Olivera Egg Ranch

National Labor Relations Board - Board Decisions

Sep 5, 1979

244 N.L.R.B. 871 (N.L.R.B. 1979)

OI.IVERA EGG RANCH
Olivera Egg Ranch and Sales Delivery Drivers, Ware-
housemen and Helpers Local 296, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and tHelpers of America. Case 32-CA-1880
September 5, 1979
DECISION AND ORDER
BY MEMBERS PENEIt.O, MURPHY AND TRESDAI.
Upon a charge filed on June 22. 1979, by Sales
Delivery Drivers, Warehousemen and Helpers Local
296, International Brotherhood of Teamsters. Chauf-
feurs, Warehousemen and Helpers of America. herein
called the Union, and duly served on Olivera Egg
Ranch, herein called Respondent, the General Coun-
sel of the National Labor Relations Board. by the
Acting Regional Director for Region 32. issued a
complaint and notice of hearing on June 29, 1979.
against Respondent. alleging that Respondent had
engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Na-
tional Labor Relations Act. as amended. Copies of
the charge, complaint, and notice of hearing before
an administrative law judge were duly served on the
parties to this proceeding.
With respect to the unfair labor practices. the com-
plaint alleges in substance that on May 8. 1979, fol-
lowing a Board election in Case 32-RC-522, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about June 11, 1979, and at all times thereafter,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
July 9, 1979, Respondent filed its answer to the com-
plaint admitting in part, and denying in part. the alle-
gations in the complaint.
On July 20, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on July 27, 1979, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
I Official notice is taken of the record in the representative proceeding.
Case 32 RC-522. as the term "record" is defined In Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations. Series 8, as amended, See
LTV Electrovrterm. Inc. 166 NLRB 938 ( 1967. enfd 388 F.2d 683 (4th Cir
1968); Golden Age Beverage Co.. 167 NLRB 151 (1967). enfd 415 F.2d 26
(5th Cir. 1969): Irnertype Co. v. Penello. 269 F Supp. 573 (D.C.Va. 1967):
Folklt Corp., 164 NLRB 378 (1967). enfd 397 F 2d 91 (7th Cir 1968); Sec
9(d) of the NLRA, as amended.
be granted. Respondent thereafter filed a response to
Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Respondent's answer to the complaint and its re-
sponse to the Notice To Show Cause denied para-
graph VIII of the complaint pertaining to the legal
conclusion that since May 8. 1979. the Union has rep-
resented a majority of the employees in the unit certi-
fied and is the exclusive collective-bargaining repre-
sentative of the unit employees. Respondent also
denied paragraph XI of the complaint as to the legal
conclusion that the conduct of Respondent consti-
tutes a violation of Section 8(a)(5) and (I) of the Act
but admitted the rest of the General Counsel's com-
plaint and the factual allegations therein. The Gen-
eral Counsel contended that Respondent is improp-
erly seeking to relitigate issues which were raised and
decided on and which issues could have been raised
and decided in the underlying representation case.
We agree with the General Counsel.
Review of the record herein. including that in the
underlying representation proceeding (Case 32-RC
522), shows that the election was held on January 17,
1979. pursuant to a Stipulation for Certification Upon
Consent Election approved on December 14. 1978.
and resulted in a vote of two votes for, and none
against, the Union. There were no challenged ballots.
In his report the Regional Director rejected the
Employer's objections to the election. The Regional
Director found that Larry Harville. a former em-
ployee. was talking to employee Albert Vargas, an
eligible voter, just outside the doorway of the election
area about 5 to 10 minutes prior to the opening of the
polls. The Regional Director's investigation found no
evidence to establish the alleged fact that Harville
was or is an agent of the Union. and, further that
there was no evidence to show that Harville engaged
in any electioneering before or after the polling ses-
sion. The Regional Director found that Harville's ac-
tions prior to the opening of the polls did not warrant
setting aside the election. The Regional Director, ac-
cordingly, recommended that the objections be over-
ruled.
The Board on May 8, 1979. adopted the Regional
Director's findings and recommendation and certified
the Union as the exclusive representative of the unit
employees. In so doing the Board found that the Em-
244 NLRB No. 137
871
I)I:('ISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer's exceptions raised no material issues of fact
and law which would require a reversal of the Re-
gional Director's recommendations or which would
require a hearing.
In its response to the Notice To Show Cause, Re-
spondent again denied that the Union represents a
majority of the employees in the unit. Respondent
now contends that at a minimum a hearing should
have been ordered to resolve the alleged factual dis-
putes, i.e., whether Harville was an agent of the
Union and whether he campaigned in the polling
area.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging a
violation of Section 8(a)(5) is not entitled to relitigate
issues which were or could have been litigated in a
prior representation proceeding.2
Furthermore, Respondent has presented no evi-
dence on the issue other than its unsupported asser-
tions, which do not warrant a hearing on the issue.
In summary then, all issues raised by Respondent
in this proceeding were or could have been litigated
in the prior representation proceeding, and Respon-
dent does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence, nor
does it allege that any special circumstances exist
herein which would require the Board to reexamine
the decision made in the representation proceeding.
We therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the Mo-
tion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. HE BUSINESS OF RESPONDENF
Respondent is, and has been at all times material
herein, a sole proprietorship of Edward T. Olivera,
with an office and principal place of business located
in San Jose, California, where it is engagad in the
business of the production, processing, distribution,
and wholesale and retail sale of eggs. Respondent,
during the calender year preceding issuance of the
complaint, which period is representative of all times
material herein, purchased and received goods valued
in excess of $50,000 directly from suppliers located
outside the State of California.
2See Pittsburgh Plate Glass. Co. v. N'I.RB. 313 U.S. 146, 162 (1941):
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
We find, on the basis of the foregoing, that Respon-
dent is, and has been at all times material herein, an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. IHE ILABOR ORGANIZAI ION INVO()I.VED
Sales Delivery Drivers, Warehousemen and Help-
ers Local 296, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRA(CTIC'ES
A. The Representation Proceeding
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time sales delivery
drivers employed by the Employer at its Sierra
Road and Piedmont Road, San Jose, California.
facility, excluding all other employees. guards
and supervisors as defined in the Act.
2. The certification
On January 17, 1979, a majority of the employees
of Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 32, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on May 8, 1979, and the Union continues to
be such exclusive representative within the meaning
of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Refiusal
Commencing on or about May 29, 1979, and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
June 11, 1979, and continuing at all times thereafter
to date, Respondent has refused, and continues to re-
fuse, to recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit.
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OLIVERA F;(;i RANCH
Accordingly, we find that Respondent has. since
June 11, 1979, and at all times thereafter. refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR I.ABOR PRA('I'1('S
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate.
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom, and, upon
request, bargain collectively with the Union as the
exclusive representative of all employees in the ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the intitial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company, Inc., 136 NLRB
785 (1962); Commerce Company db/a Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817; Burnett Con-
struction Companv,. 149 NLRB 1419, 1421 (1964).
enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CON(CI.USIONS OF LAW
I. Olivera Egg Ranch is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Sales Deliver) Drivers, Warehousemen and
Helpers Local 296, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America. is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All full-time and regular part-time sales delivery
drivers employed by Respondent at its Sierra Road
and Piedmont Road, San Jose. California, facility, ex-
cluding all other employees., guards and supervisors
as defined in the Act. constitute a unit appropriate for
the purpose of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. Since Mav 8, 1979, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about May 29, 1979, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit. Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)( I ) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDE R
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Lahor Rela-
tions Board hereby orders that Respondent, Olivera
Egg Ranch, San Jose. California, its officers, agents.
successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectivel1 concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Sales Delivery Drivers.
Warehousemen and Helpers Local 296. International
Brotherhood of Teamsters. Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive bar-
gaining representative of its employees in the follox -
ing appropriate unit:
All full-time and regular part-time sales deliver,
drivers employed b Respondent at its Sierra
Road and Piedmont Road. San Jose. California
facility, excluding all other employees. guards
and supervisors as defined in the Act.
873
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive bargaining repre-
sentative of all employees in the aforesaid appropri-
ate unit with respect to rates of pay, wages, hours,
and other terms and conditions of employment, and,
if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at is San Jose, California, facility copies of
the attached notice marked "Appendix." Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 32, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
APPENDIX
NOTI(E To EMPLOYEES
POSTED BY ORDER OF ITHE
NATIONAL LABOR RELATIONS B)ARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Sales
Delivery Drivers, Warehousemen and Helpers
Local 296, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of'
America, as the exclusive representative of the
employees in the bargaining unit described be-
low.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union. as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed below, with respect to rates of pay.
wages, hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All full-time and regular part-time sales deliv-
ery drivers, employed by the Employer at its
Sierra Road and Piedmont Road, San Jose,
California, facility, excluding all other em-
ployees, guards and supervisors as defined in
the Act.
OLIVERA EGG RANCH
874