Pacific Fruit and Produce Co.

PACIFIC GAMBLE ROBINSON CO. Pacific Gamble Robinson Company d/b/a Pacific Fruit and Produce Company and Teamsters, Chauffeurs, Warehousemen and, Helpers of America, Local Union No. 983, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent. Case 19-CA-4192 February 14, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA Upon a charge filed by Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 983, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, herein called the Union, the General Counsel for the National Labor Relations Board, by the Acting Regional Director for Region 19, issued a complaint and notice of hearing dated December 10, 1968, against Pacific Gamble Robinson Company d/b/a Pacific Fruit and Produce Company, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and of the complaint and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges, in substance, that on September 24, 1968, the Union was duly certified as the exclusive bargaining representative of the Respondent's employees in an appropriate unit,' and that, on or about September 24 and including November 7, 1968, the Respondent has refused, and continues to refuse, to recognize and to meet or bargain with the Union, although requested to do so by the Union. On January 7, 1969, the Respondent filed its answer to the complaint, in which it admitted in part and denied in part the allegations of the complaint. On January 15, 1969, the General Counsel filed with the Board a motion for summary judgment and a memorandum in support thereof, submitting that the Respondent's answer raised no substantial issue as to any material fact and constitutes only a step toward securing judicial review of issues fully litigated in the Board's prior representation proceeding where the Respondent was accorded complete due process of law. He moved that the proceeding be transferred to the Board and that the Board issue an order to show cause why the Respondent should not be found to have committed 'Case 19-RC-4704 541 the unfair labor practices alleged in the complaint. On January 17, 1969, the Board issued an Order Transferring the Proceeding to the Board and Notice to Show Cause on or before January 30, 1969, why the General Counsel's motion for summary judgment should not be granted. The Respondent has failed to file any document in response to the notice to show cause or in opposition to the motion for summary judgment. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The record before us establishes that pursuant to a Stipulation for Certification upon Consent Election approved by the Regional Director for Region 19 on March 6, 1968, an election by secret ballot was conducted on March 20, 1968, under the direction and supervision of the Regional Director, in the unit hereinafter found appropriate. Upon the conclusion of the balloting, the parties were furnished a tally of ballots which showed that, of approximately 7 eligible voters, 5 case ballots, of which 2 were for, and 2 were against, the Union, and 1 ballot was challenged. The ballot of Thomas R. Christensen was challenged by the Respondent on the ground that Christensen's employment terminated prior to the election. As said ballot was sufficient to affect the results of the election, the Acting Regional Director conducted an investigation of the facts relating thereto and, on April 11, 1968, issued his Report on Challenged Ballot. The Acting Regional Director found that Christensen was a regular part-time employee and was eligible to vote in the election. He recommended that the challenge to Christensen's ballot be overruled, that the ballot be opened and counted, and that a revised tally of ballots be issued. Thereafter, the Respondent filed exceptions to the Acting Regional Director's Report. On June 25, 1968, the Board issued a Decision and Direction to Open and Count Challenged Ballot wherein it decided that the factual assertions contained in the exceptions did not establish that Christensen's regular part-time status had in fact been altered as of the date of the election. The Board, therefore, adopted the Acting Regional Director's findings and recommendations, overruled the challenge to Christensen's ballot, and directed the Regional Director to open and count said ballot, and to issue a revised tally of ballots. Pursuant thereto, Christensen's ballot was opened and counted on July 26, 1968, and a revised tally of ballots was furnished the parties which showed that five valid ballots were cast, of which three were for, and two were against, the Union. The Respondent filed timely objections to the revised tally of ballots. 174 NLRB No. 91 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After an investigation of the objections, the Acting Regional Director, on August 6, 1968, issued a report on objections to revised tally of ballots. Since the objections contained no new factual allegations, he found them to be without merit, and recommended that the Board overrule the objections and, since the Union received a majority of the valid ballots cast, that the Board issue a certification of representative to the Union. The Respondent filed a petition for reconsideration of the Board's previous decision and exceptions to the Acting Regional Director's report. On September 24, 1968, the Board issued a Supplemental Decision and Certification of Representative in which it decided that the Respondent had not presented sufficient reason in its petition and exceptions to warrant reversal of its original determination or to justify a hearing with regard to Christensen's voting eligibility. The Board, therefore, overruled the Respondent's objections, and certified the Union as the exclusive representative for all employees at the Respondent's Idaho Falls, Idaho, operations. In the instant proceeding, the Respondent, in its answer, admits the following factual allegations: (1) that it is an employer engaged in commerce within the meaning of the Act; (2) that the Union is a labor organization within the meaning of the Act; (3) that in Case 19-RC-4704, a secret ballot election was conducted in an appropriate unit; (4) that the Union was certified by the Board as the exclusive collective-bargaining representative in the appropriate unit; and (5) that the Union, following its certification, requested commencement of negotiations, and that the Respondent thereafter refused to recognize and to meet and bargain with the Union. The only factual allegation denied by the Respondent is that it has refused to meet or bargain with the Union as the exclusive collective-bargaining representative of a majority of the employees in the unit in which the election was held. The Respondent's answer did not raise an affirmative defense of its position. It is apparent, in the light of its answer, that the Respondent is seeking to relitigate in the instant proceeding the same issues that were disposed of by the Board in the representation proceeding. It is well established that, in the absence of newly discovered or previously unavailable evidence, a respondent is not entitled to relitigate in a Section 8(a)(5) proceeding, issues which were, or could have been, raised in the prior representation proceeding.' As all material issues have been previously decided by the Board, or are admitted by the Respondent in its answer to the complaint, or stand admitted by the failure of the Respondent to respond to the notice to show cause, there are no matters requiring a hearing before a Trial Examiner. Accordingly, the General Counsel's motion for summary judgment is granted. On the basis, of the record before it, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Respondent is a Delaware corporation engaged in the wholesaling of fruits and vegetables at operations in 15 western States, including Idaho Falls, Idaho . Annually, the Respondent realizes from its operation gross income exceeding $500,000; purchases for importation into Idaho, goods and supplies in excess of $50,000; and sells to customers located outside the State of Idaho, goods valued in excess of $50,000. The Respondent admits, and we find, that it is and has been, at all times material herein, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein.3 II. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for purposes of collective bargaining within the meaning of the Act: All truckdrivers, warehousemen and helpers employed at the Employer's Idaho Falls, Idaho, operation, excluding office clerical employees, salesmen, janitors, guards, professional employees, and supervisors as defined in the Act. 2. The certification On March 20, 1968, a majority of the employees of the Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 19, designated the Union as their representative for the purpose of collective bargaining with the Respondent. On September 24, 1968, the Board certified the Union as the collective-bargaining representative of the employees in said unit, and the Union continues to be such representative. 'Pittsburgh Plate Glass Company v N L R B, 313 U S. 146 'We note that the Board asserted jurisdiction over the Respondent in the underlying representation proceeding. PACIFIC GAMBLE ROBINSON CO. B. The Request To Bargain and the Respondent's Refusal On or about September 24 and including November 7, 1968, and continuing to date, the Union has requested, and is requesting, the Respondent to recognize and to meet and bargain collectively with it concerning rates of pay, hours of employment, and other terms and conditions of employment of the employees in the appropriate unit. Commencing on or about September 24, 1968, the Respondent has refused and continues to refuse to recognize and to meet or bargain collectively with the Union as the exclusive collective-bargaining representative of all employees in said unit. Accordingly, we find that the Union was duly certified by the Board as the collective-bargaining representative of the employees of the Respondent in the appropriate unit described above, and that the Union, at all times since September 24, 1968, has been and now is the exclusive bargaining representative of all employees in the aforesaid unit within the meaning of Section 9(a) of the Act. We further find that the Respondent has, since September 24 and including November 7, 1968, refused to recognize, meet, and bargain collectively with the Union as the exclusive bargaining representative of its employees in the appropriate unit, and that, by such refusal, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The acts of the Respondent set forth in section III, above, occurring in connection with its operations as described 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 of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial year of certification as beginning on the date the Respondent commences to bargain in good faith 543 with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). VI. CONCLUSIONS OF LAW 1. Pacific Gamble Robinson Company d/b/a Pacific Fruit and Produce Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 983, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, is a labor organization within the meaning of Section 2(5) of the Act. 3. All truckdrivers, warehousemen and helpers employed at the Employer's Idaho Falls, Idaho, operation, excluding office clerical employees, salesmen, janitors, guards, professional employees, 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. Since September 24, 1968, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about September 24 and including November 7, 1968, and at all times thereafter, to recognize and to meet or bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of the Respondent in the aforesaid appropriate unit, the 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 aforesaid refusal to recognize and to meet or bargain with the Union, the Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, its employees in the exercise of the rights guaranteed them under Section 7 of the Act, and has thereby engaged in, and is engaging 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 commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pacific Gamble Robinson Company d/b/a Pacific Fruit and Produce Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and to meet or bargain with Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 983, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, as the exclusive bargaining representative of its employees in the following appropriate unit: All truckdrivers, warehousemen and helpers employed at the Employer's Idaho Falls, Idaho, operation, excluding office clerical employees, salesmen, janitors, guards, professional employees, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which the National Labor Relations Board finds will effectuate the policies of the National Labor Relations Act, as amended: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit 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 Idaho Falls, Idaho, operations, copies of the attached Notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 19, shall after being duly signed by the Respondent's representative, be posted by the 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 by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 19, in writing, within 10 days from the date of this Decision and Order, what steps the Respondent has taken to comply herewith. In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order," the words "a Decree of the United States Court of Appeals Enforcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that- WE WILL NOT refuse to bargain collectively with Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 983, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union as the exclusive representative of all our employees in the bargaining unit described below 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. The bargaining unit is: All truckdrivers, warehousemen and helpers employed at the Employer's Idaho Falls, Idaho, operation, excluding office clerical employees, salesmen, janitors, guards, professional employees, and supervisors as defined in the Act. PACIFIC GAMBLE ROBINSON COMPANY D/B/A PACIFIC FRUIT AND PRODUCE COMPANY (Employer) Dated By (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Republic Building, 10th Floor, 1511 Third Avenue, Seattle, Washington 98101, Telephone 206-583-7542.