Seaboard Lemon Association

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---------------------------------------------- (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. Seaboard Lemon Association and United Fresh Fruit & Vege- table Workers Union, LIU #78, CIO. Case No. 21-CA-1948. 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. SEABOARD LEMON ASSOCIATION 131 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 Laoor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Seaboard 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 Ox- nard, 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 is employees in the exercise of the right to self -organization, to form labor organizations, to join or assist United Packinghouse Work- ers 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 affected by an agreement requiring membership in a labor organization as a condi- tion 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 Oxnard, 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 'We find no merit in the Respondent's argument that its refusal to bargain with the Union on and after 'larch 23, 1954, but during the certification year, was justified by the allegations of the einplovees' petition repudiating the Union See Ray Brooks v N L R B , 348, U S 96 , N L It B v Henry Heide, liac , 219 F 2d 46 (C A 2) ; Plastic Age Com- pany, et al , ]1l NLRB 121 See also iicxton Furniture Company, 111 NLRB 342 We note that the certification was issued on November 13, 1953, and not on the cor- responding date in 1954 as the Trial Examiner inadvertently found h'oi the raisons set forth in Santa Clara Lemon Association, 112 NLRB 93, we find that the Regional Director, in amending the certificate to substitute the Unions new name, did not act arbitrarily or capriciously. s There shall be substituted for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order." 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 Appeals, Enforcing an Order." 369028- 56-vol. 112-10 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Twenty-first Region, shall, after being signed by the Respondent's rep- resentative, 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. (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 LEEDO-11 took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On March 29, 1954, United Fresh Fruit & Vegetable Workers Union, LIU #78, CIO (designated below as LIU), filed a charge with the National Labor Relations Board (referred to herein as the Board) against Seaboard Lemon Association (de- scribed below as Seaboard or the Respondent) Based upon the charge, the General Counsel for the Board issued a complaint on May 28, 1954, alleging that Seaboard had engaged in and is engaging in unfair labor practices within the meaning of the National Labor Relations Act, as amended (61 Stat 136-163), 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, al- leges that LIU, a labor organization, was certified by the Board on November 13, 1953, as the representative of a unit of the Respondent's employees appropriate for the purposes of collective bargaining; that after 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 March 25, 1954, refused to bargain collec- tively with LIU as the representative of the said employees, and thereafter refused so to bargain, that, on or about April 5, 1954, the Respondent "granted wage in- creases 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 sum, admits the certification of LIU, but denies the commission of any unfair labor practices. The answer alleges affirmatively that the individuals in the unit are "agricultural laborers" and thus "exempt from the . .. Act", that on or about March 23, 1954, the Respondent 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 "in- structed" the Respondent "to discontinue immediately all bargaining or other dealings on behalf of said employees" with LIU, that the "said employees stated that they de- sired to be represented by the Employees' Committee named in the said petition," and required the Respondent "to recognize said Employees' Committee as their bargain- ing 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 estab- lished policy of paying wage rates comparable to the highest in citrus packing in the area." 1 1 The answer also includes allegations that LIU "is defunct, insolvent, and inopera- tive"; that its officers were removed from office on or about March 1, 1954; that LIU has no "resources, 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 National Labor Relations Board and LIU are abridging rights guaranteed to the employees by Section 7 of the Act, and "are coercing the [Respondent] to act in violation of Section 8 (a) (]) of the Act" I have not set forth these allegations in the 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 SEABOARD LEMON ASSOCIATION 133 Pursuant to notice duly served by the General Counsel upon all other parties, a hearing was held on October 4 and 5, 1954, before me, as duly designated Trial Examiner, at Oxnard, California. The General Counsel and the Respondent were represented by counsel. LIU was not represented. All parties were given a full opportunity 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- ment. The General Counsel presented oral argument 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 a motion during the hearing, opposed by the Re- spondent, to amend the complaint to the effect that on or about July 1, 1954, LIU "was taken over and absorbed" by United Packinghouse Workers of America, Local 78, CIO (also referred to below as the Packinghouse Workers), and that on Sep- tember 21, 1954, the Acting Regional Director for the Twenty-first Region of the Board amended the certification by substituting the Packinghouse Workers for LIU as the certified bargaining representative of the unit mentioned above. The motion was granted. I also granted a motion by the Respondent to amend its answer to the effect that it denies the allegations added to the complaint, as set out above. Counsel for 5 employees, styled the Employees' Committee, appeared at the hearing and presented a motion, supported by an affidavit of 1 of the group, described there- in as "Chairman of the Employees' Committee." The affidavit contains averments (to which later reference will be made) of alleged misconduct by LIU; states, among other things, that the Employees' Committee represents a majority of Seaboard's production and maintenance employees; requests leave to intervene in this proceeding, and seeks dismissal of the complaint. The motion was denied.2 I JURISDICTION The Respondent has its principal place of business at Oxnard, California, and is engaged there in the packing and processing of citrus fruits. It sells its products through a "selling agent," but engages directly in the loading and shipment of its products. During the year immediately preceding the hearing, the Respondent shipped fruit 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 of this proceeding. 11, THE LABOR ORGANIZATIONS INVOLVED On April 2, 1954, and at all times material to this proceeding prior thereto, United Fresh Fruit & Vegetable Workers Union, LIU #78, CIO, admitted to membership 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 Re- spondent, concerning wages, rates of pay, hours of employment, and conditions of work; and was a labor organization within the meaning of the Act.3 United Pack- 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 a 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 Re- spondent unlawfully assisted or supported the Employees' Committee ; that the group does not dispute that the Board certified LIU as the employees' representative; and that since the charges and complaint were filed against the Respondent, and not the Employees' Com- mittee, the latter has no standing to seek their dismissal. Moreover, the intervention sought is, in a realistic sense, tantamount to an effort to secure decertification of LIU. Both the Act and the Board's Rules and Regulations make provision for the filing by em- plovees of a petition for decertification 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 April 2, 1954 As the Geneial Counsel, for reasons 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 March and April 1954 when the Respondent, as will appear, refused to bargain with it. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inghouse Workers of America, Local 78, CIO, admits to membership persons em- ployed in fruit packing establishments , such as the one operated by the Respondent; exists for the purpose of dealing with employers , such as the Respondent , concern- ing wages , rates of pay, hours of employment , and conditions of work; and is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The certification and appropriate unit On November 13, 1954, the Board, through the Regional Director for its Twenty- first Region , certified LIU as the collective-bargaining representative of a unit of employees defined as follows- "All production and maintenance employees of the Employer's [Respondent's] Oxnard establishment , excluding all clerical employees, guards, professional employees, and supervisors as defined in the National Labor Relations Act." The employees in the unit described above are engaged in the Respondent 's estab- lishment in washing, grading, and packing citrus fruits , loading them into freight cars, and shipping them. The Respondent makes no claim that it grows the citrus products on which these operations are performed. On the contrary, it asserts in its answer that it is a cooperative association of growers ; that it "hired the labor which harvested, washed, graded and packed the citrus fruits grown in the groves of its members"; and that "costs for such services are allocated to and paid by each member on a per-box basis from the proceeds from the sale of each member's citrus fruits." As stipulated at the hearing, the persons employed in the harvesting opera- tions are not included in the unit described above, and those who are so included do not engage in harvesting activities. Although the Respondent concedes the issuance of the certification and, as will appear, engaged in bargaining negotiations with LIU as the representative of the production and maintenance employees , the Respondent now advances the claim in its answer that these individuals are "agricultural laborers"; and are therefore, not `.employees" within the meaning of Section 2 ( 3) of the Act. The Respondent's position thus appears to be that the production and maintenance employees may not constitute a unit appropriate for bargaining purposes . The claim is without merit.} I find that the unit in connection with which the certification was issued, as de- scribed above, is appropriate for the purposes of collective bargaining within the meaning of Section 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 first meeting was held on January 19 , 1954. On that occasion LIU submitted written contract proposals to the Respondent . The pro- posals need not be set forth in detail . For present purposes , topical identification of some will suffice. The proposals included terms dealing with wages , recognition, union security , representation, grievances, arbitration , prohibition of strikes and lock- outs, seniority , and hours of work. The proposals were read and there was some exploratory discussion , including "some questions" by the management represent- atives on the subject of wages. (The record does not state what the "questions" were, nor what answers were given .) No agreement was reached. The Union requested that Seaboard submit counterproposals "in full" and the Respondent re- plied that the request "would be taken under consideration " Bargaining meetings were held thereafter on January 29, February 5, 18, and 25, and March 17 and 25. As the General Counsel makes no claim that the Respondent refused to bargain prior to the last meeting, a brief summary will suffice to describe the negotiations at the six meetings following the session of January 19. During the course of the six meetings , the Respondent submitted counterproposals (which need not be described in detail ) on the subjects of recognition , representation, union security, arbitration , grievances, prohibition of strikes and lockouts, and seniority These subjects were also discussed . Counterproposals were submitted on what one 49, CC TV P McDonald Corporation, 83 NLRB 427 ; Ctowon Crest Fruit Corporation, 90 NLRB 422, Imperial Garden Growers, 91 NLRB 1034 ; Stokely-Van Camp, Inc, 102 NLRB 1259 , Title River Cooperati ie Gin , Jac, 102 NLRB 1.523, Dofemeyer Bros, 101 NLRB 205 I do not pass on the question of the applicability of the exemption to individuals employed in the processing, loading, and shipment of agricultural products grown by their employer.- That question is not presented here. SEABOARD LEMON ASSOCIATION 135 of the union's negotiators termed a "piecemeal basis ," and at the meetings of January 29 and March 17, the union in effect repeated the request made at the first meeting for the submission of counterproposals "in full," asserting on March 17 that the submission of counterproposals "on a piecemeal basis made it very difficult for us to arrive at a decision and to make agreements." Seaboard's response was that "this was the manner in which they intended to continue their negotiations ." During the course of the meetings , tentative agreement was reached with respect to the subjects of recognition , representation , some aspects of seniority , arbitration, griev- ances, and prohibition of strikes and lockouts . There was no bargaining with respect to the subject of wages and a number of other proposals submitted at the first meeting.b Seaboard's manager, Clarence Sewell , and its attorney, Ivan G. McDaniel, were among the Respondent's representatives at the meeting of March 25 which, like the others, was held at Seaboard 's office. After discussion had been under way for about an hour, Sewell was called from the meeting and went into an outer office where he was served with a document by a uniformed constable. Bearing the caption "Petition ," and addressed to Seaboard ,6 the document, to which the names of 50 individuals were appended , stated, among other things . "You are hereby notified that the undersigned , constituting a majority of the employees of Seaboard Lemon Association , no longer wish to be represented by the Union, Local No. 78, C. I. 0. [meaning LIU], and we hereby revoke any and all authority of said Local to represent us in any manner pertaining to our employment on the grounds that our consent and support of said Union was obtained by threats , misrepresentations and promises . . . .. The petition then proceeded to describe various alleged in- stances of "threats, misrepresentations and promises," and stated that "in lieu of the Union," the signatories had selected five individuals (whose names are among those appended to the petition ) as a committee with exclusive authority to represent them "in all labor management matters and in all bargaining matters." Upon receipt of the petition , Sewell called McDaniel out of the meeting and told the latter about the document . McDaniel instructed Sewell to determine by reference to the payroll whether the names on the petition were those of individuals in Sea- board's employ. McDaniel then informed the union representatives that "the manage- ment had been presented with a petition which listed the names of a majority of the employees requesting that the management cease bargaining with the union ", and that Seaboard "intended to check the petition" and would notify the Union as to the management's decision . A union representative, Syd Rose, replied that "the union had no objection to the checking of the petition"; that "this was not the first time that it had happened in the lemon houses"; that the Union 's position, "as in the other in- stances" was that the Union had been certified by the Board ; and that the certifica- tion was "still valid." Rose then requested that negotiations continue "while he [McDaniel] investigated this petition and its validity." McDaniel refused to continue the negotiations, and the meeting adjourned. Sewell compared the names on the petition with Seaboard 's payroll and determined that the names of those on the petition were those of individuals in the Company's employ, and that the persons whose names were appended to the petition constituted a majority of Seaboard 's employees . The evidence does not establish when this com- parison was made, although the record suggests that it was made at some point before March 29. McDaniel wrote a letter to Rose on March 29, 1954, stating that the signatures on the petition had "been checked , and all appear to be genuine"; that "we have found no evidence of any activity on the part of management in connection with the peti- tion" ; and that the management would "be required to recognize the petition to the extent required by law." Rose replied by letter on the following day, stating, among other things, that the certification was "still valid ," and that a refusal by the management to continue bargaining was a violation of the Act . The letter closed with a request "for resump- tion of collective bargaining at the earliest possible moment." The evidence does not establish whether McDaniel replied to this letter . In any event, it is clear that bar- gaining negotiations were not resumed. 6 The other proposals on which there were no negotiations dealt with the subjects of checkotis, transportation, "men in the armed forces," leaves of absence, vacations, hours and overtime, duration of the agreement, combination jobs, working conditions, safety, insui ante, and pensions The document is also addressed to the Los Angeles Regional Office of the Board There is no evidence that the document was ever sent to, or served upon, the Board or any of its representatives. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no doubt that the Respondent refused to bargain with LIU, with respect to rates of pay, wages, hours of employment, and other conditions of employment, from and after the time, on March 25, 1954, when the petition was served upon it.7 The basic question is whether the Respondent could lawfully refuse to bargain because of the petition. 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).8 The principle affords bargaining rela- tionships 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.9 Bearing the rule in mind, inasmuch as the refusal to bargain occurred only about 41/2 months after the certification, the Respondent can justify its refusal only if it establishes the existence of "unusual circumstances." In support of its claim that "unusual circumstances" are present, the Respondent stresses the affidavit attached to the motion for intervention on behalf of the Em- ployees' Committee, and in so doing, proceeds upon a manifestly erroneous con- ception of probative evidence. The affidavit incorporates the allegations of the petition by reference, and, among other things, states, in addition, that the Union represented before the election that its management was "sound and dependable" and had "plenty of money," and then makes the claim (upon hearsay) that officers of the Union have been removed and that the organization "is in financial difficulties and may be insolvent." The Respondent, in its brief, takes the singular position that because the motion for intervention was denied, "the question of `unusual cir- cumstances' must be decided upon the basis of the facts set forth" in the affidavit and an offer of proof made by the movant "in support thereof." In short, the Re- spondent treats the affidavit as probative evidence of the alleged facts of which it speaks, and asserts that these are "unusual circumstances." It may be noted, in the first place, that the affidavit was offered by the General Counsel as part of what is conventionally referred to in these cases as the "formal file" which consists of the pleadings, motions, proofs of service, and related documents. Counsel for the movant was clearly informed, and agreed, that the affidavit, the exhibits, and a cer- tain statement he made, would stand "as an offer of proof in support of the motion." [Emphasis supplied.] The record makes abundantly clear that the affidavit and mo- tion 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 purposes.10 Second, the affidavit is clearly not probative evidence of what it purports to describe. 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 affidavit and the movant's offer of proof "in support thereof." So far as the record shows, there was nothing to prevent the Respondent from calling the affiant as its witness and to subject the allegations he makes in the affidavit to the test of examination and cross-examination. The Re- spondent offers no explanation for its failure to call the affiant, nor for that matter does the Respondent explain why it called none of the 50 individuals, whose names are 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 7 The Respondent's brief concedes that it refused "to bargain with the union after the employees' petition was served upon it." 8 See, also Lift Trucks, Inc, 75 NLRB 998 ; The Belden Bi ick Co , 83 NLRB 465 ; Kimberly-Clark Corp, 61 NLRB 90, Jasper Wood Products Company, Inc, 72 NLRB 1306 ; and Carson Pirie Scott & Company, 69 NLRB 935 ° See N. L R. B v Sanson Hosiery Hills, Inc , 195 F 2d 350 (C A 5) and N L P 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 comprehensive review of the reasons for the rule, and of the authorities The Respondent relies upon two decisions to the contrary by the Court of Appeals for the Sixth Circuit, namely, Hid-Continent Petroleum Corp. v. N L. R B , 204 F. 2d 613 and Vulcan Forging Co. v N L R B , 188 F 2d 927. Apart from the fact that I respectfully disagree with these 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. 10 It is also plain that since the motion for intervention was denied , the movant had no standing to make an offer of proof bearing on the merits of this proceeding , as distin- guished from an offer "in support of the motion." SEABOARD LEMON ASSOCIATION 137 to support the allegations of "threats, misrepresentations and promises," 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 nego- tiations. What McDaniel told the Union's representatives on March 25 was that the management had received a petition from a majority of the employees "request- ing that the management cease bargaining with the union" and that Seaboard in- tended "to check the petition " But it is evident that what he meant by checking the petition was not an investigation of the truth or falsity of charges, but whether those listed in the petition constituted a majority of the employees. That that is what he meant is made manifest by his instructions to Sewell. As Sewell described these in his testimony, McDaniel told him to "check it [the petition] to see if the names were the proper names upon it, to check our payrolls against the name," and what Sewell did in that regard, according to his own testimony, was to compare the names on the petition with the payroll and make a determination that those listed in the petition were in Seaboard's employ and constituted a majority of the em- ployees. Significantly, also, McDaniel's letter of March 29 says nothing about an investigation into, or a belief in, the charges. It is fairly evident from McDaniel's letter, particularly against the background of his instructions to Sewell, that what the Respondent meant by checking into the petition was simply to determine whether those who had put their names to it constituted a majority of the employees. It is clear, as the Respondent in effect concedes in its brief, that it filed no objections to the conduct or results 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 Reg- ulations 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, 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 certification, 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 1 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 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 March 25, 1954, concerning rates of pay, wages, hours of employment, and other conditions of employment; that the Respondent has since so refused to bargain; and that it thereby violated Section 8 (a) (1) and (5) of the Act. On April 2, 1954, a few days after the refusal to bargain, Seaboard increased the wages of all of the employees in the bargaining unit, without negotiation or other consultation with LIU. The hourly rates for female employees were raised from 95 cents to $1.25. The hourly rates for male employees were increased vari- ously from $1.15 and $1.20 to $1.35 and $1.40. The increase were made retroactive to September 27, 1953. As LIU was the bargaining representative of the employees, the granting of the increases, without consultation with the union, inhibited and interfered 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." I find that in granting the increase without consultation with LIU, the Respondent violated Section 8 (a) (1) and (5) of the Act.12 It N L B B v Crompton -Ilighland. Mills, 337 U S 217 "Sewell 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 constitutes no justification for the failure to consult with LIU and to use the collective -bargaining process as the means of putting an increase into effect 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD One final matter requires mention as a preface to a recommended remedy. On September 21, 1954, the Acting Regional Director entered an order, upon the joint motion of LIU and the Packinghouse Workers, amending the certification , previously issued to LIU, by substituting the Packinghouse 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 Seaboard "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, the General Counsel would be entitled to an order directing the Re- spondent, upon request, to bargain with LIU. At the hearing, the Respondent advanced the contention that "the original local (LIU ) was dissolved and that, therefore there could be no order effective as to any further dealings between the employer . . . and the new organization because the new organization was not the unit [sic] elected by the workers." The contention assumes that the Acting Regional Director acted without lawful warrant and a proper showing of circumstances justify- ing the amendment . But the Respondent offered not a scintilla of evidence to sup- port such an assumption . In fact, there is good reason to believe that the Respondent adduced no such evidence because it has none. Thus, after stating the contention described above, counsel for the Respondent said ". . . if our contention is sub- stantiated at the proper time, we will move, if we may, to reopen this case in order that such evidence may be supported [sic] in this case." On that score, it was pointed out to counsel that the record of a hearing may be reopened only for good cause Moreover, it goes without saying that counsel was fully aware that the process of subpena was available to secure the attendance of witnesses and the pro- duction of documents in order to present appropriate evidence in support of its contention . Nevertheless, no effort was made to present any evidence to establish that the amendment was not based on good and sufficient grounds. The General Counsel adduced no evidence concerning the reasons for the amend- ment, nor was he under any obligation to do so. The motion to amend the certifica- tion was made ; the Respondent had notice of the motion and opposed it; the Acting Regional Director considered both the motion and the opposition ; and entered the order after such consideration . As an official act, his ruling is entitled to a presump- tion of regularity and legality . In the absence of any evidence that he did not have good and sufficient reasons for his determination , it would be improper to assume that he acted without sufficient warrant The Respondent has made no evidentiary showing of any kind in this proceeding that the Packinghouse Workers do not belong in the certification. In that setting , one is not obliged to speculate as to the reasons for the amendment . What one must do is to give the amendment effect , and I shall, accordingly, recommend 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 commerce 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 April 2, 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. SEABOARD LEMON ASSOCIATION 139 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 Seaboard Lemon Association's Oxnard establishment, excluding all clerical employees, guards, professional employ- ees, and supervisors as defined in the National Labor Relations Act, have, at all times since November 13, 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 Union, LIU #78, CIO, was, on April 2, 1954, and at all times material to this proceeding prior thereto, the exclusive representative of all the employees in the aforesaid appropriate unit for the pur- poses 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 March 25, 1954, and during the period thereafter, as found in section III, above, to bargain collectively with United Fresh Fruit & Vegetable Workers Union, LIU #78, CIO, as the exclusive representative of the Respondent's employees in the aforesaid appropriate unit, the Respondent has en- gaged 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 April 2, 1954, as found in section III, above, without consultation with United Fresh Fruit & Vegetable Work- ers Union, 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 exer- cise of the rights guaranteed to them in Section 7 of the Act, as found in section III, above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 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 Rela- tions 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 agreement is reached, embody it in a signed contract. The bargaining unit is: All production and maintenance employees in our Oxnard establishment, excluding all clerical employees, guards, professional employees, and su- pervisors 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 right 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. SEABOARD 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.