Holly Farms Corp v. NLRB ( 1996 )

Affirmed by Supreme Court on April 23, 1996.
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
HOLLY FARMS CORPORATION; TYSON
FOODS, INCORPORATED,
Petitioners,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
No. 93-1710
CHAUFFEURS, TEAMSTERS AND
HELPERS, LOCAL 391, 29, 71, 355,
592, 657, 988, and all affiliated
with the International Brotherhood
of Teamsters,
Intervenor.
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
HOLLY FARMS CORPORATION; TYSON
FOODS, INCORPORATED,
Respondents,
No. 93-1882
CHAUFFEURS, TEAMSTERS AND
HELPERS, LOCAL 391, 29, 71, 355,
592, 657, 988, and all affiliated
with the International Brotherhood
of Teamsters,
Intervenor.
On Petition for Review and Cross-application
for Enforcement of an Order
of the National Labor Relations Board.
(11-CA-13184, 11-CA-13267, 11-CA-13520, 11-CA-13619,
11-RC-5583, 11-CA-13487)
Argued: April 12, 1994
Decided: March 10, 1995
Before MURNAGHAN and NIEMEYER, Circuit Judges, and
HARVEY, Senior United States District Judge for the
District of Maryland, sitting by designation.
_________________________________________________________________
Order enforced by published opinion. Judge Murnaghan wrote the
opinion, in which Senior Judge Harvey joined. Judge Niemeyer wrote
an opinion concurring in part and dissenting in part.
_________________________________________________________________
COUNSEL
ARGUED: Charles Preyer Roberts, III, HAYNSWORTH,
BALDWIN, JOHNSON & GREAVES, Greensboro, North Carolina,
for Petitioners. Frederick Lee Cornnell, Jr., NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for Respondent; John
David James, SMITH, FOLLIN & JAMES, Greensboro, North Caro-
lina, for Intervenor. ON BRIEF: William R. McKibbon, Jr., D.
Christopher Lauderdale, HAYNSWORTH, BALDWIN, JOHNSON
& GREAVES, Greenville, South Carolina, for Petitioners. Jerry M.
Hunter, General Counsel, Yvonne T. Dixon, Acting Deputy Attorney
General, Nicholas E. Karatinos, Acting Associate General Counsel,
Aileen A. Armstrong, Deputy Associate General Counsel, Frederick
C. Havard, Supervisory Attorney, NATIONAL LABOR RELA-
TIONS BOARD, Washington, D.C., for Respondent.
_________________________________________________________________
OPINION
MURNAGHAN, Circuit Judge:
Holly Farms Corporation and Tyson Foods, Inc. ("Holly Farms"
and "Tyson" -- collectively, "the Company") have petitioned for
review of a decision and order of the respondent, the National Labor
2
Relations Board ("NLRB" or "the Board"), which found that the
Company had committed unfair labor practices in violation of
§§ 8(a)(1), (3), and (5) of the National Labor Relations Act ("the
Act"), 49 Stat. 449, as amended, 29 U.S.C. §§ 158(a)(1), (3) and (5).
Holly Farms Corp., 311 N.L.R.B. 273 (1993). The NLRB has cross-
applied for enforcement of its order, and the Chauffeurs, Teamsters
and Helpers Local Union Nos. 29, 71, 355, 391, 592, 657, and 988
(collectively, "the Union") have intervened as respondents.
I
Tyson is engaged in the production, processing, and transportation
of poultry. Tyson operates production facilities, as well as transporta-
tion terminals between Texas and North Carolina. From those termi-
nals, drivers in Tyson's transportation department transport its poultry
products to customers throughout the United States.
As of October 1988, Holly Farms was engaged in the production,
processing, and transportation of poultry at its headquarters facility in
Wilkesboro, North Carolina, and at other facilities in North Carolina,
Virginia, and Texas. At that time, Tyson submitted a bid to purchase
Holly Farms' stock.
On July 18, 1989, Tyson acquired a controlling interest in Holly
Farms, but Holly Farms continued its existence as a corporate entity.
Holly Farms' business operations remained virtually unchanged for
about two months. Eventually, Holly Farms announced that Tyson
had decided to integrate part, but not all, of Holly Farms' operations
into its own.
In December 1988, while Tyson's bid to purchase Holly Farms'
stock was pending, the Union launched organizing campaigns in three
separate units of Holly Farms employees. One of those units consisted
of production employees at the Wilkesboro facility and elsewhere.
The second unit ("the drivers-yardmen unit") consisted of drivers and
yardmen at several facilities in Holly Farms' transportation depart-
ment. And the third unit ("the live-haul unit") consisted of the Wilkes-
boro facility's live-haul crews and various workers at Holly Farms'
facility in Roaring River, North Carolina.
3
The Board found that Holly Farms committed numerous unfair
labor practices during those three organizing campaigns. See Holly
Farms Corp. v. NLRB, supra. Many of the Board's findings are
uncontested here. For example, it is uncontested that, during the
Union's organizing campaign in the drivers-yardmen unit, Holly
Farms officials, including its President, repeatedly threatened that
Holly Farms would eliminate the transportation department and termi-
nate all of its employees if the Union won the election. Even after the
Union won the election and was certified to represent the unit, Holly
Farms threatened employees with arrest for handing out union litera-
ture, and then it actually had three employees arrested when they dis-
tributed union literature in a company parking lot. In addition, the
Company unlawfully discharged four pro-union activists in the pro-
duction employees unit who had asked their co-workers to sign union
authorization cards or to support the Union.
The Company does not dispute the above-described unfair labor
practices, and the Board's order with respect to those uncontested vio-
lations can be summarily enforced. See NLRB v. Frigid Storage, Inc.,
934 F.2d 506, 509 (4th Cir. 1991). Of those findings that the Com-
pany does dispute, some are clearly supported by substantial evi-
dence. Only two of the issues presented in the Company's petition for
review merit extended discussion: (1) whether Tyson violated any
duty that it may have had to bargain with the Union regarding the
drivers-yardmen unit; and (2) whether the workers in the live-haul
unit were "employees" protected by the Act or"agricultural laborers"
excluded from the Act's coverage.
II
The Board's findings are conclusive "if supported by substantial
evidence on the record considered as a whole." 29 U.S.C. § 160(e).
A reviewing court "may [not] displace the Board's choice between
two fairly conflicting views, even though the court would justifiably
have made a different choice had the matter been before it de novo."
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
III
The first question presented is whether Tyson violated any duty
that it may have had to bargain with the Union regarding the wages,
4
hours, and other terms and conditions of employment for members of
the drivers-yardmen unit. That question, in turn, can be divided into
two sub-questions: whether (and, if so, when) Tyson had a duty to
bargain with the Union; and whether Tyson violated that duty by uni-
laterally setting the terms and conditions of employment for Holly
Farms employees who joined Tyson's newly-integrated transportation
department.
A
On March 24, 1989, following a Board-conducted election, the
Union was certified to represent Holly Farms employees in the
drivers-yardmen unit. Thereafter, the Union and Holly Farms bar-
gained unsuccessfully for a contract. On July 18, 1989, Tyson
acquired a controlling interest in Holly Farms' stock. For the next two
months -- until Tyson converted some of the drivers and yardmen to
its own payroll on September 22 -- Tyson did not make any signifi-
cant changes in Holly Farms' business operations.
By September 11, Tyson had decided to integrate the entire Holly
Farms transportation department into its own transportation depart-
ment. The following day, Holly Farms announced that decision to the
Union. Holly Farms also announced to the employees-- without bar-
gaining with their duly elected Union representative-- that they
would be offered jobs as Tyson employees, under Tyson's pay plan
and working conditions, which were substantially different from, and
at least arguably inferior to, those of Holly Farms. Holly Farms also
stated that its transportation department would no longer exist after
the integration and that, therefore, the Union no longer represented
the employees. Subsequently, Tyson sent the employees letters which
offered them jobs as Tyson employees, on Tyson's terms, and which
required them to respond by September 22. Forty-seven of the unit
employees refused the offer because of those terms and lost their jobs
as of September 22.
The Board found that Tyson came under a duty to bargain with the
Union at the time of the stock purchase (on July 18, 1989) and that
thereafter Tyson committed numerous violations of§ 8 of the Act.
We hold that the evidence supports those findings.
5
B
Section 8(a)(5) of the Act, 29 U.S.C. § 158(a)(5), in conjunction
with § 9(a) of the Act, id. § 159(a), makes it an unfair labor practice
for an employer to refuse to bargain with the union selected by the
majority of its employees in an appropriate unit. A union that is certi-
fied by the Board after winning a Board-conducted election is entitled
to a "conclusive presumption" of majority support among the employ-
ees for one year after certification. See Fall River Dyeing & Finishing
Corp. v. NLRB, 482 U.S. 27, 37 (1987). Accordingly, absent unusual
circumstances, an employer violates § 8(a)(5) by withdrawing recog-
nition from a union during its certification year. See id. at 37-39;
Brooks v. NLRB, 348 U.S. 96, 98-99 (1954).
The Board and Petitioners agree that on March 24, 1989, the Union
became certified to represent certain Holly Farms employees. Thus
Holly Farms had a duty to recognize and bargain with the Union until
March of 1990. Further, the most recent Supreme Court case involv-
ing these issues explains:
"[A] mere change of employers or of ownership in the
employing industry is not such an ``unusual circumstance' as
to affect the force of the Board's certification within the nor-
mal operative period if a majority of employees after the
change of ownership or management were employed by the
preceding employer."
Fall River, 482 U.S. at 37 (quoting NLRB v. Burns Int'l Security
Servs., Inc., 406 U.S. 272, 279 (1972) (emphasis added)). Here, the
new owner, Tyson, employed exclusively Holly Farms employees in
unchanged Holly Farms units for two months. Thus the force of the
Union's certification remained in effect.
When there is "substantial continuity" between a new business
enterprise and a previous enterprise, a new employer may be obli-
gated to recognize and bargain with a certified union which repre-
sented the employees while they worked for the predecessor
employer. See Fall River, 482 U.S. at 43; Burns, 406 U.S. at 277-81;
Zady Natey, Inc. v. United Food and Commercial Workers Int'l
Union, 995 F.2d 496, 498 (4th Cir.), cert. denied, 114 S. Ct. 470
6
(1993). Such a new employer has been termed a "successor." E.g.,
Fall River, 482 U.S. at 41; Burns, 406 U.S. at 284. If the new
employer is not an entirely separate corporate entity, but rather has
purchased the stock of the predecessor employer, the new employer
may be further obligated to adhere to the terms of any existing collec-
tive bargaining agreement ("CBA") between the predecessor
employer and the union. See, e.g., Burns , 406 U.S. at 291 ("[I]n a
variety of circumstances involving a merger, stock acquisition, reor-
ganization, or assets purchase, the Board might properly find as a
matter of fact that the successor had assumed the obligations under
the old contract.") (dicta); Esmark, Inc. v. NLRB, 887 F.2d 739, 751
(7th Cir. 1989); see also Hendricks-Miller Typographic Co., 240
N.L.R.B. 1082, 1085 (1979) (holding that a new stockowner inherits
the previous owner's obligations to employees, specifically obliga-
tions formed by corporation membership in a multiemployer unit).
Some have called such an employer a "successor," Burns, 406 U.S.
at 291 (dicta); others have rejected this terminology in light of the fact
that an ordinary "successor" is not bound by any existing CBA,
Esmark, 887 F.2d at 751; Hendricks-Miller , 240 N.L.R.B. at 1085.
See also Golden State Bottling Co. v. NLRB, 414 U.S. 168, 180
(1973) (referring to a purchaser of a business as a"successor," but
calling the business itself a "continuing business enterprise"). When
the predecessor employer continues as a corporate entity, that
employer remains bound by its existing duties to the union, and has
been called a "continuing employer." EPE, Inc. v. NLRB, 845 F.2d
483, 487 (4th Cir. 1988). In such a situation, both the "continuing
employer" and the new stockowner have joint simultaneous duties to
the union. See Miami Foundry Corp. v. NLRB, 682 F.2d 587, 589 (6th
Cir. 1982) (per curiam) (holding a new managing corporation and two
stockholders, one owning 59 percent of the corporation and one own-
ing the remainder, to be three joint employers, jointly under a duty to
negotiate with the union which had been formed earlier, at a time
when the employees were employed by only one of the stockholders).
In the instant case, the Board found that Tyson became a "succes-
sor" to Holly Farms as of July 18, 1989, the date that Tyson pur-
chased Holly Farms' stock. In our review, we "must defer to the
NLRB's application" of successorship principles"so long as it is
rational and not inconsistent with the [Act]." EPE, 845 F.2d at
489-490 (quoting United Food and Commercial Workers Int'l Union
7
v. NLRB, 768 F.2d 1463, 1470 (D.C. Cir. 1985)). Looking beyond the
terminology to the principles at play here,
"[t]he real question in each of these ``successorship' cases is,
on the particular facts, what are the legal obligations of the
new employer to the employees of the former owner or their
representative. The answer to this inquiry requires analysis
of the new employer and of the policies of the labor laws
. . . . There is, and can be, no single definition of ``succes-
sor' which is applicable in every context."
NLRB v. General Wood Preserving Co., 905 F.2d 803, 819 (4th Cir.)
(quoting Howard Johnson Co. v. Hotel Employees , 417 U.S. 249, 262
n. 9 (1974)), cert. denied, 498 U.S. 1016 (1990). Whatever terms we
use -- whether we call Tyson a "successor," or a "new stockowner,"
or a "joint employer" -- substantial evidence and the policies of the
labor laws support the Board's finding here that Tyson came under a
duty to bargain with the Union when it purchased Holly Farms.
Although Tyson might also be obligated to adhere to the terms of any
existing CBA, see, e.g. Esmark, 887 F.2d at 751, we need not decide
that issue, as no CBA yet existed between the Union and Holly
Farms.
Although the Supreme Court has yet to decide the question, the
policies behind the labor laws compel the finding that a new stock-
owner acquires the duty to bargain with an existing union at the time
of a stock transfer. The policy underlying the National Labor Rela-
tions Act is to promote industrial peace. E.g. EPE, 845 F.2d at 489.
The successorship doctrine as expressed in Burns , supra, 406 U.S.
272, seeks to promote this policy "by forestalling the employee frus-
tration that could result if employees found themselves in substan-
tially the same job, but deprived of the representation of their union."
EPE, 845 F.2d at 489, citing Fall River, 482 U.S. at 38. From the per-
spective of the employees, a stock transfer is simply a shell game; as
we explained in EPE, supra:
[I]ndustrial peace may suffer if workers find themselves
working at the same job for the same corporation, but sud-
denly deprived of the benefits of a collective bargaining
8
agreement as the result of a stock transaction that, from the
workers' point of view, appears little more than an artifice.
Every change in corporate ownership cannot raise the
specter of disruption in the labor relations of the company
being bought or sold.
845 F.2d at 489. The Supreme Court has expounded further, in hold-
ing that an arbitration clause of a collective bargaining agreement
between a union and an employer binds a "successor employer" who
merges the first employing corporation into its own:
Employees, and the union which represents them, ordi-
narily do not take part in negotiations leading to a change
in corporate ownership. The negotiations will ordinarily not
concern the well-being of the employees, whose advantage
or disadvantage, potentially great, will inevitably be inci-
dental to the main considerations. The objectives of national
labor policy, reflected in established principles of federal
law, require that the rightful prerogative of owners indepen-
dently to rearrange their businesses and even eliminate
themselves as employers be balanced by some protection to
the employees from a sudden change in the employment
relationship. . . .
. . . While the principles of law governing ordinary contracts
would not bind to a contract an unconsenting successor to
a contracting party, a collective bargaining agreement is not
an ordinary contract. . . .
John Wiley & Sons v. Livingston, 376 U.S. 543, 549-50. Moreover,
"the usual corporate law rule is that the contracts of a corporation
remain in effect despite a sale of the corporation's stock." Esmark,
887 F.2d at 751; see also John Wiley, 376 U.S. at 550 n. 3.
In light of these labor policy concerns, the evidence amply supports
the Board's finding that as of July 18, 1989, the date that Tyson pur-
chased the Holly Farms' stock, Tyson came under a duty to bargain
with the Union previously formed by Holly Farms employees. For
9
two months after the purchase, Tyson made no significant changes in
Holly Farms' operations. Holly Farms -- under Tyson's ownership
-- continued to engage in the same business operations at the same
locations, selling the same products to the same customers, and it
retained all of its employees under the same supervision and the same
wages, hours, and working conditions. Those facts establish substan-
tial continuity between Holly Farms and Tyson. In view of that conti-
nuity, the employees would "understandably view their job situations
as essentially unaltered," and could reasonably be expected to con-
tinue their support for the Union. Fall River , 482 U.S. at 43; accord
General Wood Preserving Co., 905 F.2d at 819; Nephi Rubber Prods.
Corp. v. NLRB, 976 F.2d 1361, 1364-66 (10th Cir. 1992); cf. NLRB
v. Dent, 534 F.2d 844, 846 n.2 (9th Cir. 1976) (because the successor
had preserved the predecessor's wage rates for just two weeks follow-
ing a takeover, the successor could not thereafter alter those rates uni-
laterally).
Additionally, the employees at issue here were frustrated in their
attempts to negotiate with their employer by the fact that Tyson did
not negotiate with their Union. Holly Farms suspended serious negoti-
ations with the Union while Tyson was in the process of purchasing
Holly Farms' stock. The recently unionized employees remained in
identical jobs, yet were left in limbo, no employer having offered to
negotiate with their Union. Therefore, the Board reasonably found
that Tyson came under a duty to negotiate with the union as an
employer ("successor" or otherwise) in July 1989.1
C
Next we must determine whether Tyson violated its duty to bargain
with the Union when it unilaterally set certain terms and conditions
_________________________________________________________________
1 Other federal appellate courts have come to similar conclusions in the
stock purchase context. See, e.g., United Food & Commercial Workers
Int'l Union, 768 F.2d at 1474 (D.C. Cir.) (reversing, for lack of substan-
tial evidence, National Labor Relations Board decision that a new stoc-
kowner was not a "successor" employer, with duties to an existing
union); Miami Foundry Corp., 682 F.2d at 589 (6th Cir.) (holding new
stockowners and managers under a duty to bargain with pre-existing
union).
10
of employment for members of the drivers-yardmen unit. We con-
clude that the Board's finding that Tyson violated§ 8 of the Act was
supported by substantial evidence.
An employer's duty to bargain with its union encompasses the obli-
gation to bargain over the following mandatory subjects -- "wages,
hours, and other terms and conditions of employment." 29 U.S.C.
§ 158(d); see id. § 158(a)(5). That obligation includes a duty to bar-
gain about the "effects" on employees of a management decision that
is not itself subject to the bargaining obligation. See First Nat'l Main-
tenance Corp. v. NLRB, 452 U.S. 666, 679-82 (1981); NLRB v. Litton
Fin. Printing Div., 893 F.2d 1128, 1133-34 (9th Cir. 1990), rev'd in
part on other grounds, 501 U.S. 190 (1991). Where changes in
employee working conditions constitute such a bargainable effect, an
employer violates §§ 8(a)(5) and (1) of the Act by implementing
those changes without bargaining with the union. See Litton, 893 F.2d
at 1133-34. The employer also violates §§ 8(a)(5) and (1) if it negoti-
ates directly with its employees, rather than with their union represen-
tative, about such changes. See EPE, 845 F.2d at 491.
On September 12, 1989, the Company announced that the employ-
ees in the drivers-yardmen unit would be offered jobs as Tyson
employees under Tyson's working conditions. That announcement
plainly changed a wide range of matters -- including wages, hours,
work rules, work schedules, and work locations -- that go to the heart
of the bargaining obligation under § 8 of the Act. The Company
announced those changes in conjunction with its announcement of its
integration decision, merging Holly Farms' and Tyson's transporta-
tion departments. Thus, the Board concluded, the changes and the
offer to employees to work under those changes were"effects" of the
integration decision and were subject to the duty to bargain.
Following the announcements of September 12, the Company sent
letters to the employees offering them jobs as Tyson employees under
Tyson's working conditions, and it met with groups of employees to
discuss those working conditions. The Company did not give the
employees the option of remaining employed under their existing
working conditions. Forty-seven drivers who refused the offer
because it included Tyson's working conditions lost their jobs. Thus,
the Company bypassed the Union and negotiated directly with the
11
employees about their working conditions; and, as a result, forty-
seven members of the drivers-yardmen unit lost their jobs.
The Company and the Board have agreed that the decision to inte-
grate the two transportation departments was a management decision
that was not itself subject to the bargaining obligation. The Company
has argued that the establishment of new working conditions for the
Holly Farms employees was an integral part of that management deci-
sion. The Board has countered that the working conditions were "ef-
fects" of that decision, rather than intrinsic parts of the decision itself,
and therefore were subject to the duty to bargain.
The Supreme Court in First National Maintenance , supra, enun-
ciated a distinction between "economically-motivated" management
decisions, 452 U.S. at 680, and the "effects" of those decisions. Id. at
677 n.15, 682. In Litton, supra, the Ninth Circuit expounded upon that
distinction. On the one hand, there is the management decision itself,
including any subject that is "``inexorably'" intertwined with, or the
"inevitable consequence" of, that decision. 893 F.2d at 1133 n.3, 1134
(quoting First Nat'l Maintenance, 452 U.S. at 677). For example,
when a company decides to shut down a plant entirely, the resulting
layoff of the plant's workers may be an "inevitable consequence" of
the decision itself. On the other hand, there may be mere "effects,"
which are "not the inevitable consequence of the underlying manage-
ment decision." Id. at 1134 (emphasis added). Where a company had
feasible alternatives that it could have explored with the union, with-
out reconsidering its underlying management decision, those alterna-
tives are mandatory subjects of bargaining. The mere fact that the
alternatives may increase labor costs does not make them "infeasible."
See id. (citing First Nat'l Maintenance, 452 U.S. at 680).
Here, it was not inevitable for the Company to impose Tyson's pay
plan and working conditions upon Holly Farms' drivers. Generally,
Tyson's pay plan provided the truck drivers with lower pay per mile
but somewhat higher pay per delivery, or "drop," than Holly Farms'
pay plan. We are not convinced that the substitution of Tyson's pay
structure for Holly Farms' was an "inevitable consequence" of the
management decision to integrate the two transportation departments.
Furthermore, as Tyson concedes, it tried to accommodate the drivers'
individual preferences as to the duration and mileage of their hauls,
12
which tended to be much longer under Tyson's system than under
Holly Farms' -- a major point of contention between the Company
and the drivers. From those facts alone, it was reasonable for the
Board to infer that there was room for bargaining over the drivers'
working conditions, had Tyson been willing to bargain. Therefore, the
Board reasonably concluded that the changes unilaterally established
by Tyson concerned mandatory subjects of bargaining-- "effects" of
the nonbargainable decision to integrate Tyson's and Holly Farms'
transportation departments. Accordingly, we enforce the Board's
order to the extent that it found Tyson's refusal to bargain with the
Union to be a violation of the Act.
IV
The other significant question presented for review is whether any
of the employees in the live-haul bargaining unit fell outside the cov-
erage of the Act. The Company has argued that the unit was inappro-
priate because it contained "agricultural laborers," who are not subject
to the Act. Therefore, the Company has contended, the Board com-
mitted an error of law when it approved the bargaining unit.2
On review, our function is a "``limited'" one. Bayside Enters., Inc.
v. NLRB, 429 U.S. 298, 304 n.14 (1977) (quoting NLRB v. Hearst
Publications, Inc., 322 U.S. 111, 131 (1944)). The Board's determina-
tion that the employees in the live-haul bargaining unit were covered
by the Act "``is to be accepted if it has "warrant in the record" and a
reasonable basis in law.'" Bayside, 429 U.S. at 304 n.14 (quoting
Hearst Publications, 322 U.S. at 131). Regardless of how we, as a
federal court, might have resolved the question as an initial matter, we
must give appropriate weight to the judgment of the Board, whose
special duty is to apply the Act's broad statutory language to an
almost unlimited variety of fact patterns. See Bayside, 429 U.S. at
304; cf. NLRB v. United Ins. Co., 390 U.S. 254, 260 (1968); NLRB
v. Coca-Cola Bottling Co., 350 U.S. 264, 269 (1956); Universal Cam-
_________________________________________________________________
2 The Company also has contended that the Board compounded that
error when it issued a bargaining order in the live-haul unit pursuant to
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), and when it recog-
nized unfair labor practices aimed at employees in that unit.
13
era Corp., 340 U.S. at 488; NLRB v. Pilot Freight Carriers, Inc., 558
F.2d 205, 207-08 (4th Cir. 1977), cert. denied , 434 U.S. 1011 (1978).
A
The live-haul unit, as approved by the Board, consisted of two
groups of North Carolina employees: the Wilkesboro facility's live-
haul crews; and the Roaring River facility's feed mill employees,
feed-haul drivers, and mechanics. The Company has conceded that
the Roaring River workers were statutory "employees" protected by
the Act. The Company's sole claim of error is that the live-haul work-
ers at the Wilkesboro facility -- i.e., the live-haul truck drivers, fork-
lift operators, and "chicken catchers" -- were agricultural laborers,
who fall outside the Act's coverage and therefore should not have
been included in the bargaining unit.
The Wilkesboro plant is a vertically integrated poultry operation.
In its hatchery operations, Holly Farms hatches pullets, or laying
hens. At twenty weeks of age, the pullets are transferred to "laying
houses" operated by independent "contract growers." The eggs pro-
duced by the pullets are transported back to the Holly Farms hatchery
operations, where they are hatched. The Company transports the
resulting chicks to independent contract growers who are paid to raise
the chicks into full-grown broiler chickens. When the birds are seven
weeks old, the live-haul crews catch, cage, and transport them to a
storage and cooling area near the processing plant, where they will be
slaughtered and prepared for market.
The employees in the live-haul unit serve as the Wilkesboro facili-
ty's chicken-catching crews. A crew consists of a live-haul truck
driver, a forklift operator, and about nine "chicken catchers."3 The
live-haul driver drives a flat-bed truck, which carries the entire crew
to the farms of the independent contract growers who raise the broiler
chickens. Under cover of darkness, the chicken catchers manually
catch and cage the chickens, the forklift operator places the steel
cages on the flat-bed truck, and the truck delivers the chickens to a
storage area near the Company's processing plant.
_________________________________________________________________
3 The entire bargaining unit consists of 27 live-haul drivers, 12 forklift
operators, and 118 chicken catchers.
14
B
The protections of the Act extend only to statutory"employees."
Section 9(a) of the Act provides that "[r]epresentatives designated or
selected for the purposes of collective bargaining by the majority of
the employees in a unit appropriate for such purposes, shall be the
exclusive representatives of all the employees in such unit." 29 U.S.C.
§ 159(a). A unit cannot be deemed appropriate unless it is comprised
of individuals who are "employees" within the meaning of the Act.
Section 2(3) of the Act defines the term "employee" to exclude
"any individual employed as an agricultural laborer." 29 U.S.C.
§ 152(3). Section 2(3)'s exemption for "agricultural laborer[s]" must
be narrowly construed, to favor the workers for whose protection the
Act was designed. See NLRB v. Cal-Maine Farms, Inc., 998 F.2d
1336, 1339 (5th Cir. 1993) (citing Wirtz v. Ti Ti Peat Humus Co., 373
F.2d 209, 212 (4th Cir.), cert. denied, 389 U.S. 834 (1967)).
The term "agricultural laborer" has the meaning specified in § 3(f)
of the Fair Labor Standards Act (FLSA), 29 U.S.C.§ 203(f). Bayside,
429 U.S. at 300 & n.6. That provision states that"agriculture" encom-
passes "farming in all its branches," including "the raising of . . . poul-
try, and any practices . . . performed by a farmer or on a farm as an
incident to or in conjunction with such farming operations, including
preparation for market, delivery to storage or to market or to carriers
for transportation to market." 29 U.S.C. § 203(f); see Bayside, 429
U.S. at 300.
Under that provision, agriculture is defined "in both a primary and
a secondary sense." Bayside, 429 U.S. at 300. The primary meaning
encompasses "farming in all its branches," including the raising of
poultry. Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S.
755, 762 (1949); accord Bayside, 429 U.S. at 300 n.7. The secondary
meaning encompasses a wider range of practices, so long as they are
linked in specific ways to primary agriculture. See Bayside, 429 U.S.
at 300 n.7, 301; Farmers Reservoir, 337 U.S. at 762-63. Thus, the
secondary meaning "includes any practices, whether or not them-
selves farming practices, which are performed either by a farmer or
on a farm, incidentally to or in conjunction with" primary farming
15
operations. Farmers Reservoir, 337 U.S. at 763; accord Bayside, 429
U.S. at 300 n.7.
Under the express language of the FLSA, an employer that raises
poultry on its own farm is engaged in primary agriculture. See 29
U.S.C. § 203(f). However, "``when an employer contracts with inde-
pendent growers for the care and feeding of the employer's chicks,
the employer's status as a farmer engaged in raising poultry ends with
respect to those chicks.'" Bayside, 429 U.S. at 302 n.9 (quoting Imco
Poultry, 202 N.L.R.B. 259, 260 (1973)).
C
The Company has conceded that the employees in the live-haul
unit are not engaged in primary agriculture. Rather, the Company has
claimed that the employees' work amounts to secondary agriculture.
The Board rejected that claim.
In reviewing the Board's decision, we must distinguish between
chicken catchers and forklift operators, on the one hand, and live-haul
drivers, on the other hand. The Company's strongest argument con-
cerns the former employees, who, the Board concedes, work "on a
farm," within the meaning of the statute. 29 U.S.C. § 203(f). There-
fore, with regard to the chicken catchers and forklift operators, we
must determine whether the activities of catching, caging, and loading
live chickens onto a truck for delivery are clearly performed as an
incident to or in conjunction with the primary farming operation of
raising poultry.
The Company has argued that the chicken catchers and forklift
operators' work is closely linked to the independent contract growers'
primary agricultural activity of raising poultry. By the Company's
account, because the chicken catchers and forklift operators perform
"on a farm," and because they perform work that is incidental to the
independent grower's farming activities on that farm, they must be
deemed "agricultural laborers."
The NLRB has countered that the chicken catchers and forklift
operators are not engaged in secondary agriculture because, by the
16
time they perform their work on the broiler chickens, their employer
-- Holly Farms -- is no longer engaged in primary agriculture with
respect to those chickens. Long before the chicken catchers catch and
cage the birds, the Company has turned the broiler chicks over to
independent contract growers and the Company's status as a farmer
engaged in raising poultry (a primary agricultural activity) has ended
with respect to those chicks. See Bayside, 429 U.S. at 302 n.9; Imco
Poultry, 202 N.L.R.B. at 260. Thus, the Board has reasoned, the
employees' activities are neither incidental to nor in conjunction with
Holly Farms' primary agricultural practices and, therefore, the
employees' work cannot amount to secondary agriculture.
The case at bar is not one of first impression. The Board's position
here is perfectly consistent with those it has taken in similar cases.
See, e.g., Draper Valley Farms, Inc., 307 N.L.R.B. 1440 (1992)
(rejecting a poultry company's contention that its"chicken catchers"
were engaged in primary or secondary agricultural activity, and stat-
ing that, "[w]hen employers have claimed that employees are agricul-
tural laborers because they are engaged in activity incidental to or in
connection with farming operations (the secondary definition of agri-
culture), the courts have generally rejected the claimed agricultural
status when the employees in question were handling or working on
agricultural products raised on farms other than their own em-
ployer's"); see also Seaboard Farms of Kentucky, Inc., 311 N.L.R.B.
No. 159 (1993) (requiring a poultry company to bargain with a unit
that included the company's "chicken catchers, . . . , live haul drivers,
[and] forklift operators").
Furthermore, other federal appellate decisions, squarely on point,
have held that employees in chicken-catching crews were statutory
"employees," not "agricultural laborers." See NLRB v. Hudson Farms,
Inc., 681 F.2d 1105, 1106 (8th Cir. 1982) (per curiam), cert. denied,
459 U.S. 1069 (1982) (holding that "truck drivers and yard workers
[who] transport [an integrated poultry producer's] poultry between
independent contract growers, which raise the chickens to market
weight, and the company's processing plant" were"employees,"
rather than "agricultural laborers," under the Act); Valmac Indus. v.
NLRB, 599 F.2d 246, 247, 249 (8th Cir. 1979) (holding that, because
a company's "live chicken haulers and chicken catchers" "transported
products away from the farm, their work was neither ``primary' nor
17
``secondary' farming," and that they therefore were "employees"
within the meaning of the Act (emphasis added)). 4 We affirm the
Board's conclusion that none of the employees in the live-haul bar-
gaining unit were agricultural laborers, because that conclusion is
based on a reasonable interpretation of the Act and is consistent both
with the Board's prior decisions and with federal appellate case law.
V
We have considered the remaining arguments in the Company's
petition for review and find them meritless. Accordingly, the Compa-
ny's petition for review is denied, and the order of the Board is
ENFORCED.
NIEMEYER, Circuit Judge, concurring in part and dissenting in part:
The National Labor Relations Board (the Board) found that Holly
Farms Corporation violated sections 8(a)(1) and 8(a)(3) of the
National Labor Relations Act (NLRA) in connection with a represen-
tation election in the spring and summer of 1989. It also found that
after Tyson Foods, Incorporated, acquired all the stock of Holly
Farms, both Tyson Foods and Holly Farms violated sections 8(a)(1),
8(a)(3), and 8(a)(5) in connection with Tyson's disbanding Holly
Farms' transportation operations and integrating Holly Farms' truck
drivers into Tyson's existing transportation operations. Generally, I
agree with the majority's opinion that the findings of fact by the
Administrative Law Judge (ALJ), as affirmed by the Board, are sup-
ported by substantial evidence and, therefore, I agree that these fac-
tual findings should be affirmed under the appropriate standard of
review. See 29 U.S.C. § 160(e).
_________________________________________________________________
4 We decline to follow the case cited by the dissent, Coleman v.
Sanderson Farms, Inc., 629 F.2d 1077 (5th Cir. Unit A 1980). The Fifth
Circuit's decision that "loader operators and live haul drivers" for a poul-
try company were "employees employed in agriculture," and thereby
exempt from FLSA's overtime provisions, id. at 1078, fails to give proper
weight to the judgment of the Board, see Bayside, 429 U.S. at 304.
18
While I do not take issue with the purely factual findings, I never-
theless believe that the Board erred in two significant respects in
applying the law. First, I believe that the Board erred as a matter of
law when it concluded that chicken catchers, fork lift operators, and
live-haul drivers were properly included in the bargaining unit.
Instead, I would find that these individuals were agricultural employ-
ees excluded from coverage by the NLRA. Second, on an issue that
has far greater ramifications for our labor law jurisprudence than this
first narrow dispute over definitions, the majority opinion signifi-
cantly misconstrues the law of successorship liability when it refuses
to recognize the existence of two separate corporate entities for the
two months after the stock purchase by Tyson. I submit that Tyson
was not liable as a successor employer when it purchased 100% of the
stock of Holly Farms Corporation on July 18, 1989, because Holly
Farms Corporation continued as a separate entity and remained as a
continuing employer for two months, with no change in its relation-
ship with its employees. Tyson did succeed Holly Farms in Septem-
ber 1989 when it merged Holly Farms' operation into its own, and
thus became a substitute employer of Holly Farms' former employ-
ees. However, even then, Tyson did not incur successor liability under
the NLRA, because the restructuring, undertaken for independent and
valid economic reasons, was so substantial that an appropriate bar-
gaining unit did not survive. On these two matters, I would grant the
employer's petition for review and deny enforcement of the order to
the extent it depends on these erroneous conclusions by the Board. In
all other respects, I concur in the majority opinion.
I
Holly Farms Corporation was an integrated poultry business,
engaged in raising, processing, and distributing poultry products. As
part of its operations, it hatched chickens and placed them with con-
tract farmers to raise them until the chickens were"harvested" by
Holly Farms employees. Holly Farms employed 118 chicken catchers,
12 fork lift operators, and 27 live-haul drivers who, as a group, were
responsible for driving to the farms, catching chickens, loading them,
and transporting them back to the plants for processing. As found by
the ALJ, the chicken catchers went
to the farms where the chickens were raised where, under
cover of darkness, [they] would continuously catch chickens
19
with their hands and cage them during shifts of indetermi-
nate duration, which continued until the task was completed.
The fork lift operators worked on the farms with the chicken catch-
ers and were responsible for placing steel cages loaded with chickens
onto live-haul trucks. The live-haul drivers drove the crew from the
plant to the farms and, after the chickens were caught and the cages
were loaded, transported the chickens back to the plant for processing.
Occasionally, live-haul drivers assisted the chicken catchers in the
"harvesting." All of these employees, I submit, were agricultural
employees, as defined by the NLRA, and therefore were excluded
from the Act's coverage.
The NLRA excludes from its definition of "employee" any individ-
ual employed as an "agricultural laborer." 29 U.S.C. § 152(3). Thus,
agricultural laborers are not protected by section 8(a)(1), 8(a)(3), or
8(a)(5) of the NLRA. The definition of an agricultural laborer is to be
derived from § 3(f) of the Fair Labor Standards Act. See Bayside
Enterprises, Inc. v. NLRB, 429 U.S. 298, 300 n.6 (1977). The Fair
Labor Standards Act defines "agriculture," in pertinent part, to
include:
farming in all its branches and among other things .. . the
raising of livestock . . . or poultry, and any practices . . . per-
formed . . . on a farm as an incident to or in conjunction
with such farming operations, including preparation for mar-
ket, delivery to storage or to market or to carriers for trans-
portation to market.
29 U.S.C. § 203(f).
In this case, the work of chicken catchers and fork lift operators
was performed "on a farm as incident to or in conjunction with such
farming operations" and therefore clearly qualifies these individuals
as "agricultural laborers." Moreover, all these chicken catchers, fork
lift operators, and live-haul drivers were involved in "preparation for
market" and "delivery to storage or to market." Because they were
engaged as agricultural laborers, these employees are not covered by
the National Labor Relations Act. See Coleman v. Sanderson Farms,
Inc., 629 F.2d 1077, 1081 (5th Cir. 1980). But see, at least as to live-
20
haul drivers, NLRB v. Hudson Farms, Inc., 681 F.2d 1105 (8th Cir.),
cert. denied, 459 U.S. 1069 (1982).
II
With respect to the second error of law committed by the Board,
the facts were stipulated by the parties. Tyson acquired 100% of the
stock of Holly Farms on July 18, 1989, but Holly Farms nevertheless
continued in business for two months without change, under the same
management and with the same employees. The two corporations
remained separate corporations, and the only change Holly Farms
experienced was in stock ownership. These facts were recognized by
the Board. It stated, "[F]or 2 months following the purchase nothing
changed for the former Holly Farms employees, all of whom were
retained on the payroll under their existing wages, hours, and terms
and conditions of employment." (Emphasis added.) Thus, from the
employees' point of view, they still worked for Holly Farms under the
same conditions that existed before the stock purchase.
Necessarily following from these acknowledged facts is the fact
that Holly Farms alone retained the obligation to bargain with the
union, and it did so. Correspondingly, Tyson, as the sole stockholder
of Holly Farms, which at the time had implemented no changes in
Holly Farms' operations, had no obligation to bargain. It was a sepa-
rate corporation and therefore had not succeeded to any obligation of
Holly Farms to bargain simply by buying Holly Farms' stock. As was
stated by the Seventh Circuit in Esmark, Inc. v. NLRB, 887 F.2d 739
(1989):
The successorship doctrine is simply inapplicable to a stock
sale transaction. In the successor context, the question is
whether two different corporate entities, one succeeding to
the other's business, are bound in like measure by a contract
executed by only one of them; however "the stock transfer
involves no break or hiatus between two legal entities, but
is, rather, the continuing existence of a legal entity, albeit
under new ownership." The successorship doctrine is there-
fore of no relevance to the present case, which involves a
transfer of stock ownership in the employing corporation
from one party to another.
21
Id. at 751 (footnote omitted). This statement from Esmark is simply
a restatement of the successorship doctrine established by the
Supreme Court in NLRB v. Burns International Security Services, 406
U.S. 272 (1972). In Burns, the Court concluded that a corporation that
succeeded another corporation as the employer of a specific work
force may have the obligation to bargain with the union certified
when the employees were employed by the previous corporation. The
obligation arises for the successor corporation"when it select[s] as its
work force the employees of the previous employer to perform the
same tasks at the same place they had worked in the past." Id. at 278
(emphasis added). There must be a change of employer so that one
supplants the other. Obviously, if the previous corporation continues
in its existing form as the employer, no succession occurs. Conse-
quently, when Tyson became stockholder, but not employer, and
Holly Farms continued as employer, Tyson would have no obligation
to bargain because it had not yet succeeded Holly Farms. The Board
has in the past subscribed to these statements of the law. For example,
in Hendricks-Miller Typographic Co., 240 N.L.R.B. 1082, 1083 n.4
(1979), the Board stated:
The concept of "successorship" as considered by the
United States Supreme Court in N.L.R.B. v. Burns Inter-
national Security Services, Inc., et al., 406 U.S. 272 (1972),
and its progeny, contemplates the substitution of one
employer for another, where the predecessor employer
either terminates its existence or otherwise ceases to have
any relationship to the ongoing operations of the successor
employer.
(Emphasis added).*
_________________________________________________________________
*The majority opinion has glossed over factual and legal distinctions
between (1) the situation where a corporation continues in business, after
its stock changes hands, without any change in its relationship with
employees, and (2) the situation where a corporation moves through cor-
porate and factual changes so that in effect a new employer substitutes
for that of the former and exercises the "employer's authority" of the for-
mer. In the first situation, the employing corporation continues to have
an obligation to bargain with its employees, notwithstanding the change
in stock ownership which is irrelevant, and the stockholder does not
22
Under the stipulated facts here, the truck drivers in Holly Farms'
transportation operations remained employed with Holly Farms for
two months after Tyson's stock purchase. Their responsibilities and
conditions of employment remained unchanged for those two months.
When two separate corporate entities continue in separate form, as
they did here, we must conclude that there was no succession for pur-
poses of the successorship doctrine. See Esmark , 887 F.2d at 751.
In EPE, Inc. v. NLRB, 845 F.2d 483 (4th Cir. 1988), we examined
a case strikingly similar to this in which one company, Echlin, pur-
chased 100% of the stock of EPE, Inc. Other than the change of own-
ership from the stock sale, however, there were no changes in the
organization or operations of EPE's Fredericksburg plant. In that
case, we declined to find successorship and held that EPE was a "con-
tinuing employer" still liable under its collective bargaining agree-
ment. We emphasized that:
There was no termination of operations or employees at the
Fredericksburg plant. . . . Simply put, the Fredericksburg
workers both went to work on the morning of Tuesday,
October 22, and returned home later that afternoon as EPE
employees. During that same time there occurred not a sub-
stitution of one employer for another, but a change in the
ownership of a continuing employer.
***
_________________________________________________________________
become a substitute employer. In the second situation, successor liability
imposes a duty to bargain on the successor employer. The majority col-
lapses this distinction into an inquiry into a nebulous subscription to
labor policy, stating:
Whatever terms we use--whether we call Tyson a"successor,"
or a "new stockowner," or a "joint employer"--substantial evi-
dence and the policies of the labor laws support the Board's find-
ing here that Tyson came under a duty to bargain with the Union
when it purchased Holly Farms.
Slip op. at 8. Such an approach is clearly foreclosed by Burns, Esmark,
and Hendricks-Miller.
23
EPE was a continuing employer. Operations at the plant
were essentially unaffected by the stock transfer.
Id. at 488. We held that EPE was a "continuing employer" after the
stock sale and that there was no successor employer of the Fredericks-
burg workers after the sale.
The situation at Holly Farms for the two months after the July 18
stock sale was no different from that at EPE after it sold its stock.
There was no succession of Tyson as a new employer; rather, there
was only "a change in the ownership of a continuing employer." Id.
While I acknowledge that our holding in EPE"is a narrow one," I fail
to see any fact that distinguishes the employment relationships at
Holly Farms for the two months after July 18 from the situation we
examined in EPE.
The majority opinion concludes, erroneously I believe, that when
Tyson purchased the stock of Holly Farms on July 18, it became a
successor to Holly Farms because Holly Farms continued as a corpo-
rate entity without any significant changes in its operations. Indeed,
the majority acknowledges:
For two months after the purchase, Tyson made no signifi-
cant changes in Holly Farms' operations. Holly Farms--
under Tyson's ownership--continued to engage in the same
business operations at the same locations, selling the same
products to the same customers, and it retained all of its
employees under the same supervision and the same wages,
hours, and working conditions.
Those facts establish substantial continuity between Holly
Farms and Tyson.
Slip op. at 9-10. The problem with the majority's opinion is that it
failed to recognize that the termination of the previous employment
relationship must be established and that a determination of this
requirement should "precede[ ] the inquiry into the ``substantial conti-
nuity' that must be shown for a new employer to be found a succes-
sor." EPE, 845 F.2d at 489. I agree with the factual observations
24
made by the majority opinion, but its conclusion that these facts give
rise to successor liability is simply a misinterpretation of the law. For
the two months during which Holly Farms' operations continued
unchanged, but with a different stockholder, both Tyson Foods, Inc.
and Holly Farms Corporation remained separate corporations, and
Tyson's ownership was simply a stock ownership position. By contin-
uing in existence, Holly Farms retained its obligations to negotiate
and bargain with exclusive representatives of the unit duly elected.
Holly Farms also retained its obligations to adhere to the specific
terms of the collective bargaining agreement already in place with its
employees. In sum, the employees' relationship with Holly Farms
remained the same, and in those circumstances it is well-established
that the successor liability doctrine does not apply. See Esmark, 887
F.2d at 751; Hendricks-Miller, 240 N.L.R.B. at 1083 n.4.
Without any obligation to bargain during the two months following
its acquisition of Holly Farms' stock, Tyson could not have violated
the labor laws for refusing to bargain. The Board's order imposing
such a duty thus constitutes error.
In mid-September 1989, Tyson determined, for sound business rea-
sons, to end Holly Farms' transportation operations. While the Board
acknowledged that the decision was a legitimate business decision, I
note further that Tyson's decision was economically compelling.
Before Tyson's acquisition of Holly Farms' stock, Holly Farms trans-
ported its poultry products to its customers through its own transpor-
tation operation. It often dispatched drivers and trucks to customers
with no load available for the return trip because the customer net-
work was not so vast as to supply that need. While Holly Farms made
an express effort to lower its transportation costs by securing addi-
tional back-haul business, its efforts were largely unsuccessful.
Indeed, the evidence shows that 50% of Holly Farms return miles
were "dead head," where the trucks returned empty, resulting in an
estimated annual loss to Holly Farms of approximately $5 to $6
million.
In contrast, Tyson's transportation operations were organized sub-
stantially differently, and they were profitable. Tyson hauled only
35% of its products through its own transportation system, making
only those deliveries where back-haul business would routinely be
25
available. Because it delivered only 35% of its products through its
own operations, the remaining transportation needs were filled
through common carriers. Thus, in contrast to Holly Farms' 50%
ratio, Tyson's dead-head ratio was in the range of 7-1/2% to 12%.
In order to eliminate the large losses resulting from Holly Farms'
transportation operations, Tyson decided to disband Holly Farms'
operations and restructure its own to serve the combined customer
base in the manner that Tyson had profitably established for its own
customers. Tyson implemented this decision on September 22, 1989,
at which time Holly Farms' drivers were terminated, but with an offer
to work in Tyson's operation, subject to Tyson's more efficient meth-
ods.
When Tyson disbanded Holly Farms' transportation operations and
merged those drivers into its own fleet, Tyson became a substitute
employer. At that time, the successorship principles of Burns might
have required Tyson to bargain with the union if Tyson had continued
with the same employees under a similar structure. But Tyson would
only have a duty to recognize a preexisting bargaining unit if Tyson's
structure and practices mirrored those of Holly Farms. See Burns, 406
U.S. at 280. In such circumstances, Tyson would be required to bar-
gain with the union, but Tyson would not be required to accept the
terms and agreements of Holly Farms' collective bargaining agree-
ment with the union because "a successor employer is ordinarily free
to set initial terms on which it will hire the employees of a predeces-
sor." Burns, 406 U.S. at 294.
In this case, when Tyson terminated the Holly Farms transportation
operation and hired its truck drivers, the new operational structure and
practices differed substantially from those of Holly Farms. Thus, the
inherited bargaining unit was no longer an appropriate one. Moreover,
the drivers assimilated from Holly Farms only constituted a portion
of Tyson's long-haul trucker group. In those circumstances, the Holly
Farms bargaining unit did not remain intact and would not be the
appropriate unit with which Tyson was required to bargain.
Deriving unfair labor practices from these circumstances would
imply that Tyson, as an acquiring and thereafter successor corpora-
tion, must carry the burden of an inefficient structure and inap-
26
propriate bargaining unit previously established by Holly Farms. The
jurisprudence of Burns, and the circuit court decisions interpreting it,
do not require this result. See, e.g. , NLRB v. Security-Columbian
Banknote Co., 541 F.2d 135, 139-40 (3d Cir. 1976). Therefore, I
would deny enforcement of the Board's order as it relates to Tyson's
conduct in acquiring and restructuring Holly Farms.
For these reasons, I dissent.
27