Pacific International Rice Mills, Inc.

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pacific International Rice Mills, Inc. and Chauffeurs, Teamsters and Helpers Local Union No. 150, International Brotherhood of Teamsters, Chauff- eurs, Warehousemen and Helpers of America. Case 20-CA-11808 February 28, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER Upon a charge filed on August 16, 1976, by Chauffeurs, Teamsters and Helpers Local Union No. 150, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Pacific International Rice Mills, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint and notice of hearing on September 22, 1976, against Respondent, alleging 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 an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on April 2, 1976, following a Board election in Case 20-RC-12582, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about August 3, 1976, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. Subsequently, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, submitting affirmative i Official notice is taken of the record in the representation proceeding, Case 20-RC-12582, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968), Golden Age Beverage Co, 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969), Intertype Co v Penello, 269 F.Supp. 573 (D C.Va., 1967), Follett Corp, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 2 As an attachment, Respondent has submitted an affidavit of Wesley J. Fastiff, the attorney who represented the Respondent at the hearing in the underlying representation proceeding, which Respondent alleges as newly discovered evidence Respondent argues that the Heanng Officer's alleged membership in an employee association prevented him from being impartial. This very argument had been raised in Respondent's exceptions to the Heanng Officer's report in this case. However, the Board in its Decision and Certification of Representative, 223 NLRB 613, issued on April 2, 1976, after having considered Respondent's objections, and the Heanng Officer's report 228 NLRB No. 60 defenses, and requesting that the complaint be dismissed in its entirety or that it be awarded whatever further relief is just and proper. On October 26, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment and motion to strike portions of Respondent's answer, with brief in support thereof and appendixes attached. The General Counsel requests that portions of Respondent's answer be stricken as sham and false and that the Board take official notice of the record in the underlying repre- sentation proceeding. The General Counsel submits, in effect, that Respondent, in its answer, is seeking to relitigate issues previously litigated in the prior representation proceeding and that there are no issues of law or fact requiring a hearing. He, therefore, requests that the motions be granted. Subsequently, on November 10, 1976, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause, with attachments, and the General Counsel filed an opposition thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding 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 response to the Notice To Show Cause, with attachments,2 as well as in its affirmative defenses in its answer to the complaint, Respondent raises substantially the same matters that it raised in the underlying representation case. Respondent's answer attacks the validity of the election and the resulting certification, and it denies that the Union is the collective-bargaining representative of the employees in the bargaining unit.3 recommending disposition of same, and after reviewing the record in light of Respondent's exceptions and brief in support thereof, adopted the Hearing Officer's findings and recommendations , and explicitly stated therein that Respondent's argument on this basis had no merit and that, furthermore, after having read the record closely, there was no evidence of prejudice or bias on the Hearing Officer's part. 3 By its answer, Respondent asserts that it does not have sufficient knowledge of the Union's status as a labor organization A determination was made in the underlying representation proceeding , Case 20-CA-12582, that the Union is a labor organization and, accordingly, it is not subject for litigation in the instant unfair labor practice proceeding Respondent also denies that the Union has requested and that Respondent has refused to bargain Attached to the General Counsel's Motion for Summary Judgment is a letter dated July 30, 1976, from the Union to Respondent requesting bargaining, and a letter dated August 3, 1976, from Respondent refusing to bargain. In its response to Notice To Show Cause, Respondent does not seek to controvert the contents or the receipt of the letter attached to the General PACIFIC INTERNATIONAL RICE MILLS Thus, Respondent's answer to the complaint and the affirmative defenses therein, as well as its re- sponse to the Notice To Show Cause which argues that its objections to the election and exceptions raised issues warranting a hearing, merely reiterate the issues previously raised and considered in the representation case. It is established Board policy, in the absence of newly discovered or previously unavailable evidence or special circumstances, not to permit litigation in an unfair labor practice case of issues which were or could have been litigated in a prior representation proceeding.4 It is clear that Respondent had, and exercised, the opportunity in the representation proceeding in Case 20-RC-12582 to raise the issues in its answer to the complaint and its response to the Notice To Show Cause. All issues raised by Respondent in this proceeding except as to the alleged "newly discovered evidence" which we have found to be without merit, were or could have been litigated in the prior representation proceeding, and Respondent has not offered to adduce at a hearing any relevant newly discovered or previously unavailable evidence, nor are there any special circumstances herein which would require the Board to reexamine the decision made in the repre- sentation proceeding. We therefore find that Respon- dent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment.5 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a California corporation, having its main place of business in Woodland, California, is engaged in the milling and wholesaling of rice. During the past calendar year, in the course of its operations in California, Respondent has sold pro- ducts valued in excess of $50,000 directly to custom- ers located outside the State of California. We find, on the basis of the foregoing, 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 jurisdiction herein. Counsel's motion. Accordingly, we shall deem these allegations of the complaint to be admitted. Schwartz Brothers, Inc., and District Records, Inc., 194 NLRB 150 (1971); The May Department Stores Company, 186 NLRB 86 (1970); Carl Simpson Buick, Inc., 161 NLRB 1389 (1966). 4 See Pittsburgh Plate Glass Co v N.L R B., 313 U.S. 146, 162 (1941); II. THE LABOR ORGANIZATION INVOLVED 465 Chauffeurs, Teamsters, and Helpers Local Union No. 150, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 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 purposes within the meaning of Section 9(b) of the Act: All production, warehouse, maintenance, and general labor employees, truckdrivers and forklift operators employed by Pacific International Rice Mills, Inc., at Kentucky Avenue and Highway 113, Woodland, California, excluding office cleri- cals, guards and supervisors as defined in the Act. 2. The certification On April 25, 1975, a majority of the employees of Respondent in said unit, in a secret ballot election conducted pursuant to a Stipulation for Certification Upon Consent Election, under the supervision of the Regional Director for Region 20, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining representa- tive of the employees in said unit on April 2, 1976, 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 July 30, 1976, and at all times thereafter, the Union has requested Respon- dent 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 August 3, 1976, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 5 Having granted the Motion for Summary Judgment, we find it unnecessary to pass upon the motion to strike portions of Respondent's answer 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that Respondent has, since August 3, 1976, and at all times thereafter, 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 opera- tions described 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, 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 period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Pacific International Rice Mills, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Chauffeurs, Teamsters and Helpers Local Union No. 150, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production, warehouse, maintenance, and general labor employees, truckdrivers and forklift operators employed by Pacific International Rice Mills, Inc., at Kentucky Avenue and Highway 113, Woodland, California, excluding office clericals, guards and supervisors as defined in the Act, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since April 2, 1976, 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 purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 3, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent 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 interfering 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 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 mean- ing 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, Pacific International Rice Mills, Inc., Woodland, California, its officers, agents, successors, and as- signs, 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 Chauffeurs, Team- sters and Helpers Local Union No. 150, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All production, warehouse, maintenance, and general labor employees, truckdrivers and forklift operators employed by Pacific International Rice Mills, Inc., at Kentucky Avenue and Highway 113, Woodland, California, excluding office cleri- cals, guards and supervisors as defined in the Act. PACIFIC INTERNATIONAL RICE MILLS (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed 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 labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Woodland, California, facility, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 467 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 Chauff- eurs, Teamsters and Helpers Local Union No. 150, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, as the exclusive representative of the employ- ees 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 employees in the bargaining unit described below, with respect 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 agreement. The bar- gaining unit is: All production, warehouse, maintenance, and general labor employees, truckdrivers and forklift operators employed by Pacific International Rice Mills, Inc., at Kentucky Avenue and Highway 113, Woodland, Cali- fornia, excluding office clericals, guards and supervisors as defined in the Act. PACIFIC INTERNATIONAL RICE MILLS, INC.