Somis Lemon Association

SOMIS LEMON, ASSOCIATION 109 4. By refusing to bargain with the Union under its former and present name, by negotiating with an employee committee concerning wages, and by unilaterally -making wage increases, 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 refusing to assign Jewel Luttrell to work on the grader subsequent to September 14, 1953, because of her activity in support of the Union, the Re- spondent has discouraged membership in and activity in behalf of such organiza- tions and thereby has engaged in and is engaging in unfair labor practices in viola- tion of Section 8 (a) (3) of the Act. 6. By the refusal to bargain, by the discrimination in regard to Jewel Luttrell, and by threatening its employees with loss of earnings, promotion, and employ- ment because of their interest in the Union, the Respondent has interfered with, -restrained, and coerced its employees in the exercise of rights guaranteed in Sec- tion 7 of the Act and has thereby 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 com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor -Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL bargain collectively upon request with United Packinghouse Workers of America, Local 78, CIO, in respect to rates of pay, wages, hours of employ- ment, and other conditions of employment and if an understanding is reached we will embody it in a signed agreement. The bargaining unit is All production and maintenance employees, excluding all clerical employees, guards, professional employees, and supervisors as defined in the National Labor Relations Act. WE WILL make Jewel Luttrell whole for any loss of earnings she has suffered by our refusal to assign her to work on the grader. WE WILL NOT by unilateral action on wages, by threats, by dealing with an employee committee, or by discriminating in work assignments, or in any other manner, interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Packinghouse Workers of America, Local 78, CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing, to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or 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 Section 8 (a) (3) of the Act. SANTA CLARA LEMON ASSOCIATION, 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. Somis Lemon Association and United Fresh Fruit & Vegetable Workers Union, LIU #78, CIO. Case No. 21-CA-1913. April 13,1955 DECISION AND ORDER On November 19, 1954, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that 112 NLRB No. 18. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act 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, the Respondent filed exceptions to the Intermediate Report and a brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' ORDER Upon the entire record in the 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, Somis Lemon Association, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with the labor organization now known as United Packinghouse Workers of America, Local 78, CIO, as the exclusive representative of all the Respondent's produc- tion and maintenance employees, excluding clerical employees, guards, professional employees, and supervisors as defined in the Act. (b) Interfering with the efforts of United Packinghouse Workers of America, Local 78, CIO, to bargain collectively with it on behalf of the employees in the above-described appropriate unit. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with United Packinghouse Workers of America, Local 78, CIO, as the exclusive representative of the employees in the appropriate unit described above, and if an understanding is reached embody such understanding in a signed agreement. awe find no merit in the Respondent's argument that its refusal to bargain with the Union after February 4, 1954 , but during the certification year, was justified by the allega- tions of the employees' petition repudiating the Union See Ray Brooks v. N. L R. B., 348 U S 96; N L. R B v. Henry Heide, Inc, 219 F. 2d 46 (C. A 2) ; Plastic Age Com- pany, et at, 111 NLRB 121. See also Heaton Furniture Company, 111 NLRB 342. Because the Respondent violated Section 8 (a) (1) only by its refusal to bargain, we shall issue our customary limited 8 (a) (1) Order rather than the broader form recom- mended by the Trial Examiner For the roaeons set forth in Santa Clara Lemon Association, 112 NLRB 93, we find that the Regional Director , in amending the certificate to substitute the Union 's new name, did not act arbitrarily or capriciously SOMIS LEMON ASSOCIATION 111 (b) Post at its plant in Oxnard, California, copies of the notice at- tached to the Intermediate Report marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Twenty- first Region, shall, after being duly signed by a representative of the Respondent, be posted by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including 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 Twenty-first Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER LEEDOM took no part in the consideration of the above Decision and Order. Said notice shall the amended however by substituting for the words "The Recom- mendations of a Trial Examiner" the words "A Decision and Order," and by deleting the words "oi in any other manner " In the event that this Order is enforced by 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 Ap- peals, Enforcing an Order " INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge duly filed by United Fresh Fruit & Vegetable Workers Union, LIU #78, CIO, herein called the Union, the General Counsel for the National Labor Relations Board issued a complaint dated May 28, 1954, against Somis Lemon As- sociation, Oxnard, California, herein called the Respondent, alleging that the Re- spondent had engaged in and was engaging in unfair labor practices 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. In respect to unfair labor practices, the complaint alleges in substance that on and since February 4, 1954, the Respondent has refused unlawfully to bargain with the Union and through its manager, on or about February 10, 1954, requested its em- ployees to sign an antiunion petition, threatened discharge or less work to Union supporters, and promised back pay and a wage increase to union opponents. Respondent's answer admits certain of the jurisdictional allegations in the com- plaint and denies the commission of unfair labor practices. Pursuant to notice, a hearing was held before the duly designated Trial Examiner at Oxnard, California, on September 28 and 29, 1954. The General Counsel and the Respondent were represented by counsel, participated in the hearing, and were afforded opportunity to examine and cross-examine witnesses and to introduce evi- dence pertinent to the issues. A brief has been received from counsel for the Re- spondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Somis Lemon Association washes, grades, packs, stores, and ships citrus fruits grown by its members. During the 12-month period preceding the hearing such fruit having a value in excess of $175;000 was shipped from Respondent's plant di- rectly into channels of interstate commerce. I find, as the Respondent concedes, that its operations are in interstate commerce. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to membership Respondent's em- ployees. III THE UNFAIR LABOR PRACTICES Following an election, the Union on November 13, 1953, was certified as the ex-- elusive bargaining representative of all production and maintenance employees, ex- cluding all clerical employees, guards, professional employees, and supervisors as de- fined in the Act. The complaint alleges, the answer admits, and I find that this unit at all times material herein has been and now is appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. The fact of certification is admitted and I find that by virtue of the election as evidenced by the certification, the Union was designated on November 13, 1953, as the exclusive representative of Respondent's employees within the meaning of Sec- tion 9 (a) of the Act. Upon the Union's request, bargaining meetings with the Respondent were held on December 9, 1953, and January 8 and 21 and February 4, 1954. During the course of these meetings the Union submitted written proposals which were explained and discussed and on certain matters counterproposals were submitted by the Respondent. The Union's proposal that a union shop be incorporated in an agreement provoked more discussion perhaps than any other. On February 4, Ivan McDaniel, Re- spondent's counsel and its principal representative at this bargaining session, offered the following counterproposal on union security: Job security of employees of Association is primarily predicated upon the ability of growers to produce fruit handled by Association and any arrange- ment which interferes with this production tends to weaken the security of the employees. Rigid Union rules and monopolistic Union practices will interfere with Association's operations and it is agreed that employees need not join nor remain members in the Union in order to work in the packing house. Syd Rose, the Union's representative, said that the counterproposal was not accept- able. McDaniel said that he did not see any use in proceeding further in view of the Union's position and rejected Rose's suggestion to lay aside the union-shop ques- tion and to seek other areas of agreement. McDaniel told Rose to notify him if there was any change in the Union's position. No further meetings have been held with the Union. On February 19 Rose wrote the Respondent asking for a resump- tion of negotiations. On February 26 McDaniel answered, refusing the request and saying that further bargaining would mean only a repetition of the same arguments. On March 11 Rose wrote McDaniel saying a compromise on the union shop and! seniority would be recommended to the Union's membership if an agreement other- wise satisfactory could be reached, and again requested a resumption of negotiations. On April 8 McDaniel wrote Rose that a petition signed by a number of Respondent's- employees had been received by the Respondent and that he had advised it "to recog- nize the petition to the extent required by law." Salvadore Banuelos, who left his employment with the Respondent in circum- stances not of interest here, testified that while working at the plant on February 10, 1954, Manager J. A. Stilliens told him to sign a petition opposing the Union so that he could get a raise in pay. According to Banuelos, Stilliens made a further remark which Banuelos interpreted to mean that if the Union was not ousted the employees would not work full time. Stilliens denied having such a conversation. Banuelos' understanding of English is slight and he was unable to testify without the aid of an interpreter. Considering the opportunity for confusion and misunderstanding that exists between persons each having a good knowledge of the language used by the other, and considering how greatly such opportunities are multiplied and magnified when that condition is not present, I am unconvinced that Banuelos cor- rectly understood Stilliens, and do not find that the General Counsel has established by this testimony that Stilliens uttered a threat directed to any right protected by the Act. On February 22, 1954, a petition signed by approximately 60 percent of Re- spondent's employees came to its attention. The petition asked that the Respondent no longer bargain with the Union and asserted that the signers had been induced" to vote for it by means of threats, misrepresentations, and false promises. The Respondent investigated the validity of the signatures, but so far as this record reveals made no inquiry into the reasons causing the employees to sign. SOMIS LEMON ASSOCIATION 113 On March 8 and again on April 11, 1954, general wage increases in substantial amounts were given to the employees. The Union was not consulted in this respect. The Respondent argues, correctly, that an employer is not required interminably to continue discussions with A bargaining representative when it is apparent that no possibility for agreement exists. It also contends that the facts outlined above in connection with the bargaining meetings demonstrate that on February 4 bargaining with the Union had come to such a point of impasse as clearly to establish that further meetings, absent a change in position by one of the parties, would be futile. The position of the Respondent in respect to bargaining might have some merit if it were urged that it had failed in any responsibility in respect to bargaining on the union shop or perhaps seniority. But other matters of substance, particularly wages, had not even been considered. Rose suggested that the parties set aside those questions about which agreement seemed unlikely and proceed to others. A desire to bargain in good faith would have been manifested had the Respondent agreed to such a procedure. I find that on February 4 bargaining between the par- ties had not reached a point of impasse in respect to wages, vacations, working conditions, and other subsidiary questions; that the Union by virtue of its represent- ative status was entitled to an opportunity to attempt to persuade the Respondent to the point of agreement in these matters; and that the refusal further to meet with the Union after that date foreclosed it from doing so.' A further contention by the Respondent is that after receipt of the employee peti- tion on February 16 it was placed in a dilemma by the conflicting claims-the Union on the one hand possessing a certification and the employees on the other asserting that they no longer wanted the Union to represent them. The Board has consistently held with the approval of the great weight of court decisions that a certified union's majority status in the absence of "unusual circum- stances" is conclusively presumed to continue for 1 year following certification. Mere repudiation of a certified representative and affiliation with another organiza- tion do not constitute such circumstances.2 That the Respondent's purpose in giving wage increases may have been to meet the competition of other employers, is immaterial. The obligation existed to meet with the Union in such matters and to grant to the Union the opportunity it had requested to bargain. The Respondent finally urges that when the employee petition was served upon it it acted reasonably in making the unilateral increases without contract or agreement with any group. If it is the Respondent's contention that con- tinued negotiations with the Union in the face of the petition might have been a viola- tion of the Act, its fears have no substance.3 The Respondent asserts that the rea- sons assigned in the petition for the employees' desire no longer to have representa- tion by the Union are by their nature such as could not have been discovered in time to file as objections to the election within the period allowed. But the Respondent did not offer to establish the validity of these reasons at this hearing and there is no evidence that the refusal to continue negotiations with the Union resulted from any investigation by the Respondent of the factual allegations in the petition. "Un- usual circumstances" have not been shown to exist. I find therefore that by refusing further to bargain with the Union after February 4, 1954, and by instituting wage increases unilaterally thereafter the Respondent failed in its duty to recognize and deal with the Union and thereby violated and is violating Section 8 (a) (5) of the Act. By the refusal to bargain the Respondent deprived its employees of their right to be represented in matters of collective bargaining by the organization they had chosen. The Respondent thus interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act and thereby violated and is violating Section 8 (a) (1) of the Act. 1 The complaint alleges that the refusal to bargain first occurred on February 4. Because of that circumstance I have not reviewed the earlier meetings to discover if Respondent's conduct was such as to have amounted to an unlawful refusal before that date 2 Genesee Foundry Company, In.corpoiated, 109 NLRB 1253 See also N. L R. B v. Ray Brooks, 204 F. 2d 899 (C. A. 9) cert granted 347 U S 916. Contra : Mid-Continent Petro- leum Corp v N L R B, 204 F. 2d 613 (C A 6) cert. denied 346 U S 856. In the first case cited the Board in reaffirming the principle first outlined, states its purpose to adhere to the certification-year ruling until the Supreme Court of the United States decides the issue William D. Gibson Co., Division of Associated Spring Corporation, 110 NLRB 660. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The operations of the Respondent described in section I, above, occurring in connection with its conduct described in section III, 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 commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it be ordered to cease and desist therefrom and to take certain affirmative action which I find will effectuate the policies and purposes of the Act. The complaint alleges that about July 1, 1954, the Union "was taken over and absorbed by the United Packinghouse Workers of America, Local 78, CIO." On September 21, 1954, the Acting Regional Director issued an amended certification substituting the last-named labor organization for the Union in the certification issued November 13, 1953.4 The General Counsel contends that the Respondent must now be required to bargain upon request with the Union's successor. The Board has amended a certification upon evidence that the employees who constituted the certified organization have transferred or been transferred to another local of the same International union.5 The Board's Rules and Regulations provide in connection with a consent-election agreement that "the rulings and determina- tions by the regional director shall issue to the parties a certification of the results of the election, including certification of representatives where appropriate, with the same force and effect as if issued by the Board." It seems clear enough then that if the Board may amend a certification which it has issued, the Regional Director may act similarly. Upon examination by counsel for the Respondent the Union's representative, Syd Rose, testified that upon the completion of a referendum among members in June 1954 the Union, under the captioned name, went out of existence and affiliated with United Packinghouse Workers of America. Considering the amended certification and the testimony of Rose, I find that United Packinghouse Workers of America, Local 78, CIO, is the successor to and a continuation of the Union Subsequent reference to the Union in this report will be to United Packinghouse Workers of America, Local 78, CIO. CONCLUSIONS OF LAW 1. United Fresh Fruit & Vegetable Workers Union, LIU #78, CIO, and United Packinghouse Workers of America, Local 78, CIO, are and were at all times material herein labor organizations within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees, excluding all clerical employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. United Fresh Fruit & Vegetable Workers Union, LIU #78, CIO, at all times since November 13, 1953, that it has been known by that name has been and United Packinghouse Workers of America, Local 78, CIO, now is the exclusive represent- ative of all employees of the Respondent in the appropriate unit for purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain with the Union under its former and present name and by unilaterally making wage increases, 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 the refusal to bargain, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby 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.] 4 The complaint states that this was a certification by the Board. If so, the Board only could amend However, it otherwise appears that the certification was by the Regional Director 6 Cadillac Automobile Company of Boston, 90 NLRB 460. OXNARD CITRUS ASSOCIATION APPENDIX 115 NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL bargain collectively upon request with United Packinghouse Workers of America, Local 78, CIO, in respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached we will embody it in a signed agreement. The bargaining unit is All production and maintenance employees , excluding all clerical em- ployees, guards, professional employees, and supervisors as defined in the National Labor Relations Act. WE WILL NOT, by refusing to bargain , by unilateral action in regard to wages, or in any other manner, interfere with, restrain, or coerce our em- ployees in the exercise of the right to self-organization , to form labor organ- izations, to join or assist United Packinghouse Workers of America, Local 78, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, or 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 employment as authorized in Section 8 (a) (3) of the Act. SOMIs LEMON ASSOCIATION, 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. Oxnard Citrus Association and United Fresh Fruit & Vegetable Workers Union, LIU, #78, CIO. Case No. 21-CA-1909. April 13,1955 DECISION AND ORDER On November 19, 1954, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in 112 NLRB No. 19 369028-56-vol 112-9