# Petition — Pacific International Rice Mills, Inc. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0531%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 898 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0531%3A1. Public record. Not legal advice.