L & B Cooling, Inc.

National Labor Relations Board - Board Decisions

Aug 5, 1983

267 N.L.R.B. 1 (N.L.R.B. 1983)

L & B COOLING, INC.
L & B Cooling, Inc. and Fresh Fruit and Vegetable
Workers, Local P-78-B of the United Food and
Commercial Workers International Union,
AFL-CIO, CLC. Case 27-CA-7522
5 August 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JENKINS AND ZIMMERMAN
On 1 October 1982 Administrative Law Judge
Jay R. Pollack issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only
to the extent consistent herewith.
We find that Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to bargain with the
Union after the Union won an informal election
that the Union and Respondent agreed to conduct
among Respondent's employees. The Administra-
tive Law Judge dismissed the complaint, finding
that extra seasonal employees employed by Re-
spondent during the previous season were entitled
to be included in the bargaining unit and, when so
included, the Union had not been elected by a ma-
jority of the employees in the bargaining unit. We
reject the Administrative Law Judge's finding that
the extra seasonal employees from the previous
season should be included in the unit. We find that
those employees did not have a reasonable expecta-
tion of reemployment with Respondent.
The facts are set forth in the Administrative Law
Judge's Decision and are undisputed. They can be
briefly summarized together with a few additional,
undisputed facts, as follows. Respondent is engaged
in the business of cooling lettuce. Lettuce is pack-
aged in the fields and shipped to Respondent. Re-
spondent cools the lettuce by a vacuum process
that removes water and cools the lettuce almost to
the point of freezing. The lettuce is then loaded
onto trucks and shipped.
Respondent commenced operations in the
summer of 1979. Its facility is mobile, and is relo-
cated as lettuce harvesting progresses through the
Southwest, apparently essentially from Arizona to
New Mexico to Colorado. From late July until
early October 1980, Respondent operated in
Center, Colorado, processing the lettuce as it was
267 NLRB No. 2
harvested in the San Luis Valley. While in Center,
Respondent employed a crew of approximately 14
employees who worked on a steady basis.' It also
employed approximately 13 additional employees
on an as-needed basis. Approximately six of the as-
needed, or extra, employees were on Respondent's
payroll in one pay period, and the balance of them
were on the payroll in two to four pay periods.2
The extra employees performed essentially the
same work as the other employees, were under the
same supervision, and were similarly compensated.
All of the employees who worked for Respondent
in Center were part of a labor pool that migrates
through the Southwest, as does Respondent, as the
lettuce crop is harvested.
In July 1981, Respondent was again operating in
Center. On 23 July Jerry Breshears, the Union's ex-
ecutive secretary, requested that an election be
conducted at Respondent's facility to determine
whether Respondent's employees wished to be rep-
resented by the Union. Respondent agreed to the
election. At that time, Respondent's work force
was comprised of essentially the same group of
regular employees who had worked for it in
Center for the entire previous season. (Approxi-
mately 17 extra employees were subsequently hired
when Respondent became particularly busy.) The
Union won the secret-ballot election 10 to 4.3 Re-
spondent did not object to the way in which the
election was conducted, or to the election results.
Respondent thereafter refused to bargain with the
Union, despite several requests by the Union that it
do so. By letter dated 3 September 1981, Respond-
ent explained to the Union that:
. . . it is L & B Cooling's position that the
union does not represent the employees in a
unit appropriate for bargaining. The meeting
you held with the employees on L & B's
premises cannot be thought of as a means of
determining the employees['] true feelings. It
appears . . . that both the company and the
union may have violated the labor laws.
Initially, we note that this case is governed by
some basic principles of labor law. An employer
who voluntarily recognizes a union that has the
support of the majority of the employees in a bar-
' Those employees worked in the following job classifications: loader,
push-back, set-up man, set-off man, forklift driver, cooling tube operator,
maintenance man, and clerical worker.
2 A pay period is I week.
3 Breshears and Respondent's co-owners. Gary Lofton and Robert
Bower, were present during the voting. Breshears tore up pieces of paper
to be used as ballots. He told the employees to write "yes" to vote for
the Union, and "no" to vote against it. Each employee was then given a
piece of paper. The employees marked the ballots and placed them into a
hat. Finally, the hat was passed to employee Glen Grice, who removed
the ballots, reading each one.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining unit is obligated to bargain in good faith
with that union.4 However, if the union does not
represent a majority of the employees in the bar-
gaining unit, it is an unfair labor practice for the
employer to recognize that union as the exclusive
representative of the employees in the unit, and for
the union to accept that status.5 The Administra-
tive Law Judge, after noting these principles in his
Decision, stated that the issue in this case is wheth-
er the extra seasonal employees who had been em-
ployed during the 1980 season in Center were enti-
tled to be included in the bargaining unit. He found
that those employees had a reasonable expectation
of reemployment with Respondent in the future,
reasoning that Respondent was completely depend-
ent upon seasonal labor, former employees reapply,
and those former employees have in fact been re-
hired. 6 When the extra seasonal employees are in-
cluded in the unit, the Union did not receive votes
from a majority of the employees.7 The Adminis-
trative Law Judge thus concluded that Respondent
could lawfully refuse to bargain with the Union,
and dismissed the complaint.
We agree with the Administrative Law Judge
that the issue in this case reduces to whether the
employees who were employed by Respondent in
Center in 1980 on an as-needed basis should be in-
cluded in the unit. We also agree that resolution of
this issue turns upon whether those employees had
a reasonable expectation of reemployment with Re-
spondent. Contrary to the Administrative Law
Judge's finding, however, we find that those extra
seasonal employees did not have such an expecta-
tion.
In assessing the expectation of future employ-
ment for seasonal employees for purposes of voting
eligibility and unit placement, we consider factors
such as the size of the labor force from which the
seasonal employees are recruited, the stability of
the employer's labor requirements and the extent to
4 See, e.g., Jerr-Dan Corp., 237 NLRB 302 (1978), enfd. in an unpub-
lished opinion 103 LRRM 2603 (3d Cir. 1979) (employer obligated to
bargain with the union that it recognized when presented with authoriza-
tion cards signed by majority of employees); Nation-W;de Plastics Co.,
Inc., 197 NLRB 996 (1972) (employer obligated to bargain with the union
when it learned, through poll of employees, that majority of employees
endorsed the Union); cf. Linden Lumber Division, Summer & Co. v.
N.LR.B., 419 U.S. 301 (1974) (employer may insist upon Board election
if it lacks knowledge of union majority and refrains from conduct that
would tend to preclude fair election).
s International Ladies' Garment Workers Union, AFL-CIO [Bernhard-
Altmann Texas Corp.] v. N.L.R.B., 366 U.S. 731 (1961).
6 The former employees are those who worked for Respondent
throughout the entire season in 1980. With respect to the extra seasonal
employees, the Administrative Law Judge acknowledged that "the
record is devoid of any evidence that preference is given to former extra
employees."
7 The Administrative Law Judge found that I of the 27 employees on
Respondent's payroll for the 1980 season was not eligible for rehire.
Therefore, the Union received 10 votes from the 26 employees that the
Administrative Law Judge found should be included in the unit.
which the employer is dependent upon seasonal
labor, the actual season-to-season reemployment,
and the employer's preference or recall policy re-
garding reemployment of seasonal employees. 8
The labor force from which Respondent draws
its employees appears to be large, although its size
is essentially indeterminate because it consists of
itinerants who travel throughout the Southwest as
the lettuce is harvested. Respondent hires its extra
employees from among the itinerants who happen
to be available in Center during the harvest season
in that area. Since those potential employees are
migratory, we cannot infer that they will be in
Center each season.9 In contrast, when the Board
has relied in part upon the size of the labor force in
finding that seasonal employees had a reasonable
expectation of reemployment, the labor force was
fixed, with the potential employees apparently ac-
tually residing in the area. 10 Therefore, we find
that the indefinable, migratory nature of the labor
force from which Respondent draws its seasonal
employees is a factor indicating that the extra sea-
sonal employees had no reasonable expectation of
reemployment with Respondent.''
Another consideration, the stability of Respond-
ent's labor requirements and the extent of its de-
pendence upon seasonal labor, cannot contribute to
the creation of an expectation of future reemploy-
ment with Respondent. Although Respondent is
entirely dependent upon seasonal labor, the extent
of its dependence upon extra seasonal employees is
unclear. Respondent began its operations in 1979.
The record does not contain any reliable informa-
tion regarding Respondent's work force at that
time.' 2 In 1980, Respondent hired approximately
13 extra seasonal employees, as noted above. At
the time of the election, 23 July 1981, Respondent
had not hired any extra employees for the 1981
season. Subsequent to the election, Respondent did
I Maine Apple Growers, Inc., 254 NLRB 501 (1981); United Telecontrol
Electronics, Inc.. et al., 239 NLRB 1057 (1978).
9 In United Telecontrol Electronics. Inc.. supra, the employer hired its
complement of seasonal employees from New Jersey's "unemployment
rolls." In concluding that the seasonal employees did not have a reason-
able expectation of reemployment, the Board found that "a statewide
group of unemployed people is so vast and everchanging as to preclude it
from being classified as an identifiable labor market area." 239 NLRB at
1058, fn. 3. The labor market area in the instant case is perhaps even
vaster and more amorphous than the one at issue in United Telecontrol.
iU Maine Apple Growers. Inc.. supra: Baumer Foods, Inc. 190 NLRB
690 (1971).
" In this connection, we note that Respondent's operations are mobile,
and thus in the future Respondent could be operating in other locations
when lettuce is harvested in the San Luis Valley region. Respondent's
mobility is another factor contributing to our conclusion that the labor
force upon which Respondent depends is very amorphous.
12 David Carlson, an employee who worked regularly for Respondent
in Center for the 1980 season, testified that Respondent had six people on
the payroll in 1979. Carlson further testified, however, that he did not
work for Respondent in 1979, and had no direct knowledge of how many
employees Respondent had in that year.
2
L & B COOLING, INC.
hire extra seasonal employees. (Only one of those
employees had worked for Respondent in Center
during the 1980 season.) However, since the focus
of our analysis is upon whether the 1980 extra sea-
sonal employees should have been included in the
unit at the time of the election,13 evidence pertain-
ing to employment subsequent to the election is not
relevant, and we do not rely upon it. Since Re-
spondent has hired a complement of extra seasonal
employees for only one season (1980), there is no
pattern of seasonal employment from which we
could extrapolate Respondent's labor requirements
with respect to extra seasonal employees. There-
fore, we cannot conclude that Respondent's labor
requirements indicate that the extra seasonal em-
ployees employed in 1980 could expect to be reem-
ployed with Respondent in the future.
As mentioned above, there is no evidence re-
garding actual season-to-season reemployment of
the extra seasonal employees because Respondent
has been in existence for such a short time.' 4
Clearly, the lack of this evidence undercuts any
finding that the extra seasonal employees had a rea-
sonable expectation of reemployment with Re-
spondent.
Finally, although Respondent seems to have a
preference for reemploying employees who work
for it for the entire season in Center, it has no such
preference regarding the extra seasonal employees.
Respondent recruits its extra seasonal employees
from the itinerants who happen to be in the Center
area looking for work. David Carlson, an employee
who worked regularly for Respondent throughout
the 1980 season, explained that people "come up
and they're looking to work and they're union
members and they just happen to be there at the
right time, right spot at the right time." Robert
Bower, one of Respondent's co-owners, similarly
testified that people "show up and they come to
you and ask for a job, you say, yeah, if we got
something, we'll use you. And we use them if we
can." Therefore, it is clear that Respondent simply
hires whoever is available; there is no evidence
that Respondent encourages the extra seasonal em-
ployees to reapply for employment.
The factors discussed above compel us to con-
clude that the extra seasonal employees hired in the
1980 season in Center had no reasonable expecta-
tion of being reemployed by Respondent. The 23
July 1981 election was therefore conducted among
all employees entitled to vote. By virtue of the
1s Such focus is obvious when voting eligibility is at issue in connec-
tion with a Board-conducted election E.g.. Nordam. Inc.. 173 NLRB
1153 (1968).
14 Although, as noted previously. there is some evidence regarding the
extra seasonal employees who were hired in 1981. we do not rely upon
that evidence because it postdates the date of the election.
Union's victory in the election, Respondent is obli-
gated to recognize and bargain with the Union as
the exclusive representative of its employees. Ac-
cordingly, we find that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to bar
gain with the Union.
THE REMEDY
Having found that Respondent violated Secti)ilt
8(a)(5) and (1) of the Act by refusing to bargaint
with Fresh Fruit and Vegetable Workers, Local I'
78-B of the United Food and Commercial Workers
International Union, AFL-CIO, CLC, as ti c exclu-
sive representative of its employees in an appropri
ate unit, we shall order that Respondent cease and
desist therefrom and, upon request, bargain collec-
tively with the Union concerning wages, hours,
and other terms and conditions of employment.
and, if an understanding is reached, embody such
understanding in a signed agreement.
CONCLUSIONS OF LAW
1. L & B Cooling, Inc., is an employer engaged
in commerce within the meaning of Section 2(2).
(6), and (7) of the Act.
2. Fresh Fruit and Vegetable Workers, Local P-
78-B of the United Food and Commercial Workels
International Union, AFL-CIO, CLC, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. The unit appropriate for the purposes of col-
lective bargaining within the meaning of Section
9(b) of the Act consists of employees of Respond-
ent employed in the following job classifications:
loader, push-back, set-up man, set-off man, forklift
driver, cooling tube operator, maintenance man,
and clerical worker. 5
4. At all times since 23 July 1981 Fresh Fruil
and Vegetable Workers, Local P-78-B of the
United Food and Commercial Workers Internation-
al Union, AFL-CIO, CLC, has been the exclusive
representative of all of the employees within the
above appropriate unit for purposes of collective
bargaining with respect to wages, hours, and other
terms and conditions of employment within the
meaning of Section 9(a) of the Act.
5. By refusing to bargain collectively with the
Union as the exclusive representative of all the em-
ployees in the above-described appropriate unit,
Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
Is These job classifications were read into the record, without obtJc-
tion or contradiction
DECISIONS OF NATIONAL LABOR REL ATII()NS BOARD
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent, L
& B Cooling, Inc., Center, Colorado, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collective-
ly with Fresh Fruit and Vegetable Workers, Local
P-78-B of the United Food and Commercial
Workers International Union, AFL-CIO, CLC, as
the exclusive representative of its employees in the
following appropriate unit with respect to wages,
hours, and other terms and conditions of employ-
ment:
All employees of Respondent employed in the
following job classifications: loader, push-back,
set-up man, set-off man, forklift driver, cooling
tube operator, maintenance man, and clerical
worker.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain collectively in good
faith with the above-named labor organization as
the exclusive representative of its employees in the
appropriate unit with respect to wages, hours, and
other terms and conditions of employment and, if
an understanding is reached, embody same in a
written signed agreement.
(b) Post at its mobile lettuce cooling facility
during the next lettuce growing season in Colorado
copies of the attached notice marked "Appen-
dix."' 6 Copies of said rotice, on forms provided by
the Regional Director for Region 27, after being
duly signed by Respondent's representative, shall
be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
16 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
(c) Notify the Regional Director for Region 27,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
APPENDIX
NoT1ICi: To EMPI OYEES
POSTF.ID BY ORDER OF THE
NATIONAIl LABOR RELATIONS BOARD
An Agency of the United States Government
Wt WIL l. NOTI refuse to recognize and bar-
gain collectively with Fresh Fruit and Vegeta-
ble Workers, Local P-78-B of the United
Food and Commercial Workers International
Union, AFL-CIO, CLC, as the exclusive rep-
resentative of our employees in the following
appropriate unit with respect to wages, rates
of pay, hours of employment, and other terms
and conditions of employment:
All of our employees employed in the fol-
lowing job classifications: loader, push-back,
set-up man, set-off man, forklift driver, cool-
ing tube operator, maintenance man, and
clerical workers.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed by Section 7
of the Act.
Wi WIILL, upon request, bargain collectively
in good faith with the above-named labor or-
ganization as the exclusive representative of
our employees in the aforesaid appropriate unit
with respect to wages, hours, and other terms
and conditions of employment and, if an un-
derstanding is reached, embody same in a writ-
ten signed agreement.
L & B Cool ING, INC.
DECISION
STATEME.NT OF THE CASE
JAY R. POLLACK, Administrative Law Judge: I heard
this case at Alamosa, Colorado, on July 20, 1982. Pursu-
ant to a charge filed against L & B Cooling, Inc. (Re-
spondent), on September 17, 1981,' by Fresh Fruit and
Vegetable Workers, Local P-78-B of the United Food
and Commercial Workers International Union, AFL-
CIO, CLC (the Union), the Regional Director for
Region 27 of the National Labor Relations Board issued
a complaint and notice of hearing on October 28. The
complaint, as amended, alleges in substance that Re-
spondent reneged on an agreement to recognize and bar-
' Unless otherwise stated, all dates hereafter refer to the year 1981.
4
L & B COOLING, INC.
gain with the Union pursuant to a voluntary jointly con-
ducted election and thereby violated Section 8(a)(5) and
(I) of the National Labor Relations Act, as amended, 29
U.S.C. § 151, et seq. (the Act).
All parties were given full opportunity to appear, to
introduce relevant evidence, to examine and cross-exam-
ine witnesses, to argue orally and to file briefs. Based
upon the entire record and upon my observation of the
demeanor of the witnesses, I make the following:
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent is a corporation duly organized under and
existing by virtue of the laws of the State of Colorado. It
is engaged in the nonretail business of cooling lettuce at
its facility in Center, Colorado. Respondent annually
sells and ships goods valued in excess of $50,000 directly
to points and places outside the State of Colorado. Ac-
cordingly, Respondent admits, and I find, that it is an
employer engaged in commerce and in a business affect-
ing commerce within the meaning of Section 2(6) and (7)
of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that at all times material herein the Union has been a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLI.EGED UNFAIR LABOR PRACTICES
A. Background
As discussed above, Respondent is engaged in the let-
tuce cooling business. Lettuce is packaged in the fields
and shipped by growers to Respondent's vacuum cooler.
The lettuce is cooled by a vacuum process which re-
moves the water and cools the lettuce to just above
freezing. The lettuce is then loaded on trucks and
shipped to all parts of the country. The lettuce is shipped
the same day it is cut. Respondent's operations are de-
pendent on the lettuce crop in the San Luis Valley of
Colorado. Accordingly, its Center, Colorado, operations
are seasonal in nature and function for only approximate-
ly 3 months each summer.
Respondent is owned by Gary Lofton and Bobby
Bower. It commenced operation in the summer of 1979.
Prior to opening Respondent's cooling operations, Bower
and Lofton worked as forklift operators in the industry.
In the summer of 1980, Respondent hired a regular crew
of employees to work for its season. The crew of ap-
proximately 14 employees included the following em-
ployee-classifications: loader, push-back, set-up man, set-
off man (the loading crew), and forklift driver, cooling
tube operator, maintenance man and clerical worker.
This crew followed the lettuce crop and worked for var-
ious employers in New Mexico, Texas, California, and
Arizona. They came into Colorado in July and worked
for Respondent until the first week in October.2 Numer-
' Respondent's cooling operations also follow the lettuce crop to the
various States. However, most of its employees have arrangements with
ous other employees come into the San Luis Valley in
July looking for such work. Respondent hires some of
these people as needed depending on the volume of the
lettuce crop. For the 1980 season Respondent had 27 em-
ployees on its payroll.
B. The Election
As stated earlier, prior to starting Respondent's cool-
ing operation, Bower and Lofton worked in the industry.
Bower and Lofton were both members of the Union. On
July 23, 1981, Bower met Jerry Breshears, then the ex-
ecutive secretary of the Union,3 at a restaurant in
Center, Colorado. Breshears told Bower that he (Bre-
shears) wanted to have an election at Respondent's
cooler. Bower asked why and Breshears answered that
some of his members working for Respondent had re-
quested that an election be held. Bower said, "Okay,"
and went with Breshears to Respondent's loading dock.
There were 14 employees working that day. Breshears
asked the employees if they wanted to vote and the em-
ployees indicated their consent to a vote. Bower asked
that Breshears wait until Lofton arrived and Breshears
agreed. When Lofton arrived, Lofton said that the vote
should be by secret ballot and not by a show of hands.
Breshears agreed and tore up pieces of paper to be used
as ballots. The employees were told to mark "yes" for
the Union and "no" if they did not want the Union.
Each employee was given a piece of paper, marked his
or her ballot, and placed it in a hat. The secrecy of the
ballot depended on the care taken by the individual em-
ployee to mark his or her vote in private. All 14 employ-
ees, Breshears, Lofton, Bower, and Bower's I I-year old
son were present during the balloting.4 The votes were
placed in a hat and then given to employee Glen Grice,
a set-off, for counting. Grice then read off each vote and
the final tally was 10 "yes" and 4 "no" votes. Rich Grice
and Glen Grice then asked Breshears questions about
their seniority rights if Respondent decided on a second
shift." Breshears answered that the Grices would have
seniority rights under the Union's collective-bargaining
agreement. Neither Lofton nor Bower raised any objec-
tion to the election or voiced disagreement with any of
Breshears' statements about the union agreement.
On or about August 17, Lee Watkins, a union repre-
sentative, went to Respondent's cooler in an attempt to
bargain with Lofton and Bower. Lofton told Watkins
that he would bargain the next day. However, when
Watkins returned on August 18, he was told by Bower
that Lofton was not available. On August 19, Watkins
returned to his office in California. On August 17, John
Caton, a loader, was told by Lofton that Lofton would
other companies in other locations and do not work for Respondent in
other locations.
3 Breshears died in an automobile accident in September 1981.
4 One of the regular employees was not working that day and did not
vote in the election The extra employee filling in for the day did vote in
the election.
a When the volume of lettuce delivered for cooling is high. Respond-
ent puts on an additional crew. In 1981, the second shift worked for a
little over a week. The Grices' questions concerned their desire to trans-
fer to the second shift in higher paid positions during the operation of a
second shift.
5
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not bargain with Watkins and that Lofton was willing to
bargain only with Breshears. A day or two later, at
Caton's house, Caton presented Bower and Lofton with
a copy of the Union's standard bargaining agreement.6s
Lofton and Bower said that they would not bargain with
one of their employees and that they would not bargain
with anyone other than Breshears.
On or about August 21, 1981, Respondent received a
letter purportedly from Breshears expressing the desire
to meet in early September to commence bargaining. On
September 4, Michael Trujillo, Respondent's attorney,
wrote Breshears stating that it was Respondent's position
that the Union did not represent the employees in an ap-
propriate unit, that the election was not valid, and that
Respondent and the Union "may have violated the labor
laws."
C. Respondent's Defense
Respondent's major defense is that the election is in-
valid because all of the seasonal employees were not
given notice or an opportunity to vote in the election. 7
As stated above, Respondent's regular crew of ap-
proximately 14 employees worked in 1980 and 1981.
These employees had been rehired again at the time of
the instant hearing. Respondent used an additional 13
employees in 1980 on an as-needed basis. In 1981, Re-
spondent hired a second crew for approximately I week
and employed a total of 33 employees for the season. At
the time of the election in 1981, Respondent had a regu-
lar crew of 14 and a total of 17 employees on its payroll.
In addition, numerous other employees, including its
former employees from the previous season, were in
town seeking work. Bower testified that these employees
had been told that Respondent would hire them if work
became available.
The employees hired for the second shift or on an as-
needed basis perform the same work as Respondent's
regular crew. The loading crew are all paid on a piece-
rate basis and the extra employees, when they work, re-
ceived the same piece-rate as the regulars. The forklift
operators and other employees are paid on an hourly
basis and any extra employee that performs such work
receives the same hourly rate. None of the employees re-
ceive fringe benefits. The facility is situated on an open
lot where the loading dock and cooling tubes are locat-
ed. Thus, the employees work in the same general vicini-
ty without physical separation.
D. Analysis and Conclusions
It is well established that an employer's duty to bar-
gain is not dependent upon an election and Board certifi-
cation but may be established by other agreed-upon
means. Idaho Pacific Steel Warehouse Co., Inc., 227
NLRB 326, 329 (1976). Voluntary recognition is a fa-
vored element of national labor policy. See, e.g.,
N.L.R.B. v. Broadmoor Lumber Company, 578 F.2d 238
6 The proposed bargaining agreement covered a bargaining unit of all
production employees, including plant clericals. but excluding office cler-
icals, professionals, and supervisors.
? Respondent raises other defenses which need not be addressed, in
light of my findings and conclusions herein.
(9th Cir. 1978); N.L.R.B. v. Broad Street Hospital and
Medical Center, 452 F.2d 302, 305 (3d Cir. 1971). Thus,
an employer that agrees to determine representative
status by means other than a Board-conducted election
may not thereafter breach its agreement and refuse to
bargain. Jerr-Dan Corp., 237 NLRB 302 (1978); Lyon &
Ryan Ford, Inc., 246 NLRB 1 (1979), enfd. 647 F.2d 645
(7th Cir. 1981); Phelps Cement Products, Inc., 257 NLRB
19 (1981). An employer cannot disclaim the results
simply because it finds them distasteful. Nation-Wide
Plastics Co., Inc., 197 NLRB 996 (1972).
However, recognition of a minority union will always
be an unfair labor practice by both the union and the em-
ployer, even though no other union has been recognized
or commands a majority. International Ladies' Garment
Workers' Union, AFL-CIO v. N.L.R.B., 366 U.S. 731
(1961). Thus, in order to create a bargaining obligation,
voluntary recognition must be bona fide; i.e., the union
must represent a majority of the employees in an appro-
priate unit.8 In all of the cases cited above where the
Board ordered bargaining based on voluntary recogni-
tion, the union did, in fact, enjoy majority status in an
appropriate unit.
In the instant case, in order to determine whether the
Union had majority status in the bargaining unit, it is
necessary to determine whether the extra seasonal em-
ployees from the 1980 season were entitled to inclusion
in the bargaining unit. A review of some principles re-
garding representation matters is necessary to resolve
this issue.
Seasonal employees who are out of work because of a
decline in their employer's business but who have a rea-
sonable expectation of reemployment in the future are
considered "temporarily laid off' and eligible to vote in
a representation election. Knapp-Sherrill Co. v. N.L.R.B.,
488 F.2d 655, 659-660 (5th Cir. 1974); United Telecontrol
Electronics, Inc., et al., 239 NLRB 1057 (1978). In assess-
ing the expectation of future employment among season-
al employees for purposes of unit placement and voting
eligibility,9 the Board considers such factors as the size
of the area labor force, the stability of the employer's
labor requirements, and the extent to which it is depend-
ent upon seasonal labor, the actual reemployment season-
to-season of the roster complement, and the employer's
recall or preference policy regarding seasonal employees.
Maine Apple Growers, Inc., 254 NLRB 501, 502 (1981);
Baumer Foods, Inc., 190 NLRB 690 (1971).
The record in this case establishes that Respondent is
completely dependent on seasonal labor. Respondent's
business and all of its employees are seasonal in nature.
Respondent employs a labor pool which follows the let-
8 The only exception to majority rule, not applicable herein, is the im-
position of a bargaining order in "exceptional cases" where the employ-
er's "outrageous" and "pervasive" unfair labor practices eliminate any
reasonable possibility of holding a free and uncoerced election. See
Conair Corporation, 261 NLRB 1189 (1982), and United Supermarkets
Inc., 261 NLRB 1291 (1982).
9 It is Board policy that unit placement and voting eligibility are in-
separable issues; any employee who may be represented as the result of
an election has the right to vote in the election. Post Houses Inc., 161
NLRB 1159, 1172-73 (1966); Sears. Roebuck and Co., 112 NLRB 559, 569
at fn. 28 (1955).
6
L & B COOLING, INC.
tuce crop. Although the record is devoid of any evi-
dence that preference is given to former extra employ-
ees, former employees reapply, are told that they will be
hired if the volume of lettuce necessitates additional em-
ployees, and, in fact, former employees have been re-
hired.' ° The extra seasonal employees perform the same
work as the regular seasonal employees, under the same
supervision and are paid on the same basis. The only dis-
cernible difference is tenure of employment. Based upon
the applicable law above, at the time of the election, the
extra seasonal employees had a reasonable expectation of
future employment and, therefore, were entitled to inclu-
sion in the unit for purposes of eligibility to vote in an
election and for determination of the Union's majority in
the agreed-upon bargaining unit.
Counsel for the General Counsel argues that the em-
ployment of the extra employees is sporadic and casual
and that such employees should not be included in the
bargaining unit. I find that the General Counsel's argu-
ment ignores the seasonal nature of Respondent's busi-
ness. The cases cited by the General Counsel"' involve
nonseasonal casual employees and I, therefore, find such
cases to be inapposite.
The record reveals that of the 27 employees in Re-
spondent's payroll for the 1980 season, only one employ-
ee was not eligible for rehire.12 At the election, the
Union received 10 out of a possible 14 votes. Thus, it has
only been established that 10 out of 26 unit employees
designated the Union as their bargaining representative.
Io See Kelly Brothers Vurseries, Inc., 140 NLRB 82 (1962); Maine Apple
Grower supra.
'I Piggly Wiggly El Dorado Co., 154 NLRB 445 (1965); Indiana Bottled
Gas Company. 128 NLRB 1441 (1960).
12 The fact that Respondent eventually employed 33 employees in the
1981 season is irrelevant. It is the composition of the unit at the time of
the election that is determinative
Accordingly, it has not been established that a majority
of the employees in the agreed-upon unit designated the
Union as their representative. s For this reason, a bar-
gaining order cannot issue. It not having been established
that Respondent engaged in any other unfair labor prac-
tices, Respondent could lawfully refuse to bargain with
the Union. See Linden Lumber Division, Summer & Co.
v. N.L.R.B., 419 U.S. 301, 309-310 (1974). Accordingly,
the complaint herein must be dismissed. Finally, I note
that no impediment exists for the holding of a Board
election so that all eligible employees may vote by secret
ballot for or against the Union.
CONCLUSIONS OF LAW
1. Respondent L & B Cooling, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The General Counsel has failed to prove by a pre-
ponderance of the evidence that the Union has been des-
ignated the exclusive collective-bargaining representative
by a majority of Respondent's employees in an appropri-
ate bargaining unit.
4. The General Counsel has failed to prove by a pre-
ponderance of the evidence that Respondent has failed to
recognize and bargain with the Union in violation of
Section 8(a)(5) and (1) of the Act.
[Recommended Order for dismissal omitted from pub-
lication.]
'3 Based on the apparent agreement that all employees were eligible to
vote in the election, I infer that Respondent and the Union agreed that
the bargaining unit would include all of Respondent's employees. Where
the parties have reached such an agreement as to the bargaining unit, the
Board has approved the agreement. See Lyon d Ryan Ford, supra, 246
NLRB at 3.
7