Ore-Ida Foods, Inc.

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who makes only local purchases and sales because the items, before they became junk,'were sold across State lines? Or, would it as jurisdiction over the employer who purchased the manufactured prod- uct locally, for sale locally, solely because the raw materials for that end. product were originally sold across State lines? The majority de- cision here, I fear, requires anaffirmative answer to these questions. - As the Employer is a wholly local enterprise which does not meet the-applicable Board jurisdictional standards, I would not assert jurisdiction. I would accordingly dismiss the petition herein. MEMBER FANNING took no part in the consideration of the above Decision and Direction of Election. Ore-Ida Foods, Inc. and Teamsters Food Processing Employees Local No. 943, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. Case No. 36-CA-19271. March 24, 1964 DECISION AND ORDER On December 9, 1963, Trial Examiner James R. Hemingway issued his Decision in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act, and -recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent and General Counsel filed exceptions to the Decision and supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' 1 In light of the Trial Examiner 's finding as to the absence of evidence to support the Respondent's contention that it had subcontracted the work of the unit of over-the-road drivers prior to the organizational activities of the Union , the Board deems it unnecessary to pass on the Trial Examiner 's subsequent dicta regarding the effect of the alleged sub- contract in the event that it had been proven. 146 NLRB No. 60. ORE-IDA FOODS, INC. 465 - The Board adopts.as its Order the Recommended Order z of the Trial Examiner.' 2 The Recommended Order is hereby amended by substituting for the first paragraph therein the following paragraph: Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that Respondent , its officers, agents, successors , and assigns, shall: 2 The notice to all employees is amended liy changing the first sentence below the signa- ture line to read : "This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on August 6, 1963, by Teamsters Food Processing Employees Local No. 943, affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , herein called the Union, the General Coun- sel of the National Labor Relations Board, herein respectively called General Coun- sel and the Board , by the Regional Director for the Nineteenth Region (Seattle, Washington ), issued a complaint on September 30, 1963, against Ore-Ida Foods, Inc., herein called Respondent, alleging that Respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended , 29 U.S.C. Sec. 151 , et seq., herein called the Act. The gist of the complaint is that , following an election and a certification of the Union by the Board, the Union requested that the Respondent bargain with it, and that Respondent had refused to do so. The Respondent filed an answer on October 11, 1963, in which it admitted most of the allegations of the complaint but denied that the unit alleged was appropriate . The answer also sets forth certain affirmative matter, claimed to support Respondent 's position that the appropriate unit should be an overall unit of all production employees including maintenance workers and truckdrivers . Pursuant to notice, a hearing was held before Trial Examiner James R. Hemingway at Ontario , Oregon, on October 24, 1963.1 From my observation of the sole witness in the case and upon the entire record as submitted, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT, Respondent is, and has been at all times material herein, a corporation duly -organized under, and existing by virtue of, the laws of the State of Oregon. At all times material herein, Respondent has maintained its principal office and place of business in the city of Ontario, State of Oregon, wherein it operates a plant herein called the plant . It also operates a plant at Burley , Idaho. At said plants, Respond- ent has been at all times material herein engaged in the processing , sale, and distribution of potatoes, corn, and related products. Respondent's plant located at Ontario, Oregon, is the only plant involved in this proceeding. During the past year, Respondent, in the course and conduct of its business opera- tions, processed, transferred, and delivered from its plant at Ontario , Oregon, potatoes, corn, and other goods and related products valued in excess of $50,000, of which goods and products valued in excess of $50 ,000 were shipped from said 2 The hearing, originally scheduled to be held at Portland , Oregon, was ordered re- scheduled in Ontario , Oregon, by an order of the Regional Director dated October 15, 1963. A copy of this order failed to reach the Trial Examiner , who appeared in Portland, Oregon, for the hearing as originally scheduled . By consent of the parties, the hearing was orally rescheduled from 10 o'clock In the morning until 7 o'clock at night of the same day in Ontario , Oregon All parties were represented by counsel . At the opening of the hearing, General Counsel presented a motion to strike portions of the answer This was granted in part and denied in part. The parties waived oral argument at the conclusion of the bearing but requested time .in which to file briefs. Such time was granted, and briefs were received from the General Counsel and the Charging Party only. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant directly to States of the United States other than the State of Oregon. Re- spondent concedes that it is engaged in commerce within the meaning of the Act. I so find. H. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively with the Union Inasmuch as the Respondent's answer admits the Union's majority in the alleged appropriate unit and the refusal to bargain, the only question to be decided is the appropriate unit. The Union filed a petition for an election in the alleged ap- propriate unit on February 12, 1963. A hearing thereon was held on March 5, 1963, and on March 29, 1963, the Regional Director for the Nineteenth Region of the Board issued a Decision and Direction of Election, in which he found the follow- ing appropriate unit: All over-the-road long-haul truckdrivers employed by the Employer in its transportation department at its Ontario, Oregon, operation, excluding all other employees, and professional employees, watchmen, guards, and super- visors as defined in the Act. This is the same unit which is alleged in the complaint to constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Following an election pursuant to said Decision and Direction of Election, the Regional Director, on May 28, 1963, certified that the Union had been designated and selected by a majority of the employees in the above-described unit, as their representative for the purposes of collective bargaining. The evidence adequately establishes a request to bargain. The complaint alleges and the answer admits that commencing on or about June 5, 1963, and continuing to date, and more particularly on or about July 19 and August 13, 1963, Respondent did refuse to recognize and/or bargain with the Union notwithstanding that the Union was at the time the duly designated exclusive collective-bargaining representative of the employees in the alleged appropriate unit, and I so find. The Respondent's defense is taken to be that the Regional Director's Decision with respect to the unit was arbitrary and capricious, that it was contrary to decisions in prior representation cases, where an overall unit of all production and maintenance employees, including truckdrivers, had been found to be appropriate, and that the Union is seeking to organize the Respondent's plant piecemeal. Although the Re- spondent did not in words say so, it appears, from the latter, to be raising a question under Section 9(c) (5) of the Act. Respondent's answer alleges that "prior to the union campaign to organize Re- spondent, Respondent had been negotiating with and made obligations to a coopera- •tive firm to contract out work performed by over-the-road long-haul truckdrivers, and that any acts performed since July 19 were because of agreements and com- mitments made prior thereto." As a defense, this cannot be considered. Not only was no evidence in support of this allegation, but even if it were taken as fact, it would constitute an admission of a refusal to bargain. It certainly does not set up the kind of altered circumstances which could justify the Respondent's refusal to bargain with the Union. Although Respondent's answer attempts to raise legal issues, it does not place these in a category of any recognized defense.2 Rather, it relates evidentiary and argumentative matter. When these allegations are reduced to the only legal defenses recognizable therein, it boils down apparently to a contention that (1) the Board's determination of the appropriate unit was arbitrary and capricious and (2) that it was based on extent of organization in violation of Section 9(c)(5) of the Act. Respondent offered no evidence in support of its contention except a record in a representation case later in point of time than the one out of which this case grew .3 If the Board's procedural rules provided for striking an answer which Is bad in form but not in substance, with adequate time In which to file an amended answer, I would have granted the General Counsel's motion to strike the affirmative portions of the answer in full. But since the Respondent would have been in default had this answer been struck, and as it appears to raise issues which should be resolved, I let it stand. 3 This case grew out of Case No. 36-RC-1815. The subsequent one was 'Case No. 36-RC-1845, where a unit Including maintenance employees was sought by the Union. ORE-IDA FOODS, INC. 467 That record contains an exhibit prepared by Respondent enumerating elections held, and describing the units involved, at the plant between 1955 and March 1962, from which I am apparently expected to conclude that the Union had previously taken the position that an overall unit of all production and maintenance employees was the appropriate unit. From Respondent's summary of past elections, I cannot conclude that the circumstances involved in the prior cases were comparable to those now existing, nor is it determinable that an overall unit is the only appropriate unit at the plant or that the Union had ever sought to include over-the-road long- haul truckdrivers in such unit. The first election shown on Respondent's summary of elections was held on May 20, 1955.4 There a union which was affiliated with the same parent organization as the Union sought a unit of all production and main- tenance employees at two companies (Oregon Frozen Foods Company and Ore-Ida Potato Products, Inc.) which, inferentially, are predecessors of Respondent. No mention was made of truckdrivers in the description of the unit in that case. The employer there took the position that separate units should be established for each of its operations-potatoes and corn processing. The next three elections shown on Respondent's summary were elections involving only the Amalgamated Meat Cutters, who sought a production and maintenance unit including truckdrivers. The Decision and Direction of Election of the first was- not reported and I am not informed that there were, at that time, over-the-road long-haul truckdrivers in Re- spondent's employ. The next election (May 12, 1960) shown on Respondent's summary also involved the Meat Cutters. It was for substantially the same unit as in the preceding case, but feeding lot employees, not mentioned in prior cases, were excluded. On March 13, 1962, an election was held, according to Respond- ent's summary, with two unions on the ballot, identified only as Teamsters and Grain Millers. It does not appear that the Teamsters union was the same as the one here involved. The unit was described as all production employees, including quality control employees, truckdrivers, and field department employees (Case No. 36-RC-1703). Apparently the Decision and Direction of Election was unreported. Respondent's summary list also shows another election on the same date, March 13, 1962, with "Machinists, Teamsters & Grain Millers" shown as the unions involved. This was for a unit of maintenance employees, including truck mechanics. Be- cause these cases were unreported and because the facts of the listed cases were not supplied except in summary form on Respondent's exhibit from the record in Case No. 36-CA-1845, I have no way of knowing (without being supplied with the complete record in each case) that over-the-road long-haul drivers were actually then employed by Respondent, much less why the Board deemed it appropriate to include truckdrivers of any sort in a production, or a production and maintenance, unit in the only case in which any Teamster union was involved and in which truckdrivers were included in the unit-Case No. 36-RC-1703. I deduce that none of the unions involved in the aforesaid elections was chosen to represent the em- ployees, for it is undisputed that there has been no history of collective bargaining at Respondent's plant. Respondent seeks to establish that the Union sought a unit of over-the-road long- haul drivers only as part of a scheme to organize Respondent's plant piecemeal. Even if the Union had such a purpose in mind, it is not shown that the Regional Director who, on behalf of the Board, decided that the unit sought in Case No. 36-RC-1815 was appropriate, was a party to any such aim of the Union. Although the Board is prohibited from finding a unit based on extent of organization, it is not prohibited from finding a unit to be appropriate on other valid grounds (even though organization has not progressed far enough to enable the labor organization to petition for a larger unit which also might be found to be appropriate) unless the controlling consideration for finding a smaller unit to be appropriate is extent of organization .5 It remains only to examine the record in the representation case to determine whether or not the Board's Decision in Case No. 36-RC-1815 was controlled by the extent to which the Union had already organized Respondent's employees. Looking at the record in that representation case, I find evidence tending to show that over-the-road long-haul drivers have little contact with other employees of Respondent in their normal routine and that, although such drivers occasionally have been, for their own convenience or advantage, permitted to work in the plant, there has, been no practice of interchanging the drivers and the production ,work- ers. The Regional Director's Decision followed recognized criteria. It expressly 4 ,Case No. 36-RC-1033, a decision reported in 108 NLRB 1668. See also, 113 NLRB 881, in which.a second election was ordered. 5N.L.R.B. v. Mobs Amber Mfg. Company, 264 F. 2d 107 (C.A. 9), enfg 119 NLRB 732. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found present the nine factors enumerated by the Board in Kalamazoo Paper Box Corporation, 136 NLRB 134, namely: (1) a difference in methods of wages or compensation; (2) different hours of work; (3) different employment benefits; (4) separate supervision ; (5) the degree of dissimilar qualifications, training, and skills; (6) differences in job functions and amount of working time spent away from the employment or plant situs under State and Federal regulations ; (7) the in- frequency or lack of contact with other employees; (8) lack of integration with the work functions of other employees or interchange with them; and (9) the his- tory of bargaining. In that case, the Board said: In more recent times, while the Board has occasionally made references to the existence of some of these factors in granting severance of truckdrivers from more comprehensive -units, it has, for the most part, not required an affirmative showing in each case that their interests and conditions of em- ployment substantially differed from those of other employees in the estab- lished unit. The net result, in effect, has been tantamount to a practice of automatically granting severance of truckdrivers whenever requested. In the case at hand, severance from an established unit was not sought. Since other employees are not represented in any bargaining unit, there is not, here, even a history of collective bargaining for a larger unit. The fact that the Union might seek to represent other units of employees subsequently does not mean that it will, if successful in organizing them, then seek a combined unit. It can still engage in bargaining for separate appropriate units. On all the evidence, I find the Respondent's defense to be without merit. Since the refusal to bargain has been admitted, and since the Union is the certified repre- sentative of the employees in the unit herein found appropriate, I find that Respond- ent has refused to bargain collectively on demand in violation of the Act. By such conduct, Respondent has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in con- nection with its operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. Ore-Ida Foods, Inc., is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. - 3. All over-the-road long-haul truckdrivers employed by Respondent in its trans- portation department at its Ontario, Oregon, operation, excluding all other em- ployees, and professional employees, watchmen, guards, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union has been since May 28, 1963, and now is, the exclusive representa- tive of the employees in the above-described appropriate unit within the meaning of Section 9(a) of the Act. 5. By refusing to recognize and bargain with the Union, upon request, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 6. By the conduct described in paragraph 5, Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, I recom- mend that Respondent , Ore-Ida Foods, Inc., Ontario, Oregon, its officers, agents, successors, and assigns, shall: - 1. Cease and desist from: (a) Refusing to recognize and bargain with Teamsters Food Processing Employees Local No. 943, affiliated with, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive representative of its over- C ,. I ORE-IDA, FOODS, INC. 469 the-road long-haul, truckdrivers, employed by, Respondent in its transportation de- partment,at its Ontario, Oregon, operation. - - ,(b) In any other like, or related manner interfering with, restraining, or coercing employees in the right to self-organization, to form, join, or assist any labor organi- zation, to bargain collectively through representatives of- their own choosing, to en- gage in concerted, activities for the purpose of collective bargaining or other mutual aid or'protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as ,amended. - '2 : ' Take the following affirmative action which I find will effectuate the policies of the Act: - (a) Upon request, bargain collectively with Teamsters Food Processing Employees Local No. 943, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of Re- spondent's employees within the unit found appropriate herein for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. . (b) Post at its offices and place of business in Ontario, Oregon, copies of. the at- tached notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region of the Board, shall, after having been duly signed by an authorized representative of Respondent, be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Nineteenth Region of the Board, in writ- ing, within 20 days from the date of service of this Trial Examiner's Decision of what steps the Respondent has taken to comply herewith? It is further recommended that, if the Respondent does not comply herewith within 20 days from the date of service of this Trial Examiner's Decision, the National Labor Relations Board issue an order requiring Respondent to take the action aforesaid. 6 Should the Board adopt this Recommended Order, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice Further, should the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order"' shall be substituted for the voids "A Decision and Order" in said notice. - 7 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Nineteenth Region, in writing, within 10 days from the date of receipt of this Order, what'steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights to bargain collectively through Teamsters Food Processing Em- ployees Local No. 943, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Teamsters Food Processing Em- ployess Local No. 943, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organi- zation of their own choosing, or to refrain from any or all such activities, except to the extent that such right may be affected by an, agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of said Act. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL bargain collectively, upon request, with Teamsters Food Processing Employees Local No. 943, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of employees in the bargaining unit described herein with respect to wages, rates of pay , hours of employment, or other terms or conditions of employment, and, if an understanding is reached , we will embody such understanding in -a signed agreement. The bargaining unit is: All over-the-road long-haul truckdrivers employed by the Employer in its transportation department at its Ontario , Oregon, operation, excluding all other employees, and professional employees, watchmen, guards, and super- visors as defined in the Act. ORE-IDA FOODS, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date hereof and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 327 Logan Building, Seattle, Washington, Telephone No. Mutual 2-3300, Extension 553, if they have any question concerning this notice or compliance with its provisions. Turex, a Component of the Film Division of Consolidated Thermoplastics Company and United Steelworkers of Amer- ica, AFL-CIO, Petitioner. Case No. 1-RC-7674. March 244,1964 DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on December 23, 1963, under the direction and supervision of the Regional Director for the First Region among the employees in the unit described below. At the conclusion of the election, the parties were furnished a tally of ballots which showed that, of approximately 72 eligible voters, 66 cast ballots, of which 38 were for, and 28 against, the Petitioner. The Employer filed timely objections to conduct affecting the results of the election. In accordance with the Board's Rules and Regulations, the Regional Director conducted an investigation, and thereafter issued and served upon the parties his report on objections, which is attached hereto, in which he recommended that the objections be overruled and the Petitioner certified. Thereafter, the Employer filed timely excep- tions to the Regional Director's report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. 146 NLRB No. 55.