounds exist Atlas
Graphics 227 NLRB 136 (1976) relied on by Respond
ent is perfectly consistent with this view and hardly ex
cused Sylvester s course of conduct toward the Unions
In that case the Board adopted the conclusion of an ad
ministrative law judge that a union s unwaivering insist
ence that a successor employer adopt an existing contract
did not constitute a request for bargaining where the
union afforded the new employer no alternatives Re
spondent s interpretation of that case however over
looks the fact that the administrative law judge in so
holding confirmed that these requests might be a re
quest to recognize the Union 227 NLRB at 141 In any
event in the instant case the possibility of relief from the
contract was not shown to be beyond comtemplation of
the union representatives To the contrary testimony by
Manning and Edward Steinmetz which was not directly
contradicted by Sylvester establishes that on August 3
1982 it was indicated to Sylvester that if he were to
reopen and needed help Local 424 would be willing to
discuss the matter Indeed according to Sylvester him
self the statement on behalf of Local 424 made at his
June 16 1982 meeting with Manning and Peterson was
8In support of the abandonment claim Respondent makes a some
what oblique reference to various actions by Local 424 in connection
with a merger between Amalgamated Meatcutters and the Retail Clerks
International Association which was perfected on March 25 1979 In
this regard Respondent claims that disinterest in representation is some
how shown by the alleged failure apparently prior to June 1979 of
Local 424 to notify and educate the membership about the intended
merger Undisputed testimony indicates that such notice was effected
However I fail to perceive just how they could reasonably be considered
as indicative of disinterest in the light of the express notification provided
to Respondent on September 26 1979 See G C Exh 2 Indeed it was
after such notification on October 29 1979 that the joint representative
executed a collective bargaining agreement with Respondent (See Jt
Exh 1) Beyond reliance on the merger Respondent attempts to distract
from the Unions affirmative manifestations of their continuing interest
by dwelling on omissions by the latter In these latter respects any fore
bearance on their part was in the nature of tactical discretionary maneu
vets hardly inconsistent with their overt unmistakable assertions of a
continuing interest in representation throughout
217
are you going to honor the agreement and we would
like to talk about it Thus unlike Athens Graphics supra
the posture of the statutory representative could not
fairly be characterized as of the inflexible take it or
leave it variety Instead as I construe the testimony a
willingness was conveyed to discuss possible relaxation
of established terms Cf Viking Lithographers 184 NLRB
139 (1970) Southern Wipers 192 NLRB 816 (1971) Fi
nally the refusal to bargain charge filed on August 9
1982 was itself tantamount to a valid request for recog
nition under established Board policy 19 The request was
of a continuing nature and was fully operative on
August 19 1982 when a representative complement was
employed20 and was renewed a few days later on
August 24 1982 when the attempt to again confer by
Local 424 representatives was frustrated by Sylvester 21
2 The hiatus and the change in operation The absence
of proof that Respondent acted on a declaration of em
ployee sentiment does not end the inquiry For Respond
ent contends that when it reopened after a 20 month
shutdown it embarked on an entirely different buss
ness thereby negating any duty to recognize and bar
gain with the joint representative It appears that in Jan
uary 1981 Sterling was a fully integrated poultry pro
ducer and processor In that capacity it purchased for its
own account live chickens and arranged for and effected
their delivery to the Sterling plant where the poultry
was killed plucked eviscerated cut packaged stored
or immediately loaded aboard Respondents own vehi
Iles for delivery to customers within a 150 mile radius of
Oakland Finished product was marketed by Sterling
under its own trademark to customers developed
through Sterling s own sales force Sterling then pri
manly was engaged in production of broilers 7 to 9
weeks of age and weighing approximately 4 to 5 pounds
live weight Its finished product mix consisted of 50 per
cent whole birds 25 percent knife cut parts (eight pieces)
for the general market and 25 percent saw cut parts for
Kentucky Fried Chicken (KFC) outlets (nine pieces)
Some 185 bargaining unit employees in January 1981
were engaged in the above described processing and
over the road delivery and distribution operations
On the date of the hearing Sterling had the same own
ership corporate form plant location and telephone
number as on January 21 1981 On the other hand the
reopening in August 1982 was facilitated solely by an ar
rangement made between Sterling and a large unidenti
feed poultry enterprise Under the new arrangement
Sterling s involvement was limited to custom processing
of broilers heavy fowl and roasting chickens 22 all
owned by the unidentified contractor No work was per
formed for Sterling s own account or any other contrac
19 See e g Sewanee Coal Operators Assn 162 NLRB 172 (1967) Rob
erts Electric Co 227 NLRB 1312 1319 (1977)
20 See Essex Wire Corp 188 NLRB 397 412 (1971) Hudson River Ag
gregates 246 NLRB 192 195 fn 3 (1979)
21 Scott Gross Co 197 NLRB 420 426 (1972) It could not fairly be
concluded that Sylvester as of that date had no hunch as to the purpose
behind the presence of these individuals on August 24 1982
For the most part the poultry processed by Respondent since
August 19 1982 weighed from 5 to 7 pounds and hence were heavier
than that primarily worked on as of January 1981
218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tor Thus it would appear that to this extent Respond
ent s volume of business and work flow is determined by
the contractor with Sterling compensated on the basis of
the pounds of ready to cook product processed Its
agreement with the contractor is subject to cancellation
on 90 days notice Initially the work force consisted of
92 employees a figure that included 79 that had been
employed in the bargaining unit in January 1981 23 Re
spondent no longer sells to KFC or other fast food re
tailers Accordingly it does not saw cut chickens In
connection with the latter equipment used in that oper
ation though still possessed by the Respondent is no
longer used The area that housed the KFC is now occu
pied by an expansive Cry 0 Vac process 24
Changes impacting on the historic bargaining unit
were limited to broadened interchange between jobs
changes in the number of employees assigned to particu
lar operations the fact Respondent no longer has a Ken
tucky Fried Chicken operation 25 the renewed and
broadened use of the Cry 0 Vac process 26 and the fact
that Respondent no longer through its own employees
transports from source to plant or from plant to custom
er 27
Beyond introduction of Cry 0 Vac and the now dis
pensable KFC cutting equipment the only changes in
equipment and process which appear to influence the
manner which employees performed their work related
to a higher degree of quality control and the size of the
chickens handled In connection with the latter after an
initial trial it was determined that the automatic killing
machine previously in use was ineffectual due to the
greater weight and size of the poultry For the same
reason the defeathering machine had to be abandoned
and more personnel was assigned to the picking room
While work on the eviscerating lines has remained essen
tially unchanged the lines are run slower with the work
slightly more difficult because of the need to handle
larger birds All in all however it does not appear that
skill demands on employees in the reopened operation
were significantly different from those performed within
the collective bargaining unit in the past 28
Although Respondent adduced testimony to the effect
that it has surrendered elements of control to the con
tractor this claim must be evaluated in the context of the
processing contract where at article 9(A) it is stated in
material part as follows
23 As of October 18 1982 the work force had grown to 117 employ
ees 84 of whom had been employed at the time of closedown
24 Cry 0 Vac is a partially automated packaging process that permits
whole poultry to be sold as either fresh or frozen It utilizes whole chick
ens evaluated as meeting grade A standards and entails some 40 to 60
percent of Respondents entire output The balance of the chickens are
shipped after being hand cut into parts The Cry 0 Vac equipment is not
owned by Respondent but belongs to the contractor Some years prior
to the closedown Sterling for a brief period maintained a Cry 0 Vac op
eration for the processing of turkeys The most recent collective bargain
ing agreement includes the classification Cry 0 Vac operator See Jt
Exh 1 (8)
25 In January 1971 there were 10 jobs in the KFC operation
28 The new Cry 0 Vac operation is manned by about 34 employees
27 Prior to the closedown Respondent employed five truckdrivers
28 In so concluding I have not overlooked the testimony of Sylvester
to the effect that some on the job training was required in connection
with Cry 0 Vac
It is understood between the parties hereto that
Sterling is undertaking this Agreement as an inde
pendent contractor and that [the contractor] shall
have no control over its operation other than as
specified herein The responsibility for Sterling s fa
cilities equipment and manpower and any incur
ance on the same shall be and remain with Sterling
Sterling shall maintain its facility at its29 own cost
and expense in a state of fitness and efficiently [sic]
Respondent urges that the innovations described above
be evaluated in light of principles governing in succes
sorship cases See e g NLRB v Burns Security Services
406 U S 272 (1972) Band Age Inc 217 NLRB 449
(1975) enfd 532 F 2d 1 (1st Cir 1976) cert denied 429
U S 921 (1976) However even if successorship doctrine
were deemed controlling here it would be my conclu
sion that the operational differences standing alone or in
conjunction with the hiatus were not sufficiently dra
matic to alter the identity of the employing enterprise 30
Thus during the 18 month hiatus Respondent persisted
in its effort to arrive at some arrangement whereby re
opening would be feasible When it succeeded produc
tion resumed with ultimate responsibility for manage
ment of the plant remaining in Sylvester the general
manager and former Plant Superintendent Carol
Schroyer There also was no change in the identity of
the personnel manager Jerry Sanders
29 See R Exh 14
30 In my opinion the better view is that where as here the identity
and location of the employer is unchanged the legal import of any super
vening change in circumstances to an established bargaining relationship
ought be assessed in terms of whether the employer denied recognition
on objective factors furnishing a reasonably based doubt that the un on
continued to represent a majority For obvious reasons latitude given a
new and distinct employer under the successorship doctrine is much
broader Thus an entity that acquires a business may or may not on a
nondiscriminatory basis effect changes in the work force make substan
teal revisions in the method of operation or open immediately or defer
the reopening of the venture These options in successorship cases are ex
ercised as a matter of economic discretion by a stranger to the establish
ment of the historic bargaining relationship and its independence there
from is recognized in the successorship doctrine Should the new firm de
cline to recognize the historic representative the legality of its course as
a successor will be evaluated primarily in the light of the manner in
which it exercised economic judgment in the critical areas mentioned
above And rejection of a union might be excused under that analysis
even if the new employer is unable to produce evidence regarding em
ployee sentiment Thus in successorship cases the policy encouraging
stability in existing bargaining relationships yields somewhat to interests
of a new nonconsenting party and the focal point of the successorship
inquiry rests on what the new employer has done rather than the wisnes
of its employees In contrast however where the identity of the employ
er remains a constant there is no third party interest to protect and the
inquiry properly turns on the historic accommodation between freedom
of choice and the equally desirable policy encouraging stability in exist
mg bargaining relationships These competing interests have been accom
modated through decisional precedent which requires the employer to
continue bargaining until possessed of objective evidence reasonably es
tablishing that the union has lost its majority It is that test that properly
governs here Nonetheless as the Board has given lip service to
successorship cases in evaluating an employers obligation to bargain and
as under either standard on the instant record the result would be the
same I have given Respondent the benefit of the doubt and at least as to
the immediate issue shall resolve the matter in the light of successorship
principles See Vans Packing Plant 211 NLRB 692 (1974) Cf Blazer
Corp 236 NLRB 103 (1978) a successorship case
STERLING PROCESSING CORP
The resumed operation continued with the rehiring of
a substantial majority of Sterling s former employees In
evaluating the changes in operation and their impact on
the collective bargaining unit it is most significant that
Respondent continue to function as a processor of chick
ens The labor intense segment of its operation in both
January 1981 and August 1982 remained unaltered The
changes in equipment methodology and utilization of
unit employees did not modify materially the identity of
the employing industry A substantial majority of former
employees were selected by Respondent to perform the
same tasks at the same place that they had worked in the
past 31 Accordingly I find that even if Respondent as
of August 19 1982 were regarded as a successor it
would not have been exonerated from its duty to bargain
in good faith Having concluded that Respondent did not
act on objective considerations evidencing that the
Union had lost its representative status it is concluded
that as of that date Respondent violated Section 8(a)(5)
by refusing on request to recognize and bargain with the
joint representative
The complaint further alleges that Respondent violat
ed Section 8(a)(5) and (1) of the Act by discontinuing
unilaterally certain established terms of employment
without affording the joint representative the opportum
ty to negotiate and bargain It is undisputed that Sylves
ter prior to the August 1982 hirings conducted onenta
tion sessions with job applicants during which he deliv
ered a prepared statement 32 An appeal was made to the
assembled applicants that their help was needed to
enable the plant to continue to operate The need was
stressed for good hard working employees willing
to work for good wages and limited benefits to help
make our company successful and willing to sacrifice
now so you can have a job in the future Sylvester then
listed the benefits that would be paid The basis wage
rate of $4 per hour undercut that which was to have
been effective under article V of the collective bargain
ing agreement on September 1 1981 33 A single paid
holiday was mentioned in contrast to the 8 paid holidays
described in article VII of the contract Omitted from
the new benefit structure were the protective assurances
of seniority set forth in article III of the collective bar
gaining agreement premium pay for daily hours worked
in excess of 8 as set forth in article IV grievance arbitra
tion as set forth in article IX funeral pay as set forth in
article XI of the contract and health and welfare protec
tion as provided in article XII 34
31406 U S at 273
32 See G C Exh 14(b)
33 Under the terms of the expired collective bargaining agreement in
the case of production workers 3 different wage rates were applied to 13
classifications Maintenance mechanics were separately rated in each of
three classes Truckdnvers dockmen warehousemen and other classifi
cations of interest to Teamsters Local No 453 were within five different
rates in five classifications On resumption of operations in August 1982
only two classifications were recognized in production areas namely
plant worker and live hanger and a separate rate was recognized for
maintenance mechanics Those assigned to positions resembling the
former Teamsters operation were placed within the plant worker classifi
cation
34 See it Exh I
219
In this connection Respondent argues that it was free
to set its own wages hours and working conditions
prior to August 19 1982 citing Spruce Up Corp 209
NLRB 194 (1974) and other precedent addressed to new
employers in successorship situations In the latter the
following reference was made to certain reasoning of the
Supreme Court in NLRB v Burns Security Services
supra
In Burns the Supreme Court enunciated the prim
ciple that a successor employer is ordinarily free
to set initial terms on which it will hire employees
of a predecessor without first bargaining with the
employees bargaining representative In the same
paragraph however it recognized an exception to
that principle in instances in which it is perfectly
clear that the new employer plans to retain all the
employees in the unit
We believe the caveat in Burns should be re
stricted to circumstances in which the new employ
er has either actively or by tacit inference misled
employees into believing they would all be retained
without change in their wages hours or conditions
of employment or at least to circumstances where
the new employer has failed to clearly an
nounce its intent to establish a new set of conditions
prior to inviting former employees to accept em
ployment [209 NLRB at 195 ]
Indisputable fact on this record demonstrates that Re
spondent announced a new set of employment terms
before hiring former employees in substantial numbers on
and after August 19 1982 Hence if the law governing
successorship controls in this instance these unilateral
changes all would fail within the privileged area dis
cussed in Spruce Up 35 However the latitude afforded in
this respect clearly is limited to successor employers
Thus the Supreme Court recognized in Burns that
during the period between collective bargaining agree
ments employers situated similarly to the Respondent
here are subject to an obligation to bargain which in
cludes a negative injunction to refrain from unilaterally
changing wages and other benefits established by a prior
collective bargaining agreement even though that agree
ment had expired (406 U S at 293) The distinction in
successorship cases was rationalized by the Court as fol
lows
Although Burns [the successor] had an obligation
to bargain with union concerning wages and other
conditions of employment when the Union request
ed it to do so this case is not like a Section 8(a)(5)
violation where an employer unilaterally changes a
condition of employment without consulting a bar
gaining representative It is difficult to understand
how Burns could be said to have changed unilateral
ly any pre existing term or condition of employ
ment without bargaining when it had no previous
relationship whatsoever to the bargaining unit and
3 s Cf Howard Johnson Co 198 NLRB 763 (1972)
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
no outstanding term and conditions of employ
ment from which a change could be inferred The
terms on which Burns hired employees for service
may have differed from the terms extended by
[the predecessor] but it does not follow that
Burns changed its underlying terms and conditions
of employment when it specified the initial basis on
which employees were hired [406 U S at 294 ]
In the case at hand Sterling was hardly a stranger to the
establishment of the terms it altered on August 18 And
whatever comfort might be gleaned by Respondent from
other elements of the successorship doctrine the Con
gressional restraints on the Board s authority to impose
bargaining obligations on nonconsenting employers can
be of no avail to the Respondent See 406 U S at 283-
287 Accordingly it is found that Respondent violated
Section 8(a)(5) and ( 1) of the Act by on August 19 1982
modifying preexisting wages and working conditions by
setting unilaterally new terms without providing notice
or opportunity to negotiate to the designated employee
representative
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in com
merce within the meaning of Section 2(6) and (7) of the
Act
2 The Unions are labor organizations within the
meaning of Section 2(5) of the Act
3 Respondent on August 19 1982 violated Section
8(a)(5) and (1) of the Act by refusing on request to rec
ognize the joint representative as exclusive bargaining
agent of employees in the appropriate unit defined
below
All employees of the employer excluding the plant
superintendent foreman clerical workers execu
tives and guards
4 Respondent violated Section 8(a)(5) and (1) of the
Act by on August 19 1982 establishing its own terms
and conditions of employment thereby abrogating wage
levels and benefits previously enjoyed by employees
without first notifying and negotiating with the exclusive
bargaining agent of the employees
5 The unfair labor practices found above in para
graphs 3 and 4 constitute unfair labor practices having an
effect on commerce within the meaning of Section 2(6)
and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act it shall be recommended that
Respondent be ordered to cease and desist and to take
certain affirmative action designed to effectuate the pole
cies of the Act
Respondent contends that notwithstanding its unlaw
ful refusal to bargain the preferred remedy is the hold
ing of an election rather than the issuance of a bargain
ing order In support Respondent observes that it
would be a travesty of the rights of Sterling s employees
to require Sterling to bargain with the unions In this
respect Respondent points to the fact that on about Oc
tober 18 1982 it was presented with a petition signed by
some 65 employees endorsing the following
When the Sterling Processing reopened all employ
ees strongly indicated that they preferred a non
union plant This petition is being circulated in
order to reaffirm the employees decision made at
the time of hiring
The October articulation of employee preference is of no
surprise when considered against the orientation meet
ings conducted by Sylvester in August Thus as job ap
plicants these employees on that occasion in August
were told that only those who agreed to accept the
terms and conditions of employment defined by Sylves
ter would be given jobs The vast majority of those ap
plicants were acquainted with the benefits enjoyed previ
ously pursuant to the expired collective bargaining
agreement They would have been in position readily to
identify the new terms as such a drastic and sweeping
cut as to be incompatible with further union representa
tion It is not farfetched to conclude that under these
circumstances acceptance of jobs by employees entailed
a knowing concession that they preferred a non union
plant 36
Respondent also points to the results of the poll taken
on October 19 1982 where union representation was re
jected by a vote 23 for 69 against Prior to the conduct
of this vote Sylvester distributed a memorandum to em
ployees which in addition to instructing them of the me
chanics of the poll and assuring against reprisals he
pointed out that Sterling had concluded that a majority
of our employees do not want the union and that the
purpose of the secret ballot was to double check
that conclusion 37 In connection with the foregoing as
the General Counsel observes the legality of such a poll
like the weight given results thereof under Board prece
dent is questionable See e g Forbidden City Restaurant
265 NLRB 409 (1982)
Nevertheless on this record the employee sentiment
manifested by the October 1982 petition and poll fail to
detract from the propriety of a bargaining order For at
that time Respondent was not free to raise a doubt of
majority In Guerdon Industries 218 NLRB 658 659
(1975) it was stated as follows
As to a reasonably based doubt two prerequisites
for sustaining that defense are that the asserted
36 The complaint does not alleged that the ultimatum delivered by Syl
vester to job applicants at the prehiring orientation meetings independ
ently violated Sec 8(a)(1) of the Act Nonetheless his offer on that occa
Sion implicitly required employees to choose between a job and collec
tive bargaining It was a transparent ploy possessed of the very evils that
historians in the field of labor management relations would be quick to
recognize as inherent in the yellow dog contract See Hitchman Coal &
Coke Co v Mitchell 245 U S 229 (1917) 2 Leg Hist 3068-3069 (NLRA
1935) Respondents conduct in this regard has not been discounted in
considering whether the unlawful denial of recognition and abrogation of
existing working conditions contributed to the views expressed by em
ployees in October 1982
s See R Exh 18(a)
STERLING PROCESSING CORP
doubt must be based on objective considerations
and such doubt must be raised in a context free of
unfair labor practices
[A]n employer may not avoid the duty to bargain by
demonstrating a loss of majority status arising from its
own unfair labor practices 38 At the same time as
stated in NLRB v Nu Southern Dyeing & Finishing 444
F 2d 11 15-16 (4th Cir 1971) in which a denial of rec
ognition is preceded by unfair labor practices an em
ployer may avoid a bargaining order by showing that the
unfair labor practices did not significantly contribute to
such a loss of majority or to the facts upon which a
doubt of majority is based That burden has not been
met here For Respondent refused to recognize the
Unions from the outset while simultaneously declaring
to employees that the terms under which they would
work would be reduced drastically The impact of this
unlawful activity was underscored by Respondent s
having offered jobs only to those willing to accept terms
so incompatible with any possibility of future collective
bargaining as to be the practical equivalent of a commit
ment on the part of those hired to abandon union activi
ty This conduct all at the time of or shortly before the
38 NLRB v Little Rock Downtowner 414 F 2d 1084 1091 at fn 4 (8th
Cir 1969) Celanese Corp of America 95 NLRB 664 673 (1951) Terrell
Machine Co 173 NLRB 1480 1481 (1969) Chet Monez Ford 241 NLRB
348 351 (1979)
221
plant s reopening is not lightly dismissed as having no
causative influence on employee repudiation of the
Union some 2 months later 39 An affirmative bargaining
order is deemed appropriate
In addition it is necessary to fashion a remedy for the
further finding that Respondent violated Section 8(a)(5)
and (1) of he Act by unilaterally fixing its own terms of
employment In this respect it shall be recommended
that Respondent be ordered to make whole the employ
ees in the unit for any loss of pay or other benefits they
may have suffered as a result of Respondents implemen
tation of the changes retroactive to August 19 1982
when the changes were implemented and to continue
such payments until Respondent negotiates in good faith
to agreement or impasse 40 It shall be recommended fur
ther that all backpay and deferred compensation due
under the terms of this order shall include interest as
specified in Florida Steel Corp 231 NLRB 651 (1977) 41
[Recommended Order omitted from publication ]
89 Cf Deblm Mfg Corp 208 NLRB 392 401 (1974) Respondent in
this respect also relies on cases pertaining to the Board s authority to
issue bargaining orders to redress collateral unfair labor practices in the
context of an initial organization campaign However NLRB v Gissel
Packing Co 395 U S 575 (1969) and its progeny are for obvious reasons
irrelevant to consideration of the means by which the Board should re
dress an employers repudiation of a long-established collective bargain
mg relationship
40 See e g Howard Johnson Co 198 NLRB 763 764 (1972)
4i See generally Isis Plumbing Co 138 NLRB 716 (1962)