Carpinteria Lemon Association

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.' I 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 Heide, 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. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Re- lations Board hereby orders that the Respondent, Carpinteria Lemon Association, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with United Packinghouse Workers of America, Local 78, CIO, as the exclusive representative of all the Respondent's production and maintenance employees at its Carpinteria, California, establishment, excluding clerical employees, guards, professional employees, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing its 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 concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, and to refrain from any or all such activities except to the extent that such right may be af- fected by an agreement requiring membership in a labor organization as a condition of employment, 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 United Packinghouse Workers of America, Local 78, CIO, as the exclusive representative of all the employees in the above-described appropriate unit, and if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its establishment in Carpinteria, California, copies of the notice attached to the Intermediate Report marked "Appendix A." 2 Copies of the notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being 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, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. 2 There shall be substituted for the words "The Recommendations of a Trial Examiner" the words "A Decision and Ordel." 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, Enforcin„ an Order." CARPINTERIA LEMON ASSOCIATION 123 (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 De- cision and Order. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On February 25, 1954, United Fresh Fruit & Vegetable Workers Union, LIU #78, CIO (designated herein as LIU), filed a charge with the National Labor Relations Board (referred to herein as the Board) against Carpinteria Lemon Association (described below as Carpinteria or the Respondent). Based upon the charge, the General Counsel of the Board issued a complaint on May 28, 1954, alleging that Carpinteria had engaged in and was engaging in unfair labor practices within the meaning of the National Labor Relations Act, as amended (61 Stat. 136-163), also referred to herein as the Act. Copies of the charge and complaint have been duly served upon the Respondent. With respect to the alleged unfair labor practices, the complaint, in substance, alleges that LIU, a labor organization, was certified by the Board on November 27, 1953, as the representative of a unit of the Respondent 's employees appropriate for the purposes of collective bargaining; that after the employees had submitted to the Respondent "a petition denouncing" LIU, the Respondent, in violation of Section 8 (a) (1) and (5) of the Act, on or about February 23, 1954, refused to bargain collectively with LIU as the representative of the said employees, and thereafter refused so to bargain; that, on or about March 26, 1954, the Respondent "granted wage increases to substantially all of its employees in the above-mentioned unit," without consultation with LIU, thus violating the said sections of the Act. The Respondent filed an answer which, in material substance, admits the certifica- tion of LIU, but denies the commission of any unfair labor practices. The answer alleges affirmatively that the employees in the unit are "agricultural laborers" and thus "exempt from the ... Act"; that, on or about February 11, 1954, the Respond- ent was served with a petition signed by a majority of the said employees, stating that because of "threats, misrepresentations and false promises previously made to them" by LIU, "they no longer desired to be represented by said Union"; that the petition "instructed" the Respondent "to discontinue immediately all bargaining or other dealings on behalf of said employees" with LIU; that the "said employees stated that they desired to be represented by the Employees' Committee named in the said petition," and required the Respondent "to recognize said Employees' Com- mittee as their bargaining representative"; and that after the service of the petition, the Respondent refused to bargain with LIU "and did thereafter grant a wage increase pursuant to its established policy of paying wage rates comparable to the highest in citrus packing in the area." i Pursuant to notice served by the General Counsel upon all other parties, a hearing was held on October 6 and 8, 1954, before me, as duly designated Trial Examiner, at Carpinteria, California. The General Counsel and the Respondent were repre- sented by counsel. LIU was not represented. All parties were given a full oppor- tunity to be heard, examine and cross-examine witnesses, adduce evidence, file briefs and proposed findings of fact and conclusions of law, and present oral argu- i The answer also includes allegations that LIU "is defunct, insolvent, and inoperative" ; that its officers were removed from office on or about March 1, 1954 ; that LIU has no "iesources, personnel or facilities with which to represent any employees or any group of employees" , and that in charging the Respondent with a refusal to bargain, both the Na- tional Labor Relations Board and LIU are abridging rights guaranteed to the employees by Section 7 of the Act, and ",ire coercing the [Respondent] to act in violation of Sec- tion 8 (a) (1) of the Act" I have not set forth these allegations in body of the report because they require no discussion in connection with findings. Even if one ignores the question of their materiality, the record is barren of any evidence to support them, and some, at least, such as the claim that the bringing of the charges abridges the rights of employees and is "coercing" the Respondent to violate the Act, are obviously without merit on their face. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment. The General Counsel presented a statement of his position after the close of the evidence . He has not filed a brief or proposed findings and conclusions. The Respondent waived oral argument , but has filed a brief which has been read and considered. The General Counsel made an unopposed motion during the hearing to amend the complaint to the effect that on or about July 1 , 1954, LIU "was taken over and absorbed" by the United Packinghouse Workers of America, Local 78, CIO ( referred to below as the Packinghouse Workers ), and that on September 21, 1954, the Acting Regional Director for the Twenty-first Region of the Board amended the certifica- tion by substituting the Packinghouse Workers for LIU as the certified labor organi- zation appearing therein. The motion was granted. I also granted an unopposed motion by the Respondent to amend its answer to the effect that it demes the allegation added to the complaint, as set out above. Counsel for three individuals , styled the Employees' Committee , appeared at the hearing and presented a motion for leave to intervene in this proceeding . Attached to the motion is an unsworn "proposed Complaint In Intervention" which, among other things, contains averments (to which later reference will be made ) of alleged misconduct by LIU; states that the Employees' Committee represents a majority of the Respondent's production and maintenance employees, and seeks dismissal of the complaint The motion was denied? 1. JURISDICTION The Respondent has its principal place of business at Carpinteria , California, and is engaged there in the packing and processing of citrus fruits. It sells the products, through a "marketing agent," but engages directly in the packing, processing, load- ing, and shipment of the products . During the year immediately preceding the hearing, the Respondent shipped lemons valued in excess of $175,000 from within the State of California to points outside thereof . The Respondent is, and has been at all times material to this proceeding , engaged in interstate commerce within the meaning of the Act. The Board has jurisdiction over this proceeding. II. THE LABOR ORGANIZATIONS INVOLVED On March 21 , 1954, and at all times material to this proceeding prior thereto, United Fresh Fruit & Vegetable Workers Union , LIU #78, CIO , admitted to mem- bership persons employed in fruit packing establishments , such as the one operated by the Respondent, existed for the purpose of dealing with employers, such as the Respondent, concerning wages, rates of pay, hours of employment , and conditions of work; and was a labor organization within the meaning of the Act .3 As stipulated at the hearing, United Packinghouse Workers of America, Local 78, CIO, is now, and has been at all times material to this proceeding, a labor organization within the meaning of the Act. z Although reasons for denial of the motion are set forth in the record , it may also be noted here that the Employees ' Committee concededly has no contractual rights which may be affected by this proceeding ; that there is no issue in this proceeding that the Respondent unlawfully assisted or supported the Employees ' Committee ; that the "Complaint In Inter- vention" seeks a dismissal of the pi oceeding brought against the Respondent , that since the charges and complaint were filed against the Respondent, and not the Employees' Committee, the latter has no standing to seek such a dismissal , and that the Board's. Rules and Regulations make no provision for a "Complaint In Intervention," whether verified or unverified Moreover , the intervention sought is, in a realistic sense, tanta- mount to an effort to secure decertification of LIU . Both the Act and the Board's Rules and Regulations make provision foi the filing by employees of a petition for decerti- fication Without passing on the question whether such a petition would lie within a year following the certification , the fact is that any question of decertification should be tested in a proceeding provided for that purpose and not in this one. 3 The finding made above does not intend any implication that LIU was not a labor organization after March 21, 1954 As the General Counsel , for seasons that will appear, seeks an order that the Respondent bargain with the Packinghouse Workers , and not LIU, no finding need be made concerning LIU's current status. The material point to bear In mind is that LIU was a labor organization within the meaning of the Act at the time of its certification and on the occasions in February and March 1954, when the Respondent, as will appear, refused to bargain with it. CARPINTERIA LEMON ASSOCIATION 125 III. THE ALLEGED UNFAIR LABOR PRACTICES A. The certification and appropriate unit On November 18, 1953, the Board conducted a representation election, to which the Respondent consented , among employees in a bargaining unit defined as follows: "All production and maintenance employees of the Employer's [Respondent's] Carpinteria establishment, excluding all clerical employees, guards, professional em- ployees, and supervisors as defined in the National Labor Relations Act." In the election, a majority of the employees selected LIU as the collective-bargaining repre- sentative of the employees in the unit described above, and as a result of the election, the Board, through the Regional Director for its Twenty-first Region, issued a certification on November 27, 1953, designating LIU as the representative of the employees in the unit for the purposes of collective bargaining. Although it is evident from the fact that the Respondent consented to the elec- tion that it thereby agreed to the composition of the unit as appropriate for collective bargaining, its answer advances the claim that those in the unit are "agricultural laborers", and are, therefore, not "employees" within the meaning of Section 2 (3) of the Act. Presumably, what is intended by this position is a claim that the pro- duction and maintenance employees may not constitute a unit appropriate for bar- gaining purposes. The Respondent submitted no argument at the hearing with respect to such a claim; its brief is silent in connection with the matter; and such an omission to urge the position suggests, perhaps, that the claim has been abandoned In any event, the Respondent's business is that of packing and processing lemons grown by others; 4 the employees in the unit perform work connected with such packing and processing in the Respondent's establishment; and it is clear that they are not "agricultural laborers" within the meaning of the Act.5 I find that the unit in connection with which the certification was issued, as described above, is appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act. B. The bargaining negotiations and refusals to bargain After the issuance of the certification, LIU and the Respondent, through their respective representatives, held a series of bargaining meetings concerning the em- ployees in the unit. The meetings took place on December 18, 1953, December 22, 1953, January 6, 1954, January 22, 1954, and February 9, 1954. LIU submitted written contract proposals to the Respondent at the first meeting. The proposals need not be set forth in detail. For present purposes, topical identification of some will suffice. The proposals included terms dealing with wages, hours of work, union security, vacations, overtime, arbitration, grievances, and seniority. As the General Counsel makes no claim that the Respondent refused to bargain until after the last meeting, a brief summary of the progress of the negotiations will suffice. During the course of the meetings, the Respondent submitted counterproposals (which need not be described in detail) on the subjects of management responsibility, vacations, seniority, and arbitration and grievance procedures; and "considerable progress was made and tentative agreements were reached on numerous phases" of the union's con- tract proposals . As of the end of the last meeting, however, no bargaining had yet taken place concerning wages. On February 11, 1954, a document, described in the record as a "petition," was served upon Wallace McIntyre, the Respondent's manager. The petition, to which the names of 50 individuals were appended, was addressed to the Respondent and stated, among other things: "You are hereby notified that the undersigned, being and constituting a majority of the employees of Carpinteria Lemon Association, no longer wish to be represented by United Fresh Fruit and Vegetable Workers Union, Local No. 78, CIO, and that we hereby cancel the right of said Local to represent us in any matter pertaining to our employment, on the grounds that our consent 4 The Respondent's answer states that it is an association of citrus fruit growers, and that the fruit the Respondent packs and processes is grown "in the groves of its members " 5 See TV P. McDonald Corporation, 83 NLRB 427; Crown Crest Fruit Corporation, 90 NLRB 422, Imperial Garden Growers, 91 NLRB 1034; Stokely-Van Camp, Inc, 102 NLRB 12,59; Title River Cooperative Gun, Inc., 102 NLRB 1523; Dofliemeyer Bros., 101 NLRB 205 I do not pass on the question of the applicability of the exemption to indi- viduals employed in the packing and processing of agricultural products grown by their employer That question is not presented here. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to vote for and join said Union was obtained through fraud, misrepresentation, false promises and coercion , as hereinafter set forth ." The petition then proceeded to describe alleged instances of "fraud, misrepresentation , false promises and coer- cion," and stated that "instead of being represented by said Union," the signatories had elected a committee of three employees (those described as the Employees' Committee in the motion for intervention ) with "full authority and power to represent us in all labor-management matters and in all bargaining matters," adding that "no other person or committee has any such authority." The names of the com- mittee aie set forth in the petition . Upon being served with the petition, McIntyre checked the Respondent's payroll which listed 68 individuals (all of them members of the bargaining unit), and determined that all 50 signatories to the petition were on the payroll , thus constituting a majority of the employees in the unit. The service of the petition was followed by an exchange of correspondence be- tween LIU, through Syd Rose, one of its representatives , and Ivan G. McDaniel, attorney for the Respondent . Full details of the correspondence need not be set forth. It is enough to note that Rose, in a letter dated February 24, 1954, addressed to Carpinteria, stated that he had been informed by an associate of McDaniel that negotiations had been broken off, and requested that they be resumed "at once"; that McDaniel replied, on Carpinteria 's behalf, in a letter dated February 25, 1954, that "it may be an unlawful practice for it [Carpinteria] to continue further bar- gaining with the Union, since it is clear from this petition [the one served on Carpinteria] that you no longer represent a majority of the employees "; and that Rose, in a letter dated March 11, 1954, addressed to McDaniel , reiterated the union's request that negotiations be resumed . The record does not establish whether McDaniel replied to Rose's last letter, but it is evident from the record as a whole that no contract was ever signed embodying the "tentative " agreements, and that negotiations were not resumed. There is no doubt that McDaniel 's letter of February 26, 1954, constituted a refusal by the Respondent to bargain with LIU, with respect to rates of pay, wages, hours of employment, and other conditions of employment , and that Carpinteria has since so refused to bargain .6 The basic question is whether the Respondent could lawfully refuse to bargain because of the petition served upon it. The certification of LIU was in effect a pronouncement by the Board , based upon the results of a representation election, that LIU was the duly elected representative of the employees in the bargaining unit. The Board has repeatedly held that "a certified union's majority status , in the absence of unusual circumstances , is con- clusively presumed to continue for one year following certification " ( Genesee Foundry Company, Incorporated, 109 NLRB 1253. ) 7 The principle affords bar- gaining relationships a reasonable opportunity to function , is rooted in the need for stability in bargaining relations , and has been approved by the weight of judicial authority 4 Bearing the rule in mind , inasmuch as the refusal to bargain occurred only about 3 months after the certification , the Respondent can justify its refusal to bargain only if it establishes the existence of "unusual circumstances." In support of its claim that "unusual circumstances " are present, the Respondent stresses the "Complaint In Intervention" attached to the motion for intervention made by the Employees' Committee, and in so doing , proceeds upon a manifestly erroneous conception of probative evidence The "Complaint In Intervention ," which, by reference , incorporates the allegations of the petition served upon the Respondent, makes various charges against LIU. For reasons that will shortly appear, these allegations need not be detailed. The Respondent , in its brief, takes the singular position that because the motion for intervention was denied "the question of 'un- usual circumstances' must be decided upon the basis of the facts set forth" in the 6 The Respondent' s brief concedes that it refused to bargain after the service of the petition upon it 7 See, also, Lift Trucks , Inc, 75 NLRB 998; The Belden Brick Co, 83 NLRB 465; Kim- berly-Clark Corp , 61 NLRB 90, Jasper Wood Products Company, Inc, 72 NLRB 1306 ; and Carson Pirroe Scott & Company, 69 NLRB 935 8 See N L R B v Sanson Hosiery Mills, Inc, 195 F 2d 350 (C A. 5) and N. L. R B v Ray Brooks, 204 F. 2d 899 ( C A 9), cert granted 347 U. S 916, and cases cited in both decisions. The Brooks decision contains a compiehensive review of the reasons for the rule, and of the authorities The Respondent relies upon two decisions to the contrary by the Couit of Appeals for the Sixth Circuit , namely, Mid-Contvnent Petroleum Corp. v N L R B , 204 F 2d 613, and Vulcan Forging Co v N. L R B., 1 88 F. 2d 927. Apart from the fact that I respectfully disagree with the decisions , I deem myself bound by the contrary position of the Board which , as already noted , has been approved by the weight of judicial authority CARPINTERIA LEMON ASSOCIATION 127 "Complaint In Intervention" and an offer of proof made by the Employees' Com- mittee "in support thereof." In short, the Respondent treats the "Complaint In Intervention" as probative evidence of the alleged facts of which it speaks, and asserts that these are "unusual circumstances." It may be noted, first that the "Com- plaint In Intervention" was offered by the General Counsel as part of what is con- ventionally referred to in these cases as the "formal file" which consists of the pleadings, motions, proofs of service, and related documents. Counsel for the Employees' Committee was clearly informed, and agreed, that the "Complaint In Intervention" and other attachments to the motion would stand as an "offer of proof in support of [the] motion " [Emphasis supplied ] The record makes abundantly clear that the "Complaint In Intervention" and its attachments were received as part of the "formal file" in the case, and that the offer of proof was received as bearing on the motion, and for no other purpose 9 Second, the "Complaint In Intervention" is clearly not probative evidence of what it purports to describe, and to base any findings on it would violate elementary rules of decisional propriety. Finally, it does not quite appear why the "question of `unusual circumstances' must be decided upon the basis of the facts set forth" in the "Complaint in Intervention" and the "offer of proof in support thereof." So far as the record shows, there was nothing to prevent the Respondent from calling the three individuals, who are identified in the motion for intervention as the Employees' Committee, as its witnesses and to subject the allegations made by them in the "Complaint In Intervention" to the test of examination and cross-examination. The Respondent offers no explanation for its failure to call them, nor for that matter, does the Respondent explain why it called none of the 50 individuals, whose names were appended to the petition, to support by sworn testimony any of the charges made therein. The nub of the matter is that the record is barren of any probative evidence to support the allega- tions contained either in the petition or the "Complaint In Intervention," and it would be quite improper to treat them as proven "facts," as the Respondent appears to do in its brief The Respondent argues that it had no alternative except to treat the charges against LIU in the petition as "unusual circumstances." However, the evidence does not establish that the charges were the motivating factor in the discontinuance of negotiations. There is no evidence that the Respondent made any investigation of the charges. On the contrary, it would appear from McIntyre's testimony, that the only investigation he made consisted of a comparison between the names listed in the petition and those on the payroll to determine whether the signatories were em- ployees, and whether they constituted a majority of the individuals in the unit. Moreover, McDaniel's letter of February 26, 1954, says nothing about the charges, but bases the refusal to bargain upon the ground that the Respondent had been "served with a petition signed by a substantial majority of the employees in the (Respondent) Association, advising that they do not wish to be represented by your union, and demanding that all bargaining with your union be discontinued." It is clear, as the Respondent in effect concedes in its brief, that it filed no objec- tions to the conduct of the election The Respondent argues that the nature of the charges in the petition was such that it "could not possibly have been discovered" within the 5-day period prescribed by Section 102.61 of the Board's Rules and Regulations for the filing of objections. This is a statement unsupported either by the evidence or by the Board's experience with the many cases in which it has considered objections filed within the time prescribed by Section 102 61. The Respondent offered no proof to show that it had no knowledge before the election, or within 5 days thereafter, of grounds for objections. Nevertheless, the practical effect of what the Respondent is seeking here is a nullification of the results of the election to which it had consented, and in a manner not prescribed by the Board's Rules and Regulations. For reasons already stated, the disavowal, without more, of a certified union, within a year after its certifica- tion, by a majority of the employees is insufficient to defeat the union's majority status Thus the Respondent must stand or fall on the fact that the disavowal was coupled in the petition with charges of misconduct against LiU In that connection, it is well to bear in mind that the Respondent produced not one of the 50 persons whose names are appended to the charges; that the record is barren of any probative evidence to support the allegations, and that there is even no evidence that the Respondent investigated them, and following such an investigation, based its refusal to bargain upon a belief in their truth. In the light of the whole record, I think it It is also plain that since the motion for intervention was denied, the Employees' Com- mittee had no standing to make an offer of proof bearing on the merits of this proceeding, as distinguished from an offer "in support of [the] motion." 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be an unsound practice to permit the Respondent to invoke the petition, without more, as the basis for its unilateral determination that the certification was no longer binding upon it. Thus I find that the Respondent unlawfully refused to bargain with LIU on and after February 26, 1954, concerning rates of pay, wages, hours of employment, and other conditions of employment; that it thereby violated Section 8 (a) (1) and 8 (a) (5) of the Act. On March 21, 1954, the Respondent increased the wages of all of the employees in the bargaining unit, without negotiation or other consultation with LIU. The hourly rate for female employees was raised from $1 to $1.15. Some male em- ployees were given increases from $1.20 to $1.35 an hour, while the hourly rate of others was increased from $1.20 to $1.40. The increases were made retroactive to February 7, 1954. Since LIU was the employees' bargaining representative, the granting of the increases, without consultation with the Union, inhibited and inter- fered with the exercise of rights guaranteed the employees by Section 7 of the Act, and was a disparagement of the collective-bargaining process and tantamount to a refusal to bargain.10 I find that in granting the increases without consultation with LIU, the Respondent violated Section 8 (a) (1) and (5) of the Act." One final matter requires mention as a preface to a recommended remedy. On September 21, 1954, the Acting Regional Director of the Board's Twenty-first Region, entered an order, upon the joint motion of LIU and the Packinghouse Work- ers, amending the certification, previously issued to LIU, by substituting the Pack- inghouse Workers for LIU as the certified bargaining representative of the employees in the unit. The order recites that the Acting Regional Director issued a "Notice to Show Cause" on September 9, 1954, "providing that any party to the proceeding (in which the certification was issued) might, on or before September 21, 1954, show cause in writing" why the certification should not be amended; that Carpinteria "filed an opposition to the motion . and demanded a hearing"; and that the Acting Regional Director, "having duly considered the matter," granted the motion. By force of the amendment, the General Counsel seeks an order directing the Respondent to bargain with the Packinghouse Workers In the absence of the amendment, because of the refusals to bargain found above, the General Counsel would be entitled to an order directing the Respondent, upon request, to bargain with LIU. At the hearing, the Respondent took the position that the Packinghouse Workers is a "new and different organization" with which it cannot be required to bargain. However, the Respondent itself introduced evidence that in connection with the motion to amend the certification, LIU and the Packinghouse Workers sub- mitted information (Respondent's Exhibits Nos 2 and 3) to the Regional Director, which, if true, would justify the amendment. The gist of the information was to the effect that the membership of LIU, by vote, had approved the recall of its charter by its parent organization, the Congress of Industrial Organizations, and the issu- ance of a charter to the membership by, and the transfer of their affiliation to, United Packinghouse Workers of America, an international affiliate of the Congress of Industrial Organizations. In sum, what the motion sought was administrative action to amend the certification to reflect a change in the name and affiliation of the labor organization named in the certification. What the record here establishes is that the motion was made upon justifiable grounds brought to the administrative attention of the Acting Regional Director; that the Respondent was given notice of the motion and opposed it; that the Acting Regional Director considered both the motion and the opposition; and that, after such consideration, he entered the order amending the certification. As an offi- cial act, his ruling is entitled to a presumption of regularity and legality. The burden of rebutting that presumption is upon the Respondent, but the burden has not been met. The Respondent was not precluded from adducing evidence in the instant proceeding establishing that the facts were not as stated in whatever showing was made before the Acting Regional Director to support the motion; 12 yet, although 10 N L R B v Crompton-Hephland Hills, 337 U S. 217 i1McIntvre testified that the increase was put into effect to bring the wages up to the level of other citrus fruit packing houses The purpose is immaterial because it consti- tutes no justification for the failure to consult with LIU and to use the collective-bargain- ing process as the means of putting the increases into effect. 12 In fact, the evidence does not even establish that the showing made before the Acting Regional Director consisted only of the contents of Respondent's Exhibits Nos 2 and 3 In view of the presumption, the General Counsel was under no duty to establish the show- ing The burden was upon the Respondent to prove that the Acting Regional Diiectoir acted ithout sufficient warrant, and, as noted above, that burden has not been met. CARPINTERIA LEMON ASSOCIATION 129 afforded an opportunity to do so, it presented no evidence that whatever showing was made to support the motion was untrue. Put another way, the record is barren of any evidence that the labor organization once known as LIU is not , in a substantial sense at least, the same labor organization now operating under a different name and with a different affiliation . In the state of the record , it would be improper to as- sume that the Acting Regional Director acted without sufficient warrant, and the order amending the certification must be given effect . Accordingly, I shall recom- mend below that the Respondent be directed to bargain , upon request, with the Packinghouse Workers as the representative of the employees in the unit under the terms of the amended certification. 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 violative of Section 8 (a) (1) and (5) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and of the entire record in this proceeding , I make the following: CONCLUSIONS OF LAW 1. On March 21, 1954, and at all times material to this proceeding prior thereto, United Fresh Fruit & Vegetable Workers Union, LIU #78, CIO , was a labor organization within the meaning of Section 2 (5) of the Act. 2. United Packinghouse Workers of America, Local 78, CIO , was, on Septem- ber 21, 1954, and is now, a labor organization within the meaning of Section 2 (5) of the Act. 3. All production and maintenance employees of Carpinteria Lemon Associa- tion's establishment in Carpinteria , California, excluding all clerical employees, guards , professional employees , and supervisors as defined in the National Labor Relations Act, have, at all times since November 18, 1953, constituted , and now constitute, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. United Fresh Fruit & Vegetable Workers, LIU #78, CIO , was, on March 21, 1954, and at all times material to this proceeding prior thereto, the exclusive rep- resentative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act 5. United Packinghouse Workers of America, Local 78, CIO, has been, since September 21, 1954, and now is, the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 6. By failing and refusing on February 26, 1954, and during the period thereafter, as found in section 111, above, to bargain collectively with United Fresh Fruit & Vegetable Workers, LIU #78, CIO , as the exclusive representative of the Respond- ent's employes in the aforesaid appropriate unit , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 7. By granting a wage increase to its employees on March 21, 1954, as found in section III, above , without consultation with United Fresh Fruit & Vegetable Workers, LIU # 78, CIO, the Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 8 By interfering with, restraining , and coercing its said employees in the exercise of the rights guaranteed to them in Section 7 of the Act , as found in section 111, above, the Respondent has engaged in and is engaging in unfair labor practices with- in the meaning of Section 8 ( a) (I) of the Act. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9. 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 A 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, as the exclusive representative of all the employees in the bargaining unit described herein, with respect to rates of pay, wages, hours of employment, or other conditions of employment, and if an agreement is reached, embody it in a signed contract. The bargaining unit is: All production and maintenance employees in our Carpinteria establish- ment, excluding all clerical employees, guards, professional employees, and supervisors as defined in the National Labor Relations Act. WE WILL NOT by so failing or refusing to bargain, or in any like manner, interfere with, restrain, or coerce our employees in the exercise of their right of self-organization, to form, join, or assist any labor organization, to join or assist United Packinghouse Workers of America, Local 78, CIO, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes 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 rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. CARPINTERIA LEMON ASSOCIATION, Employer Dated---------------- By---------------------------------------------- (Repiesentative) (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. Seaboard Lemon Association and United Fresh Fruit & Vege- table Workers Union, LIU #78, CIO. Case No. 21-CA.-19/.8. 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 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. 21.