Pacific International Rice Mills, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1977

228 N.L.R.B. 464 (N.L.R.B. 1977)

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