Petition — Pacific International Rice Mills, Inc. v. National Labor Relations Board

Court, U.&,

FILED

JUL 10 1979

[LOMICHAEL RODAK, JR., CLERK

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1978

wo. €Q-44

Pactric INTERNATIONAL Rice MI3s, Inc.,

Petitioner,

vs.

NatronaL Lasor Revations Boarp,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Ninth Circuit

Wes.ey J. Fastirr

WituuaM F. TerHeypDEN

LitrLer, MENDELSON, FastirF &

TicHy

A PROFESSIONAL CORPORATION

650 California Street-20th Floor

San Francisco, California 94108

Telephone (415) 433-1940

Attorneys for Petitioner

BOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. ¢ S.F.,CA 94111 ¢ (415) 981-7882

Page

kn haa aU er AMNE Gs 6 i 5 van nen dav enact eens 1

Dee. 8 PS, PR, NCA AN 2

RS ERI a rae re 2

i sin seneabgseseee’s 2

Reasons for granting the writ .................6..0....5. et

A. Petitioner’s constitutional rights were violated by having

a member of a labor pen decide objections to

an election involving a labor ormnaination and by not

receiving a subsequent hearing de novo ............ 6

1. Petitioner's rights to a 0p de novo is abetted

by that portion of the Code of Federal Regulations

governing responsibilities and conduct of employees

of the National Labor Relations Board .......... 9

B. Executive Order 11491 entitles petitioner to a hearing

de novo or to inquire into the hearing officer’s possible

membership in or affiliation with the petitioning labor

EE cc aC URMEMGWIEG NOs ce vcctucssssvevivess ll

C. In his decision the hearing officer clearly demonstrated

bs ws = PANS BEES Ad BE Sy Gs Beate 4% sa hrak’y 4.0.04 13

Ted, fre, Sa op Be «Seed arr h ode 0 bcd Bb ccsdnced or doe 14

ii

TABLE OF AUTHORITIES CITED

Cases

Page

American Federation of Musicians v. Wittstein, 379 U.S. 171,

ST IN, aca cinacecccavecisiavvscinssns. 12

Filmation Associates, Inc., 227 NLRB 1721 (1977) .......... 10

Goldberg v. Kelly, 397 U.S. 254, 25 L.Ed.2d 287 (1970) .... 6

Hannah v. Larche, 363 U.S. 420, 4 L.Ed.2d 1307 (1960) ...._ 6

Indianapolis Glove Company, 88 NLRB 986 (1950) .......... ll

Johnson v. Mississippi, 403 U.S. 212, 29 L.Ed.2d 423 (1971)... 6

Local No. 3, etc. v. National Labor Relations Board, 210 F.2d

Po RB AS oe

National Labor Relations Board v. National Paper Company,

pes EB i Be cr ee

National Labor Relations Board v. Phelps, et al., 136 F.2d 562

CURE Bo PNG i sca le ORGS OSC awe i Dabo is sca oils 7

United States v. Ruzicka, 329 U.S. 287, 91 L.Ed. 290 (1946) 12

Regulations

Executive Order 11491, 3 C.F.R. 510 (1971) .............. 2, 6, 11

Executive Order 11491, Section 3(d), 3 C.F.R. 512 (1971) .... 1l

99 C.F.R. § 100.796-11 (1067, 1973)... ccc ccc 9

Statutes

National Labor Relations Act:

Section B(a)(e 29 U.S.C, ir ee any gh 4

Section 8(a)(5) (29 U.S.C. § 158(a)(5)) ..........00... 4

a es oh CN aie as Ch LL Eb dine 6094 cs 2

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1978

No.

Paciric INTERNATIONAL Rice MIs, [nc.,

Petitioner,

VB.

NatronaL Lasor Revations Boarp,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Ninth Circuit

Petitioner, Pacific International Rice Mills, Inc., respect-

fully petitions for a Writ of Certiorari to review the

judgment of the United States Court of Appeals for the

Ninth Cireuit enforcing an Order of the National Labor

Relations Board granting summary judgment against

Petitioner herein for the unfair labor practice of refusing

to bargain with the Union.

OPINIONS BELOW

The Opinion of the Court of Appeals is reported at 594

F.2d 1323 and appears at Appendix A, infra, pp. A-1—A-9.

2

The Decision and Order of the National Labor Relations

Board is reported at 228 NLRB 464 and appears at

Appendix B, infra, pp. B-1—B-14. The Board’s denial of

the Motion for Reconsideration of its Decision and Order

appears at Appendix C, infra, pp. C-1—C-4.

JURISDICTION

The judgment of the Court of Appeals was entered on

April 17, 1979. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether Petitioner’s constitutional rights were vio-

lated by having a union member conduct the hearing on

objections to the election and decide the issues therein,

and by not being granted a de novo hearing?

2. Whether Executive Order 11491 should entitle Peti-

tioner to a hearing de novo or a hearing to inquire into

the Hearing Officer’s possible membership in or affiliation

with the petitioning labor organization?

STATEMENT OF THE CASE

On April 25, 1975, a representation election was held in

a unit of production and maintenance employees at Peti-

tioner’s Woodland, California facility. The tally of ballots

showed 25 votes for and 21 votes against the petitioning

labor organization, the International Brotherhood of

Teamsters, Chauffeurs and Helpers of America, and 6

challenged ballots (R. 9).

The Company filed timely objections to the election, to

wit, that the Union made many material misrepresenta-

3

tions of fact and law, made illegal promises of benefits and

created an atmosphere of fear and coercion (R. 20-28).

The hearing on the objections was conducted on October

29 and 30, 1975, and the Hearing Officer issued a report

recommending that all objections be overruled, that the

Union’s challenges to two ballots be overruled since the

Union withdrew its challenges at the hearing, that the

Company’s challenges to four ballots be sustained, and that

the Union be certified as the collective bargaining repre-

sentative (R. 84-91). A copy of the Hearing Officer’s Report

and Recommendation On Objections and Challenged Bal-

lots appears at Appendix D, infra, pp. D-1—D-13.

On January 12, 1976, the Company filed exceptions to

the Hearing Officer’s Report, with a supporting brief

(R. 92-133). On January 13, 1976, the Company filed a

supplemental brief contending that it was informed and

believed that the Hearing Officer was a member of the

National Labor Relations Board Employees’ Union and

therefore a new hearing was necessary beceuse the Hear-

ing Officer could not resolve the credibility issues in an

impartial manner (R. 134-135). At no time during the

pendency of this case has the National Labor Relavions

Board ever denied that said Hearing Officer was a mem-

ber of the National Labor Relations Board Emp oyees’

Union.

On April 2, 1976, the Board issued its Decision and

Certification of Representative in which it adopted the

Hearing Officer’s Findings and Recommendations, and

certified the Union (R. 136-138). Said Decision is reported

at 223 NLRB 613 and appears, infra, at Appendix FE, pp.

4

E-1—E-3. On April 13, 1976, the Company filed a Motion

for Reconsideration of the Board’s Decision, but the Board

denied that Motion on May 19, 1976 (R. 146-147). A copy

of the Order Denying Motion appears, infra, at Appendix

F, pp. F-1—F-2.

On September 22, 1976, the Regional Director issued a

complaint alleging that the Company refused to bargain

in violation of Section 8(a)(5) and (1) of the National

Labor Relations Act and set a subsequent hearing on the

issue (R. 149-151). The Company alleged as an affirmative

defense in its Answer that due to his membership in a

labor organization the Hearing Officer could not be, and

was not, fair and impartial in his conduct of the hearing

(R. 153).

In its response to an Order by the Board to Show

Cause why summary judgment should not be granted,

Petitioner contended that it should be given the oppor-

tunity of a hearing on the question of the Hearing Officer’s

membership in an employee organization, and specifically

pointed out by affidavit that the Employer then had rea-

son to believe that the Hearing Officer was a member of an

employee organization that was affiliated with the peti- —

tioning labor organization (R. 186-190).

The Board issued its Decision and Order finding that

the Company violated the Act by refusing to bargain with

the Union. In its Motion for Reconsideration of the Board’s

Decision on the Motion for Summary Judgment, Petitioner

herein specifically pointed out that it was informed and

believed that the Hearing Officer was a member of the

same iabor organization as the petitioning Union and that

5

it had been denied its due process right to inquire of the

Hearing Officer concerning his membership in a labor

organization (R. 303-305). The Board denied the Motion

for Reconsideration.

In the Decision below, the Court enforced the Order of

the National Labor Relations Board.

REASONS FOR GRANTING THE WRIT

The questions in the instant case are of crucial impor-

tance to Petitioner and to other employers who are or who

may become subject to the jurisdiction of the National La-

bor Relations Board. Petitioner is raising novel and impor-

tant constitutional issues, to wit, whether its due process

rights were violated by having a hearing on objections to a

representation election conducted and the issues therein

decided by a Hearing Officer who himself is a member of

a labor organization and by not receiving a subsequent

hearing de novo. These important constitutional issues are

unsettled at the moment, and they have far-reaching con-

sequences. These issues affect numerous employers par-

ticipating in representation cases before the National

Labor Relations Board. If Hearing Officers in objections

to election cases can themselves be members of labor

organizations, employers can never be assured that they

will receive a fair and impartial hearing which is the

essence of due process. The case has even profounder

ramifications because the labor organization with which

Petitioner is undeniably a member may be affiliated with

the petitioning labor organization. The importance of these

issues and their ramifications should compel a Supreme

Court resolution of them.

In addition, the case involves an interpretation of

Executive Order 11491, and the issue raised pertaining to

that Executive Order significantly affects the administra-

tion of the Order.

For those reasons, Petitioner respectfully requests that

its Petition for a Writ of Certiorari be granted.

A. Petitioner’s Constitutional Rights Were Violated By

Having A Member Of A Labor Organization Decide

Objections To An Election Involving A Labor Organi-

zation And By Not Receiving A Subsequent Hearing

De Novo.

Trial before an unbiased judge or impartial decision-

maker is essential to due process. Johnson v. Mississippi,

403 U.S. 212, 29 L.Ed.2d 423 (1971); Goldberg v. Kelly,

397 U.S. 254, 25 L.Ed.2d 287 (1970).

“*Due process’ is an elusive concept. Its exact bound-

aries are undefinable, and its content varies according

to specific factual contexts. Thus, when governmental

agencies adjudicate or make binding determinations

which directly affect the legal rights of individuals,

it is imperative that those agencies use the procedures

which have traditionally been associated with the

judicial process. . .. Therefore, as a generalization, it

can be said that due process embodies the differing

rules of fair play, which through the years, have

become associated with different types of proceed-

ings.” Hannah v. Larche, 363 U.S. 420, 4 L.Ed.2d 1307,

1321 (1960).

The requirement that there be an unbiased and

non-partisan trier of fact is even more rigid in an adminis-

7

trative proceeding such as before the National Labor

Relations Board.

“The Board does not, indeed, it could not, contest the

correctness of the principle respondents invoke, for

a fair trial by an unbiased and non-partisan trier of

the facts is of the essence of the adjudicatory process

as well when the judging is done in an administrative

proceeding by an administrative functionary as when

it is done in a court by a judge. Indeed, if there is any

difference, the rigidity of the requirement that the

trier be impartial and unconcerned in the result

applies more strictly to an administrative adjudication

where many of the safeguards which have been thrown

around court proceedings have, in the interest of expe-

dition and a supposed administrative efficiency been

relaxed. Nor will the fact that an exumination of the

record show that there was evidence which would sup-

port the judgment, at all save a trial from the charge

of unfairness, for when the fault of bias and prejudice

in a judge first rears its ugly head, its effect remains

throughout the whole proceeding. Once partiality

appears, and particularly when, though challenged, it

is unrelieved against, it taints and vitiates all of the

proceedings, and no judgment based upon them may

stand.” National Labor Relations Board v. Phelps,

et al., 136 F.2d 562, 563-4 (5th Cir. 1943); National

Labor Relations Board v. National Paper Company,

216 F.2d 859 (5th Cir. 1954); Local No. 3, ete. v.

National Labor Relations Board, 210 F.2d 325 (8th

Cir. 1954).

A hearing officer in a National Labor Relations Board

proceeding reviewing an employer’s objections to an elec-

tion is not engaged in a mere ministerial act. He reviews

the evidence, makes credibility findings regarding wit-

8

nesses and issues a recommended decision that for all

practical purposes becomes binding upon the parties with

far-reaching economic and social effects. Specifically, his

decision directly leads to the final Board declaration of

whether the election has been fairly conducted and whether

the Union should be certified as the representative of the

employees.

Each party involved in such a critical proceeding must

be guaranteed that its interests and legal rights will be

passed upon by an individual who will be absolutely non-

partisan and impartial. However, when an individual is a

member of a labor organization it is only natural that he

would have a proclivity towards the goals and ideals of

another labor organization whose programs and goals are

generally in accord with those of his own organization.

An individual who acts as an NLRB hearing officer under

those circumstances would inevitably have his views

tainted in favor of the participating labor organization,

and employer parties to proceedings under his jurisdiction

can receive no assurance that he would dispassionately

view the issues before him. It is that bias and prejudice

to which Petitioner was clearly subject in the instant case

(See § C, infra), and it ie that danger facing future NLRB

litigants that the Court should protect against.

Petitioner herein was urging that its employees had

been denied their right to a fair election due to misrepre-

sentations of fact and law and illegal promises of benefits

by the Union during the election campaign. The overruling

of those objections by the Hearing Officer resulted in

the Union being certified as the representative of the

9

employees. The Hearing Officer’s recommended decision

had such a profound impact on both the Company and

its employees that Petitioner should have been guaranteed

an impartial trier of fact, and not been made subject to

the patent biases of the Hearing Officer which so clearly

manifested themselves in his decision (see §C, imfra).

Petitioner’s constitutional right to a hearing by an impar-

tial trier of fact was blatantly violated by allowing a

union member to preside. This violation was made even

more egregious by virtue of the fact that the employee

organization to which the Hearing Officer belonged could

have been affiliated with the petitioning Teamsters Union.

In order that Petitioner’s due process rights could be

unquestionably protected, it was entitled to a hearing

de novo before an individual who was not a member of

any labor erganization so that it could be assured that it

would receive a fair and impartial hearing on matters of

such urgent concern. The denial of Petitioner’s request for

a de novo hearing clearly violated its due process rights.

1. Petitioner’s Rights To A Hearing De Novo Is

Abetted By That Portion Of The Code Of Federal

Regulations Governing Responsibilities And Con-

duct Of Employees Of The National Labor Rela-

tions Board.

“All employees shall avoid any action whether or not

specifically prohibited by this part which result in or

create the appearance of: ... (b) giving preferential

treatment to any person ... (d) losing complete

independence or impartiality.” 29 C.F.R. § 100.735-11

(1967, 1973).

10

The Hearing Officer’s membership in an N.L.R.B.

employees’ union at the very least created the appearance

that he could no longer be completely independent or

impartial as a trier of fact. When an individual belongs to

an organization that is purportedly aimed at bettering

the wages, benefits and working conditions of himself and

his fellow employees and is then called upon to judge a

matter involving an organization having purportedly

identical purposes, it is inevitable that those involved in

or viewing the process will believe that he will tend to be

partial to the latter organization.

The Hearing Officer, a trier of fact, was charged with

making a decision fundamental to the rights of the parties

involved. His role is elevated in importance over other

N.L.R.B. employees, and it is crucial that he not only

remain absolutely neutral but give that impression. The

Hearing Officer violated the aforesaid section of the

C.F.R. by his mere membership in the association, and the

Employer submits that it had a right to have a de novo

hearing before an N.L.R.B. employee who is not such a

member so that there would be no question of the trier

of fact’s impartiality.

The fair hearing requirement is so basic to due process

that Petitioner should have been given a new hearing as

that was the only way that its rights could have been fully

protected. In view of the seriousness of the charge leveled

by the Company against the Hearing Officer and the nature

of the Board proceedings, the Board should have followed

the prudent action that it undertook in Filmation Associ-

ates, Inc., 227 NLRB 1721 (1977), wherein the charging

11

party tried to disqualify the Administrative Law Judge

because of bias and prejudice in his conduct. The Board

found no bias or prejudice but remanded before a different

Administrative Law Judge quoting /ndianapolis Glove

Company, 88 NLRB 986, 987 (1950) :

“(I]t is essential not only to avoid actual partiality

and prejudgment ... in the conduct of Board proceed-

ings, but also to avoid even the appearance of a parti-

san tribunal.”

B. Executive Order 11491 Entitles Petitioner To A Hear-

ing De Novo Or To Inquire Into The Hearing Officer's

Possible Membership In Or Affiliation With The Peti-

tioning Labor Organization.

Section 3(d) of Executive Order 11491 provides:

“Employees engaged in administering a_ labor-

management relations law . .. shall not be represented

by a labor organization which also represents other

groups of employees under the law . . . or which is

affiliated directly or indirectly with an organization

which represents such a group of employees.” 3 C.F.R.

512 (1971).

The principle involved in this Executive Order would

be vitiated if a party could not inquire into a hearing

officer’s possible membership in a petitioning labor organi-

zation. The ability to conduct such an inquiry is what

Petitioner has timely and consistently sought, but has been

consistently denied. Without that ability, E.0. 11491 is

rendered a nullity as Petitioner would not have the oppor-

tunity of ascertaining whether § 3(d) has been violated.

The Court should grant certiorari in this case because

the issue involved is significant in the administration of the

12

aforesaid Executive Order. United States v. Ruzicka, 329

U.S. 287, 91 L.Ed. 290 (1946). In addition, certiorari

should be granted because it is an important case of first

impression under the applicable Executive Order. Amer-

twcan Federation of Musicians v. Wittstein, 379 U.S. 171,

13 L.Ed.2d 214 (1964).

If that Executive Order is going to have any real sig-

nificance, parties to National Labor Relations Board pro-

ceedings must be able to inquire into the affiliations of a

trier of fact when they in good-faith believe that that

trier of fact may actually belong to a labor organization

that is affiliated with a party to the proceedings. Only by

allowing parties the opportunity to inquire whether a trier

of fact is represented, directly or indirectly, by a union

(such as the petitioning labor union herein) that also

represents employees under the law which the trier of fact

is charged with administering, may the Executive Order

have any real force and effect.

As soon as it had reason to believe that the Hearing

Officer belonged to an employee organization that was

affiliated with the petitioning labor organization, Petitioner

herein presented an affidavit to the Board on that point

and requested an opportunity to inquire into the Hearing

Officer’s membership in an employee organization. It pre-

sented this affidavit at the earliest time practically avail-

able to it—in response tc the Order to Show Cause after

the scheduled trial on the refusal to bargain charge had

been cancelled. The obvious time for Petitioner to present

this new information would have been at the trial on the

unfair labor practice, but when that became impossible

13

due to the summary Board action the most propitious time

to present it was in response to the Order to Show Cause.

Hence, Petitioner was not dilatory in presenting this new

information, but yet it was consistently denied the oppor-

tunity to inquire into the Hearing Officer’s membership in

an employee organization and whether his organization

was affiliated with the Teamsters.

Clearly, if the Hearing Officer’s union was affiliated with

the petitioning Union, it would be the epitome of the denial

of due process for that Hearing Officer to have conducted

the hearing, rendered findings of fact and made a recom-

mended decision in the case. The manifest injustice and

damage to the Petitioner which reasonably would have

resulted (and which Petitioner submits did result—see

§C, infra) compels this Court to grant the petition for

extraordinary writ to allow Petitioner the opportunity to

make the necessary inquiries.

C. In His Decision The Hearing Officer Clearly Demon-

strated His Bias.

In his Decision (App. D) the Hearing Officer ignored

one of the central pointaraised by the Petitioner herein in

its brief to him to wit, that the chief employee witness on

behalf of the petitioning labor organization without ques-

tion lied on the witness stand (R. 70-71). That individual,

Mr. Daniel Barrus, was asked: by the attorney for the

Employer what he had discussed on the day of the hearing

prior to his testimony. It was then stipulated by counsel

for the petitioning Union that he had in fact discussed

certain union meetings with Mr. Barrus prior to his ap-

pearing on the witness stand. Even after that stipulated

14

admission by counsel for the Union, Mr. Barrus maintained

under oath that he had never discussed the subject of his

testimony with the Union’s attorney. The Union’s attorney

then reaffirmed that he had indeed discussed Barrus’ testi-

mony with him prior to his taking the stand (Tr. 235-240).

Not only did the Hearing Officer fail to refer to his glar-

ing example of falsity under oath, but he amazingly went

on to credit the testimony of Barrus without reservation,

completely ignoring his meanderings, his glaring incon-

sistencies and his outright lies. Such crediting by the Hear-

ing Officer clearly demonstrates that he was biased, and

urgently compels the right of Petitioner to receive a trial

de novo or to inquire into his union affiliation and activi-

ties.

CONCLUSION

For the reasons set forth herein, this Petition for Writ

of Certiorari should be granted.

DATED: July 6, 1979.

Respectfully submitted,

Lirruer, Menpe.son, Fastirr &

TicHy

A PROFESSIONAL CORPORATION

By Westey J. Fastirr

Wim F, Terseypen

Attorneys for Petitioner

(Appendices Follow)

Appendices

Appendix A

United States Court of Appeals

For the Ninth Circuit

No. 77-4034

National Labor Relations Board, j

Petitioner,

vs.

Pacific-International Rice Mills, Inc.,

Respondent.

i

[Filed Apr. 17, 1979]

Petition to Review a Decision of the National

Labor Relations Board

OPINION

Before: BROWNING and CARTER, Circuit Judges, and

WOLLENBERG,® District Judge

WOLLENBERG, District Judge:

The National Labor Relations Board (NLRB), pursuant

to the National Labor Relations Act (NLRA), as amended,

29 U.S.C. §§ 151 et seg., seeks enforcement of its order

granting summary judgment against respondent, Pacific

International Rice Mills, Inc., for the unfair labor practice

of refusing to bargain with the union,’ in violation of sec-

1Chauffeurs, Teamsters and Helpers Local Union No. 150, In-

ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen

and Helpers of America.

*Honorable Albert C. Wollenberg, United States District Judge,

Northern District of California, sitting by designation.

A-2

tion 8(a)(1) and (5) of the NLRA, 29 U.S.C, §$§ 158(a) (1),

(5). Respondent contests the underlying representation

election and certification of the union as collective-bargain-

ing representative on the grounds that there does not exist

substantial evidence in the record supporting the NLRB’s

findings of fact and that the hearing officer, whose findings

and recommendations the NLRB adopted, was improperly

biased against the employer because of his union member-

ship. The Court rejects respondent’s contentions and grants

the NLRB’s petition for enforcement of its order.

FACTS

This controversy arose out of a disputed representation

election held in April, 1975, at respondent’s Woodland

facility. The tally of ballots showed twenty-five votes for

and twenty-one votes against the union, and six challenged

ballots. The NLRB directed a hearing on the challenged

ballots and on fifteen of eighteen objections to the election

that the company had timely filed. The objections alleged

that the union made many material misrepresentations on

subjects such as benefits, the pension and profit-sharing

plans, and strike votes, unlawfully interrogated employees,

coerced employees to vote for the union, and created an

atmosphere of fear and coercion. In addition, the company

argued that the cumulative effect of the numerous misrep-

resentations made by the union agent, combined with the

exteremely close vote, mandated that the election be set

aside.

A hearing examiner considered evidence presented at a

hearing in October, 1975, and the company’s post-hearing

brief, and issued a report recommending that the NLRB

A-3

overrule all objections except the company’s challenges to

four ballots, and certify the union as the collective-bargain-

ing representative as the challenges were not determinative

of the election. The company filed exceptions to the hearing

examiner’s report and a supplemental brief contending that

the examiner could not have acted impartially because he

is a member of the National Labor Relations Board Em-

ployees Union. In April, 1976, the NLRB adopted the hear-

ing examiner’s findings and recommendations and certified

the union; the NLRB denied reconsideration of these ac-

tions.

In September, 1976, the Regional Director of the NLRB

issued a complaint that the company refused to bargain

pursuant to a union request in violation of section 8(a) (1)

and (5) of the NLRA, 29 U.S.C. §§ 158(a)(1), (5). The

company answered that it had insufficient knowledge of the

union’s status as a labor organization and denied that the

union had requested bargaining and that it had refused.

Respondent-company also renewed its contention that the

April, 1975, election should be set aside. Following a motion

for summary judgment and issuance of an order to show

cause by the NLRB, respondent, in its response to the

order to show cause filed in November, 1976, raised the

defense that after the representation hearing, information

had come to its attention that the union to which the hear-

ing examiner belongs might be affiliated with the labor or-

ganization involved in the action at hand, the Teamsters

Union. —

In February, 1977, the NLRB issued a decision and

order, which it has refused to reconsider, granting the mo-

tion for summary judgment based on a finding that there

A-4

was no new evidence or special circumstances showing

error in the representation case.’ It found that respondent

violated section 8(a)(1) and (5) of the NLRA by refusing

to bargain with the union and ordered respondent to cease

and desist from such refusal and to bargain upon request

with the union, and if an agreement is reached, to embody

it in a signed contract and to post appropriate notices.

DISCUSSION

In order to determine whether to enforce the NLRB

order, the Court must decide whether the NLRB reasonably

exercised its broad discretion in conducting representative

elections by overruling respondent’s election objections and

therefore finding that the company’s refusal to bargain

with the certified representative of its employees violated

sections 8(a)(1) and (5) of the NLRA. Respondent carries

a heavy burden to overcome the presumption of correctness

of the NLRB determination that the election reflected the

employee’s free choice. See, e.g., N.L.R.B. v. Sauk Valley

Manufacturing Co., Inc., 486 F.2d 1127 (9th Cir. 1973).

“If the findings of the [NLRB] are supported by substan-

tial evidence on the record considered as a whole, they are

conclusive; and so long as the Board did not misapply the

law, the order is to be affirmed.” N.L.R.B. v. Heath Tec

Diwvision/San Francisco, 566 F.2d 1367 (9th Cir. 1978).

1. Hearing Examiner’s Review of the Record.

The NLRB specifically adopted the findings of the hear-

ing examiner. Record at 137. His determination of the

validity of the respondent’s objections relied upon credi-

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

A-5

bility determinations. At the hearing on the objections,

. four of respondent’s employees appearing on its behalf*

testified that the union agent, Tony Santos, had made cer-

tain statements at two organizational meetings held on

April 8, and April 12, 1975, upon which the objections were

based. A fifth employee, Wesley Medlin, testified that

Santos had abusively asked him to leave one meeting be-

cause of Santos’ belief that Medlin was pro-employer.

Santos denied making any of the objectionable statements

attributed to him by these witnesses. Another employee,

Daniel Barrus, supported Santos’ testimony.

The hearing examiner accepted the testimony of Santos

and Barrus on the ground that the other testimony was

“internally self-contradictory, collectively inconsistent, the

product of faulty memory, and to a large part based on

subjective determinations of what Santos meant rather than

what he stated.” Record at 89.‘ This Court will not disturb

credibility resolutions “unless a clear preponderance of all

the relevant evidence convinces that they are incorrect.”

N.L.R.B. v. International Longshoremen’s & Warehouse-

men’s Union & Local 27, 514 F.2d 481, 483 (9th Cir. 1975) ;

N.L.B.B. v. Luisi Truck Lines, 384 F.2d 842, 846 (9th Cir.

1967). é

The hearing examiner’s opinion properly demonstrates

that substantial evidence in the record supports the reason-

ing underlying his credibility determination, Employees

Jojo and Lang both contradicted themselves on tlie key

*Richard Lonnie Long, Donald C. Eisenhart, and Kenneth

©. FET eetibed on the neponden’s Lehalt

in

A-6

question of what Santos promised that union victory would

mean to the employees. On the one hand, they testified that

Santos stated that certain benefits would accrue immedi-

ately upon union victory, Transcript at 37, 56, but, on the

other hand, they also testified that Santos stated that these

same benefits would be subject to collective bargaining.

Transcript at 36, 66-67. Employees Eisenhart and Peak

consistently stated that Santos promised that benefits such

as retirement plans and insurance coverage would “auto-

matically” take effect upon union victory. While they ad-

mitted that Santos explained collective bargaining, they

maintained that he never stated that benefits would be sub-

ject to bargaining. This distinction appears rather confused

and subjective, especially considering Lang’s contradictory

admission that Santos stated at the meeting Eisenhart and

Peak attended that everything would be part of collective

bargaining. Transcript at 66-67. In light of these contradic-

tions and inconsistencies, this Court could not find that a

clear preponderance of all the relevant evidence weighs

against the hearing examiner’s credibility determination.

The hearing examiner also properly disregarded Medlin’s

testimony. None of the witnesses who attended the meeting

at which Medlin appeared corroborated his testimony. The

evidence pertaining to Medlin’s status as a clerk at a sepa-

rate facility, as opposed to being a warehouseman at Wood-

land, supports Santos’ explanation that he asked Medlin to

leave the meeting because of Medlin’s apparent ineligibility

to vote. Finally, even if Santos made such statements to

Medlin, they would not constitute sufficient evidence to show

that an atmosphere of fear and coercion pervaded the elec-

tion.

A-7

2. Hearing Examiner's Membership in a Union.

Respondent has urged on various grounds that the hear-

ing examiner’s alleged membership in the National Labor

Relations Board Employees Union and the NLRB’s refusal

to hold a hearing on the potential affiliation of that union

with petitioner-union denied it due process. The Court con-

curs in the NLRB’s rejection of these claims,

A hearing examiner’s membership in a union will not

ordinarily violate an employer’s right to a fair hearing. See

generally, Abbott Laboratories, Ross Laboratories Division

v. N.L.R.B., 540 F.2d 662, 665 n.1 (4th Cir, 1976) (holding

that a hearing officer’s possible membership in the same

union as a witness would not show that he had an interest

in the litigation). Executive Order 11491 gives each federal

employee the right to participate in labor organizations:

Each employee of the executive branch of the Federal

Government has the right, freely and without fear of

penalty or reprisal, to form, join, and assist a labor

organization or to refrain from any such activity, and

each employee shall be protected in the exercise of this

right. Except as otherwise expressly provided in this

Order, the right to assist a labor organization extends

to participation in the management of the organiza-

tion and acting for the organization in the capacity

of an organization representative, including presenta-

tion of its views to officials of the executive branch, the

Congress, or other appropriate authority.

Exec. Order No. 11491 § 1(a) 3 C.F.R. 510 (1971). The fact

that the order prohibits federal “employees engaged in ad-

ministering a labor-management relations law” from mem-

A-8

bership in certain unions, Exec. Order No. 11491 4 3(d) 3

C.F.R. 512 (1971),° indicates that the order intended to

cover NLRB employees.*

Respondent’s failure to show that the hearing examiner’s

union was one of those covered by section 3(d) establishes

the propriety of his union status. In addition, the record

clearly evidences the hearing examiner’s impartiality. He

took an active interest at the hearing questioning both em-

ployer and employee witnesses. Substantial evidence in the

record supports his well-documented findings.

Several months after the NLRB’s consideration of the

employer’s objections to the certification election, during the

unfair labor practice proceeding, the employer resubmitted

its demand for a hearing on the issue of the hearing ex-

aminer’s union status. Record at 184. In these papers, the

employer made the additional claim that the hearing exami-

ner’s union might be affiliated with petitioner’s union in

violation of section 3(d).

The NLRB properly refused to reconsider this claim.

In the absence of newly discovered or previously unavail-

able evidence or special circumstances, a respondent in an

ganization which also other of

Sure nw ar fe Geese whch ural Srey

which represents such a group

:

A-9

unfair labor practice proceeding is not entitled to relitigate

issues which were or could have been litigated in a prior

representation proceeding. N.L.R.B. v. Decoto Aircraft,

Inc., 512 F.2d 758, 761 (9th Cir. 1975). Respondent provides

no justification for its failure to raise the question of union

affiliation at the time of the representation proceeding when

it first objected to the hearing examiner’s union member-

ship.

Accordingly, the NLRB’s petition for enforcement of its

order is granted.

Appendix B

United States of America

Before the National Labor Relations Board

Case 20—CA—11808

Pacific International Rice Mills, Inc. )

and

~

Chauffeurs, Teamsters and Helpers Local

Union No, 150, Iniernational Brother-

hood of Teamsters, Chauffeurs, Ware-

housemen and Helpers of America

DECISION AND ORDER

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 Adminis-

trative Law Judge were duly served on the parties to this

proceeding.

B-2

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 repre-

sentative of Respondent’s employees in the unit found

appropriate ;* and that, commencing 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

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 representation proceeding. The General Coun-

1Official notice is taken of the record in the representation pro-

Case 20—RC—12582, as the term “record” is defi in

Secs. 102.68 and 102.69(g) of the Board’s Rules and Regulations,

Series 8, as amended. LTV Ele stems, Inc., 166 NLRB

938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Bever-

age 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 N.L.R.B. 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968);

Sec. 9 (d) of the NLRA, as amended.

B-3

sel 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 Tio 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 ay 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,’ as well as in its affirmative defenses in its

answer to the complaint, Respondent raises substantially

2As an attachment, Respondent has submitted an affidavit of

Wesley J. Fastiff the attorney who represented the Respondent at

the hearing in the underlying representation means Mem the

Respondent alleges as newly discovered evidence. The Respondent

argues that the Hearing Officer’s alleged membership in an em-

ployee association prevented him from being im . This very

argument had been raised in 8 to the Hear-

eine oF deoeeten owever, the Board in its Decision

Certification of Representative, 223 NLRB No. 88, issued on

April 2, 1976, after having considered the Respondent's objections,

and the Hearing Officer's report recommending tion of same,

and after reviewing the record in light of Respondent's exceptions

B-4

the same matters that it raised in the underlying repre-

sentation case. The Respondent’s answer attacks the

validity of the election and the resulting certification, and

it denies that the Union is the collective-bargaining repre-

sentative of the employees in the bargaining unit.’

Thus, the Respondent’s answer to the complaint and the

affirmative defenses therein, as well as its response 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

and brief in support thereof, adopted the Hearing Officer’s

onl vexmmabadaatin, ont Sey stated therein thet Respost

ent’s argument on this basis 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.

*By its answer, Respondent asserts that it does not have sufficient

knowledge of the Union's status as a labor organization. A deter-

mination was made in the und representation

Case 20—CA—12582, that the Union is a labor organization an

accordingly, it is not subject for litigation in the instant unfair

lehoe penetien proesering, The, Respenieat ole: denies shat. the

Union has requested en Pram aG 7 or mt ee

eg ef

rae ee er er) pee ot ay a ve a q

ent requesting a letter dated August 3, from

the Re mt gen meee: bere tegen npg ote

:

i

plaint to be a Schwartz Brothers, Inc., and District Rec-

ords, Inc., 194 NLRB 150 (1971); The May Department Stores

1 \ (1988) 86 (1970); Carl Simpson Buick, Inc., 161

B-5

litigated in a prior representation proceeding.‘ It is clear

that the 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 the 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

the 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 representation proceeding. We therefore find

that the Respondent has not raised any issue which is

properly litigable in this unfair labor practice proceeding.

We shall, accordingly, grant the Motion for Summary

Judgment.°

On the basis of the entire record, the Board makes

the following:

FINDINGS OF FACT

I. 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 calen-

dar year, in the course of its operations in California,

‘See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162

(een, aa and Regulations of the Board, Secs. 102.67(f) and

c).

‘Ha ted the Motion for S Judgment, we find it

ungecessary to Das upon the saatlon to dale portions of Respond-

ent’s answer.

B-6

Respondent has sold products valued in excess of $50,000

directly to customers 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.

II. The Labor Organization Involved

Chauffeurs, Teamsters and Helpers Local Union No. 150,

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, is a labor organi-

zation within the meaning of Section 2(5) of the Act.

Ill. The Unfair Labor Practices

A. The Representation Proceeding

1. The unit

The following employees of the Respondent constitute

a unit appropriate for collective-bargaining purposes with-

in the meaning of Section 9(b) of the Act:

All production, warehouse, maintenance, and gen-

eral labor employees, truckdrivers and forklift opera-

tors employed by Pacific International Rice Mills, Inc.,

at Kentucky Avenue and Highway 113, Woodland,

California, excluding office clericals, guards and super-

visors as defined in the Act.

2. The certification

On April 25, 1975, a majority of the employees of Re-

spondent in said unit, in a secret ballot election conducted

C

>

B-7

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 the Respond-

ent. The Union was certified as the collective-bargaining

representative of the employees in said unit on April 2,

1976, and the Union continues to be such exclusive repre-

sentative 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 the Respondent to

bargain collectively with it as the exclusive collective-bar-

gaining representative of all the employees in the above-

described unit. Commencing on or about August 3, 1976,

and continuing at all times thereafter to date, the Re-

spondent 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.

Accordingly, we find that the Respondent has, since

August 3, 1976, and at all times thereafter, refused to

bargain collectively with the Union as the exclusive rep-

resentative 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.

B-8

IV. The Effect of the Unfair Labor

Practices Upon Commerce

The activities of Respondent, set forth in section ITI,

above, occurring in connection with its operations described

in section I, above, have a close, intimate, and substantial

relationship to trade, traffic, and commerce among the sev-

eral 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 under-

standing 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 bargain-

ing agent for the period provided by law, we shall construe

the initial period of certification as beginning on the date

Respondent commences to bargain in good faith with the

Union as the recognized bargaining representative in the

appropriate 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 Construc-

tion Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d

57 (C.A. 10, 1965).

B-9

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 Teamsters, Chauffeurs,

Warehousemen and Helpers of America, is a labor organi-

zation within the meaning of Section 2(5) of the Act.

3. All production, warehouse, maintenance, and general

labor employees, truckdrivers and forklift operators em-

ployed by Pacific International Rice Mills, Inc., at Ken-

tucky Avenue and Highway 113, Woodland, California,

excluding office clericals, guards 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 April 2, 1976, the above-named labor organiza-

tion has been and now is the certified and exclusive repre-

sentative of all employees in the aforesaid appropriate unit

for the purpose of collective 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 rep-

resentative of all the employees of Respondent in the

appropriate unit, Respondent has engaged in and is en-

B-10

gaging 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 meaning of Sec-

tion 2(6) and (7) of the Act.

+

ORDER

Pursuant to Section 10(c) of the National Labor Rela-

tions 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 assigns, shall:

1. Cease and desist from:

(a) Refusing to bargain collectively concerning rates of

pay, wages, hours, and other terms and conditions of em-

ployment with Chauffeurs, Teamsters and Helpers Local

Union No. 150, International Brotherhood of Teamsters,

Chauffeurs, Warehousemen 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, Cali-

B-11

fornia, excluding office clericals, guards and supervi-

sors as defined in the Act.

(b) In any like or related manner interfering with, re-

straining, 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 em-

ployees in the aforesaid appropriate unit with respect to

rates of pay, wages, hours, and other terms and condi-

tions of employment, and, if an understanding is reached,

embody such understanding in a signed agreement.

(b) Post at its Woodland, California, facility, copies

of the attached notice marked “Appendix.’* Copies of said

notice, on forms provided by the Regional Director for

Region 20, after being duly signed by Respondent’s rep-

resentative, shall be posted by Respondent immediately

upon receipt thereof, and be maintained by it for 60 con-

secutive days thereafter, in conspicuous places, including

all places where notices to employees are customarily

posted. Reasonable steps shall be taken by Respondent to

insure that said notices are not altered, defaced, or covered

by any other material.

“In the event that this Order is enforced by a Judgment of a

United States Court of A , the words in the notice reading

“POSTED BY ORDER THE NATIONAL LABOR RELA-

TIONS BOARD” shall read “POSTED PURSUANT TO A JUDG-

MENT OF THE UNITED STATES COURT OF APPEALS

ENFORCING AN ORDER OF THE NATIONAL LABOR RE-

LATIONS BOARD.”

B-12

(c) Notify the Regional Director for Region 20, in writ-

ing, within 20 days from the date of this Order, what steps

have been taken to comply herewith.

Dated, Washington, D.C., February 28, 1977.

Betty Southard Murphy, Chairman

Howard Jenkins, Jr., Member

Peter D. Walther, Member

NATIONAL LABOR RELATIONS

BOARD

(SEAL)

B-13

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 concern-

ing rates of pay, wages, hours, and other terms and con-

ditions of employment with Chauffeurs, Teamsters and

Helpers Local Union No. 150, International Brotherhood

of Teamsters, Chauffeurs, Warehousemen and Helpers of

America, 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 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 bargaining

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-

B-14

fornia, excluding office clericals, guards and super-

visors as defined in the Act.

PACIFIC INTERNATIONAL RICE MILLS, INC.

(Employer)

Dated By

(Representative) (Title)

This is an official notice and must not be defaced by

anyone,

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. Any questions concern-

ing this notice or compliance with its provisions may be

directed to the Board’s Office, 13018 Federal Building, Box

36047, 450 Golden Gate Avenue, San Francisco, California

94102, Telephone 415—556-0335.

Appendix C

United States of America

Before the National Labor Relations Board

Case 20-CA-11808

Pacific International Rice Miils, Inc. )

and

Chauffeurs, Teamsters and Helpers Local >

-.Union. No. 150, International. Brother-

hood of Teamsters, Chauffeurs, Ware-

housemen and Helpers of America ;

ORDER DENYING MOTION

On February 28, 1977, the National Labor Relations

Board issued a Decision and Order in the above-entitled

proceeding,’ finding that the Respondent had engaged in

and was engaging in certain unfair labor practices in vio-

lation of Section 8(a)(5) of the National Labor Relations

Act, as amended, and ordering that Respondent cease and

desist therefrom and take certain affirmative action to

remedy such unfair labor practices.

Thereafter, on March 17, 1977, the Respondent filed a

Motion for Reconsideration and brief in support thereof,

submitting that the Board made material errors in that

the Board erroneously misconstrued the affidavit of Wes-

ley J. Fastiff, the attorney who represented Respondent at

the hearing in the underlying representation proceeding,

1228 NLRB No. 65.

C-2

and misconstrued the Respondent’s brief in opposition to

the General Counsel’s Motion for Summary Judgment. The

Respondent submits that not only did it argue the hearing

officer’s mere membership in an employee organization,

but it argued that the hearing officer actually belonged to

the same labor organization as the petitioner.’

At pages 2 and 3 of Respondent’s brief in opposition to

the General Counsel’s Motion for Summary Judgment, Re-

spondent states that at the time of the hearing it was not

aware of the fact that the hearing officer was a member

of “a” labor organization; of the hearing officer’s member-

ship in “an” employee organization; and that according to

Mr. Fastiff’s affidavit, after completion of the Hearing, it

became aware of the hearing officer’s membership in “an”

organization and that said organization “might be” affili-

ated with the petitioning labor organization. With respect

to Mr. Fastiff’s affidavit, he refers to “an” employee or-

ganization therein several times and states that on infor-

mation and belief the employee organization to which the

hearing officer belonged was affiliated with Petitioner.

The Board having duly considered the matter,

IT IS HEREBY ORDERED that the Respondent’s Mo-

tion for Reconsideration be, and it hereby is, denied. From

the above notations to Respondent’s brief in opposition to

the General Counsel’s Motion for Summary Judgment and

to the affidavit which accompanied that brief, it is clear

C-3

that the basic thrust of Respondent’s argument therein was

that the Hearing Officer’s mere membership in any labor

organization rendered it impossible for the Hearing Officer

to be impartial. Indeed, in its third affirmative defense

listed in its answer to the complaint herein, Respondent

stated its argument on the issue thus: “Respondent alleges

that due to his membership in a labor organization, the

Hearing Officer in the hearing on Employer’s Objections to

the Election could not be, and was not, fair and impartial

in his conduct of hearing. [Emphasis added.] There was

no argument there that the Hearing Officer was a member

of an organization that “might be” affiliated or “was” affili-

ated with the Charging Party.

Moreover, to the extent that the Board would consider

separately Respondent’s contention that the Hearing Officer

was a member of an organization which “might be” or

“was” affiliated with the Charging Party, the Board rejects

that contention as untimely. As noted above, the contention

on the Hearing Officer’s status in a labor organization was

first raised by Respondent, and rejected by the Board, in

the representation proceeding herein. That same conten-

tion was raised in Respondent’s answer to the complaint.

It was only in Respondent’s response to the General Coun-

sel’s motion seeking summary judgment that Respondent

first raised, as one part of its defense on the issue, the

contention that the Hearing Officer was a member of an

organization which had some possible affiliation with the

Charging Party. In such circumstances where Respondent

was able to allegedly discover and argue the issue of the

Hearing Officer’s status in a labor organization in the rep-

resentation proceeding, the Board concludes that it has not

C-4

been shown that the organization’s alleged ties to the

Charging Party was evidence which was newly discovered

or previously unavailable. Accprdingly, Respondent con-

tentions on that point are deemed untimely.’

Dated, Washington, D.C., May 25, 1977.

By direction of the Board:

George A. Leet

Associate Executive Secretary

Appendix D

United States of America

Before the National Labor Relations Board

Case No. 20-RC-12582

Pacific International Rice Mills, Inc. )

Employer

and

~—-

Chauffeurs, Teamsters and Helpers Local

Union No. 150, International Brother-

hood of Teamsters, Chauffeurs, Ware-

housemen and Helpers of America

Petitioner

4

Wesley J. Fastiff, Esq.

William F.. Terheyden, Esq.

for the Employer

Neil Bodine, Esq.

for the Petitioner

Before: Bernard T. Hopkins

Hearing Officer

HEARING OFFICER'S REPORT AND RECOM-

MENDATION ON OBJECTIONS AND

CHALLENGED BALLOTS

Pursuant to a Stipulation for Certification Upon Consent

Election approved March 18, 1975,’ an election by secret

1All dates herein refer to calendar year 1975, unless otherwise

specified.

D-2

ballot was conducted on April 25 in a unit of all production,

warehouse, maintenance and general laborer employees,

truck drivers and fork lift operators of the Employer, em-

ployed at Kentucky Avenue and Highway 113, Woodland,

California; excluding office clerical, guards and supervisors

as defined in the Act. The official tally of ballots furnished

the parties at the conclusion of the election showed that of

approximately 52 eligible voters, 25 cast ballots for and 21

cast ballots against the Petitioner. There were 6 challenged

ballots which are sufficient in number to affect the results of

the election.

On May 1, the Employer filed timely objections to the

election, a copy of which was duly served on the Petitioner.

Pursuant to the Board’s Rules and Regulations, the Act-

ing Regional Director investigated the objections and on

July 1, issued and served upon the parties her report on

Objections and Challenged Ballots, Order and Notice of

Hearing. In her report the Acting Regional Director found

Objections 5, 6, 7, 9, 11, 14 and 17 without merit and recom-

mended that they be overruled. She further found that

Objections 1, 2, 3, 4, 8, 10, 12, 13, 15, 16, and 18 raise substan-

tial and material issues of fact which can best be resolved by

a hearing. She also found that the investig -tion of the chal-

lenged ballots of Constance Santa Maria, Wesley Medlin,

James Cantrell, Daniel Johnson, Mike Lamburt and David

Narbaiz disclosed substantial and material issues which can

best be resolved by a hearing. The Employer thereafter

filed timely exceptions and a supporting brief to the Acting

Regional Director’s Report with respect to Objections 6, 7,

11 and 17. On August 27th, the Board ordered that a hear-

ing to held before a duly designated Hearing Officer for the

purpose of receiving evidence to resolve the issues raised

D-3

by Employer’s Objections 1, 2, 3, 4, 6, 7, 8, 10, 11, 12, 13, 15,

16, 17 and 18, and the challenges to the ballots of the six

employees named above.

Pursuant to the Board’s Order, the hearing was held be-

fore the undersigned Hearing Officer in San Francisco, Cal-

ifornia on October 29th and 30th. All the parties were duly

served with copies of the Board’s Order and the Notice of

Hearing. The parties were represented by counsel and af-

forded full and complete opportunity to be heard, to exam-

ine and cross-examine witnesses, and to introduce relevant

evidence. Upon the entire record in this proceeding, I make

the following resolutions of credibility of the witnesses,

findings of fact, conclusions of law and recommendation to

the Board.

THE OBJECTIONS

The Employer’s Objections are set forth in the numbered

paragraphs below:

1. The Chauffeurs, Teamsters and Helpers Local

Union No. 150, International Brotherhood of Team-

sters, Chauffers, Warehousemen and Helpers of Amer-

ica (hereinafter referred to as “the Union”), made ma-

terial misrepresentations of fact to the employees.

2. The Union made material misrepresentations of

law to the employees.

3. The Union promised the employees that they

would definitely receive certain benefits if the Union

won the election and/or obtained a contract with the

Employer, which benefits said employees would not be

able to receive. .

4. The Union gave categorical promises of benefits

to the employees if they would vote for the Union.

D-4

6. The Union made material misrepresentations to

employees about its current contracts, contents thereof,

and the status, number and identity of employers and

employees currently parties thereto or covered thereby.

7. The Union unlawfully interrogated employees in-

cluding their election preferences.

8. The Union had special knowledge regarding how

people would vote in the election and openly used this

knowledge in influencing employee’s votes.

10. The Union made material misrepresentations

to employees concerning collective bargaining.

11. The Union made material misrepresentations to

employees concerning the risks to employees in the

event the Union were to win the election and/or if they

voted for the Union.

12. The Union made material misrepresentations to

employees about Union strike authority and procedure.

13. The Union made material misrepresentations to

employees concerning the obligation to pay Union dues.

15. The Union coerced employees to cause them to

vote for the Union.

16. The Union made material misrepresentations to

employees concerning the legal effect and consequences

of the results of the election and their vote.

17. The Union made material misrepresentations to

employees about the Union’s legal duties and the em-

ployees’ rights if the employees were to vote for the

Union by a narrow majority.

18. The pervasive atmosphere of violence, fear, in-

timidation, and terror interfered with the election and

the necessary laboratory conditions. Copies of certain

confidential financial documents of the Employer were

removed from the Employer’s control without its per-

D-5

mission and under circumstances unknown to Em-

ployer. Figures from said documents were subse-

quently utilized by the Union in an improper manner.

Witnesses presented by the Employer testified that Union

organizer Tony Santos told them that they would be given

full credit under the Teamster’s pension plan for all of their

prior year’s service; that they would not lose any of the

money that had been contributed by the Employer to the

existing profit sharing plan on their behalf; that they would

receive superior insurance coverage if the Union won the

election; that their benefits would be equal to or superior

to those enjoyed by employees under the Rice Growers As-

sociation contract; and that they would have a superior

seniority system. The witnesses presented by the Employer

further testified that Santos said that each of the above

benefits would be effective as soon as the Union won the

election. Santos, according to the witnesses, did not advise

the employees that they could not and would not receive

such benefits unless and until the Union and the Empioyer

agreed upon them in negotiations ieading to an eventual

collective bargs:ning agreement. The Employer witnesses

also testified that Santos said that they would have te join

the Union within thirty days after the election “or else”, and

that if a strike were called, they would have to go on strike

“or else”. They further quote Santos as stating that in the

event of a strike an employee could not find other work with-

out the Union’s permission. The Employer witnesses also

stated that Saatos said that if an employee lost his job he

would have to utilize the services of a Union attorney in an

effort to regain the job, and would not be permitted to use

counsel of his own choice. The Employer witnesses testified

D4

that at the April 8th meeting Santos told employee Wesley

Medlin that he knew why the Company had put him on the

list and that he (Santos) knew how Medlin was going to

vote, and directed Medlin to leave the room.

Santos denies the statements attributed to him by the

Employer witnesses. More particularly, Santos asserts he

told the employees that for each year of employment under

the Teamster’s pension plan they would receive credit for

two years of service with the Employer before they had

been covered under the Teamster plan. Santos testified that

he was asked a question about the existing profit sharing

plan. He told the employees that he couldn’t say too much

about it as he didn’t know much about it, and that they

should rely on past practice and discuss the matter with

the Employer. He denied that he made comparisons between

the Rice Grower’s Association agreement and a probable

agreement with this Employer as he was unfamiliar with

the Rice Grower’s Association agreement other than the

wage structure. Santos further testified that at no time did

he state that any benefits would automatically follow an

election in which the Union obtained a majority. He told

them that they were all subject to negotiation with the

Employer for a possible collective bargaining agreement

and that he could not promise them anything. Similarly,

Santos denies he told the employees that they would have to

join the Union thirty days after the election as that was

alse a subject to be covered within collective bargaining.

Santos testified that, in response to questions from the

floor, he told employees that if there was a strike at another

employer’s place of business which was a supplier of their

own, that they would not be required to cease work for their

D-7

own employer. He also told them that a two-thirds majority

vote would be required before they could go on strike when

the Union failed to get a contract from the Employer.’ He

testified he told them that during a strike they would be able

to utilize the services of a Union attorney if they were dis-

charged. Santos testified with respect to the Wesley Medlin

incident, that he merely advised Medlin that it was the

Union’s position at that time that Medlin was an official

clerical employee and would not be included in the unit.

Santos said that he suggested to Medlin that perhaps he

should leave the meeting and that Medlin did so. (Medlin

was challenged by Petitioner on the date of the election

as an office clerical employee). Santos denies that he told

Medlin he knew how he would vote.

I credit Santos and do not credit the witnesses presented

by the Employer for reasons based upon an analysis of

their testimony. Employee Richard Jojo testified that

Santos stated that insurance coverage would start after

the Union had won the election and the employees had

joined the Union. Jojo also quotes Santos as stating that

insurance coverage would have to be negotiated, discussed

and voted on by the employees. Jojo testified that it was

his impression that if a person didn’t join the Union

within thirty days after the election, they would not be

allowed to continue their employment. He also testified

that Santos made this statement, but later in his testimony

D-8

stated his wnderstanding was that when a Union wins an

election conducted by the Labor Board that the Union shop

is something that automatically follows.

Employee Lonnie Lang testified that Santos stated that

all of the benefits would go into effect “once the Union

won the election”. He also testified that Santos said that

the pension plan would be a subject for negotiations after

the Union won the election, and that there would be col-

lective bargaining. Lang testified that Santos said with

reference to collective bargaining, that the Union and the

Employer would discuss wages, seniority basis, pension

program and medical and dental benefits.

Employee Donald Eisenhart testified that employees

would receive improved benefits when the Union won

the election. On cross-examination Eisenhart stated that

Santos discussed collective bargaining with the Employer

which would concern wages and working hours but

not benefits such as retirement plans, insurance and

medical-dental coverage. Eisenhart did testify that Santos

explained that the first step would be to get all the employ-

ees together and draft an agreement which would then be

presented to the Employer. If the Employer rejected it,

then the cycle would be started all over again, and the

final contract would have to be approved by all the

employees.

Employee Kenneth Peak testified in a similar fashion

to Eisenhart and was able to clearly remember those pre-

cise benefits which would be implemented as soon as the —

Union won the election, but was rather vague as to what

benefits and other working conditions were listed by Santos

D-9

as subjects of collective bargaining. Peak stated at one

point in his testimony that certain benefits would accrue

to the employees “automatically” if the Union won the

election, but at another point in his testimony stated that

Santos did not use the word “automatically” but in fact,

that was Peak’s word, based on his own subjective inter-

pretation of what he thought Santos meant.

I find the foregoing testimony to be internally self-

contradictory, collectively inconsistent, the product of

faulty memory, and to a large part based on subjective

interpretations of what Santos meant rather than what he

stated. Contrary to the Employer’s brief (pp. 30-31), I do

not find the testimony of Santos and Petitioner witness

Barrus to be inconsistent.

The Employer asserts Santos testified he didn’t discuss

the RGA contract at all whereas Barrus stated Santos

told the employees they could use it as an outline in draft-

ing their own agreement. The record evidence is that

Santos testified he volunteered no statements about the

RGA contract but that employees asked questions con-

cerning it which he could not recall. Barrus testified Santos

said the RGA contract could be used as an outline,

together with other contracts, for their own, but that the

whole matter was negotiable with the Employer. The

Employer asserts Santos testified that during a strike the

employees would work out of the hiring hall whereas

Barrus stated Santos said they could work wherever they

pleased. The record evidence is that Santos testified he

told them if they wished to they could work out of the

hiring hall but said nothing else on the subject, i.e.,

D-10

telling them they must work out of the hiring hall as testi-

fied to by Employer witnesses. The Employer asserts

Santos testified he did not discuss the use of a Union

attorney in case of a discharge whereas Barrus testified

Santos said he could use the Union attorney or his own.

The Employer witnesses testified Santos told them they

had to use the Union’s attorney and not their own. Barrus

stated Santos did not say this but that he did say they

had the option of using a Union attorney or their own.

I view the testimony of Santos and Barrnus as a con-

sistent denial of the statements attributed to Santos by

Employer witnesses on this subject.

The Employer also contends in its brief that the Union

made material misrepresentations through its 4-page

leaflet (Empl. 2). The first is that it stated a “labor

attorney” will negotiate for the employees. The second

is that the employees could decertify the Union even if it

was selected. The leaflet enumerates certain types of union

officials who participate in negotiations, including attor-

neys. It is not clear from the language itself that all of

these individuals participate in all the negotiations for all

contracts. The Employer contends that the reference to

decertification proceedings is misleading in that it does

not explain the rule of prev nting elections within the

same unit within 12 months nor the contract bar rule.

The leaflet states merely that there is a procedure avail-

able to employees by the National Labor Relations Board

which enables them to “get rid of the union” if, at some

future time they don’t want it. As a general explanation |

of Board procedures, it is correct. It is noteworthy, in

D-11

view of the thrust of the objections in their entirety, that

the leaflet states the union can promise nothing but “will

try to obtain the most desirable work benefits to meet your

needs.” I find that the exhibit does not support the

Employer’s position.

I further find that objection No. 18 does not turn on a

credibility resolution. No evidence was submitted in sup-

port of the facts alleged. The balance of the objection is

conclusionary.

Accordingly, I shall recommend that all the objections

be overruled.

THE CHALLENGED BALLOTS

The ballots of Constance Santa Maria, and Wesley

Medlin were challenged by Petitioner on the asserted

ground that they were office clerical employees and there-

fore excluded from the bargaining unit. The Petitioner

withdrew its challenges to those ballots at hearing and

thus I will recommend that said challenges be overruled.

The ballots of James Cantrell, Daniel Johnson, Mike

Lamburt and David Narbaiz were challenged by the

Employer on the asserted ground that they were dis-

charged on January 24th and had not been reemployed as

of the date of the election. The record reveals that these

four employees were terminated as part of a seasonal

reduction in force and were among a total layoff of

approximately nine employees in the packing department.

The Employer maintains an on-call list when it desires to

augment its work force, but a decision was made not to

place these four on that list because they were below the

standards the Employer prefers to expect of its employees.

D-12

However, Cantrell, Johnson and Narbaiz were reemployed

in early October. There is a dispute in the testimony as

to whether these individuals were rehired because they

appeared at the plant and actively solicited work or upon

the Employer’s initiative. I find it unnecessary to resolve

this dispute for the reasons set forth below. To be eligible

to vote in a Board election, a person must be in an

employee status during the payroll period immediately

preceding the date of the stipulation of certification and

also on the date of election. The standard applicable to

the eligibility of laid-off employees who were not actively

employed on the date of the election is whether there

exists a reasonable expectancy of employment in the near

future. It is concluded that in the instant case the four

individuals whose ballots were challenged did not have a

reasonable expectancy. The fact that three of them were in

fact rehired in October cannot retroactively confer upon

them an employee status in April. Accordingly, I shall

recommend that said challenges be sustained.

RECOMMENDATION

Upon all of the foregoing, the undersigned recommends

to the Board that objections i, 2, 3, 4, 6, 7, 8, 10, 11, 12, 13,

15, 16, 17 and 18 be overruled; that the challenges to the

ballots of Constance Santa Maria and Wesley Medlin be

overruled; that the challenges to the ballots of James

Cantrell, Daniel Johnson, Mike Lamburt and David Narbaiz

be sustained and that the Union be certified as the collec-

tive bargaining representative of the employees in the unit

described above as the remaining challenges are no longer ©

determinative.

D-13

Pursuant to Section 102.69 of the Board’s Rules and

Regulations, Series 8, as amended, within ten (10) days

from the issuance of this report, any party may file with

the Board in Washington, D.C., eight (8) copies of excep-

tions thereto, with supporting brief is desired. Immediately

upon the filing of such exceptions, the party filing the same

shall serve a copy thereof together with a copy of any

brief filed, on the other party and with the Regional Di-

rector. A statement of service shall be made to the Board

simultaneously with the filing of exceptions. If no excep-

tions are filed to this report, the Board, upon the expiration

of the period for filing such exceptions may decide the

matter forthwith upon the record or may make other dis-

position of the case.

DATED AT San Francisco, California, this 30th day of

December, 1975.

/s/ Bernard T. Hopkins

Bernard T. Hopkins, Hearing Officer

National Labor Relations Board

Region 20

450 Golden Gate Avenue, Box 36047

San Francisco, California 94102

Appendix E

United States of America

Before the National Labor Relations Board

Case 20-RC-12582

Pacific International Rice Mills, Inc. ’

Employer

and

Chauffeurs, Teamsters and Helpers Local

Union No. 150, International Brother-

hood of Teamsters, Chauffeurs, Ware-

housemen and Helpers of America

Petitioner

a

DECISION AND CERTIFICATION

OF REPRESENTATIVE

Pursuant to authority granted it by the National Labor

Relations Board under Section 3(b) of the National Labor

Relations Act, as amended, a three-member panel has con-

sidered objections to an election held on April 25, 1975,'

E-2

and the Hearing Officer’s report recommending disposition

of same. The Board has reviewed the record in light of Re-

spondent’s exceptions* and brief in support thereof, and

hereby adopts the Hearing Officer’s findings* and recom-

mendations.

*In a supplement to its brief, the Employer that the Hear-

ing Officer's all membership in an NLRB employee association

prevented him being im Executive Order 1149], as

Officer’s ed membership prevent him from g

impartial. Were we to base our of work on our em-

loyees’ membership or nonmem in an employee collective-

Carguining association, ‘we. would ourselves in the same un-

happy predicament as other employers find themselves when the

affect employees’ working conditions or tenure on the basis

of their membership or nonmembership in unions. This we

net do. To Che emiees Set Sie Sines 6 Se See ease aeeee

Hearing Officer, or any other employee, cannot be impartial simply

because he or she to an employee collective-bargaining

or to the Congress age alesse So gpg oe

part of Board personnel, sec. 3(d) of Executive 11491 p

vides:

Emplo ed in administering a labor-management re-

i tar... not be represented by a labor organization

Furthermore, we have read the record closely and find no evidence

of prejudice or bias on the Hearing Officer's part.

*The Em =i —— ie rn pl

the Hearing Officer. It is established policy Board not

to overrule a H s resolutions

ier gm vk lagna Rip operate mer, Rage or = 7

Memphis, 132 NLRB 481, 483 (1961); Stretch-T: o., 118 N

of

ex

1359, 1361 (1957). We no sufficient basis for disturbing the

credibility resolutions in this case.

E-3

CERTIFICATION OF REPRESENTATIVE

It is hereby certified that a majority of the valid ballots

have been cast for Chauffeurs, Teamsters, and Helpers

Local Union No. 150, International Brotherhood of Team-

sters, Chauffeurs, Warehousemen and Helpers of America,

and that, pursuant to Section 9(a) of the National Labor

Relations Act, as amended, said labor organization is the

exclusive representative of all the employees in the fol-

lowing appropriate unit for the purposes of collective bar-

gaining in respect to rates of pay, wages, hours of employ-

ment, or other conditions of employment:

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 supervi-

sors as defined by the Act.

Dated, Washington, D.C., April 2, 1976

Betty Southard Murphy, Chairman

Howard Jenkins, Jr., Member

Peter D. Walther, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

Appendix F

United States of America

Before the National Labor Relations Board

Case 20-RC-12582

Pacific International Rice Mills, Inc. !

Employer

and

Chauffeurs, Teamsters and Helpers Local

Union No. 150, International Brother-

hood of Teamsters, Chauffeurs, Ware-

housemen and Helpers of America

Petitioner ;

oi

ORDER DENYING MOTION

On April 2, 1976, the National Labor Relations Board is-

sued a Decision and Certification of Representative’ in the

above-entitled proceeding in which it adopted the findings

and recommefidations of the Hearing Officer as contained

in his Report of December 30, 1975, and certified the Peti-

tioner as the exclusive representative of the employees in

this appropriate unit.

Thereafter, on April 15, 1976, the Employer filed a Mo-

tion for Reconsideration, Rehearing, and to Reopen the

Record requesting that the Board: (1) reconsider its deci-

sion in the above-entitled matter on the grounds that the

decision does not comport with the evidence adduced be-

fore the Hearing Officer and that the credibility resolutions

1223 NLRB No. 88.

F-2

of the Hearing Officer were improper, outrageous, and

entirely without foundation; (2) rehear the Employer’s

objections to the election and to conduct affecting the

results of the election on the ground that the Hearing

Officer was a member of an NLRB employee association

who supported his fellow union members and who, because

of his membership in said labor organization, should not

have been allowed to serve in a judicial capacity; and

(3) reopen the record to adduce allegedly newly-discovered

evidence consisting of testimony of impartial employees

who would testify in support of the Employer’s objections.

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 pro-

ceeding to a three-member panel.

The Board having duly considered the matter,

IT IS HEREBY ORDERED that the Employer’s Motion

for Reconsideration and for Rehearing be, and it hereby

is, denied as it contains nothing not previously considered

by the Board and that the Motion to Reopen the Record

be, and it hereby is, denied as it fails to comply with

Section 102.65 of the Board’s Rules and Regulations, Series

8, as amended, because the evidence sought to be intro-

duced does not appear to be newly discovered or unavail-

able prior to the close of the hearing.

Dated, Washington, D.C., May 19, 1976.

Betty Southard Murphy, Chairman

Howard Jenkins, Jr., Member .

Peter D. Walther, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD