Produce Magic, Inc.

National Labor Relations Board - Board Decisions

Sep 14, 1995

318 N.L.R.B. 1171 (N.L.R.B. 1995)

1171
318 NLRB No. 125
PRODUCE MAGIC, INC.
1 The full text of Sec. 10(a) is as follows:
The Board is empowered, as hereinafter provided, to prevent
any person from engaging in any unfair labor practice (listed in
section 8) affecting commerce. This power shall not be affected
by any other means of adjustment or prevention that has been
or may be established by agreement, law or otherwise: Provided,
That the Board is empowered by agreement with any agency of
any State or Territory to cede to such agency jurisdiction over
any cases in any industry (other than mining, manufacturing,
communications, and transportation except where predominately
local in character) even though such cases may involve labor
disputes affecting commerce, unless the provision of the State
or Territorial statute applicable to the determination of such
cases by such agency is inconsistent with the corresponding pro-
vision of this Act or has received a construction inconsistent
therewith.
Continued
Produce Magic, Inc., Employer-Petitioner and
United Farm Workers of America, AFL–CIO.
Case 32–RM–696
September 14, 1995
SUPPLEMENTAL ORDER
BY CHAIRMAN GOULD AND MEMBERS
BROWNING, COHEN, AND TRUESDALE
On August 16, 1993, the Board issued an Order de-
nying the Employer’s request for review and affirming
the Regional Director’s findings in the above represen-
tation proceeding that the Employer’s field employees
(including cutter-packers, closures, loaders, and water
persons) were not ‘‘agricultural laborers’’ and were
therefore employees within the meaning of the Act ex-
cept to the extent they performed actual cutting work.
See 311 NLRB 1277 (1993). In so ruling, the Board
specifically noted that it had considered the amici cu-
riae briefs filed by the California Agricultural Labor
Relations Board (ALRB), General Teamsters Local
890, and Bud Antle, Inc., d/b/a Bud of California, as
well as the motion for administrative notice filed by
the ALRB and the responses thereto. Id. at fn. 2.
On April 25, 1994, approximately 8 months after the
Board’s decision issued, the ALRB filed a motion for
intervention and reconsideration of the Board’s deci-
sion. Although acknowledging that the timing of its
motion was unusual, the ALRB requested that the
Board grant its motions given the importance of the
issues involved and the effect on the ALRB’s ability
to carry out its statutory mandate.
On May 31, 1994, Local 890 filed a brief in support
of the ALRB’s motion, and on May 3 and June 13,
1994, respectively, the Employer and Bud Antle, Inc.
filed briefs opposing the ALRB’s motion. The Em-
ployer and Bud Antle opposed the motion, inter alia,
on the grounds that it is untimely under Sec. 102.65(e)
of the Board’s Rules and raises nothing not previously
considered by the Board.
Thereafter, on December 8, 1994, Local 890 filed
with the Board in the instant proceeding a formal peti-
tion for the negotiation of a cession agreement with the
ALRB. The petition requested that the Board enter into
negotiations with the ALRB for a cession agreement
under Section 10(a) of the National Labor Relations
Act (NLRA), whereby the Board would cede to the
ALRB jurisdiction ‘‘with respect to all agricultural em-
ployees over whom the ALRB asserts jurisdiction
under the Agricultural Labor Relations Act (ALRA),
but with respect to whom the NLRB would otherwise
assert jurisdiction’’ under the NLRA pursuant to its de-
cision in the instant case and in other cases. Local 890
argued that such a cession agreement would provide a
workable and acceptable answer to the jurisdictional
conflicts between the Board and the ALRB, and re-
quested that the Board defer ruling on the ALRB’s
motion for reconsideration in the instant proceeding
until such an agreement has been achieved.
Shortly thereafter, on December 13, 1994, the
ALRB filed a supplemental brief in further support of
its motion for intervention and reconsideration. In re-
sponse to Local 890’s cession petition, the ALRB stat-
ed there that, while it stood ready to work with the
Board to solve the jurisdictional problems, there was
no need to delay consideration of its motion for recon-
sideration.
Finally, on January 11, 1995, Bud of California sent
a letter to the Board which also responded to Local
890’s petition for a cession agreement. Bud of Califor-
nia argued that such an agreement would effectively
overrule the Board’s decisions not only in the instant
proceeding, but also in several other cases, including
Bud Antle, Inc., 311 NLRB 1352 (1993); and Camsco
Produce Co., 297 NLRB 905 (1990), and requested
that the Board at the very least provide industry and
labor groups the opportunity to comment on the merits
of the petition before entering into such an agreement.
Having duly considered the matter, we deny the
ALRB’s motion for intervention and reconsideration.
We find, in agreement with the Employer and amicus
Bud Antle, that the ALRB’s motion is untimely and
raises nothing not previously addressed in the ALRB’s
previous, December 30, 1992, amicus brief or consid-
ered by the Board.
We also deny Local 890’s petition for negotiation of
a cession agreement. We find, in agreement with the
Regional Director in the underlying proceeding (311
NLRB at 1280), that ceding jurisdiction to the ALRB
would be contrary to the Act. Although the proviso to
Section 10(a) of the Act generally empowers the Board
to enter into cession agreements, it expressly prohibits
such an agreement where a provision of the state stat-
ute is ‘‘inconsistent with the corresponding provision
of [the NLRA] or has received a construction incon-
sistent therewith.’’1 The Supreme Court has interpreted
1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The 10(a) proviso ‘‘is the exclusive means whereby States may be
enabled to act concerning the matters which Congress has entrusted
to the NLRB.’’ Guss v. Utah Labor Board, 353 U.S. 1, 9 (1957).
2 See Levy, The Agricultural Labor Relations Act of 1975—La
Esperanza De California Para El Futuro (hereinafter Levy), 15
Santa Clara L. Rev. 783, 785–788 (1975).
3 ALRA, Sec. 1153(f). See Levy at 789. See also Harry Carian
Sales v. ALRB, 216 Cal. Rptr. 688, 698 (1985).
4 Compare ALRA Sec. 1154(g) and (h), with NLRA Sec.
8(b)(7)(C). See also Levy at 795.
5 ALRA, Sec. 1156.3. See Levy at 797.
6 See ALRA, Sec. 1156.7(c) and (d). See also Yamada Bros. v.
ALRB, 159 Cal. Rptr. 905, 913 (1979) (‘‘Unlike the federal law, em-
ployees have no right to petition for a decertification election to de-
pose an incumbent labor organization unless the union has reached
a collective bargaining agreement with the employer and the cur-
rently effective bargaining contract will expire within a year.’’)
7 See ALRA, Sec. 1153. See also Levy at 790–791. The ALRB
asserts in its supplemental brief that some of the ALRA’s differences
in this regard have been been removed through interpretation or con-
struction of the statute, such as the ALRA’s provision that unions
may require membership ‘‘in good standing’’ as a condition of em-
ployment. Assuming arguendo that there are no differences in this
respect, other differences appear to remain, such as the ALRA’s pro-
vision allowing agreements requiring such membership on or after
the 5th day of employment.
8 See ALRA, Secs. 1154(d) and 1154.5. See also Levy at 793–794.
9 See Levy at 785.
10 Our colleagues would seek public comment on the issue of
whether there should be a cession agreement. We disagree. As noted
above, the NLRA and the ALRA are, in the language of Sec. 10(a),
‘‘inconsistent’’ in many respects. In these circumstances, Sec. 10(a)
clearly forbids a cession agreement. Accordingly, we see no point
in seeking public comment on whether there should be a cession
agreement.
this phrase to mean that cession of jurisdiction is per-
missible only where the statutes have parallel provi-
sions. Algoma Plywood Co. v. Wisconsin Board, 336
U.S. 301, 313 (1949). Further, the Board has consist-
ently declined to enter into cession agreements where
the statutes are not substantially identical. See In re
State of Minnesota, 219 NLRB 1095 (1975) (state stat-
ute prohibited strikes and lockouts and provided for
binding arbitration); and Kaiser-Frazer Parts Co., 80
NLRB 1050 (1948) (state statute did not include anti-
communist provisions comparable to those then-con-
tained in Sec. 9(f), (g), and (h) of the Act). See also
L. Wiemann & Co., 106 NLRB 1167 (1953); In re
Sears Roebuck & Co., 91 NLRB 1411 fn. 2 (1950);
and Panderia Sucesion Alonso, 87 NLRB 877 (1949).
And see generally Guss v. Utah Labor Board, supra,
353 U.S. at 11 fn. 17, 15; and United Construction
Workers v. Laburnum Construction Corp., 347 U.S.
656, 659 fn. 2 (1954).
We recognize that the ALRA was modeled after the
NLRA, as many of its provisions are virtually identical
to those in the NLRA. Moreover, the ALRA creates an
administrative agency (the ALRB) which essentially
duplicates the NLRB in both form and responsibilities,
and requires the ALRB to follow applicable precedents
of the NLRA.2
As Local 890 and the ALRB acknowledge in their
briefs however, there are also numerous differences be-
tween the ALRA and the NLRA. For example, con-
trary to the NLRA, the ALRA prohibits voluntary rec-
ognition based on authorization cards by making it an
unfair labor practice to bargain with a union that has
not been elected by secret ballot and certified.3 Simi-
larly, the ALRA also prohibits even the limited recog-
nitional picketing permitted under the NLRA.4 Further,
the ALRA requires that a representation petition be
supported by a ‘‘majority’’ rather than merely a ‘‘sub-
stantial’’ showing of interest,5 and limits the right to
file a decertification petition by providing that such pe-
titions may only be filed where the employer and
union have reached a collective-bargaining agreement
and that agreement will expire within 1 year.6 Finally,
there also appear to be significant differences between
various other provisions of the two statutes, including,
inter alia, the union-security provisions7 and secondary
boycott provisions.8 The foregoing differences are
clearly substantial,9 and in our view preclude us from
entering into a cession agreement with the ALRB.10
Accordingly, it is ordered that the ALRB’s motion
for intervention and reconsideration is denied. Further,
in the absence of a majority for reversal, we affirm the
prior decision not to enter into a cession agreement.
CHAIRMAN GOULD and MEMBER BROWNING, dissent-
ing in part.
We join our colleagues in denying the ALRB’s mo-
tion for intervention and reconsideration for the rea-
sons stated by them. We do not join them, however,
in denying Local 890’s petition for negotiation of a
cession agreement.
The proviso to Section 10(a) of the Act empowers
the Board by agreement to cede to a state agency juris-
diction over any cases in any industry, with certain ex-
ceptions not relevant in this case, ‘‘unless the provi-
sion of the State or Territorial statute applicable to the
determination of such cases by such agency is incon-
sistent with the corresponding provision of this Act or
has received a construction inconsistent therewith.’’
Citing ‘‘substantial’’ differences between the provi-
sions of the NLRA and the ALRA, our colleagues con-
clude that the Board is precluded from negotiating a
cession agreement with the ALRB.
Before ruling on the cession petition, we believe that
the Board should seek further public comment. Al-
though we recognize that prior Board cases have inter-
preted the 10(a) proviso narrowly, we are concerned
that such decisions have effectively rendered the pro-
viso a nullity, as evidenced by the absence of any ces-
sion agreements since the proviso was added by the
1947 amendments.
1173PRODUCE MAGIC, INC.
We therefore believe that additional public comment
on the matter would be beneficial and preferable to our
colleagues’ ruling on Local 890’s petition on the basis
of the Board’s prior decisions. Given that a cession
agreement with one State might lead to requests for
similar agreements from other States, we would pub-
lish a Federal Register notice soliciting comments on
Local 890’s petition from all interested persons. Ac-
cordingly, we dissent from our colleagues’ denial of
Local 890’s cession petition.