Oxnard Citrus Association

OXNARD CITRUS ASSOCIATION 115 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 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. 112-9 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, Oxnard Citrus 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. (b) Post at its plant in Oxnard, California, copies of the notice attached 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 no- tices 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. I we find no merit in the Respondent 's argument that its refusal to bargain with the Union after January 14, 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 , 34$ U. S 96, N L R. B v. Henry Heide, Inc, 219 F 2d 46 (C A 2) ; Plastic Age Company, et at, 111 NLRB 121 See also Hexton 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 re,isons 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 2 Said notice shall be 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 "or 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 01 der" the words "Pursuant to a Decree of the United States Court of Ap- peals, Enforcing an Order." OXNARD CITRUS ASSOCIATION 117 (c) Notify the Regional Director for the Twenty-first Region iii writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER LEEDOnz took no part in the consideration of the above Decision and 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 27, 1954, against Oxnard Citrus Association, Oxnard, California, herein called the Respondent, alleging that the Respondent 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 January 14, 1954, the Respondent has refused unlawfully to bargain with the Union. 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 27 and 28, 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 Respondent. 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 Oxnard Citrus Association washes, grades, packs, and ships citrus fruit. During the 12-month period preceding the hearing, such fruit to the value of $175,000 was processed by the Respondent and then shipped, upon direction of a marketing organization, to points outside the State of California. I find, as the Respondent concedes, that it is engaged in interstate commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to membership Respondent's employees. III. THE UNFAIR LABOR PRACTICES Following an election, the Union on November 13, 1953, was certified as the exclusive bargaining representative of all production and maintenance employees at the Respondent's plant, excluding all clerical employees, guards, professional em- ployees, and supervisors as defined 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 as the exclusive bargaining representative of Respondent's employees within the meaning of Section 9 (a) of the Act. Upon the Union's request, bargaining meetings with the Respondent were held on December 2, 7, and 15, 1953, and on January 7 and 14, 1954. The Union during the course of these meetings submitted written proposals and the Respondent offered counterproposals on some points. More than any other feature of the Union's proposal, the demand for a union shop provoked extended discussion. At the last such meeting on January 14 the Union persisted in its demand that such a clause be incorporated in a contract and Respondent's representatives steadfastly refused to acquiesce. Bargaining had not then progressed to the subjects of work- 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing conditions, vacations, hours and overtime, wages, or insurance and pensions. On January 14 Ivan McDaniel, as counsel for the Respondent, said that no progress was being made toward agreement on union security; that discussions of other phases of the contract seemed inevitably to lead back to that question; and that he saw no purpose in a continuation of meetings merely to retrace the same paths. Syd Rose, the Union's representative, testified that he on this occasion asserted that the mere fact of difference existing between the Respondent and the Union on union security, seniority, and other matters did not call for bringing the negotiations to a halt; said that efforts should continue to discover points on which agreement might be reached; and suggested that those items seriously disputed be temporarily laid aside. William Donlon, one of Respondent's representatives at this meeting, testified that McDaniel said that no matter what approach was taken to the Union's proposals all seemed to have an integration with union security ; that continuing discussions seemed futile. On January 18, according to the undenied and credited testimony of Rose, he heard that Respondent's manager had said publicly that negotiations with the Union had been broken off. He then telephoned McDaniel and inquired if such a develop- ment had occurred. McDaniel answered that the information was correct-that the Respondent had broken off negotiations with the Union. On February 19 Rose wrote the Respondent requesting a resumption of negotiations. A week later McDaniel answered, saying that bargaining had been discontinued because the Union would not recede from its demand for a union shop; that further meetings would mean no more than a repetition of arguments already considered. On March 11 Rose wrote to McDaniel saying that a compromise on a union-shop clause would be recom- mended to the membership if an agreement satisfactory in other respects could be negotiated, and again requested that bargaining be resumed. On April 8 McDaniel wrote that the Respondent had been served with a petition signed by a number of its employees and that he had advised the Respondent that "it would be required to recognize the petition to the extent required by law." On February 16 a petition signed by 65 percent of Respondent's employees was served upon it demanding a cessation of negotiations with the Union and stating that the signers no longer wanted such representation. On March 8 without consultation with the Union the Respondent gave substantial wage increases to employees in the bargaining unit, retroactive to September 21, 1953. A further general increase was made effective on April 19. The Respondent argues that an employer is not required interminably to continue discussions with a bargaining representative when it is apparent that no possibility for agreement exists. In this it is correct. The Respondent also contends that the facts outlined above in connection with the bargaining meetings demonstrate that on January 14 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 an indulgence in a "fruitless marathon"-and in this it is wrong. It is not alleged that the Respondent unlawfully refused to bargain because of the position it took on the union shop. It may be, as the Respondent alleges, that bargaining on this matter had reached a point where further discussion held no promise of agree- ment. But other matters of substance, particularly wages, had not even been con- sidered. Rose suggested that the parties set aside those questions about which quick 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 January 14 bargaining between the parties had not reached a point of impasse in respect to wages, vacations, working conditions, hours, overtime, and other sub- sidiary questions; that the Union, by virtue of its representative 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. i The complaint alleges that the refusal to bargain first occurred on January 14. I have not, because of that circumstance, reviewed the earlier meetings to discover if Respondent's conduct was such as to have amounted to an unlawful refusal before that date. OXNARD CITRUS ASSOCIATION 119 Mere repudiation of a certified representative and affiliation with another organization 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 re- quested 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 continued negotiations with the Union in the face of the petition might have been a violation of the Act, its fears have no substance .3 The Respondent asserts that the reasons assigned in the petition for the employees' desire no longer to have representation by the Union are by their nature such as could not have been dis- covered 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 hear- ing 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. "Unusual circumstances" have not been shown to exist. I find therefore that by refusing further to bargain with the Union after January 14, 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. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The operations of the Respondent described in section I, above, occurring in con- nection 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 certifica- tion 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 an- other 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 determinations by the regional director of the results thereof shall be final, and 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. 2 Genesee Foundry Company, Incorporated, 109 NLRB 1253 See also N L. R B v. Ray Brooks, 204 F 2d 899 (C A 9) ceit granted 347 U S. 916 Contra * Mid-Continent Petroleum 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 * 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 460 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Absent valid objections to the conduct of an election, a union which has fulfilled the filing requirements of the Act and which has received a majority of the valid votes cast, is entitled to certification. The issuance of a certification thus seems to be no more than a ministerial act governed by objective criteria open for any in- terested party to inspect. The same should be true of an amendment and a question immediately arises as to the authority of the Acting Regional Director to issue the amendment of September 21. That he could not properly have done so except on the basis of evidence establishing that the successor union was in fact entitled to the status which the 1953 election had bestowed upon the Union seems certain. The amendment asserts that a rule to show cause had issued inviting the Respondent to submit its reasons why it should not be made, and goes on to say that the Respondent demanded a hearing on the point. I assume that no formal hearing was held and if anyone cares to make the contention I will agree that the requirements of due proc- cess are satisfied if all interested parties are given opportunity to submit reasons and evidence in support of or in opposition to any such proposed action. The present record does not indicate whether the Respondent submitted any argument or factual material in opposition to the motion to amend or merely contended itself with a demand that a hearing be held. In this record the Respondent has not asserted that it was denied an opportunity for such presentation and did not raise the point before me.8 At the close of this hearing counsel for the Respondent said that if he was able to discover evidence that the Union had not continued in existence under the name of its successor he would apply for permission to reopen the record for the purpose of making that showing. No such motion has been made. In the belief that the act of the Acting Regional Director in amending the certification is entitled to the presumption of regularity, purporting, as it does, to be an act done under color of authority of his position,° as no evidence was adduced tending in any way to establish that his conduct in this respect was improper, I find that the successor is a continuation of the Union and as such is the union now the exclusive bargaining representative of Respondent's employees. Subsequent reference to the Union in this report will be to United Packinghouse Workers of America, Local 78, CIO. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: 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 representative of all employees of the Respondent in the appropriate unit for pur- poses 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.] 8 Utah Labor Relations Board v Broadway Shoe Repairing Company, Utah Supreme Court, No 7439, November 1, 1951, 29 LRRM 2058, 60, 61. 9 Model Code of Evidence of the American Law Institute, Rules 515 and 5i9 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: CARPINTERIA LEMON ASSOCIATION 121 WE WILL bargain collectively upon request with United Packinghouse Work- ers of America , Local 78, CIO, in respect to rates of pay, wages , hours of em- ployment, 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 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 choosing, and to engage in other concerted activities for the purpose of col- lective 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 em- ployment as authorized in Section 8 (a) (3) of the Act. OXNARD CITRUS 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. Carpinteria Lemon Association and United Fresh Fruit & Vege- table Workers Union, LIU #78, CIO. Case No. 21-CA-1929. April 13,1955 DECISION AND ORDER On November 23, 1954, Trial Examiner Herman Marx issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain 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 the brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' 1 We find no merit in the Respondent's argument that its refusal to bargain with the Union on and after February 26, 1954, but during the certification year, was justified by the allegations 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 Hesde, Inc., 219 F. 2d 46 (C. A. 2) ; Plastic Age Company, et al, 111 NLRB 121. See also Heaton Furniture Company, 111 NLRB 342. For the reasons 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. 112 NLRB No. 20.