Pacific Fruit and Produce Co.

National Labor Relations Board - Board Decisions

Feb 14, 1969

174 N.L.R.B. 541 (N.L.R.B. 1969)

PACIFIC GAMBLE ROBINSON CO.
Pacific Gamble Robinson Company d/b/a Pacific
Fruit and Produce Company and Teamsters,
Chauffeurs, Warehousemen and, Helpers of
America, Local Union No. 983, affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Independent. Case 19-CA-4192
February 14, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
Upon a charge filed by Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
Union No. 983, affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America,
Independent, herein called the Union, the General
Counsel for the National Labor Relations Board, by
the Acting Regional Director for Region 19, issued
a complaint and notice of hearing dated December
10, 1968, against Pacific Gamble Robinson
Company d/b/a Pacific Fruit and Produce
Company, herein called the Respondent, alleging
that the Respondent had engaged in and was
engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge and of the complaint
and notice of hearing were duly served upon the
Respondent and the Union.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on September
24, 1968, the Union was duly certified as the
exclusive bargaining representative of the
Respondent's employees in an appropriate unit,' and
that, on or about September 24 and including
November 7, 1968, the Respondent has refused, and
continues to refuse, to recognize and to meet or
bargain with the Union, although requested to do so
by the Union. On January 7, 1969, the Respondent
filed its answer to the complaint, in which it
admitted in part and denied in part the allegations
of the complaint.
On January 15, 1969, the General Counsel filed
with the Board a motion for summary judgment and
a memorandum in support thereof, submitting that
the Respondent's answer raised no substantial issue
as to any material fact and constitutes only a step
toward securing judicial review of issues fully
litigated in the Board's prior representation
proceeding where the Respondent was accorded
complete due process of law. He moved that the
proceeding be transferred to the Board and that the
Board issue an order to show cause why the
Respondent should not be found to have committed
'Case 19-RC-4704
541
the unfair labor practices alleged in the complaint.
On January 17, 1969, the Board issued an Order
Transferring the Proceeding to the Board and
Notice to Show Cause on or before January 30,
1969, why the General Counsel's motion for
summary judgment should not be granted. The
Respondent has failed to file any document in
response to the notice to show cause or in
opposition to the motion for summary judgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a
three-member panel.
Ruling on Motion for Summary Judgment
The record before us establishes that pursuant to
a Stipulation for Certification upon Consent
Election approved by the Regional Director for
Region 19 on March 6, 1968, an election by secret
ballot was conducted on March 20, 1968, under the
direction and supervision of the Regional Director,
in the unit hereinafter found appropriate.
Upon the conclusion of the balloting, the parties
were furnished a tally of ballots which showed that,
of approximately 7 eligible voters, 5 case ballots, of
which 2 were for, and 2 were against, the Union,
and 1 ballot was challenged. The ballot of Thomas
R. Christensen was challenged by the Respondent
on the ground that Christensen's employment
terminated prior to the election. As said ballot was
sufficient to affect the results of the election, the
Acting Regional Director conducted an investigation
of the facts relating thereto and, on April 11, 1968,
issued his Report on Challenged Ballot. The Acting
Regional Director found that Christensen was a
regular part-time employee and was eligible to vote
in the election. He recommended that the challenge
to Christensen's ballot be overruled, that the ballot
be opened and counted, and that a revised tally of
ballots be issued. Thereafter, the Respondent filed
exceptions to the Acting Regional Director's
Report.
On June 25, 1968, the Board issued a Decision
and Direction to Open and Count Challenged Ballot
wherein it decided that the factual assertions
contained in the exceptions did not establish that
Christensen's regular part-time status had in fact
been altered as of the date of the election. The
Board, therefore, adopted the Acting Regional
Director's findings and recommendations, overruled
the challenge to Christensen's ballot, and directed
the Regional Director to open and count said ballot,
and to issue a revised tally of ballots.
Pursuant thereto, Christensen's ballot was opened
and counted on July 26, 1968, and a revised tally of
ballots was furnished the parties which showed that
five valid ballots were cast, of which three were for,
and two were against , the Union. The Respondent
filed timely objections to the revised tally of ballots.
174 NLRB No. 91
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After an investigation of the objections, the Acting
Regional Director, on August 6, 1968, issued a
report on objections to revised tally of ballots. Since
the objections contained no new factual allegations,
he found them to be without merit, and
recommended that the Board overrule the objections
and, since the Union received a majority of the valid
ballots cast, that the Board issue a certification of
representative to the Union. The Respondent filed a
petition for reconsideration of the Board's previous
decision and exceptions to the Acting Regional
Director's report.
On September 24, 1968, the Board issued a
Supplemental Decision and Certification of
Representative in which it decided that the
Respondent had not presented sufficient reason in
its petition and exceptions to warrant reversal of its
original determination or to justify a hearing with
regard to Christensen's voting eligibility. The Board,
therefore, overruled the Respondent's objections,
and certified the Union as the exclusive
representative for all employees at the Respondent's
Idaho Falls, Idaho, operations.
In the instant proceeding, the Respondent, in its
answer, admits the following factual allegations: (1)
that it is an employer engaged in commerce within
the meaning of the Act; (2) that the Union is a
labor organization within the meaning of the Act;
(3) that in Case 19-RC-4704, a secret ballot election
was conducted in an appropriate unit; (4) that the
Union was certified by the Board as the exclusive
collective-bargaining representative in the
appropriate unit; and (5) that the Union, following
its certification, requested commencement of
negotiations, and that the Respondent thereafter
refused to recognize and to meet and bargain with
the Union. The only factual allegation denied by the
Respondent is that it has refused to meet or bargain
with the Union as the exclusive collective-bargaining
representative of a majority of the employees in the
unit in which the election was held. The
Respondent's answer did not raise an affirmative
defense of its position.
It is apparent, in the light of its answer, that the
Respondent is seeking to relitigate in the instant
proceeding the same issues that were disposed of by
the Board in the representation proceeding. It is well
established that, in the absence of newly discovered
or previously unavailable evidence, a respondent is
not entitled to relitigate in a Section 8(a)(5)
proceeding, issues which were, or could have been,
raised in the prior representation proceeding.'
As all material issues have been previously
decided by the Board, or are admitted by the
Respondent in its answer to the complaint, or stand
admitted by the failure of the Respondent to
respond to the notice to show cause, there are no
matters requiring a hearing before a Trial Examiner.
Accordingly, the General Counsel's motion for
summary judgment is granted. On the basis, of the
record before it, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent is a Delaware corporation
engaged in the wholesaling of fruits and vegetables
at operations in 15 western States, including Idaho
Falls, Idaho . Annually, the Respondent realizes
from its operation gross income exceeding $500,000;
purchases for importation into Idaho, goods and
supplies in excess of $50,000; and sells to customers
located outside the State of Idaho, goods valued in
excess of $50,000.
The Respondent admits, and we find , that it is
and has been , at all times material herein, an
employer within the meaning of Section 2(2) of the
Act, engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will
effectuate the purposes of the Act to assert
jurisdiction herein.3
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material
herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for purposes of
collective bargaining within the meaning of the Act:
All truckdrivers, warehousemen and helpers
employed at the Employer's Idaho Falls, Idaho,
operation, excluding office clerical employees,
salesmen, janitors, guards, professional
employees, and supervisors as defined in the Act.
2. The certification
On March 20, 1968, a majority of the employees
of the Respondent in said unit, in a secret ballot
election conducted under the supervision of the
Regional Director for Region 19, designated the
Union as their representative for the purpose of
collective bargaining with the Respondent. On
September 24, 1968, the Board certified the Union
as the collective-bargaining representative of the
employees in said unit, and the Union continues to
be such representative.
'Pittsburgh Plate Glass Company v N L R B, 313 U S. 146 'We note that the Board asserted jurisdiction over the Respondent in the
underlying representation proceeding.
PACIFIC GAMBLE ROBINSON CO.
B. The Request To Bargain and the
Respondent's Refusal
On or about September 24 and including
November 7, 1968, and continuing to date, the
Union has requested, and is requesting, the
Respondent to recognize and to meet and bargain
collectively with it concerning rates of pay, hours of
employment, and other terms and conditions of
employment of the employees in the appropriate
unit. Commencing on or about September 24, 1968,
the Respondent has refused and continues to refuse
to recognize and to meet or bargain collectively with
the Union as the exclusive collective-bargaining
representative of all employees in said unit.
Accordingly, we find that the Union was duly
certified by the Board as the collective-bargaining
representative of the employees of the Respondent
in the appropriate unit described above, and that the
Union, at all times since September 24, 1968, has
been and now is the exclusive bargaining
representative of all employees in the aforesaid unit
within the meaning of Section 9(a) of the Act. We
further find that the Respondent has, since
September 24 and including November 7, 1968,
refused to recognize, meet, and bargain collectively
with the Union as the exclusive bargaining
representative of its employees in the appropriate
unit , and that, by such refusal, the Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The acts of the Respondent set forth in section
III, above, occurring in connection with its
operations as described in section I, above, have a
close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that it
cease and desist therefrom and, upon request,
bargain collectively with the Union as the exclusive
representative of all employees in the appropriate
unit, and, if an understanding is reached, embody
such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of
their selected bargaining agent for the period
provided by law, we shall construe the initial year of
certification as beginning on the date the
Respondent commences to bargain in good faith
543
with the Union as the recognized bargaining
representative in the appropriate unit. See Mar-Jac
Poultry Company, Inc., 136 NLRB 785; Commerce
Company d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S.
817; Burnett Construction Company, 149 NLRB
1419, 1421, enfd. 350 F.2d 57 (C.A. 10).
VI. CONCLUSIONS OF LAW
1. Pacific Gamble Robinson Company d/b/a
Pacific Fruit and Produce Company is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 983, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Independent, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All truckdrivers, warehousemen and helpers
employed at the Employer's Idaho Falls, Idaho,
operation, excluding office clerical employees,
salesmen, janitors, guards, professional employees,
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since September 24, 1968, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about September 24 and
including November 7, 1968, and at all times
thereafter, to recognize and to meet or bargain
collectively with the above-named labor organization
as the exclusive bargaining representative of all the
employees of the Respondent in the aforesaid
appropriate unit, the Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to recognize and to
meet or bargain with the Union, the Respondent has
interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, its
employees in the exercise of the rights guaranteed
them under Section 7 of the Act, and has thereby
engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(1) of
the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
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
Relations Board hereby orders that the Respondent,
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pacific Gamble Robinson Company d/b/a Pacific
Fruit and Produce Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and to meet or bargain
with Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 983, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Independent, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All truckdrivers, warehousemen and helpers
employed at the Employer's Idaho Falls, Idaho,
operation, excluding office clerical employees,
salesmen, janitors, guards, professional
employees, and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which the
National Labor Relations Board finds will effectuate
the policies of the National Labor Relations Act, as
amended:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and,
if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its Idaho Falls, Idaho, operations,
copies of the attached Notice marked "Appendix."4
Copies of said notice, on forms provided by the
Regional Director for Region 19, shall after being
duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 19, in
writing, within 10 days from the date of this
Decision and Order, what steps the Respondent has
taken to comply herewith.
In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order," the words "a Decree of the United States Court of Appeals
Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that-
WE WILL NOT refuse to bargain collectively with
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 983, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Independent,
as the exclusive representative of the employees in the
bargaining unit described below.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union as the exclusive representative of
all our employees in the bargaining unit described
below with respect to rates of pay, wages, hours of
employment, 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 truckdrivers, warehousemen and helpers employed
at the Employer's Idaho Falls, Idaho, operation,
excluding office clerical employees, salesmen, janitors,
guards, professional employees, and supervisors as
defined in the Act.
PACIFIC GAMBLE
ROBINSON COMPANY
D/B/A PACIFIC FRUIT AND
PRODUCE COMPANY
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Republic
Building, 10th Floor, 1511 Third Avenue, Seattle,
Washington 98101, Telephone 206-583-7542.