Tropicana Products, Inc.

National Labor Relations Board - Board Decisions

Nov 18, 1958

122 N.L.R.B. 121 (N.L.R.B. 1958)

TROPICANA PRODUCTS, INC. 121
Tropicana Products, Inc. and Teamsters , Chauffeurs, Ware-
housemen and Helpers Local Union No. 79, International
Brotherhood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America, Petitioner . Case No. 12-RC-382. Novem-
ber 18, 1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Martin Sacks, hearing officer.
The hearing officer's rulings made at the hearing are free from prej-
udicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. After the hearing in this matter was concluded, counsel for the
Employer filed with the Board at its Washington, D.C., offices, a
motion to dismiss and to strike. In substance the motion seeks dis-
missal of the petition for the following reasons : The record fails to
show that the Employer's operations satisfy the Board's jurisdictional
standards or in any event that a valid election can be held at this time;
the Petitioner has thereby failed to satisfy its burden of proof; the
Board and the Petitioner refused to use the procedures set up by the
Act, i.e., subpena powers to secure jurisdictional and other evidence;
the Employer may with impunity stay away from a hearing when
neither it nor any of its officers have been served with subpenas to
appear, testify, or produce records.
We deny the motion to dismiss.' The hearing in this matter was
set for October 16, 1958, the date on which it was held, only after tele-
phone consultation between a Board field examiner and Theo Hamil-
ton, counsel for the Employer, after the Employer had advised the
Regional Office that Hamilton had been retained by it in this matter
and that the Regional Office should direct further inquiries to Hamil-
ton. The October 16 date was selected for the convenience of Hamil-
ton, who in no way indicated that he deemed it unnecessary to appear,
or that he or any other representative of the Employer would appear
only under subpena. The Employer was duly served by registered
mail with the notice of hearing and a copy of the petition, copies of
which were sent by regular mail to counsel, Theo Hamilton. Despite
the foregoing, neither the Employer nor Hamilton nor other repre-
sentatives of the Employer appeared at the hearing. During the
hearing, the hearing officer undertook to converse with Hamilton by
telephone and recited the substance of Hamilton's remarks for the
1 With respect to the Employer's motion to strike, the Board has not in any way relied
upon the comments of the hearing officer or Petitioner's representative to which exception
is taken. Accordingly, for that reason, we grant the motion to strike.
1.22 NLRB No. 29.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record.2 According to the hearing officer, Hamilton stated that he
knew of the hearing, that he represented the Employer , and that his
client's absence from the hearing was evidence simply that it saw no
necessity and did not desire to participate.
In the absence of the Employer, the hearing officer took evidence
as to the nature of the Employer 's operations from a representative
of the Petitioner who was active in organizing the Employer's em-
ployees in the course of which activity he had appeared at the Em-
ployer's place of operations. This individual testified that, on the
basis of his observations and contacts with the Employer 's employees,
he believed that the Employer employed approximately 75 truck-
drivers who do long-distance or interstate driving. He observed on
the Employer 's premises tractor-trailer trucks identified as the prop-
erty of "Tropicana Products , Inc.," on which appeared Interstate
Commerce Commission numbers, and license plates of States other
than Florida. He testified further that he observed the loading of
these trucks with orange juice from the Employer's warehouse. The
Petitioner introduced into the record eight logbooks prepared by eight
different employees of the Employer . These logbooks contain Form
BMC prescribed by the Interstate Commerce Commission, which
must be filled out by drivers each day they are on a trip. When
filled out these logbooks constitute a daily record of a truckdriver's
activities , including the number of hours and miles driven , the num-
ber of hours on duty but not driving , the number of hours in sleeper
berth, and the number of hours off duty. They contain as well the
name of the driver's employer , the points of departure, trip designa-
tion, and the names of any cities or towns at which the driver made
a stop during the day.
The eight logbooks reveal that employees of the Employer drove
their trucks on numerous trips starting from Bradenton , Florida, for
such destinations as Colorado Springs, Colorado ; Carnegie , Pennsyl-
vania; Mason, Michigan; Chicago, Illinois; Sandusky, Ohio; Evans-
ville, Indiana; Sioux Falls, South Dakota; and Marion, Ohio. They
reveal that, on those trips , stops were made in States other than those
already mentioned , including Nebraska , Iowa, Kansas, Wisconsin,
Indiana, Tennessee , Mississippi , Alabama, West Virginia , Maryland,
North Carolina, and South Carolina.
The foregoing evidence conclusively demonstrates that the Em-
ployer is extensively engaged in the shipment of goods in interstate
commerce. The record does not reveal, however, the precise value
of the Employer's interstate shipments, and thus does not show that
the Employer's operations satisfy the Board's jurisdictional stand-
2 In the motion to dismiss and to strike , Counsel Hamilton does not take exception to
the accuracy of the hearing officer 's recitation into the record.
TROPICANA PRODUCTS, INC. 123
aids. These standards were adopted by the Board, inter alia, as an
administrative aid to facilitate its jurisdictional determinations in
order that it might reduce the amount of time and energy expended
in the investigation of jurisdictional questions, so that it might con-
centrate its energies on substantive issues in the many important cases
coming before it and thus increase its case-handling capacity. The
adoption of such standards in no way precludes the Board from exer-
cising its statutory authority, in any properly filed case, where legal
jurisdiction alone is proven, if the Board is satisfied that such.action
will best effectuate the policies of the Act?
The Board has determined that it best effectuates the policies of
the Act, and promotes the prompt handling of cases, to assert juris-
diction in any case in which an employer has refused, upon reasonable
request by Board agents, to provide the Board or its agents with
information relevant to the Board's jurisdictional determinations,
where the record developed at a hearing, duly noticed, scheduled and
held, demonstrates the Board's statutory jurisdiction, irrespective
of whether the record demonstrates that the Employer's operations
satisfy the Board's jurisdictional standards.
This determination is based upon the following considerations:
Section 11 of the Act affords the Board the right of access at all rea-
sonable times to any evidence of any person being investigated or
proceeded against, by the Board when exercising the powers vested in
it by Sections 9 and 10 of the Act. Section 11 also specifically vests
the Board with subpena powers to enforce this right when it deems
necessary. Thus, the Act plainly contemplates that a party cooperate
with the Government in providing evidence, especially that which by
its nature is peculiarly in its possession, such as commerce facts held
by an employer. The Board's overriding function is to carry out the
policies of the Act in order to minimize industrial strife which inter-
feres with the normal flow of commerce. In many situations, notably
representation proceedings under Section 9, time is of the essence if
Board processes are to be effective. The invocation of the subpena
procedures in such cases to compel the production of evidence in the
possession of a party resistant to supplying it voluntarily, as in the
instant case, customarily involves considerable delay in the process-
ing of the cases on their merits, which materially reduces the useful-
ness of a petitioner's resort to the Board's processes in its attempt to
arrive at a peaceful settlement of its labor dispute with an employer.
Indeed, in many cases invocation of the Board's subpena powers may
well be self-defeating.' To avoid such consequences the Board has
8 See N.L.R.B. v. W. B. Jones Lumber Company, Inc., 245 F. 2d 388 (C.A. 9).
* In the present case, for example, resort to the use of subpenas to compel the produc-
tion of the Employer's records would in all probability have resulted in such a delay as
to preclude the holding of an election during the current season, thus putting off the
election to a time a year or more away.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adopted the policy announced herein, the application of which may be
avoided by the simple expedient of an employer's production, upon
request, of material and relevant evidence as to the effect of its opera-
tions on commerce, or by appearance at a hearing conducted before an
agent of the Board, prepared to cooperate in the production of such
material and relevant evidence.
Applying this policy to the instant case, the Board has decided to
assert jurisdiction over the Employer. The record evidence clearly
establishes, and we find, that the Employer's operations substantially
affect commerce within the meaning of the Act and are therefore
within the Board's statutory jurisdiction. Further, the Employer
plainly has refused to cooperate in the production of evidence con-
cerning the effect of its operations on commerce, indicating that it
would not supply information necessary to establish that its operations
satisfy the Board's jurisdictional standards except under subpena,
and has declined to appear at the hearing, though properly served
with notice of the same.
2. The record demonstrates that the Petitioner is a labor organiza-
tion within the meaning of the Act and that it claims to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The Petitioner seeks to represent a unit of all long-distance or
interstate truckdrivers and helpers, excluding any other drivers and
warehouse employees. The Board has customarily found such a unit
to be appropriate. The Employer's motion to dismiss rests in part on
the ground that there has been no showing that the employees in-
volved are other than casual or temporary employees, or that a valid
election can be held- at this time.' Aside from the fact that the
Employer offered no proof to substantiate its claim, and indeed passed
up the opportunity to bring forth evidence in support thereof, the
record indicates that the Employer's operations are seasonal in nature
and that the employees are seasonal rather than casual or temporary.
Accordingly, we find that the following employees employed at the
Employer's Bradenton, Florida, plant constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act : All long-distance or interstate truckdrivers
and helpers, excluding goat drivers, pickup and delivery drivers,
warehouse employees, mechanics, office clerical employees, watchmen,
and supervisors as defined in the Act.
5. The record shows that the Employer conducts a seasonal opera-
tion, that the peak of the season will be reached during the last 2
5 We deny the motion to dismiss insofar as it is predicated on this ground.
TALLADEGA FOUNDRY & MACHINE COMPANY 125
weeks of November and the first 2 weeks of December, and that there
is likely to be a sharp decline in the size of the operations after Jaliu-
ary 1. In these circumstances, we hereby direct the Regional Direc-
tor to hold the election hereinafter directed, at or near the peak of
the season, occurring first after the issuance of this Decision and Direc-
tion of Election.
[Text of Direction of Election omitted from publication.]
Talladega Foundry & Machine Company and Local 421, In-
ternational Molders & Foundry Workers Union of North
America, AFL-CIO. Case No. 10-CA-2746. November 19, 1958
DECISION AND ORDER
On November 12, 1957, Trial Examiner Thomas S. Wilson issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case and hereby adopts the Trial Examiner's findings and recom-
mendations insofar as they are consistent with our decision herein.'
The Trial Examiner recommends that all dischargees 2 should be
offered reinstatement and back pay, and that reinstatement be granted,
upon request, to the strikers 3 The Respondent excepts, contending
that all dischargees and strikers are disqualified from reinstatement
by reason of strike-connected misconduct. We find, contrary to the
Trial Examiner, that the evidence concerning strike misconduct by
five of the six dischargees and by strikers Wright and Gilliland was
1 The Respondent excepts to the Trial Examiner's conduct of the proceedings and urges
that the. proceedings be set aside under the doctrine of Indianapolde G love Company,
88 NLRB 986, to avoid the appearance of a partisan tribunal. Although , as discussed
below, we disagree with the Trial Examiner's conclusion that the conduct of the dis-
chargees and certain strikers did not disqualify any of them from reinstatement , we have
concluded that the Trial Examiner 's conduct of the proceedings does not warrant setting
them aside.
8 James Sanders, Aughey (Bud) Mitchell, James Mellon, Uell Dyson , Grover Spurling,
and James L. Watkins.
8 The strikers named by the Trial Examiner were : Gentry Mellon , William Waites,
Joseph Marler,.John Watts, Leroy Wright, Charles Woods , Jesse Gilliland , Grady Mitchell,
Edward Johnson , J. L. Wilson, Phillip , Jones , James Keith , J. H. Wilson , Sam Gooden,
Thornton Phillips, and Ollie Thornton.
122 NLRB No. 26.