Pasco Packing Co.

National Labor Relations Board - Board Decisions

Feb 17, 1956

115 N.L.R.B. 437 (N.L.R.B. 1956)

PASCO PACKING COMPANY 437
lenges to the ballots of James Keaton, Louis McLean, Orman Hender-
son, Thomas Dyson, and Edward Long, and shall direct that these
ballots be opened and counted.
[The Board directed that the Regional Director for the Eleventh
Region shall, within ten (10) days from the date of this Direction,
open and count these ballots and serve upon the parties a revised
tally of ballots.]
Pasco Packing Company and Teamsters , Chauffeurs and Helpers
Local Union No. 79, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL-
CIO.' Case No. 10-CA-20225. February 17,1956
DECISION AND ORDER
On June 14, 1955, Trial Examiner Sidney Lindner issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, Respondent filed exceptions to the
Intermediate Report and a supporting brief thereto.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the additions noted below.
Service of Process on Respondent
The Trial Examiner based his finding that service of process on Re-
spondent was effectuated on the "reasonable [assumption] that all
Congress contemplated when authorizing the effectuation of service
of process by registered mail was that the Post Office Department ten-
der the registered process to the addressee." We agree. Manifestly
if Respondent, by its wilful refusal to accept registered mail, clearly
labeled as originating in the Board's Regional Office, can thwart serv-
ice of process, and require the Regional Director to effectuate service
of process by one of the more cumbersome alternative methods listed
in Section 11 (4) of the Act, then the provision authorizing service of
process by registered mail, becomes a dead letter with respect to this
The AFL and CIO having merged subsequent to the hearing in this proceeding, we are
amending the identification of the affiliation of the Union accordingly.
115 NLRB No. 74.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent and all other parties who may act accordingly. Such a
result would clearly contravene congressional intent and result in the
intolerable situation of rewarding recalcitrant respondents engaged in
studied attempts to obstruct the orderly administration of the Act.
As the record clearly shows that the registered article containing the
process was refused by the Respondent and not delivered for that rea-
son,2 we find in agreement with the Trial Examiner that service of
process was effectuated. -
Moreover, we think it clear that Respondent had adequate notice of
the proceedings against it and was fully apprised of the allegations
of the complaint. The record reveals that Respondent's attorney, who
had been sent a courtesy copy of the notice of hearing, the complaint,
the original charge, and the amended charge, by regular mail, re-
quested a continuance of the hearing to some time during the week of
May 9, 1955. In response to this request, the Regional Director re-
scheduled the hearing for May 12,1955, and mailed, by registered mail,
copies of the order rescheduling hearing, the notice of hearing, the
complaint, the original charge, and the amended charge, to all parties
and to Respondent's attorney. Though Respondent refused to accept
delivery of the registered envelope addressed to it, the record shows
that J. M. Palmer, as agent for Theo Hamilton, Respondent's attorney,
accepted delivery of the registered envelope addressed to him. The
record further shows that all of the Union's requests for bargaining
made subsequent to its certification and prior to the institution of this
proceeding were replied to and rejected by Theo Hamilton. In view
of these facts and in view of the fact that Hamilton was Respondent's
attorney of record in the representation proceedings out of which the
unfair labor practices herein involved arose, and filed the exceptions
in this case on behalf of the Respondent, we find that Respondent was
duly notified of the allegations of the complaint when service of the
complaint was made upon its attorney. Respondent cannot justly com-
plain if service of process on its attorney is made the equivalent of that
which its acts have made impossible.'
The Compliance Status of the Union
In its brief, Respondent alleges that one J. W. Morgan, an officer of
the Union, had not filed the required noncommunist affidavit as of the
date of the certification and that therefore the certification is of no
binding effect. The Board has previously ruled on this contention
adversely to Respondent in the prior representation proceeding, when
7 Wise v. Herzog, 114 F 2d 486, p. 491 (C. A., D. C.), 1940. Cf Creadick v. Miller,
(Del 11(10 A 9119
8 Eureka Lake Company v . Yuba County, 116 U. S. 410, Cf. Reynolds v. U. S., 98 U. S.
145, 158.
PASCO 'PACKING COMPANY 439
it denied Respondent's motion to rescind, annul, vacate, and set aside
its decision, the election, and the certification of representatives on the
ground that Morgan was not in compliance on the date of the certifica-
tion. The Board, administratively determined that Morgan had not
taken office until after the certification issued. As we have administra-
tively determined that the Union was in compliance as of the date of
the certification, and in accordance with our policy prohibiting the
litigation of the fact of compliance by a union, which is required to
comply, in complaint or representation proceedings, we find no merit
in this contention.
The decisions _in the recently decided Coca-Cola 4 and Goodman 5
cases do not alter our conclusion. We note first that neither decision
appears broad enough to permit the litigation here of the factual
question raised by Respondent. In the Coca-Cola decision, the Court
relied upon N. L. R. B. v. Highland Park Manufacturing C0.6 which
we view as limiting litigation of matters of compliance in complaint
or representation proceedings to matters of law such as the necessity
of a labor organization to comply rather than to factual questions
of the type raised herein. And in the Goodman case, the Court care-
fully limited the right to litigate matters of compliance in complaint
proceedings to questions involving the legal determination of who
must file affidavits. The court quoted its own language in American
Rubber Products Corp. v. N. L. R. B.° in which it noted "the distinc-
tion between `the fact of compliance' which is not litigable and `the
necessity of compliance' which was the issue involved in N. L. R. B. v.
Highland Park Mfg. Co." Moreover, as the Board's petition for
certiorari in the Coca-Cola case has been granted by the Supreme
Court, and the Board has determined to seek certiorari in the Good-
man case, the Board, with all due deference to the opinions of the
aforementioned courts of appeals, has decided to adhere to its estab-
lished views in the compliance area until such time as the Supreme
Court holds otherwise.8
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Pasco Packing
Company, Dade City, Florida, its officers, agents, successors, and as-
signs, shall :
+N. L. R. B v. Coca-Cola Bottieng Company of Louisville, Inc., 219 F. 2d 441 (C. A. 6),
cert. granted 350 U. S. 819.
5 Goodman Manufacturing Company v. N. L R B , 227 F. 2d 465 (C A. 7)
6 341 U S 322, 325-326
7214 F. 2d 47 (C A 7)
8 The Dunleavy Company, 114 NLRB 1589.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Refusing to bargain with Teamsters, Chauffeurs and Helpers
Local Union No. 79, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL-CIO, as the
exclusive representative of all truckdrivers and truck maintenance em-
ployees at its Dade City, Florida, plant including tractor-trailer
drivers, but excluding supervisors as defined in the Act and all other
employees.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist Teamsters, Chauf-
feurs and Helpers Local Union No. 79, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL-CIO, or any other -labor organization, to bargain collectively
through representatives of their own choosing and to engage in con-
certed activities for the purpose of collective bargaining or other mu-
tual aid or protection, and to refrain from any or all such activities
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request bargain collectively with Teamsters, Chauffeurs
and Helpers Local Union No. 79, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO,
as the exclusive representative of all employees in the bargaining unit
described herein with respect to wages, rates of pay, hours of employ-
ment, or other conditions of employment, and if an understanding is
reached embody such understanding in a signed agreement.
(b) Post at its Dade City, Florida, plant, copies of the notice at-
tached hereto marked "Appendix." 9 Copies of said notice, to be fur-
nished by the Regional Director for the Tenth Region, shall, after
being duly signed by the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof and maintained by it for
sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
9 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
PASCO PACKING COMPANY
APPENDIX
NOTICE TO ALL EMPLOYEES
441
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL bargain collectively upon request with Teamsters,
Chauffeurs and Helpers Local Union No. 79, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO, as the exclusive representative of all em-
ployees in the bargaining unit, described below with' respect to
wages, rates of pay, hours of employment, or other conditions of
employment, and if an understanding is reached embody such un-
derstanding in a signed agreement. The bargaining unit is :
All truckdrivers and truck maintenance employees at our
Dade City, Florida, plant including tractor-trailer drivers,
but excluding supervisors as defined in the Act and all other
employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
the above-named Union, or any other labor organizations, to bar-
gain collectively through representatives of their own choosing
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain from
any or all of such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Sec-
tion 8 (a)- (3) of the Act. All our employees are free to become
or remain members of this Union or any other labor organization.
PASCO PACKING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) - (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The proceedings herein were initiated by a charge filed on January 17,. 1955, by
Teamsters , Chauffeurs and Helpers Local Union No. 79, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of America , AFL, herein
called the Union, against Pasco Packing Company, herein called the Respondent.
From the record it is found that a copy of the original charge was dispatched
by an employee of the Tenth Regional Office of the National Labor Relations Board,
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereinafter called the Board, by postpaid registered mail on January 17, 1955, as
registered article No. 435299 to Pasco Packing Company, Dade City, Florida. The
return receipt for the said registered article reveals that it was delivered by the
Post Office Department to one Lee Miller, as agent for Pasco Packing Company, on
Januar.y 18, 1955.
An amended charge, which eliminated one of the alleged unfair labor practices
set forth in the original charge, was filed with the Board on February 2, 1955. From
the record it is found that a copy of the amended charge was dispatched by an
employee of the Tenth Regional Office of the Board by postpaid registered mail on
February 2, 1955, as registered article No. 435392 to Pasco Packing Company, Dade
City, Florida. The return receipt for the said registered article signed by C. M.
Ghiselin,i as agent for Pasco Packing Company, reveals that the same was delivered
to him by the Post Office Department on February 3, 1955.
Thereafter, the General Counsel of the Board through the Regional Director of
the Tenth Region issued a complaint dated April 7, 1954,2 alleging that the Respond-
ent had engaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1).and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 61 Stat. 136, herein called the Act. With respect to
the unfair labor practices the complaint further alleged in substance that the Re-
spondent from on or about January 3, 1955, and January 20, 1955, and at all times
thereafter has refused to bargain collectively with the Union as the exclusive bar-
gaining representative of the Respondent's employees within an appropriate unit
although, in an election conducted under the direction and supervision of the
Board's Regional Director, a majority of the employees in the appropriate unit had
designated and selected the Union as their representative for the purposes of collec-
tive bargaining.
Under date of April 7, 1955, as set forth in the affidavit of service of Board em-
ployee Regina Terrell of the Tenth Regional Office, in evidence, copies of the com-
plaint, notice of hearing to be conducted on April 26, 1955, at 10 a. in. at the Pasco
County Courthouse, Dade City, Florida, the original and amended charges were
dispatched by postpaid registered mail to the Respondent at Dade City, Florida,
and to the Union at its address in Tampa, Florida. The said registered articles
bore respectively Nos. 435716 and 435717. Additionally, courtesy copies of the
above-enumerated documents were sent by regular mail to Theo Hamilton, Esq.,
of the firm of Hamilton and Bowden, 401 Smith Building, Jacksonville, Florida?
The envelope containing the above-enumerated documents with registry No. 435716
bore the printed address of the Board's Tenth Regional Office and the legend "official
business." It was returned to the sender (the Tenth Regional Office of the Board)
by the Dade City post office on April 13, 1955, with the notation "refused." 4
1 From a letter in evidence it appears that Ghiselin is director of personnel for
Respondent
z This date stamped on the complaint was clearly in error and a motion was granted
at the hearing to correct the said date to April 7, 1955
3 Theo Hamilton, was attorney of record, appeared and actively participated for Pasco
Packing Company in Case No. lO-RC-2406 which preceded this matter Under date of
January 26, 1955, Theo Hamilton on stationery of Hamilton and Bowden sent the follow-
ing letter to John B. Luke, Board field examiner :
Re Pasco Packing Co
Case No. 10-CA-2225
DEAR MR. LUKE: Because of pressure of already scheduled matters, I have not been
able to meet with executives of the above named company to discuss the numbered
case However, I expect to do so the first part of next week, after which I shall be
glad to confer with you either at my office in Jacksonville or in your office in Atlanta
in connection with the pending case.
Very truly yours, (Signed) THEO HAMIi.TON.
4 In this connection there was received in evidence the following affidavit :
Florida
Pasco County.
Mr. H. M B. Elsworth of Dade City, Florida, after first being duly sworn deposes
and on oath states
I am assistant Postmaster at Dade City, Florida, as assistant Postmaster I, as
part of my duties occasionally handle the receipt and delivery of registered mail.
I personally handled registered article No. 435716, addressed to Pasco Packing
Company, Dade City, Florida This was a letter and our records show that our usual
form "Notice of arrival of Registered Mail," was prepared. This was on April 8,
PASCO PACKING COMPANY 443
On April 19, 1955, there was received in the Board's Tenth Regional Office a
letter from Theo Hamilton as follows:
MR. WILLIAM M. PATE, Chief Law Officer
National Labor Relations Board
50 Seventh St., N. E.
Atlanta 5, Georgia
Re Pasco Packing Co.
Case No. 10-CA-2225
DEAR MR. PATE: This will acknowledge your letter of April 15, 1955 in refer-
ence to the above case.
This is to advise you that I have another matter scheduled for April 26, 1955
and will not be present at the hearing if held on April 26, 1955. Some time
during the week of May 9, 1955 would be an acceptable date to us for the pro-
posed hearing.
This is to advise you that the company has not been lawfully or properly
served in this case and that we intend to contest that issue either before the
Board or before the Courts. This letter is not to be construed as a general
appearance for the company nor to present any defense in behalf of the company
at this time.
When the company has been lawfully and properly served as required by law
and the Board's regulations, it is our intention to file an answer or whatever
proper pleadings might be deemed advisable at that time within ten days from
the date of that service.
Yours very truly,
(Signed ) THEO HAMILTON.
On April 20, 1955, John C. Getreu, Regional Director of the Tenth Region, issued
an order rescheduling hearing in this matter from April 26, 1955, to May 12, 1955, at
the same time and place. Copies of this document together with copies of the original
notice of hearing, complaint, charge, and amended charge were dispatched by an
employee of the Tenth Regional Office of the Board by postpaid registered mail on
April 20, 1955, as registered article No. 435834 to the Respondent, as registered arti-
cle No. 435835 to Theo Hamilton, and as registered article No. 435836 to the Union.
From the registered return receipts in evidence it is found that registered article No.
435835 was delivered by the Post Office Department on April 21, 1955, to V. M.
Palma, agent for Theo Hamilton, and registered article No. 435836 was delivered
by the Post Office Department on April 22, 1955, to R. H. Hall, agent for the Union.
The envelope bearing registry No. 435834 addressed to the Respondent, which
contained the copies of the order rescheduling hearing, the original notice of hear-
ing, the complaint, the charge, and the amended charge, was returned to the Tenth
Regional Office of the Board by the Dade City, Florida, post office for the reason that
it was refused.
The Respondent did not file an answer. Pursuant to the order rescheduling hear-
ing, the hearing was called to order at 10: 15 a. in . on May 12, 1955, at the Pasco
County Courthouse, Dade City, Florida, before the Trial Examiner duly designated
by the Chief Trial Examiner. The General Counsel was represented by counsel and
the Union by its representatives. The Respondent did not appear nor was it repre-
sented by counsel.
Before proceeding further, the Trial Examiner requested counsel for the General
Counsel to contact the Respondent in order to ascertain if it intended to be repre-
sented at the hearing. A recess was declared for this purpose. Counsel for the Gen-
1955 On Wednesday, April 13, 1955, one of the regular mail messengers of the
addressee, or at any rate one of the persons who regularly pick up mail for the
addressee, was picking up some other registered mail for the addressee and I inquired
about the disposition of registered article No 435716 I was informed by this per-
son that the addressee did not want and was refusing to take the letter. I accord-
ingly mai ked the letter as "Refused" and returned it to the sender.
I have read the foregoing statement and it is the truth to the best of my knowledge
and belief.
( Signed ) H. M. B. EnswoiTir.
Sworn to and Subscribed before me
at Dade City, Fla, this 12th day
of May, 1955.
Frank E. Hamilton, Jr. Attorney
NLRB Tenth Region
444 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD
eral Counsel reported to the Trial Examiner that he telephoned the Respondent's
plant in an attempt to speak with either Ghiselin or some other responsible official
but he was unsuccessful. He did, however, speak with an unidentified secretary who
could not state whether Respondent would enter an appearance at the hearing and
was unable to locate anyone with authority sufficient to so advise her.
Counsel for the General Counsel further reported to the Trial Examiner that dur-
ing the recess he placed a long-distance telephone call to the'firm of Hamilton and
Bowden in Jacksonville, Florida, and asked to speak to Theo Hamilton. He was
advised that Theo Hamilton was in conference in Jacksonville and could not be
reached until late that afternoon, if then.
At the outset of the hearing the General Counsel called the Trial Examiner's at-
tention to the fact that during the course of the hearing there would appear a ques-
tion raised by the Respondent as to adequacy of service.5 In this posture of the
case I feel it is incumbent upon me to make findings with respect to whether or not
service of process was duly made on Respondent before discussing the merits of
the case.
Section 11 (4) of the Act provides: "Complaints, orders, and other process and
papers of the Board, its member, agent, or agency, may be served either personally
or by registered mail or by telegraph or by leaving a copy thereof at the principal
office or place of business of the person required to be served. The verified return by
the individual so serving the same setting forth the manner of such service shall be
proof of the same, and the return post office receipt or telegraph receipt therefor
when registered and mailed or telegraphed as aforesaid shall be proof of service of
the same. .
Section 102.80 of the Board's Rules and Regulations, Series 6, as amended, con-
tains the identical language of Section 11 (4) of the Act regarding the service of
process and papers and proof of service.
Thus, the statute provides four distinct alternative methods of effectuating service
so as to bring a party before "the Board, as well as the manner of proof of service.
As I interpret the statute, the registered return receipt is merely one manner of prov-
ing service by registered mail. It is not, however, the exclusive manner of proving
that service was made by such method.
In the instant situation the Regional Office availed itself of the use of registered
mail, correctly addressed to the Respondent, at its principal place of business to
serve it with the complaint and notice of hearing. The affidavit of service of em-
ployee Regina Terrell is proof that such method of service was used. This service
was in accordance with the statute and the Board's Rules and Regulations pursuant
thereto and "is a form of notice reasonably calculated to give a [defendant] knowledge
of the proceedings and an opportunity to be heard." 6
It is clear from the findings hereinabove made that the Board took the necessary
steps set out in the statute to effectuate service on the Respondent by registered mail,
which if Respondent accepted from the Post Office Department when tendered as it
did other registered mail delivered to it on the same day,7 would have given Re-
spondent notice regarding the hearing and an opportunity to prepare for the hearing
and to be heard.
In according a practical construction to Section 11 (4) of the Act, it is reason-
able to assume that all that Congress contemplated when authorizing the effectuation
of service of process by registered mail was that the Post Office Department tender the
,registered process to the addressee. The record herein establishes conclusively that
this was done. Certainly it cannot be contended that the effectiveness of the service
of process. regardless of which of the alternative methods authorized by the Act is
employed, is dependent upon the whim or the willingness of the Respondent to accept
service or to acknowledge receipt thereof. It appears to the Trial Examiner that
when Respondent refused to accept the tender of the registered mail which bore
the imprinted return address of the Tenth Regional Office of the Board, when it
simultaneously accepted delivery of other registered mail, it was engaging in a de-
signed effort to defeat the Board's processes. To permit a respondent, as in this
case, to hold itself above the law by refusing to accept the method of service clearly
set out in the Act would result in making a sham of the Board's .processes, delay,
and additional expense to the Government.
e See letter dated April 18. 1955 supra in which Theo Hamilton on Respondent's behalf
stated it "has not been lawfully or properly served in this case and that we intend to
contest that issue before the Board or before the Courts "
0 See N. L R B v O'Keefe & hferrstt Manufacturing Co., et al, 178 F. 2d 445 (C. A. 9) ;
Restatement, Conflict of Laws § 75 ; Restatement, Judgments § 6.
7 See affidavit of Assistant Postmaster Elsworth set out in detail, supra.
PASCO PACKING COMPANY 445
On the record as a whole, and from the above, I find that the Tenth Regional
Office complied with Section 11 (4) of the Act and the Board's Rules and Regulations
pursuant thereto, that service of process on Respondent was effectuated.
- At the hearing all parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the issues. The
parties were given the opportunity to present oral argument before the Trial Ex-
aminer and to file briefs and proposed findings of fact and conclusions of law.
Upon the entire record in the case, and in addition to the foregoing, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Pasco Packing Company is a Florida corporation with an office and plant at Dade
City, Florida, where it is engaged in the business of processing citrus fruit. During
the 12-month period immediately preceding April 1955, which period is representa-
tive of all times material herein, Respondent sold finished products valued in excess
of $1,000,000 more than 90 percent of which was shipped directly to customers
outside the State of Florida. I find that Respondent is engaged in commerce within
the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Teamsters, Chauffeurs and Helpers Local Union No. 79, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL,- is a labor
organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
On September 30, 1953, after the usual proceedings, iicluding a complete hearing,
the Board issued a Decision, Order, and Direction of Election,8 in which if found
among other things that:
... The Board has frequently found that truckdrivers and truck-maintenance
employees may together constitute an appropriate unit,7 and we can perceive
no special circumstances in this case which require us to depart from that
practice. We find therefore that these employees may, if they desire; constitute
a separate appropriate unit for purposes of collective bargaining. However, we
shall make no final unit detdrrriination pending the results, of the election ,among
the following employees:
All truckdrivers and truck-maintenance employees at the Employer's Dade
City, Florida, plant, including- tractor'-trailer drivers, but excluding supervisors
as defined in the Act and all, other employees.
If a majority of the employees in this voting group select the Petitioner as
their representative, they will have been taken to have indicated their desire to
be represented m a separate unit, and the -Regional Director conducting the
election directed herein- is instructed to issue a certification of representatives
to the Petitioner, for the unit described above which the Board under such
circumstances, finds to be appropriate- for the purposes of collective bargaining
If a majority select Local 43, Distributive, Processing and Office Workers of
America, CIO, they will be taken to have indicated their desire to be included
in the production and maintenance unit currently represented by the union, and
the Regional Director shall issue a certificate of results of election to that
effect. .
7 Reyden Chemtical Corporation, 85 NLRB , 1181 ; Kennecott Copper Corp, 99
NLRB 966.
An election pursuant to said Decision, Order, and -Direction of Election was held
on February 19, 1954, among the Respondent's truckdrivers and truck-maintenance
employees including tractor-trailer drivers but excluding supervisors as defined- in
the Act and all other employees. There were 71 eligible voters. Of the 57
employees who participated in the election 44 cast votes for the Union, 12 casi votes
for Local 43, Distributive, Processing and Office Workers of America, CIO, and 1
cast a vote against the participating labor organizations. Upon conclusion of the
election, a tally of ballots was furnished to and certified by the observers for the
unions and the Respondent. No objections to the election or to its conduct were
filed within the time provided therefor. On March 1, 1954, the Regional Director
for the Tenth Region on behalf of the Board certified the Union as the bargaining
8 106 NLRB 1223.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of the employees in the unit heretofore found by the Board to be
appropriate . It is found that on February 19, 1954, and at all times thereafter, the
Union was and now is, by virtue of Section 9 ( a) of the Act, the exclusive repre-
sentative of all employees in the aforesaid unit for the purposes of collective bar-
gaining with respect to rates of pay, wages , hours of employment , and other condi-
tions of employment.
On March 5 , 1954 , J. W. Morgan, secretary-treasurer and business manager of
the Union , wrote to Theo Hamilton , the designee of Respondent to "handle the
setting up of negotiating sessions ," requesting that negotiations start at the earliest
possible date, suggesting March 15 , 1954. Theo Hamilton replied by letter under
date of March 10, 1954, in which he stated that he had written to the Regional Office
of the Board questioning the legality and validity of the certification of the Union
and closed with the remark "it is obvious that this matter must be determined before
valid collective bargaining can be commenced."
On August 10, 1954 , Theo Hamilton , on behalf of the Respondent , filed a motion
with the Board in which it requested the Board to rescind , annul , vacate, and set
aside the Decision , Order, and Direction of Election ( 106 NLRB 1223 ), the election
conducted on February 19, 1954, and the certification of representatives dated March
1, 1954. On December 23, 1954 , the Associate Executive Secretary by direction of
the Board ordered that the said motion be denied on the ground that it was lacking
in merit.
Under date of December 28, 1954 , J. W. Hughes , president and business agent of
the Union , in a letter to Clark Ghiselin , Respondent 's director of personnel , stated
he had just received notice of the Boards ' order denying motion dated December'23,
1954. Hughes requested the commencement of contract negotiations immediately
suggesting the week of January 10, 1955, for such purpose. Theo Hamilton in a letter
dated January 3, 1955 , addressed to the Union acknowledged receipt of the letter
dated December 28, 1954 . He advised the Union that he had filed "a petition for
reconsideration of the order denying motion " and in effect told the Union that its
request to commence contract negotiations was premature in view of the fact that
the matters were still before the Board for determination.
On January 14, 1955 , the Associate Executive Secretary by direction of the Board
issued an order denying petition for reconsideration of order denying motion on the
ground that it raised no issues not previously considered by the Board.
On January 19, 1955 , Morgan , on behalf of the Union , wrote to Ghiselin with a
copy to Theo Hamilton advising of the receipt of the latest Board order. Morgan
requested the Respondent to enter into negotiations at the earliest possible date,
suggesting January 26, 1955.
On January 20, Theo Hamilton replied to the Union 's letter as follows:
GENTLEMEN : Mr. C. M . Ghiselin, director of personnel of the above-named
Company has asked us to reply to your letter of January 19, 1955, requesting
bargaining with your Union.
We understand that your Union has filed an unfair labor practice charge
against the Company and has thus submitted the issues to the National Labor
Relations Board for decision . The Company must necessarily postpone any
decision as to meeting with your Union until the Company and counsel for the
Company have had an opportunity to consider the alleged unfair labor practices
charged by your Union.
We know of no basis for any unfair labor practice charges by your Union or
any other union against Pasco Packing Co., and we are entirely willing to sub-
mit all disputed issues to the National Labor Relations Board and the Courts for
a decision.9
Since receipt of the above -noted letter the Union has not had any further con-
tacts with the Respondent.
Thus it is seen that from the initial request of the Union to bargain on March 5,
1954 , several days after the Board 's certification , the Respondent refused to bar-
gain on the general ground that it was "questioning the legality and validity" of the
certification . Thereafter on January 3, 1955 , the Respondent told the Union that its
request to bargain was "premature" because there was pending before the Board its
"petition for reconsideration of-order denying motion." Finally , on January 20,
1955 , the Respondent in answer to another request to bargain found that "it must
a While this letter on its face discloses a willingness " to submit all disputed issues to
the National Labor Relations Board and the courts for a decision" Respondent's subse-
quent conduct regarding service of process as heretofore found and particularly Theo
Hamilton 's letter of April 18, 1955, supra, reflects a studied attempt to delay such sub-
mission. .
PASCO PACKING COMPANY 447
necessarily postpone any decision as to meeting with your Union until the Company
and counsel for the Company have had an opportunity to consider the alleged unfair
labor practices charged by your Union." The Board and courts have consistently held
that the duty to bargain cannot be postponed by the pendency of a petition for re-
consideration of a certification or by the filing of unfair labor practice charges. See
The Borden Company, 108 NLRB 807; N. L. . R. B. v. Taormina Company, 207 F.
2d 251 (C. A. 5).
On the record as a whole it is concluded and found that at all times since January
3, 1955, the Respondent has refused to bargain with the Union as the exclusive bar-
gaining representative of the employees in an appropriate unit in violation of Section
8 (a) (5) of the Act and thereby has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act in violation -
of Section 8 (a) (1).10
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices it will
be recommended that Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. Since it has been
found that the Respondent has refused to bargain collectively with the Union as
the exclusive representative of its employees in an appropriate unit, it will be
recommended that the Respondent upon request bargain collectively with the Union
as the exclusive bargaining representative of all employees in the bargaining unit
described herein with respect to wages, rates of pay, hours of employment, or other
conditions of employment, and, if an understanding is reached, embody such under-
standing in a signed agreement.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Teamsters, Chauffeurs and Helpers Local Union No. 79, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. The following employees constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act: All truck-
drivers and truck-maintenance employees at Respondent's Dade City, Florida, plant,
including tractor-trailer drivers, but excluding supervisors as defined in Section 2
(11) of the Act and all other employees.
3. Teamsters, Chauffeurs and Helpers Local Union No. 79, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, was
on February 19, 1954, and at all times thereafter has been the exclusive representa-
tive of all employees in the aforesaid unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By refusing on January 3, 1955, and January 20, 1955, and at all times there-
after to bargain collectively with Teamsters, Chauffeurs and Helpers Local Union
No. 79, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, as the exclusive representative of all of its employees in
the aforesaid unit, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
5. By said acts the Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act and has
.engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.,
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
10 No finding will be based on the refusal to bargain In March 1954 in view of Section
IO (b) of the Act, the original charge in this matter having been filed 'on January' 17,
1955.