Lewiston Orchards Irrigation District

LEWISTON ORCHARDS IRRIGATION DISTRICT Lewiston Orchards Irrigation District and Teamsters Union Local No. 551, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America , Independent. Case 19- CA-5084 April 23, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS Upon a charge filed on January 4, 1971, by Team- sters Union Local No. 551, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, Independent, herein called the Union, and duly served on Lewiston Orchards Irri- gation District, herein called the Respondent, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a com- plaint on January 13, 1971, against Respondent, alleg- ing that Respondent had engaged in and was engaging in unfair labor practices affecting commerce 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, complaint, and notice of hearing before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on December 30, 1970, following a Board election in Case 19-RC-5387 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about December 28, 1970, and at all times there- after, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Un- ion has requested and is requesting it to do so. On or about January 22, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint and alleging that it is a "political subdivision" of the State of Idaho as that term is used in Section 2(2) of the Act. On February 12, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 24, 1971, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment ' Official notice is taken of the record in the representation proceeding, Case 19-RC-5387 as the term "record" is defined in Secs 102 68 and 102 69(f) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello. 269 F Supp 573 (D C Va , 1967), Follett Corp, 164 NLRB 378, enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA 190 NLRB No. 10 39 should not be granted. Respondent did not file a re- sponse to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: RULING ON THE MOTION FOR SUMMARY JUDGMENT In its answer to the complaint, the Respondent raises again the issue of the Board's jurisdiction. It claims that it is a "political subdivision" of the State of Idaho and not an employer within the meaning of Section 2(2) of the Act. Accordingly, it contends it is exempt from the Board's jurisdiction. The record in Case 19-RC-5387 reflects that, after a hearing in which the Respondent participated, the Board, on November 25, 1970, issued its Decision and Direction of Election (186 NLRB No. 121) in which it considered the Respondent's conten- tion and found upon the full record that the Respond- ent is not a political subdivision of the State of Idaho exempt from the Board's jurisdiction, but rather an employer under the Act and therefore subject to the Board's jurisdiction. Accordingly, since the Respon- dent's operations met the Board's standard for the ass- ertion of jurisdiction over public utilities, the Board decided that it would effectuate the purposes of the Act to assert jurisdiction over the Respondent. On Decem- ber 30, 1970, following the election directed by the Board, the Union was certified as the collective-bar- gaining representative in the unit found appropriate herein. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.2 All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior repre- sentation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which would require another hearing in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. ' See Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is an irrigation district organized pursu- ant to Title 43 of the Idaho State Code, as amended, for the purpose of supplying water to resident or landown- ers within its designated district. In addition it supplies park and recreation facilities, contributes to fire protec- tion services, and performs other similar services nor- mally performed by municipalities. In the course and conduct of its business operations, Respondent has an annual gross revenue in excess of $250,000 and annu- ally purchases goods valued in excess of $50,000 from suppliers in Idaho who in turn purchased said goods outside the State of Idaho. We find, on the basis of the foregoing and for the reasons stated in our Decision and Direction of Elec- tion in Case 19-RC-5387, that Respondent is not a political subdivision of the State of Idaho, and that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdic- tion herein, II. THE LABOR ORGANIZATION INVOLVED Teamsters Union Local No. 551, affiliated with In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Independent, is 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 consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All employees employed by the Employer, ex- cluding all seasonal swimming pool employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On December 21, 1970, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Direc- tor for Region 19 designated the Union as their repre- sentative for the purpose of collective bargaining with the Respondent. The Union was certified as the collec- tive-bargaining representative of the employees in said unit on December 30, 1970, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about December 23, 1970, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about December 28, 1970, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bar- gaining of all employees in said unit. Accordingly, we find that the Respondent has, since on or about December 28, 1970, and at all times there- after, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, 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 activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship 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 Respondent has engaged in and is engaging 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, bar- gain collectively with the Union as the exclusive repre- sentative of all employees in the appropriate unit, and, if an understanding is reached, embody such under- standing in a signed agreement. In order to insure that the employees in the appropri- ate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as begin- ning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce LEWISTON ORCHARDS IRRIGATION DISTRICT 41 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). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Lewiston Orchards Irrigation District is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Union Local No. 551, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Independent, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed by the Employer, exclud- ing all seasonal swimming pool employees, office cleri- cal employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since December 30, 1970, the above-named labor organization has been and now is the certified and ex- clusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargain- ing within the meaning of Section 9(a) of the Act. 5. By refusing on or about December 28, 1970, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respond- ent in the appropriate unit, 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 bargain, Respondent has interfered with, restrained, and coerced, and is in- terfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engag- ing 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 Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Lewiston Or- chards Irrigation District, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment, with Teamsters Union Local No. 551, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, In- dependent, as the exclusive bargaining representative of its employees in the following appropriate unit: All employees employed by the Employer, ex- cluding all seasonal swimming pool employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaran- teed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Post at its Lewiston, Idaho, operations copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Direc- tor for Region 19, after being duly signed by Respon- dent's representative, shall 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 by Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay , wages, hours, and other terms and conditions of employment with Team- sters Union Local No. 551 , affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Independ- ent, as the exclusive representative of the em- ployees in the bargaining unit described below. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Sec- tion 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees employed by the Employer, excluding all seasonal swimming pool em- ployees, office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. LEWISTON ORCHARDS IRRIGATION DISTRICT (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Republic Building, 10th Floor, 1511 Third Ave- nue, Seattle, Washington 98101, Telephone 206-583- 4532.