J. R. Simplot Co.

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 572 (N.L.R.B. 1993)

572
311 NLRB No. 61
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The judge inadvertently omitted the jurisdictional findings. Based
on the record, we find that the Respondent, a Nevada corporation,
engages in food processing at its facilities in Boise, Idaho, and Quin-
cy, Washington, where it annually has gross sales of goods and serv-
ices in excess of $500,000; and where it annually sells and ships
goods or provides services from its facilities within the State of
Washington to customers outside the State, or to customers within
the State who were, themselves, engaged in interstate commerce by
other than indirect means, of a total value in excess of $50,000. We
find that the Respondent is an employer engaged in commerce with-
in the meaning of Sec. 2(6) and (7) of the Act and that the Union
is a labor organization within the meaning of Sec. 2(5) of the Act.
3 We find, as argued by the General Counsel on exception, that the
make-whole remedy in the judge’s recommended Order applies to
seasonal employees because they are encompassed by the unit that
the parties stipulated as appropriate for collective bargaining at the
Respondent’s Quincy facility.
Additional amounts due the benefit funds under the judge’s rec-
ommended Order shall be determined by the procedure set forth in
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979).
J. R. Simplot Company and General Teamsters,
Food Processing Employees, Public Employees,
Warehouse and Helpers, Local 760, Inter-
national Brotherhood of Teamsters, AFL–
CIO.1 Cases 19–CA–20964 and 19–CA–21228
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 23, 1992, Administrative Law Judge
Timothy D. Nelson issued the attached decision. The
General Counsel filed exceptions and a supporting
brief; and the Respondent filed exceptions, a sup-
porting brief, and a response brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.3
The judge found, and we agree, that the Respondent,
an operator of a recently closed plant in Wenatchee,
Washington, where the Union was the employees’ bar-
gaining representative, violated the Act by refusing to
recognize and bargain with the Union as the represent-
ative of the employees at the Respondent’s newly
opened plant in Quincy, Washington. The General
Counsel has excepted to the judge’s failure to require
the Respondent to make whole the Union for the loss
of any dues revenues which the Union would have re-
ceived through the checkoff provisions of the parties’
contract covering the Wenatchee unit employees who
transferred to Quincy. For the reasons set forth below,
we find that the judge properly refused to grant the
General Counsel’s requested remedy.
It is well settled that an employer’s obligation to
abide by the terms of a checkoff provision ceases with
the expiration of the contract. See Bethlehem Steel Co.,
136 NLRB 1500 (1962), enfd. in relevant part 320
F.2d 615 (3d Cir. 1963), cert. denied 375 U.S. 984
(1964). The General Counsel’s theory relies on a con-
tract clause that provides for automatic continuation
from year to year in the absence of an effective termi-
nation. The General Counsel, however, has not ex-
cepted to the judge’s specific finding that the parties’
contract expired on the day before the employee trans-
fer. Further, in the cases on which the General Counsel
relies, the parties’ contracts would have continued but
for the unfair labor practices. In the instant case, we
cannot say with surety that the contract would have
continued had the Respondent fulfilled its bargaining
obligation. We therefore will not speculate on what the
parties might have done about the expired contract in
the absence of the Respondent’s insistence that the
new facility be nonunion. See, e.g., Xidex Corp., 297
NLRB 110, 118 (1989), enfd. 924 F.2d 245 (D.C. Cir.
1991). Accordingly, we find no merit to the General
Counsel’s exception.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, J. R. Simplot Company,
Boise, Idaho, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Patrick Dunham, Esq., for the General Counsel.
Kathleen A. Anamosa, Esq. (Davis, Wright & Tremaine), of
Seattle, Washington, for the Respondent.
Kenneth J. Pedersen, Esq. (Davies, Roberts & Reid), of Se-
attle, Washington, for the Charging Party, Teamsters Local
760.
DECISION
TIMOTHY D. NELSON, Administrative Law Judge. In this
prosecution, the Board’s General Counsel claims that J. R.
Simplot Company (Simplot), operator of a recently closed
plant in Wenatchee, Washington, where Teamsters Local 760
(the Union) was the employees’ bargaining agent, owed and
violated a duty to recognize and bargain collectively with the
Union as the representative of employees at its newly opened
plant in Quincy, Washington. Simplot disputes this, claiming
a right to open and operate Quincy on a ‘‘nonunion’’ basis.
I heard the merits in trial in Wenatchee on April 10 and 11,
1991, where all parties were represented by counsel. Before
penetrating the merits of the statutory controversy any fur-
ther, I will find it necessary to describe and discuss the back-
ground as it relates to an arbitration of a contract dispute be-
tween the Union and Simplot. This might not have been re-
quired were it not for the General Counsel’s claim on brief
573J. S. SIMPLOT CO.
1 G.C. Br. 5, fn. 3, where counsel asserts that the ‘‘issue of the
status of these employees [a certain group of Wenatchee transferees]
was encompassed in the Arbitration Award[,]’’ and then concludes,
somehow, that,
[i]t is now the law of this case that they were covered by the
collective bargaining agreement and that Respondent was obli-
gated to recognize the Union as the representative of the em-
ployees who were, at least at the time of the assembly work,
employed at Quincy.
2 The Union’s ‘‘territorial jurisdiction’’ includes Quincy.
3 Jt. Exh. 8, p. 11.
4 Id. at 11–13.
5 Id. at 15.
6 Id. at 11.
7 Id. at 13–14.
8 The complaint as I construe it more specifically attacks as Sec.
8(a)(5) violations the following (now-admitted) actions of Simplot:
(a) refusing to recognize the Union as the exclusive collective-bar-
gaining representative of the Quincy workers as soon as they began
working at Quincy; (b) refusing to apply the Wenatchee labor agree-
ment through its April 30 term to Wenatchee Unit employees sent
to work at Quincy during a pre-April 30 transitional phase, and (c)
refusing after the April 30 expiration of the Wenatchee contract to
apply to Quincy employees the wages and other terms and condi-
tions of employment established by that agreement, pending good-
faith bargaining for a new contract for the Quincy employees, and
instead acting unilaterally with respect to all such issues.
9 ‘‘Law of the case’’ usually implies that a judge or other juridical
body (court or agency) with jurisdiction over a specific pending case
has already conclusively ruled on some portion of that same case,
and has thus to some degree or other delimited the range and scope
of any subsequent litigation or analysis in that case. An arbitrator
of a contractual grievance plainly has no jurisdiction nor power to
thus impose the ‘‘law of the case’’ on a separate and distinct pro-
ceeding under the National Labor Relations Act. Sec. 10(a) of the
Act makes this unmistakably clear; it states (my emphasis) that the
Board’s,
. . . [power] to prevent . . . any unfair labor practice . . . shall
not be affected by any other means of adjustment or prevention
that has been . . . established by agreement, law or otherwise[.]
It is therefore obvious that ‘‘law of the case’’ notions cannot operate
to ‘‘bind’’ the Board to a prior arbitral result. (Voluntary ‘‘deferral’’
by the Board in the limited way envisioned in Spielberg is a separate
question, which I address separately below.)
10 Near the trial’s outset, the parties submitted a series of joint ex-
hibits; they included the arbitrator’s decision and associated papers,
such as the parties’ supplemental briefs to the arbitrator. I questioned
the purpose for which these arbitration exhibits were being sub-
mitted, particularly the arbitrator’s decision. In the ensuing colloquy,
each party seemed to disavow any claim that the arbitrator’s decision
should be deferred to in any way. Indeed, counsel for the General
Counsel affirmed that he was ‘‘not going to argue that some finding
made by [the arbitrator] binds Respondent or in some way amounts
to res judicata or in some other way allows me [the judge] to make
a finding on the same facts found by [the arbitrator].’’ Tr. 18:12-
–25; and see the surrounding colloquy at Tr. 17:11–19:25, in which
counsel for the General Counsel asserted in various ways that he
viewed the arbitration award as ‘‘relevant’’ only insofar as it illumi-
nated certain unspecified ‘‘admissions’’ made by Simplot when it re-
Continued
that, for some purposes, at least, the arbitrator has pro-
nounced the ‘‘law of this case.’’1
The dispute first came to the Board’s attention on June 15,
1990, when the Union filed unfair labor practice charges
against Simplot with the Regional Director for Region 19.
The Regional Director conducted a preliminary investigation;
then, on July 31, he advised the parties in writing that he
would ‘‘defer’’ action on the charges, pending the outcome
of a scheduled arbitration of a grievance the Union had filed
under the Wenatchee labor agreement. That grievance alleged
that Simplot’s refusal to continue to apply the ‘‘terms and
conditions’’ of the Wenatchee contract at the new Quincy
plant violated a ‘‘transfer of operations’’ clause in article II
of that same contract, which stated:
Section 3: Maintenance of the Collective Bargaining
Agreement
In the event the Company elects to transfer in whole
or in part its operations to any other city, community,
or area within the Union’s territorial jurisdiction,2 it is
agreed that all of the terms and conditions of this
Agreement shall be applicable to such an establishment.
The arbitrator issued a decision on August 22, finding that
the transfer clause was ‘‘clear and unambiguous,’’3 and that
the closing of Wenatchee and opening of Quincy involved at
least ‘‘in part’’ a ‘‘transfer’’ of Wenatchee ‘‘operations’’ to
Quincy.4 He thus held that, ‘‘the Employer violated the col-
lective bargaining agreement in failing to apply its terms and
conditions to the newly-opened plant in Quincy, Wash-
ington.’’5 The arbitrator was careful to stress that other
‘‘considerations’’ (e.g., ‘‘eventual majority status of the
Union . . ., representative complement . . ., changes in su-
pervisory hierarchy, . . . new product lines and equipment
and . . . greater processing capacity’’) were ‘‘irrelevant’’ to
his contract-interpretation task, even though ‘‘[t]hose may
well be matters with which the NLRB concerns itself
. . . .’’6 6 Moreover, the arbitrator was aware of the
Union’s pending unfair labor practice charge, but he ‘‘spe-
cifically decline[d] to address . . . or to decide whatever al-
legations are set forth in that charge.’’ He found likewise
‘‘irrelevant’’ any question of Simplot’s antiunion ‘‘animus.’’7
The arbitrator also declined to prescribe a remedy for this
violation, pending supplemental hearing and argument, which
had not been concluded when this trial record closed.
On November 23, the Union filed a second charge, renew-
ing and updating its earlier charges. On January 25, 1991,
the Regional Director notified the parties in writing that he
would no longer defer. On the same date, the Regional Di-
rector issued a consolidated complaint in the name of the
Board’s General Counsel, charging Simplot with violations
of Section 8(a)(5) of the Act, and derivatively, of Section
8(a)(1), all tracing to Simplot’s refusal to relocate the labor
relationship from Wenatchee to Quincy as part of its alleged
‘‘relocation’’ of the Wenatchee plant operation to Quincy.8
Answering the complaint, Simplot admitted that its oper-
ations are subject to the Board’s statutory and discretionary
jurisdiction, and further admitted most of the fact background
selected to be alleged in the complaint, but it denied that it
owed any duty to carry-over the Wenatchee labor relation-
ship to the new Quincy operation, and pleaded affirmative
defenses.
The arbitrator’s findings, made on a different record, and
his conclusions, resting exclusively on contract-interpretation,
will not influence my findings, nor my analysis of the statu-
tory merits of the case submitted to me. The General Coun-
sel’s ‘‘law of the case’’ notion is confusing, inconclusively
developed, and is seemingly at odds not just with the Act’s
commands9 but with his own disclaimers at trial.10 And if
574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sponded to the award. (Despite this, the General Counsel’s brief
does not identify any such ‘‘admissions.’’)
11 Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp.,
268 NLRB 573 (1984).
12 I refer specifically to three distinct actions by the prosecutor,
any one of which were arguably sufficient to operate as waivers of
any claim of deferral, and which, taken together, certainly establish
such a waiver. First, the Regional Director, acting as the General
Counsel’s agent, considered the arbitration award, and then advised
the parties that he would not defer. Second, acting in the same ca-
pacity, the Regional Director simultaneously issued a complaint al-
leging facts and conclusions which in no way referred to the arbitra-
tion; much less did the complaint suggest that the decision of the
arbitrator was in any way relevant to the disposition of the alleged
statutory violations. (There was no suggestion, for example, that the
decision gave birth to statutory rights on the Union’s part—or duties
on Simplot’s part—which did not otherwise exist.) Third, the Gen-
eral Counsel made disclaimers at trial (penultimate footnote, supra)
which simply cannot be harmonized with a subsequent claim that the
arbitration deserves ‘‘deference’’ by the Board.
13 It is reasonably clear from the cases, many of them discussed
further in the next section, that the parties’ statutory rights or duties,
if any, following a plant shutdown and reopening at a new location,
will have little or nothing to do with the existence or nonexistence
of an agreement between them about the relocation and its labor re-
lations consequences; rather, these rights or duties, if any, will turn
instead on the existence or nonexistence of ‘‘sufficient continuity’’
between the two plants. Harte & Co., 278 NLRB 947 (1986) (no
violation to ‘‘extend’’ application of old plant contract to new plant,
where ‘‘sufficient continuity’’ found); cf. Hudson Berlind Corp., 203
NLRB 421 (1973), enfd. 494 F.2d 1200 (2d Cir. 1974), cert. denied
419 U.S. 897 (1974) (violation found when employer recognized and
contracted with Union A at new, ‘‘consolidated’’ operation, where
consolidation involved ‘‘merger’’ of employees formerly represented
by union A and employees formerly represented by union B, thereby
creating ‘‘new’’ bargaining unit, and ‘‘real question concerning rep-
resentation’’).
14 In Olin, the Board panel majority strongly criticized a number
of prior decisions finding that Spielberg’s deferral tests were not met
because of some failure on the arbitrator’s part adequately to ‘‘con-
sider’’ facts relevant to the statutory question, or to ‘‘apply’’ the rel-
evant statutory tests. The Olin majority held instead (268 NLRB at
574, my emphasis) that henceforth it,
. . . would find that an arbitrator has adequately considered the
unfair labor practice if (1) the contractual issue is factually par-
allel to the unfair labor practice issue and (2) the arbitrator was
presented generally with the facts relevant to resolving the un-
fair labor practice. [Fn. omitted.] In this respect, differences, if
any, between the contractual and statutory standards of review
should be weighed by the Board as part of its determination
under the Spielberg standards of whether an award is ‘‘clearly
repugnant’’ to the Act. And, with regard to the inquiry into the
‘‘clearly repugnant’’ standard, we would not require an arbitra-
tor’s award to be totally consistent with Board precedent. Unless
the award is ‘‘palpably wrong’’ [fn. omitted] i.e., unless the ar-
bitrator’s decision is not susceptible to an interpretation con-
sistent with the Act, we will defer.
15 I directed the parties on the record at the trial’s conclusion to
take special pains on brief to identify with particularity (i.e., by
‘‘chapter and verse’’) the record source for any factual claims or
characterizations they might make. Simplot’s brief substantially con-
forms to this direction; the General Counsel’s brief does not come
close. Moreover, I cannot agree with the General Counsel when he
announces at the start of his brief that, ‘‘[f]actually, this is a very
simple case.’’ And I have not found his brief helpful in reaching my
own factfindings, largely because it suffers from lack of appropriate
citation to the record. In other instances I have been mystified by
some of his uncited claims about the state of the ‘‘record,’’ which
contradict what I have gleaned from presumably the same source.
For example, he asserts, without attribution to the record (Br. at 10–
11):
[F]rom February through April 30, 1990, Respondent recognized
the Union as the representative of its employees at the new fa-
cility. . . . It is a matter of record now that Respondent had to,
and retroactively did, recognize the Union as the representative
of the employees who were performing work in Quincy . . . .
But see par. 12 of the parties’ stipulation:
Since a February 13, 1990 request by the Union, Simplot has
refused and continues to refuse to recognize the Union as the
representative of the Quincy Unit.
See also pars. 13 through 15 of the same central ‘‘record’’ docu-
ment, in which Simplot stipulates that it did not bargain with the
Union, but instead acted unilaterally in establishing all wages and
other terms and conditions of employment at Quincy, and in doing
so, departed from the status quo ante, i.e., from the terms and condi-
tions established by the Wenatchee labor agreement.
‘‘law of this case’’ is intended to suggest something more
modest—that the arbitration decision deserves ‘‘deference’’
under some application of Spielberg/Olin11 principles, I re-
ject the suggestion: First, I think it is both untimely and
barred by the doctrine of estoppel by waiver for the General
Counsel now to argue for any form of deferral.12 Wholly
apart from those points, I would not find it appropriate to
defer. The arbitrator could not have been more explicit in de-
clining to ‘‘consider’’ the statutory issues, and the facts rel-
evant to them; indeed, he plainly found it entirely inappro-
priate to his function to decide the grievance submitted to
him in terms of its possible merits under the National Labor
Relations Act, where facts other than the existence of an
agreement between the parties would control the question of
Simplot’s statutory bargaining duties at Quincy vis-a-vis the
Union.13 It is thus evident that the contract issues decided in
the arbitration case and the statutory issues presented in the
instant case lack any semblance of ‘‘parallelism’’; therefore,
the arbitration decision could not satisfy even Olin’s liberal
tests for deferral.14
FINDINGS AND PRELIMINARY OBSERVATIONS
I. OVERVIEW: THE PARTIES’ CONTENTIONS; HARTE’S
TEACHINGS; MY CONCLUSIONS
I have studied the whole record, including the parties’
briefs and the authorities which they invoke. The facts, al-
though somewhat complex in their relevant details,15 are not
in significant dispute, and the credibility of some of the wit-
nesses will be matters for occasional comment only. The par-
ties are in contest over which facts are important, how to
characterize them, and over which legal authorities should
properly control the analysis.
The pleadings alone disclose a substantial number of un-
disputed facts: Simplot had historically recognized and dealt
with the Union as the exclusive representative of year-round
and seasonal production and maintenance (P&M) employees
at its Wenatchee vegetable processing plant and associated
cold storage warehouse. Simplot closed the Wenatchee plant
on April 30, 1990, the date the Union’s contract expired
there, then ‘‘began operations’’ in ‘‘May 1990’’ at a new
plant in Quincy (‘‘approximately 28 miles’’ away, according
to the complaint; about ‘‘35 miles,’’ according to Simplot’s
answer; and about ‘‘30 miles,’’ as the parties eventually stip-
ulated). As of May 25, 1990, when Simplot conducted a
‘‘Grand Opening’’ ceremony at Quincy, its ‘‘Quincy Unit’’
575J. S. SIMPLOT CO.
16 Simplot’s answers this by admitting that when it conducted the
May 25 Grand Opening at Quincy, ‘‘the majority of the employees
at the Quincy plant were employees who had worked . . . in the
Wenatchee plant.’’ In a subsequent stipulation, Simplot clarifies that
this ‘‘majority’’ refers to employees formerly in bargaining unit po-
sitions at Wenatchee who came to similar jobs within the putative
Quincy bargaining unit.
17 In its answer, Simplot avers (emphasis added):
. . . in mid-1989 [Simplot] decided to combine its Wenatchee,
Ferndale, and Grandview, Washington plants and expand its
food processing operations at a new facility . . . in Quincy,
Washington.
In its brief, acknowledging that the Grandview plant had been sold
to a third party in 1986, Simplot has trimmed its claim, maintaining
now that the ‘‘mid-1989’’ decision was to ‘‘combine’’ two plants,
Wenatchee and Ferndale.
18 Westwood Import Co., 251 NLRB 1213, 1214 (1980), enfd. 681
F.2d 664 (9th Cir. 1982); General Extrusion Co., 121 NLRB 1165,
1167–1168 (1958); and Marine Optical, 255 NLRB 1241, 1245
(1981), enfd. 671 F.2d 11 (1st Cir. 1982).
119 Marine Optical, supra.
20 Harte & Co., 278 NLRB 947 (1986).
21 I acknowledge that Harte’s principles were declared in an ‘‘ex-
clusively relocation’’ fact setting and therefore may play a less cer-
tain role in cases where the employer’s new operation may be a
product of plant mergers, or consolidations, or expansions, or com-
binations thereof. Cf. Central Soya Co., 281 NLRB 1308, 1309 at
fn. 6 (1986); Hudson Berlind Corp., supra.
22 Thus, as I see it, the Harte prosecution challenged not just the
parties’ agreement to continue the old plant’s union contract at the
new plant, but the very propriety of their continuing their relation-
ship at all after the relocation.
23 278 NLRB at 948–949, citing Westwood Import, supra, and Ma-
rine Optical, supra, and General Extrusion Co., supra.
work force was composed of ‘‘a substantial number and/or
a majority’’ of employees from the former ‘‘Wenatchee
Unit.’’16 Simplot has at all times refused to recognize and
bargain with the Union as the exclusive representative of the
P&M employees working at Quincy, and has acted unilater-
ally with respect to the Quincy employees’ wages, hours, and
other terms and conditions of their employment. Its unilateral
actions resulted in departures from the wages and other terms
and conditions of employment established for Wenatchee
workers by the Wenatchee labor agreement.
While Simplot does not dispute these factual elements of
the complaint, it denies the accuracy of the complaint’s char-
acterization of the Quincy plant as a ‘‘relocat[ion]’’ of the
operations formerly done at the Wenatchee plant. Simplot’s
answer avers instead that the Quincy plant is an essentially
‘‘new’’ operation, a product of a decision by Simplot in
‘‘mid-1989’’ to ‘‘combine’’ and ‘‘expand’’ on the operations
formerly done at three plants, Wenatchee being only one of
them.17 And Simplot posits as a matter of law that because
Quincy is properly labeled as a ‘‘new’’ operation, the Union
enjoys no special presumption that the employees at Quincy
want the Union to represent them, no matter that a majority
of them at one phase in Quincy’s new operations were per-
sons who had been represented by the Union when they
worked at Wenatchee.
Simplot insists in any case that at all times it had a ‘‘good
faith doubt as to the Union’s continuing majority status’’ at
Quincy. This defense, grounded in the ‘‘seasonal’’ variations
in the plant’s complement, apparently assumes for argu-
ment’s sake that the existence of a Wenatchee transferee ma-
jority in the new Quincy complement would trigger a duty
on Simplot’s part to maintain its bargaining relationship with
the Union at the new plant. But if so, says Simplot, the
‘‘Wenatchee [transferee] majority’’ at Quincy as of May 25
is not meaningful, because the May 25 employee com-
plement was only a ‘‘pre-season’’ complement, and one
which was not ‘‘representative’’ of Simplot’s expected com-
plement at ‘‘full operations.’’ And Simplot equates ‘‘full op-
erations’’ with the peak phase of its fresh-harvest processing
season, a roughly 2-month period ending in late September,
during which the Wenatchee transferees would temporarily
become a minority, as the P&M complement became swollen
with new hires, drawn mostly from a new locale, or ‘‘labor
market.’’ And it is with these peak season complement con-
figurations in mind that Simplot also argues that to have rec-
ognized the Union at Quincy would have been ‘‘unlawful as-
sistance,’’ violating Section 8(a)(2) of the Act. As related
legal support, Simplot cites the Board’s established pref-
erence for holding representation elections in ‘‘seasonal’’ in-
dustries at or near the peak of the season, when the largest
number of eligible voters can most easily participate in an
on-site election.
Under the General Counsel’s theory of prosecution, this
case is generally governed by principles advanced in ‘‘relo-
cation’’ precedents such as Westwood Import,18 and Marine
Optical,19 principles which the Board adopted and refined
more recently in Harte & Co.20 I agree that Harte’s teach-
ings properly bear on this case, and I think they are worth
reviewing at the outset, even though there is a legitimate dis-
pute about whether the term ‘‘relocation’’ adequately cap-
tures the relationship between the Quincy plant and the
former Wenatchee plant,21 and even though the
‘‘seasonality’’ of the operations here presents facts which
Harte and its predecessors did not confront.
In Harte, an administrative law judge had found that a
union and an employer in a relocation situation violated the
rights of the new plant’s employees when the union and em-
ployer agreed voluntarily to extend the old plant’s current
labor agreement to the employees at the new plant, without
some independent, ‘‘uncoerced’’ showing that a majority of
the employees at the new plant wanted the union to represent
them.22 In finding no violation and dismissing the complaint,
the Harte Board construed the precedents—most of them
cases where the employer was being prosecuted under Sec-
tion 8(a)(5) for refusing to apply the old plant’s union con-
tract at the new plant—as teaching that a ‘‘mere’’ plant relo-
cation will not defeat the continuing effectiveness of the ex-
isting agreement, provided that ‘‘sufficient continuity’’ be-
tween the old plant and the new plant may be found to ‘‘jus-
tify applying [the] existing agreement to [the] new location.’’
Likewise echoing the precedents, the Harte board reiterated
that ‘‘sufficient continuity’’ is found where,
the operations at the new facility are substantially the
same as those at the old and . . . transferees from the
old plant constitute a substantial percentage—approxi-
mately 40 percent or more—of the new plant employee
complement.23
Harte further instructs that the time for sampling the ratio of
old plant transferees to new hires for purposes of a ‘‘continu-
ity-of-complement’’ analysis is not necessarily when the new
576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 Id. at 949–950, and cases cited.
25 The pleadings, the exhibits, and the stipulation of facts entered
into by the parties make up the framing for all of my findings above
and below. I will rely for supplemental detail on the testimony of
several Simplot officials: Keith Fletcher, the general manager of
Simplot’s corporate-level fruit and vegetable division; Diane
Willingham (nee Walker), who was at material times the ‘‘Human
Resources Administration Administrator’’ for the same division, and
who was on the ‘‘implementation team . . . put together to imple-
ment [the] plan’’ to close the Wenatchee plant and to build and staff
the plant in Quincy; Larry Shaw, former Wenatchee plant manager
and current Quincy plant manager, also on the planning and imple-
mentation team; and John Stone, the Quincy plant’s personnel man-
ager, who oversaw recruitment and hiring for the Quincy plant.
26 I rely in large part on the testimony of Simplot’s Quincy per-
sonnel manager, Stone, for findings concerning Simplot’s own em-
ployment patterns and practices at its Washington plants. Because
Stone had wider industry experience, I also rely in part on his testi-
mony for similar findings about the industry in general. My findings
on these points are also informed by findings and descriptions in
other cases arising in the same industry in the State of Washington,
especially D & K Frozen Foods, 293 NLRB 859, 862–863 (1989),
and Bellingham Frozen Foods v. NLRB, 626 F.2d 674, 676–677 (9th
Cir. 1980), enfg. in part 237 NLRB 1450 (1978).
27 In some cases, the plant operator owns and/or operates the cold
storage facility directly; in other cases, the plant operator will con-
tract with a third party to perform cold storage services.
28 ‘‘Classified’’ jobs include the following: mechanics, electricians,
and steam or power plant engineers, for installing, maintaining, and
repairing plant systems and production machinery; operators for the
processing lines and machines used during prime pack and repack;
forklift operators; quality control technicians; shipping and receiving
handlers and recordskeepers.
plant becomes ‘‘fully operational,’’ but rather is the time
when the employer’s ‘‘relocation process’’ and the associated
‘‘employee transfer process’’ have become ‘‘substantially
completed.’’24
Based on details which I narrate and comment on below,
I will judge that the Quincy operation amounts to something
more than a ‘‘mere relocation’’ of the Wenatchee operation
to a new site, but that it amounts to something decidedly less
than a ‘‘new’’ or ‘‘different’’ operation in terms of its busi-
ness purpose, its production methods, and, most important, in
terms of the people it has largely relied on to start and stay
in operation. Applying Harte’s principles to these unique
facts, I will conclude that there existed at all relevant times,
one of them being at ‘‘Grand Opening,’’ a ‘‘sufficient con-
tinuity’’ of operations and employee complement between
the Wenatchee plant and the new Quincy plant to support the
General Counsel’s ultimate claims. Thus, I shall conclude
that Simplot violated Section 8(a)(5) and (1) of the Act, sub-
stantially as alleged in the complaint.
II. DETAILS25
A. Background
Simplot, a Nevada corporation, headquartered in Boise,
Idaho, operates food processing plants and related trucking
businesses in several States, including Washington, Cali-
fornia, and Iowa; its ‘‘Western Hemisphere’’ operations also
include plants in Mexico and elsewhere in Central America.
Simplot’s main products are frozen fruits and vegetables, in-
cluding potatoes. These are all processed similarly at its
plants, in two basic stages, ‘‘prime pack’’—processing and
freezing of fresh produce, done during the harvest season
(usually called, simply, ‘‘the season’’), and ‘‘repack’’—re-
moving frozen produce from bulk warehouse storage and
packing it in customer-specified containers, done mostly out-
side the season. Prime pack and repack are distinct oper-
ations, relying on different production equipment and line
setups.
We are concerned with what Simplot calls its ‘‘North-
west’’ vegetable operations, where the season typically runs
for about 4 months, from approximately June 1 through the
end of September. Simplot’s Northwest operations have been
concentrated since approximately April 30–May 1, 1990, in
a single new plant in Quincy, Washington, the focus of this
controversy. Simplot decided to centralize at Quincy a year
earlier, in May 1989, at a time when its Northwest operations
consisted of two Washington plants. One was a year-round
prime pack and repack plant in Wenatchee, on the eastern
slope of Washington’s Cascade range, about 30 miles from
the putative Quincy site, where the Union was the histori-
cally recognized representative of year-round and seasonal
P&M employees, who were then covered by a labor agree-
ment due to expire April 30, 1990. The other was (by May
1989) a prime pack-only plant in Ferndale, some 210-road
miles West over the Cascades from Quincy, on Washington’s
Puget Sound coast, where P&M employees were represented
by another Teamsters local union.
In the Northwest, Simplot followed patterns which are typ-
ical to the industry in Washington State,26 ones which it con-
tinues to follow or intends to follow at the new Quincy plant:
The plants perform prime pack throughout the June–October
season; they typically do repack during all or a large part of
the remaining 7–8 months of the year, and also perform re-
pack at intervals during the season. Prime pack starts with
pea varieties in early June, and grows in volume as new vari-
eties of produce reach harvest point; it surges most strongly
in September, when the inbound corn harvest overlaps with
continuing inflow of other produce.
In a typical season, fresh produce is continuously trucked
to the plant, and fed through a series of standard processes—
inspection, culling, and blanching, then, depending on vege-
table type and customer demand, peeling, trimming, slicing
or dicing. The initially processed vegetables are then con-
veyed through ‘‘freeze tunnels,’’ and, once frozen, are
poured into bulk storage containers, called ‘‘totes.’’ The totes
are then transported to an adjacent, functionally integrated
cold-storage warehouse.27 The warehoused products must
eventually be ‘‘repacked,’’ a process in which the loaded
totes are returned from the warehouse to the plant and their
contents are dumped onto packaging lines, where they are
fed through pouring and packaging machinery into customer-
specified containers, ranging from polyethylene bulk bags to
brand-labelled wax cartons for the retail shelf. Repacked
products are then transported to a shipping-staging area back
in the cold storage warehouse, where they are assembled to
customer order, and made ready for transfer across loading
bays into waiting trucks or railcars.
The plants rely year-round on a fairly steady complement
of P&M employees, a combination of ‘‘general labor’’ and
‘‘classified’’ workers with specialty jobs,28 and their non-
supervisory leadpersons. During the season, the year-round-
ers function as a ‘‘core group’’ in each department and oper-
577J. S. SIMPLOT CO.
29 In unionized plants, such as Wenatchee, the qualifications for in-
clusion on the seniority list, and the layoff and recall practices asso-
ciated with it, are set forth in the labor agreement. Under the
Wenatchee union contract, for example, an employee must have
worked at least 1400 hours in a preceding year’s period to qualify
for the list. The Wenatchee list included many employees with se-
niority dating back to initial employment many years earlier with a
pre-Simplot operator of the plant.
30 Quincy Personnel Manager Stone testified that plant operators in
the industry, including Simplot, usually assume a ‘‘40 percent’’ turn-
over rate from one harvest season to the next. Given other indica-
tions that the year-round core group work force is composed mostly
of high-seniority employees, I presume that most of this turnover oc-
curs among the persons hired for general labor work during each
new prime pack season, with the likely result that turnover rates
within that latter group substantially exceed the 40-percent figure.
31 Plant Manager/Superintendent Shaw acknowledged, referring
specifically to Quincy operations, that some of these seasonal new
hires ‘‘work in the plant only for two or three weeks to a month
every year,’’ and are hired only for the ‘‘biggest production runs and
at the peak of those runs[.]’’ He also acknowledged that partial lay-
offs may occur during the season, during a lull between harvests, or
due to breakdowns in the processing lines. When this happens, se-
niority will govern who is to be laid off, and necessarily, the most
recently hired summer extra workers will be the first targets for any
such idling.
31 Shaw’s testimony at various points establishes the following re-
lated details: Columbia Colstor already operated a warehouse adja-
cent to the putative Quincy site; in fact, it had been used to handle
overflow from the Wenatchee operation in the past. As part of the
arrangement with Simplot, Columbia Colstor would ‘‘expand’’ this
warehouse, and would purchase certain additional refrigeration
equipment from Simplot. In addition, as part of Simplot’s exit from
Wenatchee, it either sold the Wenatchee cold storage warehouse to
Columbia, or otherwise surrendered that operation to Columbia. Fi-
nally, Simplot had stockpiled substantial stores of frozen produce at
the Wenatchee warehouse before exiting on April 30, 1990, and the
Wenatchee warehouse (thereafter under Columbia’s management)
continued to feed the Quincy plant’s repack operation for at least an-
other year. Thus, Shaw acknowledged in April 1991, ‘‘The [frozen]
product that we left at the Wenatchee facility when we left we’ve
been slowly moving over.’’
33 Here, Simplot contemplated blending frozen meat with vegeta-
bles, to produce a reheatable ‘‘stir-fry’’ product. In fact, however,
no such processing had taken place as of April 1991, when this case
was tried.
34 The record does not show how large Ferndale’s peak season em-
ployment complement may have been in 1989 or earlier, nor the size
of its typical year-round crew in the era when it was also running
repack. (As I explain below, Ferndale did not perform repack after
Continued
ation. During the remainder of the year, they are kept busy
on repack work; they also maintain and repair prime pack
machinery, and perform other get-ready work for the next
season. They normally achieve year-round status by virtue of
their experience and relative seniority. In fact, the plant oper-
ators, including Simplot, generally maintain a ‘‘seniority
list,’’ where date of original hire (usually carried over
through successive plant owners) determines priority for re-
tention at the end of the season, and for recall during the
new season. The lists are updated periodically, to remove
persons who are no longer ‘‘actively’’ interested in employ-
ment.29
Once the season starts, the core group is gradually supple-
mented by additional workers, especially in general labor
classifications, with first preference given to waiting ‘‘ac-
tive’’ seniority listees, in order of seniority. However, due
mainly to roughly 40-percent turnover from season to sea-
son,30 each new seasonal work force will include many new
faces. These are mostly untrained people, called-in from
State Jobs Services registries when the seniority list has been
exhausted; they include students on summer break, and oth-
ers whose situations leave them available for on-call work,
as plant needs may require.31 Employees in this outside,
new-hire category may outnumber the ‘‘seniority’’ workers
in the peak months of the season (they did, in fact, during
Quincy’s 1990 peak). And depending on how many hours
these outsiders are willing and permitted to work during the
season, they may themselves qualify for inclusion on the
next updated seniority list, and thus have priority over other
outsiders for available jobs in the next season, if they are
still around, and interested.
B. The Quincy Plan
1. Its origin and main features
According to Corporate General Manager Fletcher, the
May 1989 decision to house all future Northwest operations
at Quincy was rooted in a ‘‘Four Corners’’ business strategy,
originally developed in 1987, in consultation with the
Simplot family, the principal corporate owners. Under this
overall strategy, Simplot hoped to expand its market share as
a ‘‘low-cost’’ purveyor of frozen foodstuffs, and as well, to
expand its range of products to serve emerging consumer
preferences, by variously ‘‘strengthening’’ each geographic
‘‘corner’’ of Simplot’s ‘‘Western Hemisphere’’ operations.
The May 1989 decision comprehended these principal ele-
ments:
Within 1 year, the Quincy plant would be built and ready
to take over all of the Northwest’s prime pack and repack
volumes; the start of the 1990 season would be the most crit-
ical readiness deadline. The Ferndale plant, by then equipped
only for prime pack of certain produce, would be closed at
the end of the 1989 season, then some 4 to 5 months away.
Wenatchee, equipped as well for repack, would continue to
operate for another 11–12 months, until the Quincy plant was
ready to take over all operations.
Although Simplot had owned and operated the cold stor-
age warehouse associated with the Wenatchee plant, it would
instead use an independent cold storage company, Columbia
Colstor, for these warehousing services at Quincy. Columbia
would also take over operation of the Wenatchee warehouse,
on Simplot’s exit, and Wenatchee’s stockpiled frozen stores
would continue indefinitely thereafter to feed Quincy’s re-
pack lines.32
Quincy would be a substantially larger plant, containing
four times more production floor space than at Wenatchee.
With space for the running of extra lines, Quincy would
process more volumes of product than either Wenatchee or
Ferndale, or the two combined, had ever processed. The ad-
ditional space would also allow the prime pack of some
types of produce or foodstuffs which Wenatchee had not pre-
viously handled. Moreover, Quincy would be designed and
equipped to meet USDA standards for handling of meat and
other ‘‘protein’’ items, standards which Wenatchee (or Fern-
dale) could not meet without substantial upgrading.33
Quincy would require more employees than were required
at Wenatchee (or at Ferndale, apparently34). According to
578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
late 1987; it therefore appears that Ferndale ceased to have a year-
round crew as of late 1987.)
35 In the event, Quincy used fewer—431—at its 1990 peak, as the
parties stipulated.
36 In fact, according to Stone, Quincy employed 170–180 P&M
workers in April 1991, before the 1991 seasonal influx of extra
workers would begin. It thus appears that Quincy’s year-round core
group consists of about that same number of employees, 170–180,
most of them Wenatchee transferees, as Stone also acknowledged.
37 The closest attempt to get at the number of year-rounders typi-
cally employed at Wenatchee can be found in the General Counsel’s
examination of Stone, and the surrounding colloquy between counsel
at Tr. 380–386, which focuses on whether the ‘‘144’’ Wenatchee
transferees at Quincy as of a certain date were all formerly part of
Wenatchee’s year-round crew. Stone’s testimony was inconclusive,
and Simplot’s counsel would stipulate only that when these eventual
transferees were hired in April 1990, they were then ‘‘actively’’ on
the Wenatchee seniority list, but not necessarily then working. But
her explanatory remarks for so limiting her offer to stipulate make
it appear that all of those ‘‘144’’ would have been working at
Wenatchee in April 1990 were it not for the fact that Wenatchee’s
repack operation was then abnormally limited, because its repack
equipment was being incrementally dismantled and reinstalled at
Quincy. And if this is so, it is possible to infer that Wenatchee’s
year-round crew in more typical years included at least ‘‘144’’
workers.
38 The question is not so much whether Quincy reflects in part a
‘‘merger’’ of former operations—it clearly does—as it is to what ex-
tent, if at all, this merger is inconsistent with a finding of operational
‘‘continuity’’ as between Wenatchee and Quincy. And it is with the
latter question in mind that I will make additional observations and
findings about background details.
39 Some related details are recited in D & K Frozen Foods, 293
NLRB 859, a case in which Simplot’s successor at Grandview,
D & K, was found to have unlawfully refused to recognize and bar-
gain with the union after its takeover at Grandview. A principal fea-
ture of D & K’s violation was that it consciously bypassed former
Simplot ‘‘seniority’’ workers for seasonal prime pack jobs, and in-
stead recruited ‘‘outsiders’’ for the seasonal jobs, all as part of a
‘‘numbers-conscious’’ scheme to avoid having a peak complement
composed of a ‘‘majority’’ of former Simplot workers.
40 Testimony of corporate Fruit and Vegetable Division General
Manager Fletcher, at Tr. 89:8.
Willingham and Stone, the planners assumed that Quincy
would need about 450 P&M workers at September peak,35
compared to a Wenatchee peak complement of about 225,
and would need between 150 and 200 for year-round work,36
compared to an uncertain number of year-rounders typically
used at Wenatchee, but perhaps close to 150.37 As I will
elaborate elsewhere, Quincy would draw heavily on the
Wenatchee employees to fill these bargaining unit ‘‘core-
group’’ positions, and on the Wenatchee management team
to manage the new operation.
2. Wenatchee’s dominant status as of May 1989
The Quincy plan was arrived at only after Simplot had
first considered alternative ways of ‘‘strengthening’’ its
Northwest Corner, such as by enhancing Wenatchee’s capa-
bilities through renovations and expansions. That Wenatchee
was an admitted alternative candidate as the central site for
Simplot’s future Northwest operations invites the conclusion
that, in intention, the new plant would simply function as a
beefed-up version of Wenatchee. But Fletcher’s testimony
tends to counter that impression; he stated that in delibera-
tions before May 1989, the planners had considered beefing
up at Wenatchee and/or Ferndale, to make either of those
plants, or even the two in tandem, viable in terms of the
Four Corners strategy. And Simplot relies on Fletcher’s testi-
mony to argue on brief that the decision to close Ferndale
was likewise not made until May 1989, simultaneously with
the decision to close Wenatchee.
This claim, and Fletcher’s testimony, although ambiguous
on the point, may be intended to imply that Ferndale and
Wenatchee were each fully functioning, independent plants,
and therefore, the essence of Simplot’s May 1989 decision
was to ‘‘merge’’ or ‘‘consolidate’’ two comparable oper-
ations. If so, I am not fully persuaded.38 I have no doubt that
Wenatchee was in live contention as a Four Corners base
until May 1989, but I doubt that Ferndale occupied equal sta-
tus as a contender after 1987, and I cannot in any event ac-
cept the idea that the two plants stood on equal footing in
May 1989. To explain this requires a digression:
In the 3 years before May 1989, Simplot had already done
a certain amount of plant-trimming and consolidating in its
Northwest operations, apparently leaving Wenatchee by May
1989 as the dominant Northwest plant. Thus, until 1986,
Simplot had run a third plant, in Grandview, also within the
Union’s territorial ‘‘jurisdiction,’’ where Simplot had recog-
nized and contracted with the Union as the representative of
that plant’s P&M employees, in a separate bargaining unit.
And when Simplot withdrew from Grandview in 1986,39 39
it simultaneously shifted the volumes of corn and sugar snap
pea processing formerly done at Grandview to the Wenatchee
plant. Likewise (according to Shaw), Simplot transferred
some of Grandview’s physical equipment to Wenatchee, in-
cluding its entire sugar snap pea processing line. This added
to Wenatchee’s existing prime pack and repack production
volumes. Not long after that, by contrast, Ferndale’s oper-
ations contracted, with Wenatchee taking on the volumes that
Ferndale could no longer handle. Thus, in the ‘‘latter part’’
of 1987,40 Simplot dismantled Ferndale’s repack equipment
and machinery, and shipped it to a new plant in Bettendorf,
Iowa, the new site of Simplot’s ‘‘Northeast Corner.’’ Simul-
taneously, it transferred Ferndale’s frozen repack stores to
Wenatchee, and Wenatchee thereafter handled all of the
Northwest’s repack until Quincy took over.
As I understand Fletcher’s overall account of the sequence
of things, the dismantling of repack at Ferndale and the
opening of the new plant in Iowa was one of the first moves
made by Simplot to implement the Four Corners strategy. I
doubt that Simplot would have stripped Ferndale’s repack ca-
pability in late 1987 if expansion or other beefing up at Fern-
dale were then still a live option in the minds of its Four
Corners implementation team. A more probable interpretation
is that these late 1987 developments signaled a decision by
that implementation team eventually to close the Ferndale
plant entirely, even while the planners continued to actively
consider the possibility of beefing up the Wenatchee plant
and using it as its ‘‘Northwest Corner’’ plant. Accordingly,
I am persuaded that the ‘‘mid-1989’’ decision to operate ex-
clusively from Quincy in the future was not so much a deci-
sion to ‘‘combine’’ even two existing operations (that had
been one goal of the Four Corners plan to start with) as it
was a final decision not to use Wenatchee as the new site
for such combined operations.
579J. S. SIMPLOT CO.
41 Fletcher testified without contradiction that ‘‘labor costs’’ at
Wenatchee (or Ferndale) were not a factor in the decision to con-
centrate Northwest Corner operations at a new plant; he explained
that while Simplot hoped to achieve economies of scale at Quincy—
and thereby reduced labor costs per produced unit—Simplot pro-
jected its wage and benefit costs per hour per employee at Quincy
using the costs established by the labor agreements at Wenatchee
and Ferndale.
42 Thus, the parties stipulated that ‘‘[s]ince a February 13, 1990 re-
quest by the Union, Simplot has refused . . . to recognize the Union
as the representative of the Quincy Unit.’’ The ‘‘February 13 re-
quest’’ by the Union is apparently how the parties have mutually
chosen to construe a more substantively complex set of letters from
the Union’s attorney to Willingham (Jt. Exhs. 3 and 4), both dated
February 13. In one, the Union asserted a contractual grievance
under the Wenatchee contract’s ‘‘transfer of operations’’ provisions
(quoted supra at fn. 1); in the other, the Union requested detailed
information about Simplot’s actions and intentions concerning Quin-
cy.
43 Thus, in a January 10, 1990 letter from Willingham to a then
acting spokesman for the Union, Jerry Shuffield, Willingham noted
that the current Wenatchee labor agreement ‘‘will expire on April
30,’’ and that ‘‘the Company will no longer have employees work-
ing in that facility . . .,’’ and therefore, that ‘‘we intend to let the
agreement expire in its entirety.’’ Willingham continued, ‘‘Employ-
ees who are currently working at Wenatchee and Ferndale . . . have
been offered work at the Company’s Quincy facility, which will not
be covered by any preexisting labor agreements.’’
44 I rely here on the uncontradicted testimony of the Union’s
agent, Allen Hobart, and, where his independent memory failed him,
on the contemporaneous notes (G.C. Exh. 3) which he took at the
meeting where Willingham spoke to Wenatchee employees about the
Company’s plans for Quincy. Incidentally, Willingham’s declarations
to Wenatchee employees that Simplot wanted and intended to run
Quincy as a ‘‘nonunion’’ plant are not alleged in the complaint as
violations of Sec. 8(a)(1), and the General Counsel does not other-
wise claim that they were unlawful. But see, Kessel Food Markets,
287 NLRB 426 (1987), holding that, at least in a successorship con-
text,
When an employer tells applicants that the company will be
nonunion before it hires its employees, the employer indicates
to applicants that it intends to discriminate against the seller’s
employees to ensure its nonunion status. Thus, such statements
Continued
In any case, it seems obvious that Ferndale and Wenatchee
did not function on equal footing after late 1987. Rather,
Ferndale functioned from then until its postseason 1989 clo-
sure as an adjunct to Wenatchee, as a supplemental prime
pack operation, with its bulk-frozen product going eventually
to Wenatchee for repack. Thus, in the roughly 30-month pe-
riod between the dismantling of Ferndale’s repack operation
in late 1987 and the opening of the Quincy plant in May
1990, Wenatchee functioned as Simplot’s only year-round
Northwest operation, the one handling all of the Northwest’s
repack volumes, and an apparently substantial part, if not the
majority, of the Northwest summer prime pack volumes, as
well. By contrast, during the same 30-month period, Fern-
dale’s operations were intermittent, limited to the 1988 and
1989 June–October harvest seasons, a total of roughly 8–9
months.
3. The question of ‘‘animus’’
The General Counsel does not allege in the complaint nor
otherwise contend that Simplot was influenced in these deci-
sions (first, to centralize Northwest operations; second, to
centralize them at a site other than Wenatchee) by a desire
to escape collective-bargaining obligations,41 or by other
union-hostile motives. Simplot’s evidence fairly shows in any
case that the Quincy decision was fundamentally ‘‘eco-
nomic’’ in character—the Quincy site most directly fit with
the Four Corners strategy; it was uniquely attractive in terms
of available space for a larger-scale operation, and the local
officials and agencies had offered many incentives and sub-
sidies to defray costs of acquiring land, water and utilities,
and waste treatment. My findings elsewhere below will
show, however, that Simplot, having apparently chosen for
‘‘business’’ reasons to concentrate future Northwest oper-
ations at Quincy, admittedly announced a preference that the
Quincy plant be operated on a nonunion basis, indeed, it de-
clared to the Wenatchee employees 5 months before the
move that Quincy would be a ‘‘nonunion’’ plant.
C. The Transition
1. Simplot’s Decision not to recognize the Union
at Quincy
The Union was somehow made aware in or shortly after
May 1989 of Simplot’s decisions, and the Union thereafter
made various efforts to gain information from Simplot about
the intended timing and other implementation details, without
directly asserting a right to be recognized in the new oper-
ation until mid-February 1990. During much of that same pe-
riod, Simplot’s planners themselves appear to have been un-
certain as to the Union’s possible status at Quincy. Thus,
Willingham admits that it was not until ‘‘January’’ 1990,
with Quincy construction on schedule, that Simplot’s ‘‘im-
plementation team’’ made a ‘‘final determination’’ that
Simplot would not treat the Union as the representative of
the Quincy employees. And this decision apparently went
hand-in-hand with Simplot’s admitted, near-simultaneous
promulgation on a unilateral basis in January of wage and
benefit schemes, and other terms and conditions of employ-
ment to be applied in the Quincy operation.
The parties stipulated that it was not until mid-February
that Simplot disclosed its intention not to carry over recogni-
tion to the Union at Quincy.42 Until that point, it seems,
Simplot had merely disputed the Union’s claims under the
Wenatchee contract’s ‘‘transfer’’ provisions that the ‘‘terms
and conditions’’ of the Wenatchee labor agreement would
continue to govern at Quincy.43 But a decision not to recog-
nize the Union at all at Quincy was implicit in other commu-
nications in January between Simplot and the Wenatchee em-
ployees. Thus, in January, Simplot posted information bul-
letins in the Wenatchee plant, setting forth pay classifications
and benefit programs for ‘‘nonunion hourly employee[s]’’ at
Quincy, which benefits were characterized as ‘‘similar to that
provided at other nonunion facilities of the Simplot Food
Group.’’ Moreover, when she addressed a meeting of
Wenatchee unit employees on February 14, 1990, one at-
tended by representatives of the Union, Willingham told the
assembly, inter alia, that the Quincy plant would be ‘‘non-
union,’’ that the company was not recognizing the current
Wenatchee labor agreement as being ‘‘applicable,’’ and that
Simplot ‘‘wants to have a direct relationship with employees
without a third party.’’44
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
are coercive and violate Section 8(a)(1). [Id. at 428–429; cita-
tions omitted.]
See also, e.g., D & K Frozen Foods, 293 NLRB at 873–874.
45 I am equally unimpressed with a corollary point urged by
Simplot, relying on Willingham: Willingham stressed that the Union
never ‘‘guaranteed’’ that the Wenatchee employees would take em-
ployment at Quincy. This lack of a ‘‘union guarantee’’ strikes me
as a red herring: Willingham soon admitted that Simplot never
sought the Union’s assistance in recruiting Wenatchee employees for
the Quincy plant, much less its ‘‘guarantee’’ that substantial numbers
would make the move. Moreover, considering Simplot’s determina-
tion not to recognize the Union at Quincy, I doubt profoundly that
Simplot would wish to have the Union involved in any way in mat-
ters pertaining to Quincy staffing, much less to serve as a labor
broker for the Quincy operation.
46 Employees from the distant Ferndale plant were not seen as a
likely source for filling these positions, although Stone ‘‘hazard[ed]
a guess’’ that ‘‘16’’ former Ferndale workers eventually relocated
from across the mountains and took jobs at Quincy. I note in this
regard that, unlike Wenatchee transferees to Quincy, any former
Ferndale employees who came to work at Quincy could not have
been considered by Simplot as ‘‘active’’ Simplot employees at the
time they were hired for the Quincy operation. This is because the
Ferndale plant had shut down for the last time at the end of the 1989
prime pack season, roughly 5–6 months before interviewing and hir-
ing began for the Quincy operation.
47 Jt. Exh. 7-A, p. 12. This publication was issued was during the
same period that Quincy’s personnel director, Stone, was conducting
interviews among the Wenatchee workers for hire at Quincy.
48 The letter was signed by 17 newly hired Quincy supervisors and
managers, nearly all of whom had come from counterpart positions
at Wenatchee, and some of whom were then still working at
Wenatchee, or were dividing their time between Wenatchee and
Quincy.
49 Simplot made it simpler for former Wenatchee employees to
make the daily commute to Quincy by arranging bus and van pool
systems, which carried workers between Wenatchee and Quincy
throughout the 1990 season. And when it hired the former
Wenatchee workers, it credited them for seniority purposes with their
original dates of hire at Wenatchee.
50 As already noted, the record does not clearly show the number
of year-round employees typically used by Simplot at Wenatchee,
but Willingham testified that it was her ‘‘understanding’’ that ‘‘the
maximum number of people [potentially available in the Wenatchee
unit for hiring at Quincy] was about 177 if we could pull every-
body.’’
51 The text of the April 18 recruitment letter, supra (‘‘we need the
partnership of trained and talented workers like you’’) seems alone
to establish the point. And Stone admits that former Wenatchee se-
niority listees continue to make up the majority of Quincy’s year-
round P&M complement, apparently totaling 170–180 employees.
Willingham was called on at trial to articulate the ‘‘rea-
sons’’ for the planner’s decision in January not to recognize
the Union at Quincy, a decision which she acknowledged
was guided by legal counsel. Predictably, her testimony
echoed positions set forth in Simplot’s answer to the com-
plaint, and focused on Simplot’s expectation that the peak
season complement at Quincy would be roughly twice that
at Wenatchee, and would come mostly from a different lo-
cale. I will reserve most of my discussion of these points to
later sections. However, I pause here to comment on
Willingham’s additional assertion that Simplot’s planners had
no idea in January that recruitment efforts among the
Wenatchee employees would result in significant numbers of
Wenatchee employees being willing to accept positions at
Quincy: I accept that Simplot could not know with clarity
which of its Wenatchee employees would accept positions at
Quincy, until after it had sought them out, which Stone ad-
mittedly waited until ‘‘mid-April’’ to do, with substantial
success, as I detail in the next section. But I assume that
Simplot would not have waited until mid-April to start this
process if its planners had been entertaining serious doubts
during the preceding months about the success of such re-
cruiting. For Simplot had millions riding on the new plant,
and ground had already been broken and construction was
well underway even in January. And it is hard to believe that
Simplot would have committed to that level of investment
without having first satisfied itself that substantial numbers
of the Wenatchee workers (comprising the only nearby,
large-scale source of experienced personnel) could be in-
duced to staff the Quincy plant’s intended 150–200 core
group positions. Therefore, I do not believe Willingham inso-
far as she claims that one of Simplot’s reasons for deciding
in January not to recognize the Union at Quincy was a
‘‘doubt’’ that Simplot would be successful in recruiting most
of the ‘‘active’’ Wenatchee employees.45
2. Hiring process for Quincy
Personnel Manager Stone admits that Simplot’s planners
looked to the ‘‘active’’ employees on the Wenatchee senior-
ity list, most of them residents in the greater Wenatchee
community, as the most likely and the best candidates for
jobs at Quincy.46 Stone began hiring for Quincy jobs in mid-
April, using facilities at the Wenatchee Convention Center to
meet with Wenatchee unit employees, answer their questions,
and receive written applications from them. As part of its re-
cruitment campaign, Simplot distributed identical letters to
Wenatchee unit employees on April 18, along with a packet
of informational materials concerning ‘‘policies and pro-
grams’’ for the Quincy operation.47 The form letter, signed
by members of the ‘‘Simplot Management Staff,’’48 stated
pertinently:
We are closing an old facility and opening a new
plant in Quincy. We’ve been trying to paint a picture
of the kind of workplace we can have in Quincy.
The plant will be among the biggest and best of its
kind. We’re in this for the long run, and we need the
partnership of trained and talented workers like you.
We hope you see how hard we’re working to hear your
ideas. We hope you see our willingness to share infor-
mation, power and profits.
Quincy will truly be a workplace all of us can be
proud of. Come be partners with us. Come make Quin-
cy WORK.
As a consequence of these and other recruitment blandish-
ments,49 Stone received applications in mid-April from
‘‘probably 150, 160’’ (Stone) active Wenatchee seniority
listees, and hired virtually all of them. It seems obvious that
Simplot intended that employees from this active Wenatchee
pool (apparently totaling about 177 seniority listees50) would
fill the majority of the projected 150–200 year-round posi-
tions available at Quincy.51 It seems equally obvious that
Simplot had assured itself by mid-April that Quincy’s year-
round unit work force could be staffed primarily with experi-
enced former Wenatchee employees. And it was only after
581J. S. SIMPLOT CO.
52 Simplot’s reasons for largely limiting its supplemental recruit-
ment efforts to the Quincy area are not directly challenged by the
prosecution as having been part of some overall discrimination
scheme, and I could not so find in any case, given these undisputed
facts: Wenatchee is the largest city in Chelan County, and is the hub
for processing apples grown on the eastern slope of the Cascades.
Stone testified that Simplot’s Wenatchee plant typically ‘‘competed’’
for general labor workers during summer harvest season with the
apple processing plants in the same community. Quincy is a small
town in Grant County, a decidedly more rural area. And even though
Quincy is only about 30 miles from Wenatchee, Simplot’s planners
apparently assumed that this distance alone would discourage sum-
mer job seekers living in the Wenatchee area from traveling the ad-
ditional distance to Quincy, particularly when the Wenatchee apple
plants would offer comparable summer processing work.
53 The parties’ stipulation shows that on April 1, when the Quincy
‘‘unit’’ apparently consisted only of mechanics doing equipment in-
stallation, three of the five unit employees were from the Wenatchee
unit.
54 At least this is how I decipher the following passage in the par-
ties’ stipulation:
All supervisors (as defined by Section 2(11) of the . . . Act)
and managers, who at the time of its April 30, 1990 closure,
were employed at the Wenatchee facility were in May 1990 or
earlier employed as supervisors and managers at the Quincy fa-
cility.
55 Counting Shaw, Quincy’s management team responsible for pro-
duction and maintenance work consisted of 10 persons (R. Exh. 4),
7 of whom came from the Wenatchee plant, most of these latter
from counterpart positions. The three non-Wenatchee members of
the team included Steve Bates, formerly the ‘‘production manager’’
at Ferndale, who took the same position at Quincy, Linda Pen-
nington, newly hired as ‘‘night superintendent,’’ and Craig Riley,
formerly at Ferndale, hired as Quincy’s ‘‘plant sanitarian.’’ I note
also that Personnel Manager Stone, who came from Simplot’s Santa
Maria, California divisional headquarters, was a somewhat ‘‘new’’
management face to the transferred Wenatchee workers, although
Stone had performed extended personnel duty at Wenatchee during
the 1989 season.
56 I recall Shaw’s testimony that stores of frozen product from the
Wenatchee warehouse (now operated by Columbia Colstor) contin-
ued to be fed into the Quincy repack operation for at least a year
after Quincy opened. And it is obvious that Quincy itself could not
have been producing any frozen product of its own in May 1990,
for freezing is associated with prime pack, and the 1990 prime pack
season had not yet begun.
57 Noting that ‘‘ground-breaking’’ for construction of the Quincy
plant did not occur until ‘‘November’’ 1989, Shaw summarized the
planners’ priorities in the following terms (my emphasis):
. . . we were set to start this facility on prime pack in June of
the following year. That didn’t leave us a lot of time to do this.
Our plan . . . was basically to be working [on construction]
even at the point that we were running [production]. So we
prioritized the lines so that we would have them ready by prime,
and we looked at our repack operation so that at first we could
Continued
having thus secured a core complement that Simplot turned
its efforts to recruiting at the Quincy Jobs Services Center
for the extra help it would need during the 1990 season.52
3. The use of Wenatchee mechanics at Quincy during
the term of the Wenatchee labor agreement
Starting as early as July 1989, and continuing through De-
cember 1989, Simplot had begun to dismantle certain of
Wenatchee’s prime pack equipment, as it was no longer
needed during the Wenatchee prime pack season, with the in-
tention of gradually reinstalling all or most of it at the Quin-
cy site. It similarly dismantled some of the remaining usable
prime pack machinery at Ferndale, intending to use it at
Quincy. It began also to dismantle Wenatchee’s repack ma-
chinery and stage it at Quincy for installation. Simplot also
acquired some new equipment, described elsewhere below,
never before used in any of its former Northwest plants.
Associated with this, in February, Simplot assigned three
Wenatchee unit mechanics to begin the reassembly and re-
installation at Quincy of the transferred and new equipment.
These mechanics, augmented by additional mechanics from
elsewhere, continued such work throughout March and
April,53 and for an indefinite period thereafter. And even
though the Wenatchee labor agreement was effective during
the period that much of this reinstallation was going on,
Simplot did not pay any of the Wenatchee unit mechanics
working at Quincy according to the Wenatchee labor agree-
ment; instead it paid them according to the new pay and
classification schemes developed unilaterally for Quincy by
Simplot’s planners in January.
D. Quincy’s Staffing and Operational Status in May
1990; the Question of its ‘‘Completeness’’
1. Bargaining unit complement
Wenatchee transferees dominated the Quincy unit through-
out the month of May. According to the parties’ Stipulation,
on May 1, the day after the Wenatchee plant formally closed,
Simplot employed a P&M unit complement at Quincy of 67
persons, 55 of them Wenatchee transferees, yielding a
‘‘transferee:new-hire’’ ratio of 55:12. Although the precise
ratio on the May 25 grand opening date is not of record, it
can be roughly interpolated from the parties’s stipulation,
which shows that the ratio was nearly 3:1 (81:32) on May
15, and roughly 1.5:1 (84:55) on May 31.
2. Management team complement
The parties stipulated that all former Wenatchee super-
visors and managers took supervisory or managerial positions
at Quincy, and that all of them already occupied status as
part of the Quincy management team ‘‘in May 1990 or ear-
lier.’’54 These included Plant Manager/Superintendent Larry
Shaw and nearly all of the divisional managers and day- and
night-shift supervisors formerly associated with production
and maintenance work at Wenatchee.55 These Wenatchee
‘‘management transferees’’ comprised a majority of Quincy’s
management team throughout May (and, so far as this record
shows, at all times thereafter). Thus, whatever else may be
said about the ‘‘completeness’’ of Quincy as of May 25, it
seems reasonably clear that Quincy’s management team was
fully in-place by that date, and that it was dominated by
former Wenatchee managers and supervisors.
3. Operations
Quincy began performing repack operations on an uncer-
tain date in early May. I infer that it was relying exclusively
at that stage on frozen product transported from the
Wenatchee warehouse.56 I find from Shaw that reinstallation
of the repack lines—all from Wenatchee—had been a ‘‘first
priority,’’57 and that such reinstallation had been substan-
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
take over [to Quincy] the [repack] lines and get them involved,
try to set them up, that wouldn’t hurt us to have them down to
begin with. So the first area that we concentrated on was to try
to get some of the repack equipment over and inside the shell
and get them anchored down.
58 Discussing the status of the repack operation as of May 25, and
using a plant diagram for reference, Shaw said, ‘‘That’s basically ev-
erything to the right of where you see that staircase catwalk right
under the word ‘repack.’ That was all complete.’’ Indeed, I would
infer that Quincy’s repack operation had been substantially up and
running since on or shortly after May 1. This would have been logi-
cally part of Simplot’s closely coordinated Wenatchee shutdown-
Quincy opening plan: Thus, Shaw admitted that reinstallation at
Quincy of repack equipment stripped from the Wenatchee plant was
a ‘‘first priority,’’ and we may presume that Simplot would not want
to experience any substantial ‘‘discontinuity’’ of Northwest repack
operations after Wenatchee’s April 30 closing. Moreover, Simplot
made no showing that Quincy repack operations were not complete
until May 25.
59 The complement breakdown data in the stipulation reveal that
on May 31, only a few days after Grand Opening, when Quincy was
doing repack only, the total number of bargaining unit employees
then working was 139 (a majority of whom were Wenatchee unit
transferees). This total amounts to roughly 80 percent of the approxi-
mate total complement (170–180) listed by Stone as currently work-
ing in bargaining unit positions about a year later, in mid-April
1991, when this case was tried, and when repack was presumably
the sole operation in the plant, and was presumably going at full
steam. Assuming a rough correlation between size of complement
and level of production in comparable annual repack periods, I there-
fore infer that at grand opening time in late May 1990, Quincy was
producing at roughly 80 percent of its eventual repack capacity. In
short, in May 1989 Quincy was ‘‘substantially’’ in ‘‘full operation,’’
considering the time of year.
60 Shaw also implies that the ‘‘cob [corn] line’’ was basically
ready by May 25 to handle corn, even though corn would not come
in until later. 61 Simplot Br. at 16.
tially ‘‘completed’’ by no later than May 25, the date of the
‘‘Grand Opening’’ ceremonies at Quincy.58 I infer, more-
over, that the repack operation was substantially ‘‘complete’’
in another sense by May 25—that it was performing at sub-
stantially the same scale and volume expected of it during
comparable off-season periods in years to come.59
It is less certain on this record how to characterize Quin-
cy’s completeness as a prime pack operation on May 25.
Simplot emphasizes Shaw’s testimony that some equipment
needed for the prime pack of later-season produce was not
yet fully installed by that date, and that such equipment con-
tinued to be incrementally installed for about another month
thereafter. Shaw acknowledged, however, that by May 25,
the equipment necessary to prime pack green peas and sugar
snap peas was already in place, and within only a few hours
of final tinkering and shaking down before being ready to
handle a harvest influx of these early season vegetables.60 In
fact, the grand opening ceremonies were held at a prime
pack processing line, where green peas were undergoing a
demonstration run, even while repack was apparently being
conducted simultaneously on the plant’s packaging lines.
Simplot strains, I think, in trying to harmonize its choice
to hold ‘‘grand opening’’ ceremonies on May 25 with its
claim in this litigation that Quincy was not ‘‘complete’’ (i.e.,
in ‘‘full operation’’) until months later, at the peak of the
season. Simplot’s counsel asserts on brief that this ‘‘[May
25] date was not supposed to signify completion of the new
operation.’’61 What, then was this date ‘‘supposed to sig-
nify?’’ Counsel does not distinctly reply, but she would ap-
parently characterize the May 25 timing as a rather arbitrary
choice on the Company’s part for a grand opening date, or
at least one which was dictated by considerations unrelated
to Quincy’s ‘‘completeness’’ by that date. Thus, she cites
Shaw’s testimony that the timing of ceremonies was in part
influenced by the schedules of attending members of the
Simplot family, and by the fact that it would have been im-
practical to conduct any such ceremonies after June 1, when
the first pea harvest was expected, apparently because prime
pack is a relatively more frenzied and overwhelming produc-
tion operation, leaving little time for any plant personnel to
pause for ceremony, and little floor space on which to con-
duct it.
However true both points may be, they sound only weakly
against Shaw’s admissions in the same passages of testimony
relied on by Simplot, where Shaw clearly indicates that oper-
ational ‘‘completeness’’ was a major factor in Simplot’s de-
cision to hold grand opening ceremonies on May 25. Thus,
Shaw stated,
[W]e wanted as much of the plant completed as we
could possibly have completed, but . . . we didn’t want
it [Grand Opening] to happen while we were actually
prime processing. We could not have people walking
through the facility when we were running vegetables,
so we scheduled it for the 25th of May assuming that
any time after the 25th of the May we could be running
sugar snap peas or green peas. That was the latest date
that we could foresee out.
I recall also that Shaw declared that the ultimate company
goal for Quincy was that it be ‘‘ready by prime,’’ and that,
by May 25, Quincy was indeed ‘‘ready’’ to prime pack pea
varieties, should the harvest come early. Thus, I am not per-
suaded that it was merely arbitrary for Simplot to have cho-
sen late May as a point to declare a ‘‘Grand Opening.’’
From all appearances, Quincy was by that point as ‘‘ready’’
from an operational standpoint as it needed to be, not just
ready to continue repack, but ready as well to switch to
prime pack operations as soon as the season were to start
with the pea harvest.
E. Quincy’s Status During and in the Aftermath of
the 1990 Season
1. Complement
Recapping earlier findings, Simplot’s efforts to encourage
former Wenatchee employees to take jobs at Quincy eventu-
ally resulted in the hire of roughly 150–160 ‘‘active’’ em-
ployees from the Wenatchee P&M unit, although, due to in-
tervening ‘‘resignations’’ and ‘‘injuries,’’ no more than 148
former Wenatchee unit employees ever ended up working at
Quincy at any given point. Moreover, the former Wenatchee
unit employees who came to Quincy, although hired for
Quincy in April, actually became employed gradually in the
new operation (84 by May 31; 148 by August 15). During
the same period, Quincy was also bringing in increasing
583J. S. SIMPLOT CO.
62 According to Stone, some of the extra seasonal workers hired
through the Quincy Jobs Service Center were actually Wenatchee
area residents who had been referred from the Wenatchee Job Serv-
ice Center, but most of these extra workers were residents of the
Quincy area, or were residents of other Grant County rural commu-
nities, such as Ephrata and Moses Lake. In prior seasons in
Wenatchee, says Stone, only a few seasonal workers had come from
these Grant County communities.
63 On June 15, after prime pack had begun in earnest, the
Wenatchee Transferee: New Hire ratio was 133:50. On June 30, the
ratio was 140:129. On July 15 the ratio was 144:113. On the next
date recorded in the stipulation, however, August 1, the ratio became
146:222.
64 The 146 Wenatchee transferees at Quincy on August 1 com-
prised 39.7 percent of the total complement of 368. Harte equates
‘‘substantial’’ with ‘‘approximately 40 percent or more.’’ 39.7 per-
cent is ‘‘approximately’’ (i.e., three-tenths of 1 percent short of) ‘‘40
percent.’’
65 I rely on the summary testimony of Stone on this point; the par-
ties’ stipulation does not include any specific complement numbers
or ratios after September 30.
66 Based on earlier findings and inferences, however, it is reason-
ably clear that Quincy’s year-round complement needs did not dou-
ble in comparison to Wenatchee’s (uncertain) year-round com-
plement. Quincy used about 170–180 year-rounders; Wenatchee may
have used upwards of 150.
numbers of new hires, most of them referred through the
local Jobs Services Center.62
Wenatchee transferees had dominated the Quincy com-
plement throughout May. They continued to be a substantial
majority for about 2 more months, until an uncertain point—
probably shortly before August 1, when new hires became
the majority.63 I note, however, that even as late as August
1, the number of Wenatchee transferees then on board (146)
still qualified as a ‘‘substantial percentage,’’ as Harte defines
this expression, of the total Quincy complement (368).64 But
even this ‘‘substantial percentage’’ status diminished to
something less substantial during the next 2 months of the
season, when Wenatchee transferees became an ever-dwin-
dling minority, with the heaviest dilution of their presence
occurring on September 30, when the complement peaked at
431, and only 135 of the unit employees, roughly one-third,
were Wenatchee transferees.
After the 1990 seasonal bulge subsided, the unit work
force returned to a core complement of about 170–180 em-
ployees for the remaining 7–8 months until the start of the
next season. The majority in that core group again were
Wenatchee transferees.65
2. Operations
As I have found, Quincy had been ready for prime pack
of pea varieties no later than May 25, all pursuant to what
Shaw described as general plan to ‘‘prioritiz[e] the lines so
that we would have them ready by prime.’’ Actual prime
pack of peas began in early June, even while further equip-
ment required for the prime pack of varieties to come later
was also being installed. So far as this record shows, these
additional installations were accomplished on schedule, in
time to handle each new harvest. Thus, it appears that at any
given stage in its initial prime pack season, the Quincy plant
was capable of performing—and was performing—the same
range and scale of operations which such plants typically
perform at that given stage, indeed, substantially the same
range and scale of production which Simplot intended Quin-
cy would handle at that stage in years to come.
F. Miscellany
We are instructed by such precedents as Harte & Co.,
supra, to test for indicators of ‘‘continuity’’ (or ‘‘disconti-
nuity’’) between ‘‘old’’ and ‘‘new’’ plant operations as one
ingredient of the determination whether a union representing
employees at the old plant is entitled to continuing recogni-
tion as the bargaining agent for employees at the new plant.
It is by now plain that the Quincy plant is larger than the
Wenatchee plant, and uses nearly twice as many employees
at seasonal peak than did the Wenatchee plant.66 That Quin-
cy is thus ‘‘bigger’’ than Wenatchee is the most obvious dif-
ference between the two plants. That Simplot continues at
Quincy to prime pack and repack vegetables—mostly the
same varieties that Wenatchee had also processed, as I dis-
cuss below—and has relied heavily on former Wenatchee
unit employees and supervisors and managers to accomplish
these functions, are perhaps the most obvious indicators of
similarity, or ‘‘continuity.’’
In the end, I will find the latter considerations more influ-
ential than Quincy’s ‘‘bigness’’ in finding the requisite con-
tinuity. But I must acknowledge that Simplot’s ‘‘new plant’’
defense does not rest simply on Quincy’s relatively larger
size; Simplot also invokes a variety of other arguable nov-
elties in Quincy’s operation as facts tending to show that
Quincy is not just bigger than Wenatchee, but is essentially
different in nature from the Wenatchee operation. Here, I
will address these additional factors under somewhat arbi-
trary category headings, and will explain why I am not per-
suaded to Simplot’s conclusion.
1. Bargaining unit work
The parties stipulated that:
All jobs included in the job classifications [specified
in the Union’s contract at Wenatchee] . . . are now
performed in the Quincy plant, except for the fol-
lowing:
Cold Storage Warehouse Foreman
Senior Cold Storage Lift Truck Operator
Junior Cold Storage and Carloading
Processing Foreman
The primary reason for the elimination of these posi-
tions is that Simplot does not operate a cold storage fa-
cility at Quincy. Lift trucks are still operated at Quincy
and there are employee positions at Quincy which in-
corporate lift truck operation, carloading functions, and
foreman responsibilities and duties.
Simplot ‘‘reserved the right’’ in this portion of the stipula-
tion to ‘‘demonstrate that there are additional classifications,
duties, responsibilities, and/or jobs at Quincy which did not
exist at the Wenatchee facility or that have been substantially
changed from the job at the Wenatchee plant.’’
Simplot’s eventual proof on these points is scattered; I will
treat with some of the elements elsewhere. But it includes
584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
67 Cf. Stewart Granite Enterprises, 255 NLRB 569, 571 (1981)
(first full par.), and 574 (ditto).
68 Simplot cites American Fluorescent Corp., 275 NLRB 1097
(1985), for this proposition (Br. 27). I think Simplot relies on a dubi-
ous interpretation of the judge’s rationale, which the Board in any
case failed to adopt. Thus, the judge in American Fluorescent con-
strued Westwood and other precedents as requiring a transferee ‘‘ma-
jority’’ at some point at or near the ‘‘commencement of new oper-
ations.’’ Id. at 1101 (last par.)–1102. And he found no such ‘‘major-
ity’’ at any point in the new plant’s operations, which was disposi-
tive in his recommended dismissal of the complaint. But the Board
found it ‘‘unnecessary’’ to affirm this reading of Westwood’s ‘‘‘sub-
stantial’ number’’ test, apparently because the evidence showed in
any case that the number of ‘‘old’’ plant workers transferring to
American Fluorescent’s new plant amounted to less even than a
‘‘substantial’’ percentage of the new plant complement. The ultimate
decision, therefore, had nothing to do with the importation of some
‘‘new equipment’’ into the new plant.
69 This is what Shaw said in greater detail in response to a ques-
tion from the bench:
JUDGE NELSON: Again, if this can be done more simply, I’d
appreciate it. I’d like to ask the question a different way. What
operations do you have at Quincy that you did not have at
Wenatchee? I think I can search his answer and come up with
that and compare it to other data, but if you can put it that way,
I’d appreciate it.
THE WITNESS: The equipment in the repack, about the only
difference is in how the equipment is set up. When we set up
the repack in Quincy, it was—it went from a system that went
from one mix and blend room with the dumpers that fed the
lines out to a system where all of the lines in Quincy are totally
independent. They have their own dump stations behind each
line, meaning that in Quincy we can run the lines independent
of each other at the same time. Whereas in Wenatchee, if it
didn’t work out quite right with the one mix and blend system,
we were limited on what we could run at one time down on the
floor. That’s the major difference. As far as in answer to your
testimony—mostly Shaw’s—that an uncertain, but apparently
small, number of employees now perform tasks in addition
to those they performed in counterpart jobs at Wenatchee,
and also that certain tasks performed as part of one job at
Wenatchee are now being handled as part of a different job
at Quincy. Most of the evidence associated with these points
bears on changes in the way quality control is handled at
Quincy, where Simplot has sought to implement a ‘‘con-
cept’’ called the ‘‘Total Quality System,’’ or ‘‘TQS,’’ under
which production machinery operators and even line per-
sonnel are supposedly given greater responsibility than at
Wenatchee for ensuring the quality of the product at their re-
spective stages in the production process.
The realignments and adjustments associated with the im-
plementation of the TQS philosophy were not shown to have
significantly altered the traditional functions or basic work
tasks of any given group or classification of employees.
Moreover, these changes were not shown to have been ne-
cessitated by some inherent ‘‘difference’’ between the
Wenatchee and Quincy plant operations; rather, they were
changes which Simplot admittedly had chosen not to try to
impose at Wenatchee, apparently because Simplot did not
want to undergo necessary bargaining with the Union about
them. To that extent, it involves a form of bootstrapping for
Simplot to invoke those very unilateral changes as a defense
to the charge that it had had no right to act unilaterally in
the first instance.67
As the parties stipulated, Simplot no longer employs per-
sons working in the cold storage warehouse; rather, these po-
sitions are now occupied by employees of Columbia Colstor.
Relatedly, Simplot points out that plant forklift drivers no
longer transfer product in totes from the plant floor to the
warehouse; rather, the toted product is conveyed on belts
through an opening from the plant into the warehouse, where
Columbia Colstor employees handle the stacking and storing
of the totes. I note that such changes affected the daily jobs
of only a relative few employees, and did not eliminate the
need for plant forklift operators. Clearly, in any event, these
changes did not transform the overall ‘‘nature’’ of the tradi-
tional operation.
2. Products
The Wenatchee plant did prime pack of sugar snap peas,
corn (cut and cob), and carrots. The Quincy plant prime
packs not only those produce items, but also green peas and
red potatoes (both prime packed only at Ferndale in prior
seasons), and two new items never prime packed at either
Wenatchee or Ferndale, lima beans and red russet potatoes.
(Wenatchee had handled lima beans and red potatoes, but
only as ‘‘blended’’ repack items.) In repack, the principal
difference between the two plants’ product lines appears to
be that, unlike at Wenatchee, Quincy blends pasta with other
vegetable blends. (Wenatchee had blended some vegetables,
but not vegetables and pasta.) Moreover, Simplot intends
eventually to blend vegetable and meat products into ‘‘stir-
fry’’ meals. But as I have already noted, it had not yet done
any such blending at the time of this litigation, nearly a year
after Quincy first opened. In any case, the introduction of
new produce items or blends was not shown to have itself
created any job classifications not in existence at Wenatchee,
nor any changes in the basic way prime pack and repack of
a more limited range of produce varieties was handled at
Wenatchee.
3. Equipment
Simplot’s premise is that a substantial amount of ‘‘new
equipment’’ is a factor which supports ‘‘good faith doubt.’’
I think this involves a confusion of concepts at the outset,
and is not well supported by the authority it cites.68 But I
will treat the facts as arguably going to the question whether
Quincy is so ‘‘different’’ in ‘‘nature’’ from Wenatchee that
it is, indeed, a ‘‘new’’ plant, where the Union would enjoy
no presumption of majority status in the first instance, and
therefore Simplot would never be required to present evi-
dence supporting ‘‘good faith doubt’’ to rebut the (non-
existent) presumption.
Quincy Plant Manager Shaw, who held the same job at
Wenatchee, testified somewhat unsystematically concerning
the origin of the equipment used at Quincy. He concedes that
virtually all of Wenatchee’s repack equipment was relocated
to Quincy, with the exception of a ‘‘Haysen’’ (polyethylene
packaging) line, which was replaced by a newer model; he
described only one ‘‘change’’ in the way repack is now
being done at Quincy, and this change does not appear to
have affected how the repack workers have always per-
formed their jobs. (Summarizing, Shaw stated: ‘‘It’s basically
the same packaging equipment. It[’s] just laid out that we
can run it at the same time.’’)69
585J. S. SIMPLOT CO.
question, what additional equipment we have in Wenatchee or,
excuse me, in Quincy, it’s basically the same packaging equip-
ment. It just laid out that we can run it at the same time.
JUDGE NELSON: Thank you.
(By Ms. Anamosa):
Q. It’s the same equipment except for the Haysen—
A. And the Haysen.
70 It appears also that some Wenatchee warehouse refrigeration
equipment likewise made the move to Quincy. Thus, Fletcher testi-
fied that Simplot intended to, and eventually did, make arrangements
with Columbia, the Quincy warehouse operator, to ‘‘purchase some
refrigeration equipment from us and to expand their facility,’’ to
meet Simplot’s needs. My assumption that the equipment in question
came from Wenatchee (rather than from some more distant Simplot
operation) is based on Wenatchee’s proximity to Quincy.
71 Shaw testified that the new blancher is more ‘‘energy-efficient,’’
and ‘‘far more technical to operate than the old style blanchers.’’
The former information tells us nothing significant for purposes of
a continuity-of-job analysis; the latter only hints at a possible dif-
ference between how Wenatchee blancher operators did their jobs
and how Quincy blancher operators do their jobs.
72 Admittedly, Wenatchee did not process pasta, but it is not evi-
dent that jobs on this processing line involve significantly different
skills or techniques from those involved with processing vegetables
at Wenatchee.
73 In this regard I note that Shaw elsewhere stated that a
Wenatchee ‘‘bulk line’’ which was originally reinstalled at Quincy
was only later replaced with a new line system. Therefore, the
Wenatchee asset ‘‘percentages’’ mentioned at trial by Shaw may
have changed substantially from the percentages which prevailed in
Quincy’s earlier months.
74 Thus, even if only ‘‘15–20 percent’’ of Quincy’s ‘‘equipment
assets’’ came from Wenatchee, it would be unreasonable to infer
from this that Quincy is now ‘‘different’’ from Wenatchee by a fac-
tor of ‘‘80–85 percent.’’
Shaw is less clear in describing how much of Wenatchee’s
prime pack equipment likewise made the move. He acknowl-
edges that Wenatchee’s steam blanchers and sugar snap pea
line were transferred, and also portions of the freezer lines,
and some carrot budding saws and other fresh-processing
equipment. In these cases, however, Shaw appears to say that
the Wenatchee equipment was first cannibalized, and to some
uncertain degree reassembled or reconfigured with additional
new parts or elements, such as wholly new, stainless steel
roller conveyors, apparently required for USDA ‘‘protein’’-
handling certification.70 Many of the forklift vehicles like-
wise came from Wenatchee, says Shaw, although ‘‘some’’ of
them, especially fitted for work in the Wenatchee warehouse,
were ‘‘left’’ at Wenatchee. This presumably means that these
custom forklifts were sold to Columbia Colstor, apparently to
be used as they had been historically, including to move fro-
zen product destined for Simplot’s repack lines, now relo-
cated to Quincy.
Shaw was led more systematically to itemize the ‘‘new’’
equipment used at Quincy: Although some steam blanchers
had come from Wenatchee, an additional cabin plant blanch-
er (‘‘the largest one in existence’’) was imported from a Eu-
ropean manufacturer. It was not shown that the introduction
of this new blancher created any significant change in the
way blanching had been done at Wenatchee, at least none
which impacted on the jobs of bargaining unit workers asso-
ciated with the blanching operation.71 Moreover, as a general
proposition, it is not obvious from this record that working
on ‘‘newer’’ versions of production equipment has created
any substantial change in the way the operators of counter-
part equipment at Wenatchee had always done their jobs.
The same observation is appropriate regarding the introduc-
tion of a new freeze tunnel—‘‘the Cadillac of freeze tun-
nels,’’ as one former Wenatchee worker gushed voluntarily—
and the importation from one of Simplot’s California plants
of a line system used for processing pasta.72
An arguably different conclusion might be drawn in the
case of the new batch peeler, used mostly for carrots, appar-
ently, which peels skins with steam, rather than lye (as at
Wenatchee), and which therefore avoids creating what Shaw
called a ‘‘caustic residue that you had to put into a waste-
handling system [at Wenatchee].’’ But again, it is not clear
how this innovation might have impacted on traditional bar-
gaining unit work associated with peeling carrots. A more
obvious ‘‘change’’ occurred with the introduction at Quincy
of a ‘‘laser color sorter’’ as part of the processing of peas;
it is used to detect and remove deadly nightshade vines and
berries, and it thus automates what apparently had been done
by human eye and hand at Wenatchee. It is not apparent how
many employees were affected by this, if any. Neither was
it shown that the laser system could not have been intro-
duced at Wenatchee, or, conversely, that there was something
‘‘different’’ about the Quincy operation as a whole which
made the laser system uniquely useful at Quincy. Finally, a
‘‘bar code’’ scanner system was introduced at Quincy, appar-
ently for inventory control purposes, to some uncertain extent
supplanting traditional manual records-keeping, but not elimi-
nating it.
Seeking to quantify all this information, Simplot’s counsel
asked Shaw (emphasis added), ‘‘Approximately what per-
centage of Quincy’s assets now are assets that were moved
in from the Wenatchee plant?’’ Shaw replied, based on a re-
cent out-of-court conversation with the Quincy plant’s ac-
countant, that ‘‘it appears to be about 15–20 percent of the
value in the . . . Quincy plant with Wenatchee equipment.’’
I will give little weight to this information: It is plain hear-
say. It purports to depict the ‘‘valuation percentages’’ as of
a recent date in Quincy’s history—the date of Shaw’s testi-
mony in April 1991.73 Shaw’s ‘‘understanding’’ was that the
Wenatchee asset values used by the accountant to make the
comparison were based on tax depreciation schedules, not ac-
tual cost of replacement; to that extent, the ‘‘old’’ Wenatchee
assets may have been artificially undervalued in comparison
to the valuations placed on the ‘‘new’’ equipment bought for
Quincy. The percentage of current Quincy assets which were
former Wenatchee assets, even if valued appropriately, is still
a largely meaningless figure; certainly it tells us next to noth-
ing about the degree of ‘‘difference’’ between the two plants
from a functional or operational standpoint.74
4. Production capacity
The Quincy plant yields more product volume, and a
somewhat wider range of frozen produce varieties and blends
than did the Wenatchee plant. Shaw appears to acknowledge
that this is largely a function of the Quincy plant’s size,
which permits the operation of several processing lines si-
multaneously. Thus, during the 1990 season, Quincy ran as
many as three product lines at once (lima beans, red pota-
toes, and corn), whereas Wenatchee could not conveniently
handle simultaneous prime pack of different produce vari-
eties.
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
75 An arguable exception is the label ‘‘new.’’ That label has trivial
significance when used for some purposes—any operation done at a
different location than formerly is, to that extent, ‘‘new,’’ especially
when housed in a newly-constructed building; thus, I have not hesi-
tated to refer to Quincy as the ‘‘new’’ plant. But ‘‘new’’ is also
sometimes used by the Board as a conclusionary term of art, to de-
scribe an operation which is so ‘‘different’’ in terms of its operations
and/or the identities of the employees making up its complement that
the Board will find that a ‘‘real question concerning representation’’
exists at the ‘‘new’’ operation, and therefore that a union is not enti-
tled to a legal presumption of ‘‘continuing majority status’’ simply
because the union formerly represented employees at a different lo-
cation. E.g., Hudson Berlind Corp., 203 NLRB 421.
76 For reasons discussed elsewhere below, I will not be required
to apply a ‘‘substantial percentage’’ test, but I will find it necessary
to rely on the other teachings recapitulated in Harte to reach my
conclusions.
77 281 NLRB at 1309.
78 Id. at fn. 6.
79 281 NLRB at 1309.
SUPPLEMENTAL ANALYSIS; CONCLUSIONS OF LAW
I. MATTERS OF LABELING; THE APPLICABILITY OF
HARTE’S TEACHINGS
The parties are in contest at the threshold over how to
label the relationship between Quincy and Wenatchee. (Is
Quincy ‘‘merely’’ a ‘‘relocated’’ version of Wenatchee? Is it
instead a product of ‘‘merger’’ or ‘‘consolidation’’ and/or
‘‘expansion?’’ And no matter how those those preliminary
labeling disputes might be resolved, can Quincy justifiably
be labeled as a ‘‘new’’ operation?) These labeling questions
are not inconsequential, but my view, informed by Harte, is
that some of these labels, at least, are not necessarily out-
come-determinative.75 Rather, as I explain next, I will find
labels useful only insofar as they illuminate the more basic
inquiry, described in Harte as a search for ‘‘sufficient con-
tinuity.’’
Harte itself appears to recognize the limited utility of la-
bels; it seemingly uses the term ‘‘relocation’’ broadly in
some passages, implying that something more than a ‘‘mere’’
relocation situation may still require an extension of the old
bargaining relationship to the new location, and conversely,
something labeled as a ‘‘relocation’’ may nevertheless create
a ‘‘new’’ operation, where it will be inappropriate to extend
the old bargaining relationship to the new location; but in ei-
ther case, the test is whether or not there exists ‘‘sufficient
continuity’’ between the old and new operations. This is best
exemplified in the following passage (278 NLRB at 948):
In relocation cases such as this, our task is to distin-
guish situations where the new facility is basically the
same operation, simply removed to a new site, from
those where the new facility is somehow a different op-
eration from the original. . . . Given the complexity of
modern business transactions, the determination of ex-
actly what relationship the new plant bears to the old
is not always easy to make. Nonetheless, we have de-
veloped standards . . . to determine when there is a
sufficient continuity of operations . . . .
But Harte more obviously refers to ‘‘mere’’ relocation situa-
tions when it reminds us that under the precedents, it will
not matter that transferees from the old plant may be less
than a majority in the new plant complement; rather, in such
‘‘mere’’ relocation cases, all that is required to perfect the
old plant union’s status as the representative of employees in
the new plant is that ‘‘the operations at the new facility are
substantially the same as those at the old and . . . transferees
from the old plant constitute a substantial percentage—ap-
proximately 40 percent or more—of the new plant employee
complement.’’76
Simplot reads Harte differently; it takes the position that
Harte’s principles have no applicability because this is not
a ‘‘relocation’’ case. This position draws arguable support
from Central Soya, supra, where a differently constituted
Board found that the new plant in question involved ‘‘a con-
solidation as well as a relocation,’’77 and then noted that,
‘‘[t]he instant case is therefore distinguishable from Harte &
Co. . . . and Westwood Import . . . which are exclusively
relocation cases.’’78 In Central Soya, however, the new plant
employed in almost equal numbers workers from one former
plant represented by the Grain Millers union and workers
from another plant where employees had been historically
unrepresented. In that unique context, the Board found it nec-
essary to rely on ‘‘accretion’’ principles—and the fact that
a ‘‘majority’’ (however slim) in the new complement were
transferees from the former Grain Millers-represented plant—
to conclude that the employer owed recognition to the Grain
Millers.79 And this, I think, explains the real significance of
Central Soya’s dictum about the ‘‘distinguishab[ility]’’ of
that ‘‘consolidation’’ case from ‘‘exclusively relocation
cases.’’ Put another way, Central Soya does not reject
Harte’s broad focus on ‘‘sufficient continuity’’; rather, it
holds that where a genuine ‘‘consolidation’’ of complements
of approximately equal size is presented, Harte’s ‘‘substan-
tial percentage—40 percent or more’’ standard is not applica-
ble, because in such a case each group could meet that
standard. Accordingly, I think Simplot errs to the extent it
presumes that Harte may be ignored except where ‘‘exclu-
sively relocation’’ cases are presented. Rather, I am per-
suaded that Harte’s focus on substantial continuity will apply
even where the fact setting may involve other than a ‘‘mere
relocation.’’
If I have misunderstood Central Soya’s gloss on Harte,
and if matters of labeling are more important than I have
presumed above, I will record how I would label Quincy’s
relationship to Wenatchee: I have no difficulty finding that
Quincy is not ‘‘merely’’ the Wenatchee operation ‘‘removed
to a new site’’; rather, Quincy embodies to a limited extent
a ‘‘consolidation’’ and ‘‘expansion’’ of operations formerly
done at both Wenatchee and Ferndale. But I observe that se-
lecting the appropriate label in these circumstances may well
depend on which ‘‘operation’’ is being focused upon. Thus,
it is reasonable to label Quincy’s prime pack operations as
involving a ‘‘consolidation,’’ in the limited sense that Quincy
now prime packs a few produce varieties which only Fern-
dale had processed in the recent past and others which only
Wenatchee had processed formerly. But the same obviously
cannot be said about Quincy’s repack operation. Ferndale
had not done repack since late 1987; Wenatchee was
Simplot’s only repack operation in the Northwest until Quin-
cy took those operations over in May, upon Wenatchee’s
final shutdown on April 30. Thus, if repack—the operation
which occupies 7–8 months of Quincy’s annual activities—
587J. S. SIMPLOT CO.
80 Put another way, the facts found above reveal strong elements
of ‘‘continuity’’ between the Wenatchee and Quincy repack oper-
ations: Quincy ‘‘replaced’’ or ‘‘supplanted’’ Wenatchee’s—and only
Wenatchee’s—repack. Quincy relied almost entirely on Wenatchee’s
repack equipment, on Wenatchee’s frozen stores, and its repack-ex-
perienced employees, to begin repack operations of its own. More-
over, the Wenatchee transferees continued thereafter to be a majority
in the complement used in the 7–8 months each year when repack
is the dominant activity in the Quincy plant.
81 General Extrusion Co., 121 NLRB 1165 (1958). See also, Cen-
tral Soya, supra, where the majority emphasized that ‘‘the organiza-
tion and nature of the work force did not change simply by virtue
of a mere expansion of the unit.’’ 281 NLRB at 1309 fn. 7.
82 Thus, ‘‘transferees’’ in that prime pack complement were almost
entirely from Wenatchee; Ferndale ‘‘transferees’’ (more accurately,
employees who had been employed at Ferndale before it closed per-
manently after prime pack in 1989) made up only an insubstantial
percentage of Quincy’s new complement.
83 And see the Harte Board’s discussion of Hudson Berlind’s
uniquely distinctive features. 278 NLRB at 950 fn. 11. Moreover,
the absence in this case of a real ‘‘merger’’ of employee com-
plements from two former plants likewise distinguishes this case
from Central Soya, supra, where ‘‘accretion’’ principles were ap-
plied, requiring a ‘‘majority’’ analysis, rather than a ‘‘substantial
percentage’’ analysis.
84 I am really inclined to think that these two questions are analyt-
ically intertwined, and that only the first question is important, and
that the resolution of it will necessarily dictate the answer to the sec-
ond one. I mention the second question only because in this case,
unlike in Harte and its principal predecessors (Westwood Import and
Marine Optical), the union contract at the old plant (Wenatchee) had
expired coterminous with the old plant’s closure. To that extent,
there existed in this case no ‘‘contract bar’’ to the raising of a good-
faith doubt defense. But see, e.g., Mass. Machine & Stamping, 231
NLRB 801 (1979), discussed in Westwood Import, supra, 251 NLRB
at 1214–1215, where, as here, the employer refused the Union’s
prerelocation demand for recognition and bargaining at the new
plant, based on an expectation that the new plant’s eventual com-
plement would be composed in the main of new hires. In finding
that the employer thus violated Sec. 8(a)(5), the Board nevertheless
relied on the transferee majority existing when the new plant began
operations, and on the traditional presumption that new hires ‘‘will
support the union in the same proportion as the previous employee
complement.’’ 231 NLRB at 802.
is the focus, there can be little doubt that Quincy reflects
something very close to a ‘‘mere’’ relocation of the
Wenatchee operation.80
Even if the prime pack operation is the focus, the limited
elements of ‘‘consolidation’’ present were not sufficient to
make Quincy a ‘‘new’’ operation. For the Board looks in
such cases to whether ‘‘changes have occurred in the nature
as distinguished from the size of the operations.’’81
Wenatchee, too, was a prime pack plant, just one whose size
would not allow it to prime pack all of the vegetable vari-
eties flowing in during the Northwest harvest season. Viewed
this way, Quincy merely reflects a ‘‘replacement’’ and ‘‘ex-
pansion’’ of Wenatchee’s operation. And this expansion was
not shown to have significantly ‘‘changed’’ the ‘‘nature’’ of
the historical operation at Wenatchee. Indeed, I think Simplot
best captured the real relationship between Wenatchee and
Quincy when it announced in its April 18, 1990 letter to
Wenatchee workers:
We are closing an old facility and opening a new plant
in Quincy. . . . The plant will be among the biggest
. . . of its kind.
Clearly, the plan as described by Simplot itself in a less
guarded moment was to ‘‘close’’ one plant and to ‘‘open’’
a new one of like ‘‘kind,’’ only ‘‘bigger.’’ Therefore, I have
no hesitation in concluding, in Harte terms, that ‘‘the oper-
ations at the new facility are substantially the same as those
at the old[.]’’
Moreover, to the extent there were limited elements of
consolidation in Quincy’s prime pack activities, they did not
involve the merger at a new location of transferees from two
formerly distinct plant complements.82 Rather, the Quincy
prime pack complement, at least during roughly the first 2
months of prime pack (until on or shortly before August 1)
was dominated by Wenatchee transferees, and supplemented
by ‘‘new hires’’ never before employed by Simplot, who be-
came a numerical majority only in the final 2 months of the
season. And these facts substantially distinguish this case
from cases such as Hudson Berlind Corp., supra, where
‘‘consolidation’’ of formerly separately represented employ-
ees became a key ingredient in the Board’s ultimate conclu-
sion that the new plant was, indeed, a ‘‘new’’ plant, where
no union could be presumed to enjoy status as the employ-
ees’ bargaining agent.83
II. ULTIMATE QUESTIONS
To recapitulate: Quincy is substantially the same from an
operational standpoint as Wenatchee used to be (each oper-
ating year-round; each running both prime pack and repack).
Quincy’s repack operation is, essentially, the Wenatchee re-
pack operation ‘‘relocated.’’ Quincy’s prime pack operation
is, essentially, Wenatchee’s prime pack operation ‘‘relo-
cated’’ and ‘‘expanded.’’ The employees used at Quincy
when it started operations came mostly from Wenatchee.
Those Wenatchee transferees were intended to and did com-
prise a majority of the complement used by Quincy during
the largest part of its annual operations, including both re-
pack and prime pack. (It was during only 2 months in Quin-
cy’s first year of operations that new hires temporarily out-
numbered Wenatchee transferees.) The ‘‘consolidation’’ of
work formerly performed separately at Wenatchee and Fern-
dale did not involve a merger of employees from those
former bargaining units, and therefore did not give rise to a
‘‘real question concerning representation’’ such as that pre-
sented in Hudson Berlind, supra. These factors clearly
present a strong basis for finding ‘‘continuity’’ between the
Wenatchee and Quincy operations both in terms of oper-
ations and employee complement.
If this is so, then, at most, only two basic questions re-
main: (1) Does it defeat the notion of ‘‘continuity’’ (either
in terms of operations or employee complement) that Simplot
expected to—and did—rely during the 2-month peak of the
season on a complement composed in the majority of new
hires? Alternatively, (2) Did the anticipation of the late-sea-
son configuration amount to ‘‘objective considerations’’ war-
ranting a ‘‘good-faith doubt’’ such as to justify Simplot’s re-
fusal to extend the Wenatchee labor relationship to Quin-
cy?84 As to (1), while this ‘‘seasonal’’ issue was not square-
ly presented in Harte, nor in any of the other cases relied
588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
85 As a separate point, even if ‘‘fully operational’’ status were im-
portant, I cannot accept Simplot’s attempt to equate ‘‘peak’’ oper-
ations with ‘‘full’’ operations. Clearly, from my findings above,
Quincy was operating substantially ‘‘fully’’ (in terms of its expected
operations at comparable times in future years) by no later than May
25; indeed, it was never shown not to be operating ‘‘fully’’ at any
point after the April 30 closing of the Wenatchee plant. And
Simplot’s careful planning was obviously calculated to ensure just
that outcome.
86 Id. at 949.
87 By May 25, repack operations—and the employees needed to
work them—had been ‘‘relocated’’ from Wenatchee. Prime pack
equipment was ‘‘substantially’’ in-place by the same point, and the
additional Wenatchee transferees who would work on prime pack
had already been hired, even if, due to the fact that there was not
yet any fresh produce to process, those transferees had not yet been
brought onto the plant floor.
88 Thus, it becomes irrelevant to decide whether Harte’s ‘‘substan-
tial percentage’’ test properly applies here. Cf. Hydro-Air Equipment,
277 NLRB 85 fn. 2 (1985).
89 Id. at 950.
90 If anything, the contrary is presumed—that ‘‘new hires . . . de-
sire union representation in the same proportion as those they re-
placed.’’ Mass. Stamping, supra, 231 NLRB at 802 (citation omit-
ted); Marine Optical, supra, 255 NLRB at 1245, citing Westwood
Import, supra. Thus, we cannot suppose, a priori, that to grant the
Union’s representation claim at Quincy would be to force the Union
down the unwilling throats.
91 278 NLRB at 950.
92 Simplot cites, among other representation case decisions in
‘‘seasonal’’ industries which support this proposition, Baumer
Foods, 190 NLRB 690 (1967), and Industrial Forestry Assn., 222
NLRB 295 (1976). See also Case-Swayne Co., 209 NLRB 1069,
1070 (1974). I regret that, despite another closing request I made at
trial (Tr. 502:4–8) the General Counsel on brief has barely con-
fronted the point, but has meandered around it only briefly, and
wholly inconclusively. See G.C. Br. 20–21.
93 Harte, supra at 950.
94 Ibid.
95 I reasoned similarly in a ‘‘successorship’’ situation in D & K
Frozen Foods, supra, 293 NLRB at 864 fn. 15. (There, ironically,
on in Harte, I think Harte’s principles are inharmonious with
Simplot’s claims. As to (2), I find no independent warrant
in the cases for treating such peak-season configurations as
an ‘‘objective consideration’’ justifying Simplot’s withdrawal
of recognition from the Union upon Wenatchee’s closure.
The notion that transferee: new hire ratios at seasonal peak
are the only ones that count for these purposes is difficult
to harmonize with Harte’s instruction that the time for assay-
ing the ratio of transferees to new hires is not when the new
plant becomes ‘‘fully operational,’’85 but is, rather, when the
‘‘relocation’’ process has been substantially concluded.’’86 I
have found above that this ‘‘relocation process’’ had been
substantially concluded by no later than the May 25 grand
opening,87 at a point when not just a ‘‘substantial percent-
age,’’ but a ‘‘majority’’ of the complement consisted of
Wenatchee transferees.88 And Harte presumes that the ‘‘in-
terest’’ of the employees thus transferred will be to ‘‘retain[
]’’ not just their historical bargaining agent, but ‘‘the fruits
of their collective activity,’’89 i.e., the terms and conditions
of employment which obtained at Wenatchee, as established
by the Wenatchee labor agreement. By contrast, the Board
has never presumed that ‘‘new’’ employees do not wish to
enjoy collective representation, or the ‘‘fruits of collective
activity’’ harvested by their fellow workers at an earlier
point.90 Therefore, it is difficult to see how the anticipated
peak season configuration would alone create a basis for
doubting the Union’s continuing majority status.
I am mindful, as was the Harte Board, that a ‘‘tension’’
exists between the ‘‘transferees’ interest in retaining the
fruits of their collective activity, and the newly-hired em-
ployees’ interest in choosing whether or not to have union
representation.’’91 And in this regard it is not frivolous for
Simplot to point out that the Board itself prefers to run rep-
resentation elections in ‘‘seasonal’’ industries at or near the
peak of the season, so as to enfranchise the largest number
of employees.92 But decisions arising in the representation
case field (where, by definition, a ‘‘question concerning rep-
resentation’’ of employees has already been determined to
exist before the Board turns to the issue of when to conduct
the election) are of little value in guiding us to a determina-
tion in cases of this type whether such a ‘‘q.c.r.’’ exists.
Rather, cases like this invariably present a ‘‘tension,’’ rarely
present in representation cases, between the competing inter-
ests of union-represented transferees from another plant and
new hires. In addition, unlike in normal representation case
situations, cases like these normally will implicate a ‘‘na-
tional labor policy favoring industrial stability.’’93
Moreover, just as in Harte, we are presented with ‘‘addi-
tional factors which contribute to our willingness to tip the
scales in favor of the transferees.’’94 Some of these addi-
tional factors are the same as those noted in Harte (supra at
950). Thus, Simplot’s ‘‘acquisition [and opening] of [Quin-
cy] was dependent on its closing of [Wenatchee]’’; Simplot
‘‘was not presented with rival claims from competing unions,
and its recognition of [the Union would not have]
implicate[d] the types of considerations . . . addressed in
R.C.A. Del Caribe, 262 NLRB 963 (1982), and Bruckner
Nursing Home, 262 NLRB 955 (1982)’’; and ‘‘[f]inally, the
national labor policy favors industrial stability achieved
through the collective bargaining process.’’
There exist here yet ‘‘additional considerations’’ war-
ranting tipping the scales in favor of the transferees: Here,
unlike in Harte, we are not presented with the expectation
that new hires will become a ‘‘permanent majority’’ in the
new Quincy operation, and thus the new hires in question do
not have the same stake in employment at the Quincy plant
as the year-rounders (mostly Wenatchee transferees) do: As
I have noted previously, the employees in the new-hire cat-
egory are mostly unskilled, ‘‘general labor’’ workers, who
may work only a few weeks out of every year, and, unlike
the year-round core group workers, their identities will
change substantially from year-to-year (probably exceeding
the overall ‘‘40 percent’’ turnover rate described by Per-
sonnel Manager Stone). Certainly, when an employer opens
a new plant with the realization that its operations will large-
ly depend on the efforts of a steady group of employees who
may be presumed to desire continuing union representation,
it hardly favors the interests of ‘‘industrial stability’’ to allow
that employer to refuse to maintain the established bar-
gaining relationship simply because, months after opening,
the employer plans to bring in additional workers whose rep-
resentational preferences are unknown, and who will com-
prise a majority in the bargaining unit during only a transi-
tory peak period, and many of whom, in any case, are not
likely to be around at next year’s seasonal peak.95
589J. S. SIMPLOT CO.
Simplot was the predecessor operator of the plant, and there, iron-
ically, the same prosecuting office, Region 19, assumed for purposes
of that prosecution against the successor that the ‘‘full complement’’
for ‘‘majority’’-counting purposes would be the complement on hand
at the peak of the season. Although this assumption did not affect
the outcome, I nevertheless questioned it, saying, in pertinent part:
Exactly what ‘‘complement’’ should be used for ‘‘majority’’-
counting purposes in a seasonal industry which swells to
‘‘peak’’ employment for only a relatively short time is a dif-
ficult question. I note that the employment data recited thus far
might support an argument that, viewed from an annual perspec-
tive, former Simplot production employees did the ‘‘majority’’
of Respondent’s production work (including repack) on and after
August 1, and even possibly that such former Simplot workers
did the majority of the work done in the peak season (consid-
ering that only one shift, comprised mainly of ‘‘core’’ group
carryovers, was scheduled on many of those peak season days).
I note also . . . that [plant manager] Crabtree advised Respond-
ent’s managers that the plant would require only ‘‘120 to 130’’
employees in the peak season—not the ‘‘151’’ which the parties
stipulated were ‘‘employed’’ as a ‘‘full complement’’ in late
August-early September. But with the case pleaded, litigated and
argued solely as a ‘‘but for’’ case, one in which the General
Counsel has stipulated that Teamsters never represented an ac-
tual ‘‘majority’’ in Respondent’s ‘‘full complement’’ (a Burns-
inspired phrase of dubious import in this setting) I will not pur-
sue the validity of a potential alternative argument—that Re-
spondent, in fact, employed a majority of former Simplot em-
ployees in the production unit at a time when it used a ‘‘sub-
stantial and representative complement’’ of production employ-
ees within the meaning of the Court’s more recent decision in
Fall River Dyeing Corp., supra. [Fall River Dyeing Corp. v.
NLRB, 107 S.Ct. 2225 (1987).]
Although the Board adopted this decision, my quoted comments
must be understood in context as obiter dicta, and I do not assume
that the Board’s adoption implied approval of those dicta.
96 Mass. Stamping, supra, 231 NLRB at 802–803.
97 Marine Optical, supra, 255 NLRB at 1245.
98 The parties have stipulated that ‘‘the following employees of
Simplot, hereinafter the Quincy Unit[,] constitute a unit appropriate
for the purposes of collective bargaining . . . :’’
All production and maintenance employees at Simplot’s Quincy,
Washington plants, warehouse, sheds or lots adjacent thereto,
where commodities or materials are processed or stored, exclud-
ing office employees, field personnel, agricultural department
employees, guards[,] and supervisors as defined by the Act.
99 Ogle Protection Service, 183 NLRB 682 (1970).
100 Interest on any amounts owed is to be computed in accordance
with New Horizons for the Retarded, 283 NLRB 1173 (1987).
101 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Based on all of the foregoing, I find that Simplot errs in
asserting that it would have violated Section 8(a)(2) to have
thus recognized and bargained with the Union. Under a
Harte continuity analysis, it would have been entirely lawful
and appropriate for Simplot to have extended recognition to
the Union and to have bargained with it before imposing any
changes at Quincy which were inconsistent with the ‘‘fruits
of collective activity’’ at Wenatchee. Indeed, where it was
apparent before Quincy ever opened that transferees from
Wenatchee would constitute a majority when the relocation
process became substantially completed, and where the ex-
pectation of a temporary ballooning in the seasonal work
force could not in any case justify a ‘‘good faith doubt’’ of
the Union’s continuing majority status, it was unlawful, as
alleged in the complaint, for Simplot to refuse the Union’s
preopening demands for recognition;96 it was equally unlaw-
ful for Simplot to have made unilateral changes at Quincy
from the Wenatchee status quo ante.97
THE REMEDY
Having found that Simplot has engaged in certain unfair
labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to ef-
fectuate the policies of the Act. At bottom, Simplot’s viola-
tion was a refusal to recognize the Union’s status as the law-
ful exclusive bargaining agent for production and mainte-
nance employees in the Quincy unit,98 and its unilateral deci-
sion, implemented as soon as it began to use employees at
the Quincy plant, to impose wages, benefits, and other terms
and conditions of employment on those employees which
constituted departures from the status quo ante, i.e., the terms
and conditions established by, and prevailing under, the
Wenatchee labor agreement. It is not certain that any or all
of those changes worked to the detriment of employees in
the Quincy unit; it is certain that the changes were in deroga-
tion of the Union’s status as the employees’ exclusive rep-
resentative. Accordingly, my recommended order provides
that Simplot shall immediately so recognize the Union at
Quincy, and on the Union’s request, bargain collectively in
good faith with the Union regarding all mandatory subjects
affecting unit employment at Quincy, retroactive to the date
at which Simplot first sent employees to Quincy. Further, on
the Union’s request, Simplot shall cancel and rescind any
changes it imposed unilaterally on those employees’ terms
and conditions of employment, and shall make employees
whole for any losses they may have suffered as a con-
sequence of those changes,99 with interest.100
The General Counsel also specifically alleged in the com-
plaint that Simplot should be required to ‘‘make whole the
Union for the loss of any dues revenues which it would have
received (through dues checkoff provisions from Wenatchee
Unit employees who transferred to Quincy) but for
[Simplot’s] failure to recognize and/or withdrawal of rec-
ognition of the Union[.]’’ He makes a similar conclusionary
request at the end of his brief, but does not argue the point
or cite any authorities. Where the General Counsel has not
seen fit to research the question (or, if he has, he has not
acquainted me with the fruits of that research), I specifically
decline to decide whether this remedial prayer might be mer-
itorious. The General Counsel will have another opportunity,
if he wishes, to address the question to the Board.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended101
ORDER
The Respondent, J. R. Simplot Company (Simplot), Boise,
Idaho, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize or to bargain collectively in
good faith with the Teamsters Local 760 (the Union) as the
exclusive collective-bargaining representative of employees
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
102 If 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.’’
working at its Quincy, Washington plant in the bargaining
unit elsewhere found appropriate herein (the Quincy unit).
(b) Unilaterally changing the wages, hours of work, or
other terms and conditions of employees in the Quincy unit.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
2. Consistent with discussions in the remedy section of
this decision, take the following affirmative action necessary
to effectuate the policies of the Act.
(a) Immediately recognize the Union as the Quincy unit
employees’ exclusive collective-bargaining representative,
and on the Union’s request, bargain collectively in good faith
with the Union regarding all mandatory subjects affecting
employees in the Quincy unit, retroactive to the date at
which Simplot first sent employees to Quincy.
(b) On the Union’s request, cancel and rescind any
changes it imposed unilaterally on Quincy unit employees’
terms and conditions of employment, and make employees
whole for any losses they may have suffered as a con-
sequence of those changes, with interest.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Quincy, Washington plant copies of the at-
tached notice marked ‘‘Appendix.’’102 Copies of the notice,
on forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act when we refused to
recognize or bargain collectively in good faith with Team-
sters Local 760 (the Union) as the representative of employ-
ees at our plant in Quincy, Washington, and when we made
changes in Quincy employees’ wages, benefits, and other
terms and conditions of employment from those prevailing at
our former Wenatchee, Washington plant under the Union’s
contract there, without notifying or bargaining with the
Union about those changes. The Board has ordered us to post
and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT refuse to recognize or bargain collectively
with the Union as the exclusive representative of employees
in the Quincy unit.
WE WILL NOT make unilateral changes from the wages,
benefits, and other terms and conditions of employment es-
tablished under the Union’s contract at the former Wenatchee
plant.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed in Section 7 of the Act.
WE WILL immediately recognize the Union as the exclu-
sive collective representative of employees in the Quincy
unit and, upon the Union’s request, WE WILL bargain in good
faith with the Union concerning all mandatory bargaining
subjects affecting employees in the Quincy unit, retroactive
to the date we first sent employees to work in Quincy unit
jobs.
WE WILL, on the Union’s request, cancel, and rescind any
changes from the terms and conditions of employment estab-
lished by the Union’s contract at the former Wenatchee plant
which affect employment in the Quincy unit; and WE WILL
make Quincy unit employees whole, with interest, for any
losses they suffered as a consequence of those changes.
J. R. SIMPLOT COMPANY