N.L.R.B. v. L & B Cooling, Inc., 83-2294

• Decision Date: 13 March 1985
• Docket Number: No. 83-2294,83-2294
• Citation: 757 F.2d 236
• Parties: 118 L.R.R.M. (BNA) 3220, 102 Lab.Cas. P 11,414 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. L & B COOLING, INC., Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 236

757 F.2d 236

118 L.R.R.M. (BNA) 3220, 102 Lab.Cas. P 11,414

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. L & B COOLING, INC., Respondent.

No. 83-2294.

United States Court of Appeals,

Tenth Circuit.

March 13, 1985.

Judith A. Dowd, Atty. Washington, D.C. (Paul J. Spielberg, Deputy Asst. General Counsel, Washington, D.C., with her on the briefs) for petitioner.

John Edward Price, Cibolo, Tex., for respondent.

Before BARRETT and LOGAN, Circuit Judges, and SAFFELS, District Judge. ^*

BARRETT, Circuit Judge.

The National Labor Relations Board (NLRB or Board) seeks enforcement of its decision and order issued to L & B Cooling, Inc. (L & B), a Colorado corporation wholly owned by Robert Bower and Gary Lofton, finding that L & B committed an unfair labor act by refusing to bargain with the Fresh Fruit and Vegetable Workers International Union, AFL-CIO, CLC (Union) in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(5) and (1). ¹ L & B seeks reversal of the Board's order. Jurisdiction vests in this Court pursuant to 29 U.S.C. Sec. 160(e).

The major defense raised by L & B before both the Administrative Law Judge (ALJ) and the Board was that the informal election held among the "regular" seasonal employees at Center, Colorado, was invalid because it did not include all of the seasonal employees and, further, because four of the fourteen employees who voted were not eligible because they were supervisors or clericals. The ALJ found for L & B on the first defense but did not render any finding on the second. The Board found contra. A summary of the factual background follows.

L & B commenced operation in the summer of 1979 in the non-retail business of cooling lettuce. Prior thereto, Bower and Lofton worked as forklift operators in the industry. They were then Union members. (R., Vol. I, p. 36.) Mr. David Carlson, one of the regular employees of L & B, testified that he worked as a forklift operator (loader) with Bower and Lofton prior to the summer of 1979 when they organized L & B and commenced operations. He stated that when operations began, Bower and Lofton asked their employees "[n]ot to go union because they couldn't afford to pay the union dues and insurance and other things that go along with the union" ; that the employees said "[o]kay, that we'd help them out, and they said maybe next year that maybe we'd be able to go union when we got our finances were a little bit better" ; and when the second year came around, "[T]hey asked us to bear with them again ...." (R., Vol. I, p. 27.)

The lettuce-cooling business of L & B involves lettuce which is packaged in the fields and shipped by growers to L & B's vacuum cooler, where the water is removed and the lettuce cooled to near-freezing temperature. The lettuce is then loaded on trucks and shipped throughout the country. All of this occurs in one day's operation. L & B, beginning in 1979 with a "regular" crew of fourteen employees, followed the lettuce crop through Arizona to New Mexico to Colorado. The operation in Colorado involves harvesting lettuce in the San Luis Valley. L & B's head-quarters operation is in Center, Colorado.

During the year 1980, L & B employed a "regular" crew of sixteen employees on a steady basis from July to early October at Center, Colorado. During that year, the volume of lettuce processed was such that L & B hired eleven extra employees on a day-to-day basis as needed. Of this number, five of the extra employees worked one week or less, and the rest worked sporadically. These "extra" employees performed essentially the same work as the "regular" employees, and received like compensation.

L & B again operated in Center, Colorado, commencing July, 1981. There were then seventeen "regular" employees. On July 23, 1981, one Jerry Breshears, executive secretary of the Union, spoke with Robert Bower at a Center, Colorado, restaurant about an election; he told Bower that some of the L & B employees had requested that an election be held. Bower responded "okay" and proceeded with Breshears to the loading dock. Fourteen of the seventeen regular employees gathered there. Both Bower and Lofton were present. Lofton insisted that the vote be taken by secret ballot. Therefore, the employees were given blank slips of paper and advised to write "yes" if they favored the Union and "no" if they did not. The ballots were marked, placed in a hat and counted. The vote was 10 to 4 for the Union. Bower and Lofton did not voice any objection to the election, either as to the manner in which it was conducted or the result. Thereafter, on August 19, 1981, Breshears wrote to L & B requesting that the company bargain with the Union. L & B refused to do so on the grounds that the Union did not represent its employees in a unit appropriate for bargaining. Significantly, L & B did not employ any "extra" employees in 1981 until the week of August 4, and no "extra" employee worked but slightly more than one full week. L & B hired fourteen "extra" employees at Center, Colorado, in 1981, and only one of them had worked for L & B during the 1980 season.

As heretofore related, the ALJ pinpointed L & B's major defense as being that the election was invalid because all of the seasonal employees were not given notice or an opportunity to vote in the election. The ALJ found that the extra seasonal employees had a reasonable expectation of future employment, that L & B was completely dependent on seasonal labor, and that the extra seasonal employees were entitled to inclusion in the unit. The ALJ rejected General Counsel's argument that the employment of the extra employees is sporadic and casual and that therefore they should not be included in the unit. The ALJ dismissed the Regional Director's complaint in its entirety. General Counsel for the Board filed exceptions. The matter was then heard before the three-panel Board on the record, exceptions and briefs.

The Board rejected the ALJ's finding that the extra seasonal employees employed by L & B during the 1980 season should have been included in the unit. The Board found, contrary to the ALJ, that those (seasonal) employees did not have a reasonable expectation of reemployment with L & B. Noting that the seasonal employees of L & B in 1980 had worked throughout the entire season in Center, Colorado, the Board observed that such was not the case in 1981. Those hired that year were employed on a sporadic basis; none worked more than slightly over one week; all were part of a labor pool that migrates from the Southwest. The Board found that: the ALJ acknowledged that the record is devoid of any evidence that L & B gave preference to former extra employees; the labor force from which L & B draws its "extra" employees appears to be large, involving itinerants; because the employees are migratory workers traveling throughout the Southwest, it could not infer that they will be in Center, Colorado, each season (the same "extra" employees hired the year before), or, if there, that they will be reemployed. The Board thus rejected the ALJ's finding that the 1980 seasonal employees had a reasonable expectation of reemployment because (a) the labor force from which L & B draws its seasonal employees is indefinable and migratory in nature, (b) the extent of L & B's dependence upon seasonal labor varies and is unclear, and (c) L & B's operations are mobile, making the extent of the labor force very amorphous. Thus, the Board concluded that: (a) the record does not support a finding that the 1980 extra seasonal employees should have been included at the time of the election in 1981, and (b) the 1981 election was conducted among all employees entitled to vote, leading to the finding that L & B had violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union. The Board further concluded that the unit appropriate for bargaining within the meaning of Section 9(b) consisted of the following job classifications: loader, push-back, set-up man, set-off man, forklift maintenance man, and clerical worker. The Board directed L & B to cease and desist from refusing to bargain collectively with the Union. The Board's order directing posting of notices applied to "[i]ts mobile lettuce cooling facility during the next lettuce growing season in Colorado ...." (R., Vol. III, p. 12.)

I.

L & B contends first that there cannot be an appropriate unit for bargaining in this case because two loaders, both of whom are supervisors, and two clerical employees who voted were not qualified. L & B points to the evidence in the record to support its contention that the two loaders who voted were supervisors and that the two clerical employees were office clericals. Thus, contends L & B, four of the fourteen employees who voted were not qualified, rendering the election invalid. To be sure, L & B's counsel did present evidence relative to the duties, functions and status of the two loaders and the two clerical employees. In support of L & B's motion to dismiss the complaint following evidence adduced before the ALJ, counsel for L & B argued that the election was invalid and the unit inappropriate because four of the fourteen employees who voted were not eligible and three other "standby" or "second shift" employees entitled to vote had not been notified of the election. (R., Vol. I, pp. 140, 141.) This argument or contention was not addressed by the ALJ. Instead, in dismissing the complaint, the ALJ relied entirely on his finding that the unit was not appropriate for bargaining purposes because the seasonal employees were eligible to vote and that, accordingly, "[i]t has only been established that 10 out of 26 unit employees designated the Union as their bargaining representative." (R., Vol. III, p. 296.)

We cannot consider the above contention advanced by L & B because it is not properly before us for review. Section 10(e) of the Act, 29 U.S.C. Sec. 160(e), provides that ...