Minute Maid Corp.

MINUTE MAID CORPORATION 355 years, and its most recent contract had expired. Under normal Board policy, an appropriate occasion for the employees to redetermine their representative had arisen. Yet the AFL-CIO no-raid pact would require the employees to keep the Toy Workers or else forego repre- sentation by a union affiliated with the AFL-CIO. Thirdly, the result reached by application of the no-raid pact ap- pears to be contrary to the wishes of the Employer's employees as shown by the election results-the Metal Polishers received an over- whelming majority, and Toy Workers not a single vote. The Regional Director recommended overruling the Toy Workers' objections. While no certificate has yet been issued because of the pending objec- tions, permitting the withdrawal request would enable the Toy Work- ers to assert with impunity a claim to represent employees who, the election results show, no longer desire representation by the Toy Workers. Accordingly, the Metal Polishers' request is denied, and certification will be issued to the Metal Polishers as the representative of the Em- ployer's employees should it be found that the Toy Workers' objections to the election are without merit .3 [The Board denied the Petitioner's request to withdraw the petition.] 3 Although the Board in Personal Products Corporation, 122 NLRB 563, permitted the withdrawal with prejudice of a representation petition , in a situation caused by the no-raid pact, the petitioner was acting pursuant to a court order specifically enforcing the pact ( United Textile Workers v . Textile Workers Union, 258 F. 2d 743 (C.A. 7), 1958.) However, in permitting the withdrawal, the Board noted it was not a party to the court litigation and that it did not acquiesce in the decision of the United States District Court, or of the court of appeals. Minute Maid Corporation and International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Cannery, Citrus Workers, Drivers, Warehousemen and Allied Employees, Local 444. Case No. 12-CA-305. August 7, 1959 DECISION AND ORDER On October 24, 1958, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that the Respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices.' Thereafter, the General Counsel 'As no exception was taken thereto, we adopt the recommendation of the Trial Ex- aminer that the complaint be dismissed insofar as it alleged that the Respondent dis- 124 NLRB No. 47. 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the Respondent filed timely exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers herein to a three-member panel [Chairman Leedom and Members Bean and Fanning]. The Board has reviewed the rulings of the Trial Examiner made 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner with the following additions and modi- fications : The Trial Examiner found that the Respondent failed to bargain in good faith with the Union on and after December 13, 1957. The Respondent excepts to this finding on several grounds hereinafter indicated. The pertinent facts are set forth in considerable detail in the Intermediate Report, but in summary they are as follows : The Respondent and the Union engaged in a series of bargaining conferences commencing in April 1957 which led to a "final" union contract proposal in October of that year and a contract offer by the Respondent in late November 1957. Neither of the parties would accept the other's offer. The Union's rejection took place on Decem- ber 7,1957. A few days later, on the night of December 11 and morn- ing of December 12, the Florida citrus fruit area suffered a severe freeze that damaged much of the orange crop.2 On December 13, 1957, the Respondent sent the Union a telegram withdrawing its proffered agreement assertedly because of the Union's rejection of that agree- ment and the economic uncertainty created by the freeze. A meeting between the parties was arranged for December 19,1957. At that meet- ing, the Respondent stated that, in view of the unsettled conditions resulting from the freeze, bargaining should be delayed until sometime in January 1958, when information on crop damage would be avail- able. It suggested a meeting for January 16, 1958. However, Dry, the Respondent's plant superintendent, credibly testified that the Re- spondent would not discuss any proposals on December 19 as it was not in a position to do so. In early January 1958, the Union submitted to the Respondent an- other "final" offer which was, in fact, a modification of certain provi- sions of its proposed October contract. Among other things, the Union agreed to the 81/2-cent pay increase which, as part of the Re- charged Dewey Evans in violation of Section 8(a) (3) of the Act. Although an exception was filed by the General Counsel to the Trial Examiner 's finding that the Respondent did not make threats of reprisal and promises of benefit violative of Section 8(a) (1) there is insufficient basis for reversing the Trial Examiners' resolution of conflicting testimony. Standard Dry Wall Products, Inc., 91 NLRB 544. 2 The Respondent's plant involved in this proceeding is located at Auburndale , Florida, where it is engaged in processing oranges from which it makes frozen orange concentrate. MINUTE MAID CORPORATION 357 :spondent's November proposed contract, the Union had previously rejected. Podmore, the Respondent's director of industrial relations, rejected the proposed agreement as so modified on the stated grounds that it contained matters not previously agreed upon and because -damage from the December freezes and a later one on January 9, 1958, had not been determined, thus rendering impossible a consideration of cost items. He suggested, and, in due course, the Union agreed to, a .meeting for February 6,1958. At the outset of the February 6 meeting, the Respondent stated, in reply to a union query, that it had no proposals. A long discussion then occurred as to whether the Union's "final" offer was fixed or open to discussion and possible modification. Wingate, the union repre- sentative, stated that the Union was willing to start negotiation from the beginning, if necessary. The freezes were again discussed, the .latest having occurred on February 4 and 5. At some point in the meeting, Podmore said that the Respondent could not discuss economic issues but might reach tentative agreement on some other aspects of the contract. The afternoon of February 6 was spent in starting .negotiations on a new contract. As summed up by the Trial Exami- ner, the parties were then just where they had been on April 7, 1957, when they first met. Another meeting was held on February 13, 1958, which simply witnessed a continuation of the negotiations of February and a meet- ing was scheduled for February 26. More freezes occurred on Feb- ruary 14,18, and 21. On February 21, 1958, Harger, an employee of the Respondent, filed -a decertification petition with the Board's Twelfth Regional Office. Three days later, Podmore sent a telegram to the Union withdrawing recognition and canceling the meeting for the 26th on the ground that .a "large majority" of the employees had signed petitions repudiating the Union and requesting the Respondent to break off negotiations. In the telegram, Podmore explained that under the attendant circum- stances, that is, the fact that no agreement had been reached and that the certification year had run out,' the Respondent was of the opinion it would be illegal to continue to recognize and deal with the Union until the decertification issue was settled. Thereafter, the Union .sought, without success, recognition from the Respondent and a re- newal of negotiations, while the Respondent with a similar lack of :success sought to have the Union consent to an election on the decerti- fication petition. On April 18, 1958, the Respondent, despite the pendency of both the charges 4 in this case and the decertification peti- tion, announced, without prior consultation with the Union on the 3 The certification year ended on February'20, 1958. 4 The original charge was filed on January 14, 1958, and a first amended charge on April 22, 1958. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matter, the granting of a bonus to the employees in the unit, the amount of the bonus being based upon the employee's earnings for the 1957-58 season. The employees were paid their bonuses over the next 8 to 10 weeks. On June 9, 1958, the decertification petition was dis- missed by the Regional Director. The complaint in this proceeding issued on July 3, 1958. The Respondent contends essentially that, in view of the economic uncertainty created by the freeze, it was justified on December 19, 1957,. and, presumably, thereafter, in asking for a temporary delay in negotiations. Certainly the situation created by the freezes could play a part in the Respondent's bargaining with the Union. Nevertheless, the Respondent had a duty to bargain with the Union at the time here under consideration and it could not elect to disregard this duty on the basis of economic expediency .5 Even with regard to economic issues, the significant fact is not whether the Respondent was in a position to grant concessions, but rather whether it bargained in good faith of the subject.6 Neither does the fact that Respondent may have felt that bar- gaining on wages would, under the circumstances, be fruitless justify its excluding wages from the area of collective bargaining .7 To be sure, the Respondent argues that it was asking for a delay in negotia- tions on December 19. However, Dry's testimony that the Company would consider no proposals on that date shows that the Respondent approached the December 19 meeting with a fixed intent not to bar- gain on any issue. Thus, even its presentation at that meeting of the difficulties created by the freeze appears as only a justification of a fixed position previously taken rather than a good-faith attempt to persuade the Union to agree to a delay in negotiations. Again, Podmore's statement in his January 16 letter to the Union that eco- nomic conditions rendered impossible any consideration of cost items reflects a continuance of the Respondent's fixed intention to place any consideration of economic issues outside the sphere of collective bar- gaining. The events of the February 6 meeting likewise reveal that Respondent was intent on not fulfilling its statutory duty to bargain. Again, any consideration of economic matters was excluded from the bargaining table while, with respect to other issues, Podmore limited the role the Respondent would play to reaching tentative agreements only. However, the Respondent had the duty to bargain and to em- body any final agreement in a signed contract. It could not, to re- iterate, require that the Union wait until economic conditions had stabilized before making earnest efforts of its own to reach an agreement. 5 Butler Chemical Company, 116 NLRB 1041, 1058. Partee Flooring Mill, 107 NLRB 1177, 1178. 7!See Hughes Tool Company, 100 NLRB 208, 211. MINUTE MAID CORPORATION 359 Furthermore, we find no merit in the Respondent's argument that its actions were justified because it was merely seeking a temporary stay in bargaining. During the period of economic uncertainty where, as the Respondent itself recognized, a cutback in operations was threatened, the Union might well have played an important role on behalf of the employees in bargaining over resort to such matters as a layoff and the eventual recall of workers.8 Moreover, the danger in establishing a temporary exception to the duty to bargain during a period of economic uncertainty-assuming the Act would admit of such an exception-is effectively demonstrated by the situation here. The initial period of uncertainty commencing with the December freeze was, according to the Respondent, to be settled by about Janu- ary 10, 1958, when Government crop damage estimates were to be published. However, repeated freezes running, as noted above, through February 21, 1958, extended this period of uncertainty until early March of 1958. Thus, the so-called temporary period of uncer- tainty covered approximately 3 months or about one-half of the full processing season of the orange concentrate industry. Certainly, if industrial stability is to be achieved, the statutory duty to bargain cannot be held to vary with the changes of economic fortune, which, in the present situation, were directly affected by the vagaries of weather. Consequently, even if it were assumed that the Respondent was acting in good faith, it is evident from the foregoing facts, acid we find, that it failed to bargain with the Union on and after December 19, 1957. Under such circumstances, its good faith is not a relevant considera- tion as its conduct, we find, in itself, violated Section 8 (a) (5) and (1) of the Act? However, as noted above, the Trial Examiner found that the Re- spondent failed to bargain in good faith on and after December 13, 1957. This finding is supported by the record. On December 13, the Respondent withdrew its proffered agreement in its entirety. Under the circumstances here, the withdrawal was clearly the first step in the Respondent's course of conduct effectuating a fixed inten- tion not to reach any agreement with the Union. Shortly after the withdrawal, there occurred the events of December 19 when, as de- scribed above, the Respondent cloaked its "refusal to discuss any proposals" with a surface request that bargaining be temporarily delayed. The wholly intransigent attitude of the Respondent came clearly to the surface at the February 6 meeting where it not only stood by its prior withdrawal of its proposed contract but stated that it had no proposals whatsoever to make.10 It then proceeded to tie 8 see, Butler Chemical Company, 116 NLRB 1041, 1054-1055. 0 Taylor Forge and Pipe Works, 113 NLRB 693, 694, footnote 6. w The Respondent's failure to make proposals on February 6 does not per se constitute a violation of the good-faith bargaining requirement of the Act. But here, where the Union submitted modifications of its previously rejected proposed contract which were 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD up this meeting for most of the morning session with a discussion of whether the modified offer of the Union of January 9 was final, that is, a take-it-or-leave-it proposition. The Respondent pursued this line of inquiry despite a statement made early in the meeting by Wingate, the union representative, that he would, if necessary, start negotia- tions from the beginning and despite his asking the Respondent's representatives later in the meeting if they would discuss any issues." The Respondent's conduct at the meeting thus evinces that it "did not approach the bargaining table with an open mind and purpose to reach agreement consistent with the respective rights of the parties," 12 but rather with an intent to frustrate the whole bargaining process. This it achieved not only by involving the morning session in an unproduc- tive, specious consideration of whether the Union's last proposal was "final," but by forcing the Union to retreat to the bargaining situa- tion substantially as it existed on April 7 of the preceding year when the parties first met. However, the Respondent contends it offered on February 6 to bargain on any matter not "final." Its statement to this effect was, in view of the Respondent's other conduct, little more than an empty, self-serving declaration, wholly vitiated by Podmore's unilaterally excluding economic matters from the area of considera- tion and limiting agreement on other issues to those which would be "tentative." The Respondent's withdrawal on December 13 of its proposed agreement, in our opinion, served only to clear the way for its subsequent evasive actions. As the other events make clear, the freezes were used by the Respondent to lend an air of reasonableness to its actions and to camouflage its determination to avoid entering into a contract with the Union. Consequently, we find, in agreement with the Trial Examiner, that the Respondent did not bargain in good faith with the Union on and after December 13, 1958, as more fully set forth in the Intermediate Report, and that it thereby violated Sec- tion 8 (a) (5) and (1) of the Act. The Respondent, as noted above, withdrew recognition from the Union on February 24, 1958, and, thereafter, on April 18, 1958, uni- laterally announced, and subsequently paid, bonuses to the employees. It seeks to justify these actions on the ground that the Union no longer found unacceptable by the Respondent and the Union had thereafter sought proposals, the Respondent's refusal to suggest any resolution of the outstanding differences may properly be considered as some evidence of the Respondent's lack of good faith in dealing with the Union. See, for example , L. L. Majure Transport Company V. N.L.R.B., 198 F. '2d 735 , 739 (C.A. 5) ; N.L.R.B. v. Cittlin Charlotte Bag Company, 196 F. 2d 158 (C.A. 4) ; N.L.R.B. v. Montgomery Ward & Co., 133 F. 2d 676 ( C.A. 9) ; J. H. Rutter- .Rex Manufacturing Company, Inc., 86 NLRB 470, 474. u Dry sought to justify the Respondent 's pressing this matter of the meaning of "final" with respect to the Union 's proposed modifications in the face of Wingate 's remarks, which clearly invited negotiations on all issues, with the incredible explanations that (1) Wingate "never opened any articles up for discussion until after lunch" and "still '-didn't say that his last offer was not final" and (2) in asking the Respondent's repre- :sentatives if they would discuss any issues, Wingate "wouldn't say which issues." 12L. L. Majure Transport Company v. N.L.R.B., supra. MINUTE MAID CORPORATION 361 represented the employees as evidenced by the decertification petitions signed by a "large majority" of the employees. However, the unfair labor practices committed by the Respondent before the decertifica- tion action was taken by the employees necessarily affected the union sympathies of the employees, thereby rendering it impossible to ascer- tain their true sentiments. Under such circumstances, the employees rejection of the Union cannot be considered as affecting the majority representative status which the Union then enjoyed. Accordingly, we find that the Union was at all times here material, and now is, the exclusive bargaining representative of the employees in the ap- propriate unit.13 We further find that the Respondent's withdrawal of recognition on February 24, 1958, and its unilateral granting of bonuses on April 18, 1958,14 each independently violated Section 8(a) (5) and (1) of theAct.15 ORDER Upon the entire record in this 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, Minute Maid Corporation, Auburndale, Florida, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with respect to rates of pay, wages, hours of employment, and other conditions of employment with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, Cannery, Citrus Workers, Drivers, Warehousemen and Allied Employees, Local 444, as the exclusive bar- gaining representative of the employees in the following appropriate unit : all production and maintenance employees, including ware- housemen, checkers, cafeteria employees, leadmen, and peel oil opera tors, employed at the Respondent's plant in Auburndale, Florida, but excluding office and office clerical employees, print shop employees,. 13 See : Henry Heide, Inc., 107 NLRB 1160, 1165; Square D Company, 105 NLRB 253, 266; Continental Desk Company, 104 NLRB 912 , 915-916; see also Franks Bros. Com- pany v. N.L.R.B., 321 U.S. 702 , 704-705; N.L.R.B. v. Sanson Hosiery Mills, Inc., 195 F. 2d 350 (C.A. 5). 14 Bonham Cotton Mills, Inc., 121 NLRB 1235 : Shoreline Enterprises of America, Inc., 117 NLRB 1619, 1620. 11 The Trial Examiner found that the withdrawal of recognition and the granting of the bonuses were part of the Respondent 's conduct demonstrating its lack of good faith in its dealings with the Union . He also found that they constituted independent viola- tions of Section S(a) (1). We agree that, in addition to being independent Section 8(a) (5) and ( 1) violations as we have found , this conduct also is a part of Respondent's evasive tactics showing its continuing lack of good faith . We also agree that the with- drawal of recognition and the unilateral granting of the bonus was each an independent violation of Section 8(a)(1). Each of such acts not only avoided the Respondent's duty to bargain with the Union, but also had the necessary effect of interfering with and re- straining the employees in their adherence to and support of the Union . See Shoreline Enterprises of America, Inc., cited, supra, at p. 1620; Tennessee Coaches, 115 NLRB 677, 679. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD truckdrivers, garage employees, fruit scale men, all new construction and installation employees, agricultural employees, first-aid personnel, laboratory technicians, professional employees, night watchmen, guards, inspectors, subforemen and foremen, the cafeteria supervisor, and all supervisors as defined in the Act. (b) In any like or related manner interfering with the efforts of said Union to bargain collectively. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with said Union as the exclusive representative of all employees in said unit and, if an under- standing is reached, embody such understanding in a signed agree- ment. (b) Post in conspicuous places at its Auburndale, Florida, plant, including all places where notices to employees are customarily posted, copies of the notice attached to the Intermediate Report marked "Ap- pendix." 16 Copies of said notice, to be furnished by the Regional Director for the Twelfth Region, shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for at least 60 consecutive days there- after. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Twelfth Region in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent violated Section 8 (a) (3) of the Act by discharging Dewey Evans and insofar as it alleges that the Respondent independently violated Section 8(a) (1) of the Act by making certain threats and promises of benefit and by interrogating employees. "This notice is amended by substituting for the words, "The Recommendations of a Trial Examiner" the words "A Decision and Order." In the event that this Order is enforced by a 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." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended ( 61 Stat. 136, 65 Stat. 601; 29 U.S.C. Sec. 151 et seq.), herein referred to as the Act. Under date of January 14, 1958, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen & Helpers of America , Cannery, Citrus Workers, Drivers, Warehousemen and Allied Employees , Local 444 (herein sometimes called the Union or Local 444) by its attorney filed a charge against Minute Maid Corporation, alleging that "Minute Maid Corporation, an employer , had engaged in and is en- MINUTE MAID CORPORATION 363 gaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act," and setting forth as a basis of the charge: The employer, in order to discourage membership in a labor organization, discriminated in regard to hire and tenure of employment and to the terms and conditions of employment of the following named employees on and after the date set opposite their names: Dewey Evans___________________________ December 5, 1957 Samuel H. Kelly_ ________________________ January 10, 1958 On or about October 7, 1957, and thereafter, the employer refused to bar- gain collectively with the undersigned union, a labor organization chosen by a majority of its employees. By these and other acts and conduct, the employer interfered with , restrained, and coerced its employees in the exercise of their rights , as guaranteed in Section 7 of the Act. Minute Maid Corporation (hereinafter sometimes called Minute Maid, the em- ployer, or the Respondent), acknowledged receipt of service of this charge on Janu- ary 16, 1958. A first amended charge filed under date of April 22, 1958, by the :same labor organization , Local 444, alleged in identical terms, except for the deletion of the name Samuel H. Kelly, violations of the Act. Service of the first amended charge upon the Employer was acknowledged on April 24, 1958. As will appear from the facts and the chronology of events in the case , the original charge and ,the amended charge support the issuance of the complaint.' After the filing of charges , the General Counsel of the National Labor Relations Board by the Regional Director for the Twelfth Region, on behalf of the Board, caused a complaint and notice of hearing to be signed and issued against the Re- spondent, Minute Maid Corporation , on July 3, 1958. The complaint, sufficient ,on its face, alleges violations of Section 8(a)(1), (3 ), and (5 ) of the Act.2 The Respondent, on July 11 , 1958, filed answer to the complaint, effectively denying every material allegation with respect to substantive violations of the Act, and expressly reserving the right to amend "as it may be advised upon receipt of the information requested in Respondent's Motion for Bill of Particulars." 3 . I Pant Milling Company, 117 NLRB 1277, enforcement denied, 258 F. 2d 851 (C.A. 5) ; N.L.R.B. V. Anchor Rome Mills, 228 F. 2d 77!5 (C.A. 5), citing N.L.R.B. v. Kohler Co., 220 F. 2d 3 (C.A. 7). 2 Certain provisions of the Act involved herein are as follows: RIGHTS OF EMPLOYEES SEC. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, . . . UNFAIR LABOR PRACTICES SEC. 8. (a) It shall be an unfair labor practice for an employer- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 « • • s • s (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a). r * s $ t • (d) For the purpose of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incor- porating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: . . . 8 The Respondent on the same day that it filed its answer had filed a motion for a bill of particulars stating specifically the particulars desired. Thereafter, the motion for particulars having been denied, the Respondent by counsel, and pursuant to an order granting the right, renewed the motion at the outset of the hearing herein. The motion was in all respects denied at hearing, it appearing to the Trial Examiner that the Re- spondent was not or could not be prejudiced by denial of its motion. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice of hearing, this matter came on to be heard before the duly, designated Trial Examiner at Auburndale, Florida, on July 22, 1958. The hearing. was resumed at Tampa, Florida, on the following day and was concluded at Tampa on August 8. At the hearing, the General Counsel, the Respondent, and the Union, as Charging Party, each was represented by counsel. Full opportunity to be. heard, to examine and cross-examine witnesses and to introduce evidence bearing,. upon the issues, to argue orally upon the record, to file proposed findings of fact and conclusions of law, and to file briefs was afforded each party. A brief was filed. on behalf of the Respondent, after oral argument by counsel for the General Counsel, at the hearing. At the hearing, Respondent by counsel made certain motions to strike and to dismiss, which are disposed of by the findings of fact and conclusions of law set forth below. Upon the entire record of the case, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF MINUTE MAID CORPORATION Minute Maid Corporation is a Florida corporation having offices and a place of" business located in Auburndale, Florida, the plant of the Company involved herein,. and is engaged in the business of processing fruits and juices and other agricultural commodities, and annually sells and ships these products outside the State of Florida_ in an amount valued in excess of $100,000. This Respondent is, and at all times material to this proceeding has been, engaged' in commerce and its activities affect and have affected commerce, within the meaning. of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers. of America, Cannery, Citrus Workers, Drivers, Warehousemen and Allied Em- ployees, Local 444, is a labor organization within the meaning of Section 2(5) of. the Act. III. THE UNFAIR LABOR PRACTICES The complaint claims an appropriate bargaining unit under Section 9 of the Act to be: All production and maintenance employees , including warehousemen, checkers, cafeteria employees , leadmen, and peel oil operators , but excluding office and office clerical employees , print shop employees, truckdrivers , garage employees, fruit scale men, all new construction and installation employees , agricultural employees, first-aid personnel, laboratory technicians , professional employees, night watchmen , guards, inspectors , sub-foremen and foremen , the cafeteria supervisor and all supervisors as defined in the Act, employed at the Respond- ent's plant in Auburndale , Florida, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. The record shows that a majority of the employees of the Respondent Employer, in the unit above described , designated and selected the Union as their representative for the purposes of collective bargaining. The election, conducted on February 12, 1957, was in Case No. 12-RC-14, formerly Case No. 10-RC-3596, 117 NLRB 68, and certification of Local 444 was dated February 20, 1957. Prior to certification of Local 444, the employees in this unit had been represented by Citrus Workers Local Union No. 24218, AFL-CIO. The complaint alleges that on or about July 14, 1957, and thereafter the employer (the Respondent herein) refused and continued to refuse to bargain collectively with the Union as the exclusive representative of the employees in an appropriate unit as described , in that the employer engaged in dilatory and stalling tactics pursued with the purpose and intention of avoiding its statutory obligation to meet and confer with the Union for the purpose of collective bargaining ; withdrew concessions previ- ously made to the Union during the course of collective -bargaining negotiations; withdrew from agreements previously made with the Union during the course of collective-bargaining negotiations; refused to meet at reasonable times for the purpose of negotiating a contract in the absence of the Respondent's attorney ; since on or about December 19, 1957 , refused to negotiate with the Union for the purpose of consummating an agreement; withdrew recognition of the Union as the statutory bargaining representative of its employees on February 24, 1958, and continued MINUTE MAID CORPORATION 365 thereafter to refuse to recognize or bargain with the Union as the collective-bargain- ing representative of its employees in the appropriate bargaining unit; solicited with- drawals from the Union; informed individual employees that Respondent would not sign any contract with the Union; and announced on April 18, 1958, a unilateral bonus computed on wages paid commencing with the first pay period in December of 1957 and ending with the last pay period in May 1958. Further, the complaint alleges, the Respondent has engaged in interrogation of employees concerning their union activities; has made threats of economic reprisals for engaging in union activity; has promised benefits conditioned on employees refraining from engaging in union or concerted activities;. and has promised benefits conditioned on the elimination of the Union as the collective-bargaining representative of the employees in the appropriate bargaining unit. The complaint further alleges the discriminatory discharge of an employee, Dewey Evans, on November 7, 1957. The alleged violations of the Act, as set forth in the complaint, will be discussed separately below. A. Refusal to bargain Minute Maid acquired the Auburndale plant by purchase of the Snowcrop Divi- sion of Clinton Foods, and took over the operations of that plant on December 1, 1954. A collective-bargaining agreement was then in force between the old em- ployer and Citrus Workers Local Union No. 24218, affiliated with the American Federation of Labor-Congress of Industrial Organizations; when Minute Maid took over the operation of the Auburndale plant it assumed the obligations of this agree- ment. A new agreement was entered into between Citrus Workers Local Union No. 24218 and Minute Maid on December 23, 1955, which by its terms was to be effective December 19, 1955, and to run until October 31, 1956, and from year to year thereafter unless modified or changed at the request of either party. This agreement followed a prior agreement entered into between Minute Maid and Local Union No. 24218 entered into February 1, 1955, to run until October 31, 1955. On September 18, 1956, the Company by its plant superintendent at Auburndale, advised its Auburndale plant employees of the filing of a petition by Local 444 for certification as bargaining representative. This letter stated in part: The Teamsters Union has indicated that it does not recognize the contract this company has with the Citrus Workers Union, although both are AFL Unions. If this is correct, there will be no contract covering our employees until after the election in 1957 or 1958 and not then unless and until representatives of the Company and the Union (if a majority of you vote for one) agree upon all the terms and conditions of a contract. The time required for negotiations of a contract is impossible to foretell-some are negotiated in a few days and some take many months to negotiate and occasionally no agreement is ever reached. This letter went on to advise the employees that the Company did not know in the circumstances whether it had or did not have a contract and stated that until the matter was decided it would continue to follow its prior practices and policies in connection with the operation of the plant and in connection with hiring, firing, layoffs, seasonal employment, and so on. It appears therefore, that no agreement was in effect between Local 24218 and the Company after the expiration of the second agreement in October 1956. A hearing was held before the Board on January 16, 1957, and, as above noted, em- ployees in the unit designated and selected Local 444 as their representative for the purposes of collective bargaining. 117 NLRB 68. (Local 444 requested recognition from the Company in July 1956, which was the "off-season" for plant operations. The seasonal operation of the Company, with regard to plant operations during the off-season and the number of employees employed during a season and an off-season, is discussed below at page 377, et seq.) On February 22, Holman R. Cloud, an executive of the Company, suggested by letter to the Union that the Union submit its proposal in advance of negotiation sessions, and the Union complied with the suggestion. Thereafter, the parties met for the first time on April 9, 1957. Present at this and most subsequent meetings were J. A. Podmore, director of industrial relations for the Company, B. M. Middlebrooks, director of Concentrate Manufacturing, Charles E. Dry, plant superintendent, Theo Hamilton, attorney for the Company, and Robert L. Rigley, manager of labor relations, all for the Com- pany; and W. W. Teague, organizer for the Southern Conference of the International Brotherhood of Teamsters, chairman, John Roberts, organizer for the Southern Conference of Teamsters, David Wingate, business agent for Local 444, and the .negotiating committee of six members for Local 444, including Dewey Evans. Also present at this meeting was Joseph Morgan, a member of the executive board of 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Southern Conference of Teamsters, for the Union.4 At this and subsequent meetings, with two or three exceptions, Teague acted as chief spokesman for the Union and Attorney Hamilton assumed the same responsibility for the Company. Under date of March 7, 1957, Roberts for the Union transmitted by mail a copy of a proposed agreement to the Company. At the April 9 meeting, the Company furnished to the Union a draft of contract proposals. The parties then began dis- cussing in sequence the provisions suggested by each of them in their respective proposed contracts. After April 9, the parties met on April 17 and 25, May 8, 9, 22, and 23, June 20, 21, and 27, August 28 and 29, September 12 and 19, October 9, 10, and 23. At the August 28 meeting, the Union submitted a revised proposal, as did the Company; at the October 10 meeting, the Union submitted a second redraft of agreement; on October 23, the Company submitted a document in the form of a recapitulation of what it asserted showed the status of negotiations as of October 10. Under date of October 26 Teague transmitted to Podmore by mail a revised union proposal. In his letter of transmittal, Teague stated: Enclosed please find two (2) copies of our final draft of the Labor Agreement. There has been several new changes made to the extent that the Union has withdrawn some Articles that it had originally proposed and felt that they were very important to the local Union. However, in a sincere effort to reach an agreement without any possible labor trouble we have varied away from our original proposal considerably. . . . Between the April 9 meeting and the transmittal of the "final proposal" of the Union to the Company on October 26, the parties had negotiated at length with respect to what each considered (apparently) the essential and important provisions to be contained in a collective-bargaining agreement. The clauses proposed by each were discussed in detail during these meetings, beginning with the preamble and going down paragraph by paragraph and clause by clause as time went on until there was positive disagreement with respect to some of the more important clauses sug- gested by either side. Teague for the Union and Dry for the Company each kept notes reflecting what subject or subjects were considered at the series of meetings. There is no essential difference in the topics discussed, as noted by each of them. Each testified at the hearing herein, and there is some disagreement at times as to what either side had said regarding a particular proposed provision; the Trial Examiner was extremely reluctant to let everything that was said at each meeting into evidence, but through force of circumstances and in an effort to have all the facts included within the record to enable him to arrive at a finding of the facts, a great deal of such evidence is con- tained in the record. He believes that Teague and Dry each testified according to his best recollection and that such differences in testimony as may be reflected by the record are the result of different interpretations of what might have been said by the participants in the negotiation sessions. The main points of difference between the parties can best be summarized by say- ing that the arbitration procedure and the grievance procedure taken separately or apart caused a great deal of discussion; that the question of seniority received a great deal of attention, as did the no-strike clause, reporting time, representation of em- ployees by stewards regarding grievances, payment of union representatives during the discussion of grievances with representatives of the Company, the right of the Company to hire new employees without notification to the Union, probationary periods, a guaranteed workweek, overtime, and other details of each of the proposals and counterproposals of each party made orally during negotiations or as submitted in writing. Vacation pay received a great deal of attention, as did sick leave rights.5 4 Morgan opened the meeting of April 9 and then turned the chairmanship over to Teague. John Roberts left his position with the Union and became manager of labor relations for Minute Maid on October 1, 1957. Rigley left his position sometime prior to this date. 5 At the May 22 meeting there was considerable discussion concerning prior company policy and Teague confronted union representatives with a memorandum dated March 1, 1955, signed by Rigley, then director of industrial relations, on the subject of personnel policies to be made effective on that date at three of the plants of the Company. This memorandum sustained the position of the Union as stated by Teague at the hearing on many of the issues presented for negotiation through the union proposals and state- ments at negotiation meetings. According to Teague, Rigley said at the meeting of May 22 after being confronted with his memorandum, "Alright, we are all a bunch of MINUTE MAID CORPORATION 367 Teague in his testimony both on direct and under cross-examination stated the position of the Union with regard to its proposals and its concessions and its refusal to concede during the period up to October 10, 1956. Dry explained the position and policy of the Company concerning seniority, shifts, vacations, the "hot-cargo" clause and the inapplicability to the citrus industry of some of the Union 's proposals. Split shifts and other proposals were discussed with regard to acceptability and the Company explained reasons why some of them could not be agreed to. The Union stood firm during the first few early meetings and gradually reduced its requests to what it considered to be the least that they could agree to. Strangely enough, the question of wages was not gone into at length during the earlier meetings, but seems by tacit agreement of the parties to have been deferred for discussion pending the settlement of other provisions of the agreement considered of great importance by each side. There was considerable acrimony displayed between the parties at the October 10 meeting. In the words of Teague: The Company asked for a recess at 10:45, and returned at 11:10, and Mr. Middle- brooks was the spokesman when they returned, and he stated that the Company would try to work out a general hiring program but not a specific hiring program, but since it was the desire of the Union to want a specific hiring program in the contract the Company was not withdrawing any kind of proposal or any type of hiring article; and Mr. Hamilton -told Mr. Middlebrooks that that also withdraws the agreement which was previously reached on the last sentence of Section A(2), and Mr. Middlebrooks said yes, that it does. Mr. Hamilton then took the position that Section B of Article I had not been previously agreed to. Mr. Middlebrooks wanted to know if we wanted to continue negotiations on our copy that we had submitted that morning, and I told him that we would continue negotiations on any basis which the Company desired, as long as there was a possibility of reaching an ultimate agreement. It was at this point that Mr. Hamilton stated that it was their feeling that we should not negotiate any further until the Company had had the opportunity to prepare its notes with the type copy presented by the Union that morning, that in checking it during the recess he found that it didn't reflect in any instance, prior agreement. Well, that is when I flipped my lid, and I told him that I was tired of this pussy footing around in a sham battle that was being called negotiations ; that we had bent over backwards in trying to do everything we know how to meet the Company's ob- jections ; that they wouldn't meet with us except at their own convenience, and that a lot of times during these meetings they were taken up on things that had nothing to do with the contract whatsoever, discussing legal cases that Mr. Hamilton was advising his clients that he had been into before, advising them that the proposals that the Union had made in a lot of instances were going to get the Company in trouble if they agreed to them; that he had taken the word "able" and had used it in one of his proposals to us and we had agreed to it, and then when we asked him to agree to the same word he put such an interpretation and broad application to it that he made it appear to the Company that it was the most vicious thing that could possibly be written into a contract; that time and again in negotiations several minutes were wasted by the telling of funny jokes and funny stories, and that we felt that we had gone just as far as we could; and now we had drafted the second redraft for a third proposal, and he now tells me that nothing in it that we had redrafted and presented to him that morning reflected anything that had been agreed to previously, and that I just didn't know how much further I could go, I didn't know which way to go, that I had never had any experience like this before, and for him to sit there and tell me that there had never been any prior agreement of anything that we had pre- sented there that morning was just an out and out lie, and that I didn't appre- ciate the fact that I had to sit down and try to negotiate in earnest and in good faith with a representative of management or representatives of management if they were not going to be truthful and if they were a bunch of liars; and Mr. Middlebrooks took exception to that, and he said he had a plug and he didn't appreciate being called a liar, and I told him that I could understand his posi- tion, and he asked me to refrain from it in the future, and I reminded him of the fact that one of their own negotiating committee was the one that admitted in open meeting that they were all a bunch of liars, and that the only way I could liars-why beat the devil around the bush?" Rigley did not testify at the hearing herein ; the statement attributed to him by Teague , substantiated by other witnesses, was denied by representatives of the Company. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refrain from it was for them to refrain from telling lies, because from now on a spade was going to be called a spade, and if they lied to me they were going to be told about it, and if that was the manner in which these negotiatiions were going to continue we might just as well break them off right now, and each one grab their best hold and go from there. It was at that point that Mr. Hamilton asked for an adjournment, and it was at 3 p.m., and that he would notify the Union when it was ready to meet and where, and we adjourned. At the adjournment of the meeting of October 10, Hamilton advised Teague, according to the latter, that he would go back and prepare notes and at the next meeting would have a proposal that reflected their agreement up to that time. It was at the next meeting, October 23, that the union representatives took exception to the "status of negotiations as of October 10, 1957," memorandum handed to them by Hamilton. After examination of the document Teague told Hamilton that the document was not what the Company had promised; Hamilton said that Teague was wrong, and a discussion followed during which Teague disagreed with some of the statements contained in the document as not reflecting prior agreement. After the noon recess on October 23, discussion was resumed .6 In a proposal of the Union mailed to the Company on October 26, the Union deleted from its original proposal certain sections under article I, including recognition or union security, provisions having .to do with the merger of employees, a provision which would have the employer grant time off for employees designated to attend labor conventions or serve in other union capacities, a provision which would provide that employees be not charged for loss or damage unless clear proof of negligence was shown, the "hot-cargo" clause, and other modifications. This proposal of the Union was discussed at length at the meeting between the parties on November 6; it appears that there was tentative agreement concerning some provisions, although the Company refused a proposed increase in wages and a probationary employee differential in wages; and, according to Teague, Hamilton said although modifica- tions had been agreed upon it did not mean that the contract was acceptable to the Company but that the Company wanted a chance to submit its own proposal and suggested a December meeting. Podmore promised to get a draft of a company proposal to the Union as soon as possible.7 Between the October 26 meeting and the November 6 meeting, Teague and Roberts, at the suggestion of Roberts, had a conversation in a drugstore at Auburndale, in which, according to Teague, Roberts told him that he had come to Auburndale to see how far apart the parties were on the contract and to see what it would take to settle the various existing issues between the parties. Roberts, said Teague, told him that there were very few things in the Union's October 26 proposals that were not acceptable to the Company; that the two men talked over the acceptability by each of, among other clauses, the seniority provisions, vacation provisions, holidays, and grievance and arbitration procedure; that Teague sug- gested that he (Teague), Podmore, Roberts, and Wingate get together and try to thrash out some details and prepare the negotiating committee before the meeting of November 6. The following morning, according to Teague, Roberts called him and told him that Podmore's schedule was such that it would be impossible for them to get together before the November 6 meeting. The testimony of Roberts in connection with this particular conversation is not substantially different from that of Teague. Roberts said: I told him that I wasn't sure of all the objections, but I was sure that the wage demand in particular, and the adamant stand of the Union against some relief 9 About this time the Union began to be apprehensive that the Company would open its seasonal operation and that employees of the Company would start back to work at a time when the Union did not have a contract with the Company. Joseph Morgan, international representative of the Union appeared at the October 23rd meeting and when he found out that the parties were still discussing article I of the agreement and upon being informed by Hamilton that that was correct-that there had been very little agreed to but there was a broad understanding, remarked that in his opinion the thing to do was of break off the negotiations ; that if the parties could not sit down for 6 or 7 months and negotiate a contract and not be any closer to an agreement than they were at that time that he felt it would be a waste of time to carry on negotiations any further ; that the Union would draft a final proposal and have it in the hands of the com- pany representatives within a very few days. After Morgan's remarks, a meeting was arranged for November 6. 7 The original union proposal with respect to wages was for 23 or 25 cents per hour ; at the October 26 meeting the request had been reduced to 18 cents per hour with a 10 cent lower hourly rate differential for probationary employees. MINUTE MAID CORPORATION 369 for key personnel in the off season was one of the major issues, and he went on to question me about other articles of the contract . I think he asked me whether reference was made to vacation, holidays and various other articles. I frankly can't remember. I do remember telling Mr. Teague that I didn't think that there was anything that, if we put our minds together in a sincere effort to have an agreement, we couldn't agree upon, and I went into it very openly and very frankly, and told him there were a lot of things that I had found out since I went with Minute Maid that I wasn 't aware of before, when I was with the Teamsters; that they did have some very dire, very sincere problems, one of the main ones being that the Company was in a very bad financial status, and I think I briefly told him some of the problems that were pending at Minute Maid , and I told him that this was going to be a terrible year in the loss columns for Minute Maid; .. . He recalled that at the suggestion of Teague he had tried to arrange a meeting with Podmore to be held prior to the November 6 meeting. A few days after the November 6 meeting, Roberts approached Teague and Thomas Owens, director of the National Cannery and Produce Division of the International Union, and engaged them in conversation on the hotel grounds where Owens and Teague were staying in Winter Haven , near Auburndale. Roberts sug- gested that a meeting be arranged with Joseph Morgan and certain executives of the Company. Roberts said that he had discussed the possibility of such a meeting with Podmore and Cloud, "and they saw nothing wrong in the meeting and thought maybe that would be the answer, that if everyone would meet in an informal way and put their cards on the table, that it would help toward getting a contract and making. the parties have a little better relation than there had been in the past." 8 As a result of this, a meeting was arranged for and was held November 19. Present at this meeting were President Fox of Minute Maid ; Cloud, Podmore, Middle- brooks and Roberts, representing the Company ; and Morgan, Owens, and Teague representing the Union. Roberts for the Company opened this meeting and then turned it over to Fox. Fox referred to a financial statement; he asked Morgan during the course of the reading of the statement what it was going to take to settle the contract, and Morgan asked what he meant-whether he meant money or the basic articles of the contract . Fox said that the Company was not worried about the basic articles of the contract , but that it was worried about the financial condition of the Company ; Morgan told Fox that the employees had not had any increase in over 2 years, that the Union had proposed 18 cents per hour, and suggested that the wage issue be settled by agreeing to a 15-cent-an-hour increase for a 1-year contract or 15 cents and 121/2 cents for a 2-year contract. According to Teague, Fox "just throwed up this little sheet of paper, and fell back and said, `that is the most ridiculous proposal I ever heard of in my life .' He said, `it doesn't make sense' and then he pointed out that it took so many hundred thousand dollars to give just a nickel or 71/2 cents an hour increase ." Further, according to Teague, there was considerable discussion as to the figure asserted by Fox that it would cost the Company to grant a 5 or 71/2 cents increase, and Fox said in considering any increase for the employees of the Company at Auburndale, the Company would have to consider giving the same increases to its employees at its plant at Leesburg and Plymouth , both located in Florida.9 According to Teague: the meeting concluded with Mr. Fox wanting to know if that was the final position of Mr. Morgan, and he said "frankly I want to know, because d am going to New York to try to float a loan for Minute Maid," and he said, "I am leaving tonight, and I would like to know what the Union's position is, if 8 Owens testified concerning a conversation between Roberts and him after a meeting with officials of the Company at Orlando on November 8. According to Owens, he and Roberts, while traveling in an automobile from lunch at a country club at Orlando back to the Company's office, discussed the situation as it stood at the moment ; Owens said that he had been brought into the meeting but was not prepared at that time to discuss wages because he had no particular authorization and, during the course of his conver- sation with Roberts, asked the latter what the Company had in mind with respect to a wage offer ; he said that he previously had the notion that the Company had offered 71/3 cents per hour increase but that Roberts then told him "I think that we can get 10 cents ; I think I can get you 10 cents an hour ," to which Owens said he replied that while he could not speak for the Union , he did not think "that 10 cents would do it." Roberts then suggested that he would like to discuss the situation with Morgan and suggested that a .meeting could. be set up with him. B The employees at Leesburg and Plymouth are not represented by a labor organization. 525643-60-vol. 124-25 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this is your final. position?" and Joe Morgan said, "well, as far as I am officially able to tell you, that is all I can do, that I will go back and recommend that lower figure to the' people. I can't commit those people, I would have to go back and ask them to vote to permit me to change their original position on this 18 cents an hour, but," he said, "I gave you a figure that I think we could get the people to accept if the contract we have propsed to you is accepted." And he [Fox] said, "well I can tell you now it is not going to be there. You will never get it." Regarding this discussion, particularly with respect to the. wage issue, Roberts testified: Mr. Morgan asked Mr. Fox what sort of money did Minute Maid have in mind? And 'Mr. Fox said they were thinking, that Minute Maid was thinking of 71 cents; that some time during ,the conversation, immediately preceding that or immediately after that,, Mr. Morgan had said that-he mentioned 15 cents an hour and 15 cents an hour a second year on a 2-year contract or 121/2 cents an hour for a 1-year contract, which he-I don't remember exactly that, and Mr. Fox said. that "that is out of the question at, this time" and the figure did come up as to..how much money it would cost to implement this wage demand, and Mr. Teague questioned that' amount, he said it could not possibly cost that much money.- And 'Mr. Fox, I am sure, said "an increase of that size would put the Auburndale -employees far over the Plymouth and Leesburg employees," and Mr. Morgan asked him, "would you do that to keep the Union out?" And Mr.* Fox told him; "I don't think that there is-" or words to the effect, "let's not kid each other. You know we would rather not have the Union in Plymouth and Leesburg." With that Mr. Morgan told Mr. Fox, "if you will sign a contract for the Plymouth and Leesburg employees as well as the Auburndale employ- ees we can talk further about the 71 cents." Mr. Fox, in no uncertain terms, told Mr. Morgan that we were not here to negotiate a contract; the purpose of this meeting was not to negotiate a contract, and further that he would never sign a contract involving employees when it wasn't the wish of the majority involved. According to Roberts there was further discussion concerning the efforts of the Teamsters to organize the citrus industry in Florida and some suggestion by Morgan that it would be possible for the Teamsters Union to cut off the distribution of Minute Maid supplies to some of its distributors.10 At the conclusion of this meeting Fox said that Minute Maid would give serious consideration to the problems involved and that it would, according to Roberts, "go back and give every serious consideration and that they would come up with a proposal"; and he told Mr. Morgan that "we will not dilly-dally around. When we give you our proposal it will be with the most careful thought, and it will represent the best that we can do this year." Within a day or two, after the November 19 meeting, Roberts telephoned Murray W. Miller, at that time chairman and director of the Southern Conference of Team- sters with offices in Dallas, Texas. According to Roberts he told Miller that the parties were still apart on a contract in the citrus industry; that he did not think there was any reason for it; he informed Miller that he had a lot to lose and on the other hand the Company had a lot to lose if labor trouble ensued and that the Com- pany wanted to get a contract; that he asked Miller if he would meet with Cloud and him and try to work out a solution to the problem; that he told Miller that Cloud and he would fly to wherever place Miller might suggest and try to work out a solution of the problem; that Miller said that he was very busy and he would call him back. - Further, according to Roberts, a few days went by, Miller had not returned the telephone call, _so Roberts again telephoned Miller and renewed his suggestion' for 'a meeting at an early date because of an impending director's meet- ing to be held in 'New York; Miller replied that he was going to be in the Tampa area sometime in the near future and that he could meet Roberts and Cloud at that time.' During this telephone conversation, there was some discussion about the Company's 'wage offer and the Union's demand in respect thereto, and it seems that Roberts suggested that, although he did not know how Minute Maid would-feel about it, he would do everything he could, to settle the contract, to persuade the Company to offer 10 cents an, hour increase in wages. On the day after Thanks- giving, Teague telephoned Roberts at the direction of Miller to notify Roberts that Miller would be unable to meet with Roberts and Cloud in Tampa and to' inform Roberts that Morgan would be Miller's personal representative-that any com- i? Subsequently,,on January 9,19;58, a strike vote was taken by Local 444, and sanction given by the International, MINUTE MAID CORPORATION 371 mitment he might make at that meeting would be binding. During this telephone conversation there was some discussion between Teague and Roberts as to whether or not Roberts had not in fact offered a 10-cent wage increase. (The conversations between Roberts and Miller occurred while Roberts was in Orlando and Miller was in Washington, D.C.; the conversations between Teague and Roberts was while Roberts was in Orlando and Teague was in Dallas, Texas.) Upon his return to Florida from Texas immediately after Thanksgiving Day, Teague found in his mail a copy of a proposed contract submitted on behalf of Minute Maid with a covering letter dated November 29, 1957, signed by Podmore. This letter, directed to Local 444 at Auburndale, read as follows: On October 28, 1957, your Union presented to our Company a proposed contract and stated to our representatives that it was the "final proposal" of the Union. This Company has advised you, and hereby confirms that advice, that your proposal is unacceptable and is rejected. We have drafted and hereby hand you this Company's final proposal for a collective bargaining contract for this operating season. The wage increases offered, and other terms of the contract, will go into effect on the day the Company receives written acceptance of the contract proposal in its entirety from the Union. If our proposal is not accepted as above stated on or before Friday, December 6, 1957, we shall assume that you have rejected the proposal. We sincerely hope that the proposal will.be accepted and that we can con- tinue our cordial relations. Teague and Morgan discussed the Company's proposal, presented it to a membership meeting of Local 444, and on December 11, 1957, Teague dispatched the following telegram to Podmore: This will advise that your Company's latest proposal on contract and wages has been submitted to the membership, was considered and soundly rejected. In view of this development I propose that the Union's and the Company's negotiating committees meet at the earliest. mutually agreeable time and place for the purpose of attempting to resolve this most serious matter. Please advise. On November 30, 1957, a letter was distributed to each employee over the signa- ture of John M. Fox, president of Minute Maid, reading as follows: A critical processing season is about to begin which is very important to the future success of Minute Maid and its employees. Our mutual primary concern is to keep the plant operating so you will have a job and we can continue in business. To do this, we must be able to produce and sell our products profitably. Citrus concentrate has become one of the most highly competitive industries today. Minute Maid, as the. largest nationally advertised brand, is having to lead the bitter struggle to withstand the tremendous effort that some chain stores, wholesalers, and distributors are exerting to establish their own brands. We are being undersold and subjected to limited display and shelving in some of these stores, but regardless of odds, we think the superior quality of our product and your understanding and desire for Minute Maid's success will enable us to win this struggle, if we are allowed to keep our costs in line. As you know, we have been in contract negotiations with the Teamsters Union for some time. They have made some demands which, if we agree to, would mean we would have difficulty staying in business. Once again an issue of this importance vitally concerns you. Minute Maid has no objections to signing a contract with the Teamsters Union, or to your being a part of the Teamsters Union. We do object to having our employees' jobs and our company's future put in jeopardy. An extensive study of wage rates within the citrus industry shows that our wage rates are equal to and, in most cases, above other processors in the citrus area. Minute Maid has, for years, been the recognized leader in this industry in wages and working conditions. It is our desire to always be the leader. We are well aware of the increased cost of living and want all of our employees to enjoy the highest standards possible. After careful study with much thought toward doing as much as possible for our employees we have made our final proposal to the Union. Minute Maid's offer is a one year contract with wage increases of 8'h 0 an hour in each classification, liberal vacations, holiday pay, reporting pay, rest periods and other usual clauses covering grievances, arbitration and the like. The least amount any employee would receive under the company's proposal will be more than $150 in increased earnings for a full season. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The contract offered would once again put Minute Maid 's employees far out in front of the rest of the industry in wages and in other respects. Nye strongly urge every one of you to exercise your rights in getting the Union to accept our proposal as quickly as possible. Wage increases and the other benefits will go into effect immediately, when the Union signs the contract. Employee satisfaction is of utmost importance to us and this letter has been written to each employee of the Auburndale Plant. We have faith that our employees want steady employment without wage loss from strikes or work stoppage. We have faith that you want to see Minute Maid and your future succeed and grow together. We hope every one of you will give this problem much thought and after you have reached your decision that you will insist that whatever action the Union takes will be the action that is best for you, the employees of Minute Maid. On December 13, Podmore for Minute Maid sent the following telegram to Local 444 in care of Teague: In view of the fact that the Teamsters Union has rejected Minute Maid's pro- posal received by you November 30, 1957, for a contract for this season covering the employees at the Auburndale plant and because of the severe freeze creating new problems which make operational conditions completely unpredictable, we hereby withdraw the Company's proposal to the Union in its entirety. Upon receipt of this telegram the Union arranged to meet again. with the Company and such a meeting did take place on December 19. Wingate testified, with respect to the December 19 meeting, that the Company handed out to the members of the committee copies of a statement directed to the negotiating committee and that the company representatives , in response to his request to continue negotiations, referred him to the statement presented and said that their position was outlined in that document and that they did not feel that it needed any further explanation. This memorandum, dated December 19, 1957, was directed to "Negotiating Committee of Teamsters Local Union No. 444": Minute Maid would like the Teamsters' officials and the negotiating committee to fully understand the position we are taking in our negotiations and the reasons. Before we made our offer of 81/z cents an hour increase, we had given very careful study to the prevailing Industry wage rates, and most of all to our own circumstances . Our findings were reflected in the wage increase we proposed at that time with our explanation to you it was the best we could offer and still have reasonable assurance of satisfactory operation. Since December 11, 1957, when your union officially rejected the company proposal, Minute Maid and the entire Citrus Industry has suffered a severe and crippling freeze. Neither Minute Maid nor anyone else is in a position to accurately forecast at this time what the ultimate results of this freeze will be. It is, however, generally the opinion of leaders in this Industry that an alarming reduction of processing is imminent. We are faced with a struggle for survival; and even an attempt to forecast or plan for the immediate future is completely unrealistic until more facts are developed. We are asking the Union to delay any final decision regarding our negotia- tions until Minute Maid can evaluate the ultimate effect which this freeze will have on our operations this season. Approximately January 16, 1958, Minute Maid should be in a position to meet again with the Union for further discus- sions with the hope that we can reach a mutually acceptable agreement. In the absence of Teague, Wingate, business agent of Joint Council No. 89, (which includes Local 444) was spokesman for the Union. As a result of that meeting, another membership meeting of Local 444 was held, and the membership amended the last wage proposal to the Company. Under date of January 9, 1958, Teague as chairman of the negotiating committee wrote to Podmore as follows: Please be advised that the membership of Local 444 employed by you at the Auburndale plant took official action on the night of January 8, 1958, to amend their final proposal that was presented to you on November 6, 1957, in a sincere effort to bring the contract to a conclusion the final proposal submitted to you is to be amended to the extent of 81/2 cents per hours increase across the board to all employees. The paid holiday clause to read that Christmas Day shall be a paid holiday for all employees of 8 hours at base rate of pay. The remainder of that Article is to remain as is. The vacation Article to be amended to read that "All employees who have been in the employment of the Employer for a period of one year and having worked 1750 hours shall be entitled to 40 MINUTE MAID CORPORATION 373 hours starting time pay at their base rate. All employees who have been in the employ of the Company with 5 years or more and having worked 1750 hours in the 5th and subsequent shall receive 80 hours pay at their basic starting rate. Feed mill employees to qualify with 1500 hours." Mr. Podmore, this is the last and final proposal to Minute Maid Corporation in an effort to bring the contract to a conclusion. This proposal is to be made effective December 4, 1957. Unless this is acceptable we have no other alterna- tive but to take such action as may be necessary to bring the issues to a conclusion. I will appreciate a prompt answer from you as to whether or not this is acceptable. Podmore for the Company replied to the Union for the attention of Teague by letter written on January 16, 1958, as follows: This will acknowledge receipt of your letter dated January 9, 1958, which was not received in my office until January 14. In our last meeting on December 19 we offered to meet with you on January 16 since we would not know until that time how much damage had been done by the freeze of December 12 and 13. You refused to meet on that date and have not made any request or suggestion to meet since that time to discuss our prob- lems. As you know, since our last meeting we have another freeze which now appears to be more serious and damaging than the first one. We do not yet know the extent of the damage done by the last freeze and will not be able to make estimates for several weeks. Your letter of January 9 does not mention many important items of contract which have not been agreed upon. We feel that it is absolutely essential to have an agreement satisfactory to both parties as to all items. Your final pro- posal which is not based upon good faith bargaining but upon an arbitrary demand is therefore not acceptable. Your letter also proposes a wage increase of 81 cents per hour. As you know, we offered such a wage increase and you refused to accept.. That increase was offered at a time when our industry and our Company was operating at a normal level. However, since that time, we have had two disastrous freezes, the effect of which we cannot now foresee or estimate. We will not be able to discuss wages or other items which might add to our cost of operation until we can properly estimate extent of damage done by the last freeze. Although you refused to meet with us upon our last request, we again offer to meet at 10 A.M. Thursday, February 6, 1958, at the New Thelma Hotel, Lakeland, Florida, at which time we hope to be in a position to discuss all issues." A meeting was arranged and was held on February 6, 1958. The meeting started, according to Dry and Middlebrooks, with Wingate, who was acting as spokesman for the Union in the absence of Teague, asking whether the Company had a proposal, to which the Company replied that they did not have a proposal, that they had the Union's final proposal, and asked Wingate if that was final. Wingate said that he opened the meeting by inquiring if the Company had any proposal to make to the Union "as their letter handed to us on December 19 would indicate," to which Hamilton replied that the Company did not have any proposal to make to the Union and furthermore, that the Union's proposal to the Company was unacceptable. Ac- cording to Middlebrooks: Well, Mr. Wingate-I don't recall whether at the beginning or where in the negotiations, but during the session-asked who had called for the meeting. He seemed a little confused as to why he was there. The Company began the ses- sion by attempting to clarify the point, to find out where we were in the negotia- tions, pointing out to Mr. Wingate that we had a final proposal from the Union which they had sent to us, which we had rejected. We also had a final letter modifying that, again stating that this was their final position; and that before we started negotiating we would like to know if that was still their position, was that a final proposal or was it not? Mr. Wingate wouldn't answer. It was obvious to me, at any rate, that he was evading the answer. Mr. Hamilton re- peatedly tried to get him to negotiate, and Mr. Wingate excused himself to go to the telephone, was gone about 30 minutes, and when he came back he started talking about the freeze. We discussed the freeze until lunch, and after lunch 17 It does not appear from the record that the Union ever finally rejected an 83A cent an hour increase. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Wingate and Mr. Bunch CR . B. Bunch, an organizer for the Southern Con- ference of Teamsters ] came back and we started negotiating . At that point Mr. Wingate finally conceded that perhaps-I won't say conceded I think his state- ment was that they were not bound by their final proposal , and if that meant they were withdrawing it as a final proposal , that is what he was doing; and we then began negotiating the contract . He started in on "successors and assigns." The most of the rest of the day was spent in starting to negotiate a contract from the preamble on down through , in the same manner negotiations were started on April 9, 1957. Nothing was accomplished that day in the way of agreement . During the morning session in response to a question by Wingate as to whether or not the Com- pany disagreed with the entire union proposal , Hamilton answered that he did not know but that the proposal was not agreeable in its present form. Podmore said at this meeting that they could not talk about economic issues, but tentative agreement might be reached on some aspects of the contract and it was stated by the Company that the next crop estimate would be February 10 and at that time the result of the more recent freezes could be appraised.12 As stated , the Company took the position at the February 6 meeting that it could not discuss wages at that time until, as stated by Dry, "we had evaluated the damage"; the Union was then informed that a new evaluation of damage would be made on February 10. On February 6, another meeting was arranged for February•13. On February 13, negotiations proceeded , reference being made to what has been called the final proposal of the Union and the final proposal of the Company. The recognition clause was agreed upon , the Union withdrew its request that the Com- pany notify the Union when it was in need of new employees , certain amendments and modifications of other provisions were agreed to, the Union agreed to the seniority clause presented by the Company , seniority rights with respect to employees absent from work more than 1 year was discussed and the Company's proposal adopted, layoffs and recalls were discussed; there was no agreement reached with respect to that request of the Union dealing with the posting of bids and the.bidding for job vacancies; other provisions of each of the two proposals were discussed, in- cluding the manner of providing for seasonal layoffs and temporary leaves, leaves of absences and temporary absences without termination of continuous service of an employee, in other words , the parties were back where they were approximately 8 or 9 months before , except that they were dealing with the so-called final proposal of each party . In summary , what the parties were doing on this particular day, both morning and afternoon , was going through the written proposals and discussing what had been gone over before in an apparent effort to iron out some of the nonwage issues. At the February 13 meeting in connection with a discussion as for a date for the next meeting , Teague said that the Union was ready to meet at any time; Hamilton and Middlebrooks said they could not meet the following week . A tentative date was set for the next meeting for February 26. The meeting scheduled for February 26 was not held. On February 24, 1958, the Company by Podmore sent to the Union for the atten- tion of Teague the following telegram: This Company has been advised by its employees that a large majority of the bargaining unit your Union claims to represent have signed petitions requesting this Company to cease bargaining with your Union and that your Union no longer represents those employees . In view of the fact that your Union was cer- tified more than a year ago, that no contract has been agreed upon or executed with your Union, and your Union no longer represents a majority of our em- ployees we are in the opinion that it would be illegal for this Company to con- tinue to recognize and bargain with your Union as the bargaining representative for these employees . We therefore advise you that the meeting with representa- tives of your Union scheduled for 10 a.m. February twenty-sixth as well as further negotiation meetings be postponed until this matter is settled. We are further advised by the National Labor Relations Board that our employees have submitted this matter to the Board's office in Tampa , Florida. Since the wishes of our employees are paramount we assume that you will join with us in bringing this matter to a speedy determination. A' notice dated February 25,1958, was posted on the bulletin board at the Auburn- dale plant: The preamble which was discussed at this February 6 meeting was the preamble as contained,an the. last union proposal. MINUTE MAID CORPORATION 375 TO ALL AUBURNDALE EMPLOYEES: A substantial majority of our employees have petitioned the National Labor Relations Board to decertify the Teamsters' .Union as their bargaining agent. They have also requested that the Company discontinue negotiations with the Teamsters and that no contract be signed until this question has been decided by an election. In compliance with this request we sent the following notice to the Teamsters' Union, Monday, February 24, 1958: [Quoting the telegram from Podmore to Teague, set forth immediately above.] Teague wrote Podmore under date of February 27, 1958, as follows: Received your telegram of February 24. Request that the Company meet with the Union and resume negotiations earliest possible date. Under date of March 12, 1958, Podmore for Minute Maid wrote Local 444 as follows: On February 24, 1958, this Company wired you advising of the filing of a petition by a majority of our employees in the Auburndale, Florida, plant with the National Labor Relations Board requesting decertification of your Union as their representative, and requesting that this Company cease bargaining with your Union. We solicitated your co-operation in bringing that matter to a speedy conclusion. On February 28, 1958, we received a letter from your representative, W. W. Teague, requesting a resumption of negotiations. That letter did not mention the fact that a substantial majority of our employees had filed a decertificationpetition and it ignored our request for co-operation in settling this matter. As you know, this Company has no legal right to bargain with your Union after a majority of its employees have revoked your Union's authority to represent them. We again urge you to co-operate fully with the Company and with the National Labor Relations Board and join the Company in a request to the Board to immediately conduct another election. A notice dated March 12, 1958, was posted on the bulletin board. The notice was a company notice signed by Podmore as director of industrial relations and read as follows: NOTICE TO AUBURNDALE EMPLOYEES: Many of you have asked why your petition is being held up, and why you have not had an election as you requested in your petition to the National Labor Relations Board. Here are the facts: On. Monday, February 24, 1958, this Company notified the Teamsters' Union that a substantial majority of our employees at Auburndale had signed a written request to cease bargaining with the Teamsters' Union. In that letter we advised the Union that it would be illegal for us to continue dealing with the Union in view of the fact that a substantial majority of our employees do not want that Union to represent them. We asked the Teamsters' Union to join with us in bringing the matter to a speedy conclusion. We have offered to consent to another election and have the Board conduct it immediately so that we can settle this matter. A copy of our letter to the Board is attached. We have again written to the Union asking it to co-operate with us so that this matter can be settled. A copy of our letter to the Union is attached. There is still time for the Board to conduct a consent election this season if the Board. and the Union will co-operate with you to do so. We pledge you that we have done and are doing everything in our power to get this matter settled. We shall continue to advise you of any developments. Wingate on March 17, 1958, wrote to Podmore, as follows: In your telegram of February 24 and your letter of March.12, you referred to a petition filed by a majority of your employees to decertify this Union as their bargaining representative, giving that as your reason for, breaking off negotiations. We submit that the Company's unfair and illegal practices toward their employees and its refusal to bargain in good faith in contract negotiations brought about the conditions that resulted in the above-mentioned petition being filed. Therefore a solution to the problems can be reached if the Com- 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany will cease their stalling . tactics and other means of intimidating their employees and fulfill their moral and legal obligations by sitting down and bargaining in good faith to reach an agreement. We have been informed that the Company posted their letter of March 12 on the bulletin board and we request that copies of this letter also be posted in order that the employees involved be better informed concerning the true status of the Company's and the Union's position.13 During the first week of June, Teague met with Podmore at the latter's request in Orlando and the two men discussed the decertification petition of which Podmore had been advised by the Regional Director . Podmore suggested to Teague that a consent election might be arranged ; to this, Teague replied that the Union had been certified after an election held early in 1957 and asked "where would we go if we did win another election ? We have won one over a year ago, we have tried for a year to get a contract ; we haven't been successful... ." Teague then sug- gested that the Company sign the last contract that had been tentatively agreed to and put the 8'h-cent-an-hour increase into effect "and I will have an election with you just as fast as the Board will set it up"; to which Podmore replied that he had been advised that that would be illegal . Thereafter, on June 10, 1958, Teague wrote Podmore as follows: Since our meeting last Wednesday in your office , I have received a notice from the General Counsel for the NLRB in Washington , D.C., reversing the Regional Director's dismissal of charges filed by Local No. 444 of Auburndale and ordering the Regional Director to proceed on the union charges. As you undoubtedly realize, this means that the General Counsel of the NLRB is satisfied that there is sufficient evidence that your Company refused to bargain in good faith with the Union to warrant the issuance of a formal complaint. Since the Company has failed to discharge its duty to make a good faith attempt to reach a contract , it is under a continuing duty to bargain with the Union although the Certification year for the Union has expired. As you know the Board is dismissing the decertification petition. Therefore I earnestly urge, that the Company now -meet and negotiate with the Union in a sincere effort to arrive at a contract. I got the impression in our meeting last week you would like to negotiate a contract but had been advised that it would be illegal to do so. Mr. Podmore, if you have any doubt concerning the legality of the Company's negotiating a contract with the Union at this time , may I suggest that you dis- cuss such question with the Chief Law Officer of the Regional Office in Tampa. After all, they are the ones who are most familiar with the law, and charged with the responsibility of administering it and therefore should be qualified to advise you on this point. To which Podmore replied in a letter dated June 17, 1958: This acknowledges your letter of June 10, 1958, requesting that the Com- pany resume negotiations with the Teamsters' Union "in a sincere effort to arrive at a contract ." You further stated "since the Company has failed to discharge its duty to make a good faith attempt to reach a contract , it is under a continuing duty to bargain with the Union.... " 13 A petition for decertification was filed February 21, 1958, by Charles S. Harger, an individual, then an employee of Minute Maid and said to be an employee during the time of the hearing herein. On the same day the Regional Director for the Twelfth Region notified the Company by letter of the filing of this petition , furnishing a copy thereof. In Case No . 12-RD-14 ( the decertification case ) a notice of representation hearing was served upon the parties by the Regional Director on May 19, 1958, setting a hearing for 10 a.m., June 10 , 1958 ; subsequently the Regional Director issued an order rescheduling the bearing, on June 4, 1958, upon the request of the Union, for June 26, 1958; on June 9, 1958, the Regional Director sent a letter to Charles S. Harger, the person who had filed the decertification petition , advising him that the notice of hearing had been withdrawn , "and that further proceedings in the decertification petition are not warranted at this time." Thereafter, under date of June 18 , 1958, Harger received a letter from the Assistant Executive Secretary of the Board , a copy of which was sent to all other parties, acknowledging the receipt of request for review of the action of the Regional Director in refusing to process the decertification petition. On July 14, 1958, Harger received another letter from the Assistant Executive Secretary in which he was advised that the Board had carefully considered the request for review of the dis- missal of the petition by the Regional Director and that the Regional Director was sup- ported and sustained in his decision dismissing the decertification petition. MINUTE MAID CORPORATION 377 This Company does not accept your judgment that our good faith was not demonstrated during our negotiations , neither do we expect the Board to rule otherwise when all the facts have been presented. It is true that after months of negotiation, while we had reached tentative agreement on several points, no agreement had been reached on many important issues; but at no time did we refuse to meet and discuss the issues , fully explain our position, suggest solu- tions, etc., in a sincere effort to reach agreement. These negotiations were eventually interrupted , when on February 21, 1958, we received notice from our employees that a large majority of them no longer wished to be represented by the Teamsters' Union, that they were filing a petition for a decertification action and instructed the Company not to continue negotiating with the Teamsters nor sign any contract until the issue raised by them had been appropriately decided. In a wire to you dated February 24, 1958, we explained this development and since we felt this to be our moral and legal responsibility , we requested that other scheduled meetings be postponed until this matter was settled, and asked you to join us in bringing this matter to a speedy determination . This is still our position. Regardless of the legality of bargaining with your Union at this time, con- summating an agreement with your Union would depend, as it always has, upon reaching an agreement satisfactory to this Company as well as the Union. The intimation in your letter that my position on contract negotiations has changed is not correct. My sole purpose in this meeting with you June 4, 1958, was to attempt to 'carry out the Board's suggestion that the parties discuss internal handling of the decertification petition then pending. Podmore, in his letter of June 17, 1958 , to Teague referred to the prior negotia- tions and said in part "These negotiations were eventually interrupted , when on Feb- ruary 21 , 1958, we received notice from our employees that a large majority of them no longer wished to be represented by the Teamsters' Union.. . The notice referred to by Podmore was contained in a letter dated February 21 directed to him by Harger in which Harger stated "This petition individually signed by 141 employees represents a great majority of the employees in the bargaining unit." On February 26, Podmore had furnished to the Regional Director pursuant to the request of the latter a list entitled "employee list as of February 21, 1958" this list containing 208 names of employees covered in the bargaining unit for the payroll period immediately preceding February 21. Teague was fully justified in telling Podmore, during the course of their conver- sation on June 4, that he saw no point in consenting to an election . Podmore, supposedly represented or advised by competent counsel, was in error in accepting as proven the allegations set forth in the petition for decertification filed by Harger. Certainly, the Company was not justified in accepting as finally binding upon it the mere statement made by Harger that a large majority of the employees in the unit no longer wished to be represented by the Union. This determination, absent the agreement of the Union , could be determined through the processes of the Board. The Board's Statements of Procedure , Subpart D, section 101.22 and 101.23, Series 7, May 14, 1958 ( section 101.21, 101.22 and 101.23, Series 6, as amended, in force February 21, 1958, when the decertification petition was filed), provides for administrative action to determine after investigation whether the allegations of such a petition would support a finding by the Regional Director that a petitioner in such case had been authorized by at least 30 percent of the employees to file such petition and whether an election would effectuate the policies of the Act by providing for a free expression of choice by the employees. This was tacitly acknowledged by Podmore when he asked Teague to consent to an immediate election. However, the mere fact that such a petition was filed could not justify the Company in a refusal to continue to recognize the Union as the representative of the employees in the bargaining unit . N.L.R.B. v. Sanson Hosiery Mills, Inc., 195 F. 2d 350 (C.A. 5). The operations of the Company at its Auburndale plant, as at its other plants, is seasonal. The processing, canning, and packing operations of the Company usually start in November and continue until late spring . During the off seasons the Company has provided for maintenance, and customarily has used for this purpose what are called key personnel , that is, employees with particular skills, and its supervisory staff to do the work necessary to be done . Broadly speaking, the off- season extends from May or early June (so far as citrus products are concerned) until late November. The Company has taken the exemptions provided under the Fair Labor Standards Act with respect to payment of overtime to the extent that time and one-half the regular hourly rate of pay has been paid employees after 56 hours per 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD week. The Company did not take the unlimited exemptions provided under that Act for 14 workweeks during the season.14 During the course of negotiations , the Union requested that , the Company abandon its custom , which it had a right to adopt, of taking the exemption pro- vided by law and asked that overtime be paid for hours worked over 40 during a workweek ; the Union also proposed that the Company abandon its' practice of employing only key personnel and supervisors during the off season , and made other proposals which would vary the Company's prior practices in regard to layoffs and recalls, vacations, and others which had been adopted by it because of the seasonal nature of its operations . There is no doubt that the Company lawfully took advantage of the overtime exemptions allowed under the wage and hour law nor can the right of the Union to request changes from company practice and policy in this respect be challenged. When Minute Maid acquired the Auburndale plant, the operations included the running of a vegetable plant , where vegetables were packed , this operation taking place usually during the vegetable season rather than during the citrus fruit season. In 1957 the vegetable pack had been curtailed and at the close of the fiscal year, October 31 , 1957, it was determined by the Company to discontinue the production and distribution of vegetables . It, therefore , shut down the Auburndale vegetable plant on November 8 of that year . The employees, some 120 in number, employed on 2 shifts, 60 employees on each shift of 10 hours, were permanently terminated from the Company's employment, and any benefits they might have accumulated or been entitled to in the way of seniority , insurance , and job rights were ended as of that day. The distribution and sale of what had formerly been (up to December 1954 ) Snowcrop vegetables was turned over to Seabrook Farms Company , located in New Jersey ; the plant was almost entirely dismantled and a large part of the equipment sold. Where in the years preceding the season of 1957-58 , peak em- ployment was approximately 300 persons within the bargaining unit, including em- ployees in the vegetable plant, at the time of the season of 1957-58, approximately 200 employees were employed at the time of peak employment . At the time of the hearing herein , some 40 to 50 employees were at work in the off-season , some 20 being at work in the processing or packing of high concentrate juice, and the others engaged in maintenance. The concentrate plant at Auburndale began operations for the 1957 -58 season on December 4, 1957; the canning plant began work on December 5 , and a so- called Heinz pack (the packing of baby food ) began on the same day. On December 20, the Heinz pack was stopped abruptly at the direction of Heinz (ap- parently due to the freeze earlier that month ) and on the same day the employees who had been employed on the Heinz back were put to work on a "hot pack," a special pack destined for overseas delivery. Freezing weather hit the citrus belt in Florida on December 12 and 13, 1957 (nights on December 11 and 12 ), and several other freezes occurred during that season-the morning of January 9 , 1958, and the mornings of February 4, 14, 18, and 21. The December freeze was severe. According to the testimony of Dr. Wallace R. Roy, vice president in charge of technical services for Minute Maid, the December freeze presented the lowest temperatures and the longest continuation of damaging temperatures at least since the year 1935 ; during that freeze the tem- peratures not only reached degrees far below 26 , the breaking point with respect, to orange or citrus growth , but the duration of time during which the temperatures remained at 26 or below were 8 to 10 hours in duration which resulted in a damage of about 90 percent of then growing and ready-to-harvest oranges. The record herein reflects careful testimony given by Dr . Roy, together with the testimony of 14 The Fair Labor Standards Act of 1936 , as amended ( 52 Stat . 1060, 29 U.S .C. (1946), Sec. 201-219) provides in part : SEc. 207 . ( a) Except as otherwise provided in this section , no employer shall employ any of his employees who is engaged in commerce or in the production of goods for commerce for a workweek longer than forty hours , unless such employee receives compensation for his employment in excess of the hours: above specified at a rate not less than one and one -half times the regular rate at which he is em-' ployed. . . . The Act provides certain exemptions , as above noted , for employees engaged in sea- sonal work, including the case of an employer engaged in the first processing of, or hi canning or packing of, perishable or -seasonal fresh fruit or vegetables , or in the first processing, within the area of production as defined by the administrator of the Wage and Hour Division, of any agricultural or horticultural commodity during seasonal operations. .. ' MINUTE MAID CORPORATION 379 Dry, Middlebrooks, and others, in which is related the extent of the damage done, particularly by the freeze of December 12 and December 13. Twenty-six, degrees Fahrenheit temperature is the point at which ice crystals begin to form in an orange. Documentary evidence introduced herein shows that the freeze on the morning of December 12 was not as severe as the freeze on the morning of December 13, when temperatures went as low as 19 degrees and the duration of the freeze was as long as 12 hours under 26 degrees. The result or the impact of the December and later freezes upon the Florida citrus industry raised serious problems for Minute Maid, as well as for other members of the industry. For some period of time after December 13, there was uncertainty as to the quantity and quality of fruit which would be left undamaged to the extent it could be used profitably or could be used at all. The Florida Citrus Commission, a State regulatory body, has the authority as the Trial Examiner understands it, to promulgate regulations respecting the ship- ment or the use of oranges and other fruits where it appears there has been a condition which might cause or has caused substantial damage to the fruit on the trees in the groves . The Commission avails itself of the services of experienced technical men in the various concentrate plants. Dr. Roy was chairman of a committee consisting of the chief of quality control of Pasco, a technical man from Florida Citrus Canners Cooperative and from Birdseye and the manager of the Winter Garden Citrus Cooperative , the manager of Fosgate Cooperative and the manager of Snively Groves, at the time or times of the 1957-58 freezes. The Commission usually meets once a month although on occasion it meets in emergency session, as it did following the freeze of December 11-12, when an emergency situation did arise. Such a meeting was held on December 14, 1957, and several meetings were held thereafter to consider the severe adverse effect upon fruit caused by these freezes . At a meeting held on December 16 , the Commission established a 7-day embargo on the shipment of citrus products and in a resolution adopted that day provided: SECTION ONE . For a period of 7 days, beginning at 7 a.m. Tuesday, December 17, 1957, and ending at 7 a.m. December 24, 1957, no citrus fruit in the State of Florida shall be sold or offered for sale, transported for any purpose whatsoever other than diversion from all channels of human consumption, prepared , received or delivered for transportation or marketing except at canning plants for the purpose of processing.15 During the period of the embargo (which subsequently was extended for a longer period of time ) processors were permitted to process oranges directly into cans provided the fruit did not show more than 5-percent freeze damage . Subsequently the regulation providing for this restriction was modified to permit processing of freeze-damaged fruit showing up to 15-percent damage. According to Dr. Roy, the research on investigation of proper methods for processing commenced almost immediately after the freeze and went on progressively . At the December 23 meeting of the Commission, he said, there was a discussion of the possibility of a relaxation of the restrictions imposed by the previously adopted resolution which restricted the use of concentrate fruit to 5-percent damage ; at a meeting on December 30, on the basis of tests that had been completed and studied by the Concentrators Advisory Committee, the tolerance was increased to permit the use of freeze- damaged fruit at the rate of 25 percent . The Commission met on January 3, 1958, when the use of bulk (concentrated juices put into barrels, not into cans) was allowed. By that time, according to Dr. Roy, almost all the concentrators had used up all the barrels available and were getting into a position where they had to arrange for other disposition of the processed fruit or close down. At that meet- ing it was recommended that if the bulk material had developed no off-flavors in 45 days after packing and if it was satisfactory as to gelation standard , the fruit could be reprocessed and put into cans. The 45-day period was established by regulation on January 17. The 45-day limitation was held in effect during all of the balance of the 1957-58 season. Dr. Roy testified that about 90 percent of the fruit received and processed after the December freeze was more or less damaged so that all but about 10 percent of the fruit received by Minute Maid must have been tested and used according to the appropriate regulation of the Commission . Dr. Roy testified to the following effect: Q. (By Mr. Hamilton.) Will you give us some idea of the effect of the freezes after the January 9 freeze, which I believe you were testifying about. ss It should be noted that U.S. Department of Agriculture certifies grades and quality of fruit concentrates before such products can be shipped in interstate commerce. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There were indications in the frost warning data 16 that there were freezes on February 4, 5, 14, 18 and 21. Did those freezes do any damage? A. A certain amount of damage that had not already been done occurred in each of these freezes, because as I mentioned, freezes almost always follow an erratic pattern. Some groves, that by some freak of nature had escaped great damage during the first freeze, some of those were damaged in the subsequent freezes. However, fruit that had already been damaged in the December freeze, very little more damage could be done to some of that fruit because it had already been damaged, some beyond using. The Commission met on February 10 and again on February 19; by the time of a meeting of the Commission on March 12, it had settled down to more or less routine meetings-that is, it returned to holding its regular monthly meetings and no further emergency meetings in connection with these freezes were held. The crop estimate figures for Florida, for oranges, issued by the United States Department of Agriculture on December 10, 1957, was for 102,000,000 boxes; the crop estimate on January 10, 1958, was 80,000,000 boxes. The estimate for overall production at Minute Maid for the 1957-58 season prior to the freeze was for 17,000,000 gallons; the actual production at Minute Maid for the season was between 11 and 12,000,000 gallons. Thus it would appear to be reasonable to assume that at the time of the meeting between representatives of the Union and representatives of the Company on December 19, the company representatives were justified in suggesting a delay of sufficient time to permit an appraisal of the extent of damage so that the Company would be in a better position to know the extent of its operations for the balance of the season (assuming that, prior to then, it had been bargaining in good faith). A question arises, however, whether the Company at the time of the meetings of February 6 and 13, was not in a position to negotiate earnestly in an effort to settle the wage issue, and whether it was in a position then to give definitive and positive answers with respect to other provisions of the respective proposals of Union and Company which had been debated at such great length prior to December 12. It seems to the Trial Examiner that the position taken by the company representatives on December 19, that it was not in a position to bargain with the Union in any respect until the effects of the freeze could be ascertained, and its refusal to negotiate on basic items outside of the monetary issues, was somewhat arbitrary. The General Counsel takes the position that even assuming that the freeze had an effect on the operations of the Company, the evidence establishes that prior to the freeze the Company did not bargain in good faith, and that to permit the Company to rest its case on the advent of the freeze would be to hold that an employer may bargain in bad faith with the representative of its employees for a period of several months and thereafter be relieved of liability because of a fortuitous circumstance of nature. This argument is bolstered by reference to the happenings in the meetings of the negotiating parties on February 6 and 13-the burden imposed upon union repre- sentatives to start negotiations afresh in the same manner that negotiations had begun on April 9, 1957. As will be remarked below, the Trial Examiner is of the opinion that there is merit in the position of the General Counsel and that the atti- tude of company representatives on February 6 and 13, followed by its prompt use of circumstance in connection with the filing of the decertification petition, casts grave doubt as to the sincerity of company representatives in their bargaining with the Union. This is particularly significant in view of the withdrawal of all company proposals on December 13. Had the Company at that time withdrawn from further negotiations on the wage issue only, in the absence of an impasse prior thereto, an inference that the Company had abandoned good-faith bargaining before then might not be justified. Such an inference can now well be drawn. The bonus to Auburndale employees, announced by the Company in its notice dated April 18, 1958, posted and distributed to employees, was a bonus to employees in the bargaining unit covering the 1957-58 processing season computed upon wages paid commencing with the first pay period in December 1957, and ending with the last pay period in May 1958. The announcement of the bonus was made, of course, after the Company's notice to the employees of February 25, 1958, to the effect that the Company had advised the Union that it had postponed the meeting between representatives of the Company and representatives of the Union scheduled for February 26, "as well as further negotiation meetings. . " The Union certainly at this time had not abandoned its right to continue to bargain on economic issues. If the Trial Examiner is correct in finding that the Union was . "U.S. Weather Bureau issues official frost warning bulletins from time to time. MINUTE MAID CORPORATION 381 still the bargaining representative at the time the Company announced the bonus, as he does, the granting of the bonus constituted a violation of Section 8(a) (5) and (1) of the Act.17 The Board in a recent case, Beacon Pierce Dyeing and Finishing Co., Inc., 121 NLRB 953, held, in distinguishing Speidel Corporation, 120 NLRB 773, that the fact that a union drops a contract proposal in the course of negotiations does not mean that the Company is free to take unilateral action on the subject. In Speidel, the Board found that the Union had bargained away its interest in the matter of Easter bonuses when it remained silent and failed to contradict the employer's statement that the subject was a matter of management prerogative and not covered by the contract. In Beacon Pierce Dyeing and Finishing, the Board pointed out that its decision in Speidel was based on a finding that there was a clear understanding between the parties that the subject of bonuses would remain a man- agement prerogative; but the Board went on to say that such a waiver of a bargaining right will not be readily inferred but must be shown in clear and unmistakable terms. In the instant case, the Union was still in the position, at least impliedly if not posi- tively, of asserting its right to bargain on monetary issues. It is true that the Union had not made a specific demand for bonus payments, as such; however, it cannot be assumed that the Union would not have discussed or would have refused to discuss bonus payments had the Company advised the Union of its intention to make the announcement it did on April 18. The Trial Examiner has considered the possibility of finding that an impasse existed after the February 13 meeting and the filing of the decertification petition on February 21. In the whole context of the case, he finds that no real impasse did exist. However, if an impasse did exist, its existence was created by Respondent's own conduct in refusing to bargain in good faith. N.L.R.B. v. Andrew Jergens Co., 175 F. 2d 130, 136 (C.A. 9) certiorari denied, 338 U.S. 827; N.L.R.B. v. Hoppes Manufacturing Company, 170 F. 2d 962, 964 (C.A. 6). Assuming once more the existence of an impasse prior to the granting of the bonus, the Respondent was not relieved of the obligation to advise the Union that it had decided to grant such a bonus. The granting of the bonus may well have created conditions in which the parties would be more willing to make concessions to compromise the matters in dif- ference. N.L.R.B. v. United States Cold Storage Corporation, 203 F. 2d 924, 928 (C.A. 5), certiorari denied, 346 U.S. 818. The Trial Examiner believes that here he cannot, and should not, undertake to pass upon or determine the merits of the several proposals and counterproposals discussed and argued at great length between the parties during the course of their negotiations. With regard to the merits, the Trial Examiner recognizes the force of the argument made on behalf of the Company that the parties met and thoroughly discussed every important issue and that it is entitled to express its opinion that because the Union's contract proposals apparently were not drafted by one either ex- perienced in, or sympathetic to, the problems and peculiar needs of the seasonal citrus industry, the Company was caused concern. It is pointed out that the Union's pro- posal of a combined union shop (the hiring hall plus maintenance of membership) is illegal under both Federal and State laws; that the "hot-cargo" clause was illegal and even when changed to a "picket line clause" such a provision still could not be legally enforceable against the Company since circumstances could arise under such a clause where the situation would be exactly like that under the original proposed "hot-cargo" clause; that the Union's proposed "health and welfare" clause was illegal on its face under the Act because the proposal was made to the Company alone and not to any association of employers and that the Union knew that the Company was not a member of any association of employers contributing to such a fund. It is further said in support of the Company's position during bargaining sessions that apart from the asserted illegal proposals made by the Union, there were many clauses contained therein obviously taken from other contracts or drafted for other negotiations involving industries completely different from and foreign to the opera- tions of a seasonal citrus and fruit plant. Among these proposals were one which would have drastically changed the hiring policies of the Respondent and impeded hiring; the one requiring a guaranteed workweek was unheard of in the citrus industry; that a request which if granted would require 2 days' notice of layoff would be almost impossible to meet because in the industry it is impossible to tell when a layoff might be required; and that another article contained in the Union's demand was strictly applicable to the business of transportation and not to the business of a food process- ing plant. Many other arguments are advanced in support of the Company's position, maintained at all times, that other proposed provisions of a new contract as advanced 17M. J. Cameron, an employee and a member of the Union's negotiating committees testified that he received payment of his bonus during the month of June. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Union were unworkable or impracticable or both.18 It is emphasized that the parties never reached an agreement on a contract and, says the Company, it cannot be said the parties ever would have reached an agreement; that the Union had an opportunity to accept a complete contract with a wage increase (which eventually the Union said was acceptable) but rejected that proposal; that the Union sent its final proposal of October 28, the Respondent sent its final proposal which was rejected; and that after rejection of the Union's final proposal by the Respond- ent, the parties met and discussed the issues informally and formally on November 6, 8, and 19; and on November 29 the Respondent mailed its final proposal which was rejected by the Union on December 11, but that the parties continued to meet without reaching an agreement. Was the December freeze a pretext under which the Company attempted to avoid its obligation to continue negotiations in good faith with the Union? The .General Counsel contends that proof that the freeze constituted a pretext under which the Respondent attempted to blanket its insincerity was established at the meeting on February 6. He points out that on December 19, the Respondent indi- cated in a written statement submitted to the Union negotiating committee that it .would clarify its position at some later date, probably on January 16, and on Febru- ary 6 announced that it had no proposal and that the proposal of the Union was unacceptable. The General Counsel contends that in the afternoon session of February 6 and in the subsequent meeting of February 13, while the Respondent engaged in a discussion of contract proposals, the discussion was carried on with a predetermination of not reaching any agreement. If, as the General Counsel contends, the December freeze or freezes constituted .a basis of pretext bargaining on the part of the Company, his position is well sup- ported by the subsequent action of the Company in its immediate acceptance of the validity of the claims or allegations set forth in the petition for decertification filed by Harger in February, immediately at the end of the certification year. The petition for decertification, filed February 21, was forthwith accepted as basic fact on February 25, as evidenced by Podmore's notice to the employees of that date. .Indicative of the importance of this subsequent fact, is the attitude of company representatives at the February 6 and February 13 negotiation meetings, where the Union was relegated into a position of being required to start negotiations from scratch. It is not difficult to find, as the Trial Examiner does, that there was good-faith bargaining on either side for the period April 9 until at least October 10, 1957. It was only in November that there was plain indication that the Company had made up its mind that, with a new seasonal operation approaching, it would not concede or yield further on any point at issue as asserted by it in prior negotiations. This, in itself, is of course permissible. The "final" proposal submitted by the Company in November indicates that the Company had decided to take a firm position with respect to its proposals and the Union's requests. However, the advent of freezing weather in December, with attendant problems imposed upon the Company and its plans for future operation, offered an apparent clear excuse or justification for the Company to break off negotiations. However, the emphasis placed by the Com- pany upon the mere filing of the decertification petition and its insistence in February, before the filing of that petition, that the union proposals were entirely unsatisfactory and that the Company had none of its own, impels the Trial Examiner to find that .perhaps before, but surely after the December freeze, the Company was not bargain- ing in good faith at the time it held its several meetings with union representatives. The General Counsel has charged the Company with stalling or the employment of dilatory tactics in negotiations. The General Counsel also alleges a refusal on the part of the Company to meet at reasonable times for the purpose of negotiating a contract in the absence of the Respondent's attorney. On the basis of the evidence adduced at the hearing, these two charges are coextensive. The testimony shows that Organizer Teague as chief spokesman, for the Union and Attorney Hamilton, who acted in a similar capacity for the Company, each at various times was unable to adjust meetings for their mutual convenience and that generally meeting dates 'were set according to the agreement of the representatives for either side. It is said that Teague and members of the union negotiating committee were quite anxious to meet at least 2 days each week until negotiations were closed and, that the Com- pany, by stalling, was able to prevent meetings of such frequency. However, as a matter of actual fact, Hamilton, as well as Teague, was bound by prior or other commitments at various times and, although it does appear that the meetings Its An examination of the last' of the Union's ,proposals shows that it retreated.from, its position on most 'of the issues upon which the Company refused to yield. MINUTE MAID CORPORATION 383 during the summer at least of 1957 were infrequent, that nevertheless the meetings that were held were at times which had been mutually agreed upon by the parties. Teague whose main offices were in Dallas, Texas, and Hamilton whose law offices are maintained in Jacksonville, Florida, each was a busy man and had obligations which would have prevented him from meeting continuously or at close intervals at Orlando, where the negotiations generally were conducted . At one time in August, Teague was ill ; in July, vacations and the holiday intervened . The Trial Examiner finds a failure of proof on the part of the General Counsel with respect to these allegations of the complaint. The delays, such as they were, appear to be of the kind incidental to collective bargaining. B. The alleged discriminatory discharge of Dewey Evans Dewey Evans first was employed by the Snowcrop division of Clinton Foods. When Minute Maid acquired the Auburndale plant, Evans was continued in em- ployment. He regularly was employed in the vegetable plant until that plant was closed down on November 8, 1957. According to his testimony, when work was slack in the vegetable plant and during slack seasons, he worked in the juice plant or concentrate plant and at times had worked in the peeling room at the juice plant and at the unloading ramp there, as well as other jobs during off season. His last day of work for Minute Maid was on November 7, 1957, and he as well as all of the other employees in the bargaining unit employed in the vegetable plant on that day were separated from the employment of Minute Maid . The termination was complete, and constituted for each such employee a situation involving loss of job rights, including insurance benefits , and reemployment rights. According to Evans, he first was employed on December 3, 1953, and his seniority rights carried over from that date until his employment was terminated . Prior to the election conducted among the employees of Minute Maid in February 1957, Evans campaigned actively on behalf of Local 444. He testified to a conversation he had with Judge Jones, day foreman of the vegetable pack or operation , in Janu- ary, prior to the election , and he quoted Jones as telling him that Jones said "he felt like we didn't need a union down there; he felt like we could get along without a union and didn't feel like the union would help us any , and at that time he felt like if we won the election it would mean our jobs." Evans testified concerning a conversation he had with Ernest Rice, night foreman of the vegetable pack, in Janu- ary, prior to the election , at which time he said that Rice told him that the foremen had asked him (Rice ) to stay in and have a conversation with Evans, and that Rice then told Evans "that he felt like we could get along without the union, and he felt like we didn't need a union in there, and he felt like that 1 could go in and talk to the people and get them to vote against the union "; to which Evans replied "that he had already been around and talked to the people and encouraged them to vote for the Union , felt that the Union was needed and that the employees could obtain better working conditions and higher wages," and that "I just couldn't go back in and talk to the people in reverse order." The Company having on November 4 announced its intention to close the vegetable plant on November 8, Evans applied to L. C. Dennis , personnel manager at the Auburndale plant, for employment with Minute Maid. This application was on November 5. According to Evans he said that Dennis told him that he was going to keep applications in the active file and he would do everything he could to place employees from the vegetable plant in other departments. Thereafter, on Decem- ber 4, Evans again applied to Dennis for employment ; he said he was told that the Company had not begun seasonal operations at that time but that Dennis would keep Evans in mind and that when they did start running the plant and started to hire men "he would call me back." On December 11, Evans again applied to Dennis for employment and was told that they were not calling back anyone except the old hands who previously had been employed in the citrus operation. Further, according to Evans, he made application for employment "three or four times a week" from then on up until December 21, and each time Dennis told him that he "was the next man up , and that he would notify me just as quick as he got an open- ing." It appears that during the term of his employment with Minute Maid Evans was a satisfactory employee in that no complaints were made concerning his work. Evans was a member of the negotiating committee for the Union , he had been an officer of the Citrus Workers Union before the advent of Local 444 and had acted as a steward for Local Union 24218. Dennis testified that when the concentrate plant began operations on December 4, all jobs were filled and that the same was true of the canning plant which started work on December 5; that the Company had notified employees and interviewed em- ployees for available jobs for about a week prior to the opening, and : that the airings 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made during that period were primarily to fill vacancies occasioned by employees quitting work and after that for the same and similar reasons in day-to-day opera- tions. He said that the Heinz pack was in progress after the opening of the canning operation until the pack was stopped on December 20. As above remarked the notice to stop the Heinz operation came very suddenly and apparently was the result of the effect of the freeze. This was the Heinz baby juice pack. Dennis had been aware that the special overseas hot pack was to start, and he said that he had that in mind when he told Evans prior to December 20 that he would bear him in mind in connection with employment. However, after the Heinz baby juice pack was stopped, employees who had been working on that pack were assigned to the hot pack so that it was not necessary to hire additional employees to work on the hot pack. Dennis said on about December 16, when he talked to Evans, "At that time I knew that this special overseas hot pack would start on the 20th, and I advised Evans that probably before the week was out, if things materialized as I thought they would, we would probably be in a position to place him, and asked him to check with me later in the week"; that at that time he knew nothing about the imminent Heinz shutdown and did not know about it until the day it occurred; that when Evans next approached him on about December 20, he explained to Evans that the job or the opening that he thought would materialize "didn't go through." During all of the time mentioned above, Dennis testified, he did not know that Evans was one of the union negotiating com- mittee or a member of the Union or had been engaged in union activity and was not aware of this until after the hearing in the instant case had been set. Evans has not obtained reemployment with Minute Maid since the termination of his employment on November 6. He started work for the State Road Department on December 27 and retained that job at least up until the time of the hearing. During the course of operations, Dennis as personnel manager of the Auburndale plant, was generally informed as to job vacancies either through a list supplied by Dry, the plant superintendent, or from information received from foremen in the plant. When vacancies occurred, the practice was for Dennis to fill them by hiring applicants for jobs; an applicant would be interviewed and if accepted sent for a physical examination and thereafter, if acceptable, put to work. With respect to seasonal workers, it was customary for the Company to give them as much notice as possible as to when the plant was going to reopen for the season, such notice usually being given by sending out the information to employees who had been employed during the prior season. In November and December 1957, there was a surplus of labor in the area including an unusually large supply of transient labor; from morning to morning, Dennis said, there would be anywhere from 25 to 35 people waiting in his office. If no openings were available, Dennis afforded an opportunity for each applicant to file a formal application; if there were immediate openings he would select certain people, interview them, and send them for a physical examination. There is testimony in the record from Dennis that a few persons formerly em- ployed in the vegetable plant were employed for work in the canning plant on December 5-Thomas Windham, who had been employed in the vegetable plant at some previous time but had resigned, was employed on that day as was Evey Wind- ham, Roy Miller, Ellis Lashley, J. P. Smith, and James Moore, the latter being hired as a receiving clerk. In response to a question as to why Evans was not hired when he came in on December 4, Dennis said "we had no openings; everything was filled.", Although there were some former employees of the vegetable plant employed by Minute Maid on or after December 4 and December 5, a number of the employees formerly employed in the vegetable plant were not hired for work in the concentrate or canning plants at Auburndale. The testimony shows too that the general superin- tendent and the two foremen in the vegetable plant was laid off or their employment was terminated at the time that plant was closed. In the whole context of this case, the Trial Examiner is not able to find that the Company demonstrated animus against Evans because of his union activities. He cannot infer, from the bare fact that Evans was active. in support of the Union and the collateral fact that he was not hired for work in the concentrate or canning plants, that he was discriminated against as alleged in the complaint. The conversations with Judge and Rice, as reported by Evans, cannot be made the basis of a finding of interference, intimidation , or coercion. C. Other alleged acts of interference 19 The complaint alleges that John Roberts encouraged an employee to repudiate the Union and promised him a wage increase if he would do so; that Roberts informed 19 No proof was offered in support of the allegations of the complaint to the effect that during the month of December 1957, a foreman, Grady. Lester, encouraged an employee MINUTE MAID CORPORATION 385 employees that the Respondent would not execute a contract with the Union and that the Respondent did not want a union; and that he threatened employees with dis- charge if they went on strike. Roberts, manager of labor relations for the Company, then, and now is, stationed at the Company's offices in Orlando. Just prior to or at the time of the reopening of the concentrate and canning plants in December 1957, Roberts spent several days at the Auburndale plant with Dennis interviewing newly hired employees. After ap- plicants were selected as employees by Dennis, he sent them into an adjoining office occupied by Roberts, where Roberts talked over the conditions of employment with each man. In support of the complaint, testimony was given by certain employees to the fol- lowing effect: John Worley testified that he had overheard a conversation at the snack bar on the plant premises when, Worley said, Roberts told M. J. Cameron "M. J., Minute Maid don't want a contract with the Union. Furthermore, it didn't intend to have one." Worley said further that the conversation took place in the morning during a break period. Cameron testified to the same conversation except he placed it in the after- noon between 1 and 1:30 p.m. Cameron, a member of the negotiating committee for the Union, stated that Roberts had said "Minute Maid won't give you fellows a contract"; he said that he remembered word for word what Roberts is supposed to have said but could not remember that Worley had said anything at the time; Cameron testified that he had known Roberts when the latter was an official of the Union; that he saw Roberts in the plant a number of times. Wayne Bush testified that Roberts told him during the third week in December that the Company "would give us an 81/2 cent raise and he thought the Company would do more for us than the Union if we wouldn't have a Union." Elmer Green testified that Roberts said that "if we could do away with the Union we would get an 81/2 cent raise, starting im- mediately" and that "if we walked out on strike the Company had a right to fire us and hire new men" and that "they didn't need no Union here and didn't intend to have one." Thomas E. Newberry testified that Roberts had talked to him about the Union and told him that the employees were on the verge of a strike and the man who walked out on strike would not return to his job. Roberts in his testimony confirmed the fact that he had had a conversation with Cameron in the presence of Worley. He placed this as about the middle of January 1958. Roberts said the three men were all talking; that Worley remarked "this would be a hell of a day to have to walk a picket line"; that he, Roberts, knew of Cameron's Union background and that he had talked with him many times after Roberts became connected with Minute Maid but specifically denied making the statement to Cameron or to any other employee to the effect that Minute Maid did not want a contract with the Union and did not intend to have one. Roberts also emphatically denied saying at any time that Minute Maid did not need a union and did not intend to have one. The testimony of Bush finally was distilled down on cross-examination to the fact that the only memory Bush had was that Roberts had told him that the Company had offered an 81/2-cent per hour increase. Bush's memory suffered such lapse on cross-examination that the Trial Examiner must disregard his testimony in its en- tirety. Roberts denied making any statement to Bush or any other employee that the Company would give an 81/2-cent raise if the Company did not have to deal with a union. Roberts said that he had known Green to have been a member of the Union from his own previous connection with the Union but that he did not tell Green that the Company was not going to have a union and denied Green's state- ment attributed to him that "if we do away with the Union we will get the 81/2 cent an hour increase." Roberts stated that during the course of his interviews with new or rehired employees he had mentioned a possible strike and had told them that if an employee went out on an economic strike, the Company under the law could replace him. With respect to the testimony of Newberry, Roberts said that he did not tell him that the man who walked out on a strike would not return to his job or anything similar to that. Roberts said, and his testimony is uncontradicted, that to abandon the Union with the promise that if this was done, the employee benefit plan adopted by the Employer at another of its plants would be put into effect at the Auburn- dale plant, or that Grady had solicited during that month signatures of employees to a petition then being circulated among the employees to repudiate the Union as their collective-bargaining representative. These allegations of the complaint being unproven, they are dismissed with the consent of the General Counsel. 525543-60--vol. 124-26 -386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he told all prospective employees he interviewed that he was not interested in their union or nonunion sympathy. The record discloses that there had been some suggestion made that the Union might call a strike at Auburndale and that, during the course of formal and informal negotiations with company representatives, Morgan and Teague for the Union had indicated that a strike was not beyond the bounds of possibility unless a contract was completed, and that the Union had sought and received strike sanction from the 'International Brotherhood of Teamsters. As is clearly shown, the employees had been advised in writing of the wage increase offer made by the Company in Decem- ber and that offer, it appears, was a matter of common discussion among the employees themselves. Upon the basis of the testimony of the witnesses called by the General Counsel and the testimony of Roberts, the Trial Examiner can do nothing other than to find that Roberts, at the snack bar or during the course of his duties in the plant or while interviewing prospective employees, did nothing other than state the Com- pany's position and did not make threats, promises, or engage in other prohibited activity.20 There are no serious questions of credibility involved in connection with the testimony of the employees or former employees of the Company and the testimony of Roberts. The Trial Examiner simply believes, and finds, that the witnesses called by the General Counsel in an effort to prove interference in the way of threats and promises alleged to have been made by Roberts did not in their testimony support the allegations of the complaint and that their testimony was vague in general and not too reliable. The Trial Examiner finds further that the General Counsel has failed to sustain the burden of proof that the Company did contravene the Act by acts of interference by Roberts as alleged in the complaint. Concluding Findings The Trial Examiner does not intend, unless directed by the Board, to attempt to resolve the merits of the various proposals and counterproposals advanced by either side during the course of negotiations. His findings rather are based on the overall view of the course of negotiations during a comparatively long period of time, and what appears to him to be a change in attitude on the part of company representatives. The Company did not hesitate to assume the obligations of the collective- bargaining agreement in effect between its predecessor and Local Union No. 24218 when Minute Maid took over the operations of the Auburndale plant. Nor did the Company hesitate to suggest to Local 444 after it had been certified as representa- tive of the employees in the established unit, that the Union present its proposals; and it impliedly suggested that negotiations start. Trial Examiner believes and finds that at the beginning of negotiations and at least until down to October 1957, the Company was bargaining for the kind of agreement it hoped to get and perhaps justifiably refused to make many concessions in order to meet certain union pro- posals. It is the opinion of the Trial Examiner that the atmosphere of negotiation changed in November 1957, and more so after the freeze of December 12-13, which afforded the Company a plausible excuse to break off negotiations for the time being. However, the Company did more than that-it withdrew all its prior pro- 20 As remarked above, John Roberts was a representative of Local 444 and an organizer for the International Union at the time Local 444 was certified as bargaining representa- tive, and he was the one who transmitted the original proposals of the Union to the Company in March 1957. It also is shown that Teague assumed the responsibility of chief spokesman for the Union on and after negotiations began on April 9 of that year and it does not appear that Roberts took an active part in sitting in or participat- ing in the negotiation meetings. Apparently the Respondent here felt that the Union 'saw something invidious in the hiring of Roberts by Minute Maid during the time the Union was negotiating with the Company in respect to provisions of a new contract. The Company at the hearing went to great pains to prove that there was nothing `underhanded in the hiring by it of Roberts or any intent to "use" Roberts for the pur- pose of these negotiations. On the contrary, the testimony of Podmore, who was and is in overall supervision of the labor policies and practices of the Company, demonstrates that he selected Roberts from a number of 'people as a man to be groomed eventually to Succeed Podmore in his position . The Trial Examiner fails to find a scintilla of evidence that Roberts in any way attempted to take advantage of the fact that he was a former associate of the union officials who participated in, or were in charge of, negotiations with the Company. MINUTE MAID CORPORATION 387 posals to the Union. To the Trial Examiner, the position taken by company repre- sentatives at the February 6 and 13 meetings displays a taint attached to what generally is considered good-faith bargaining between parties, and the Company impliedly at least at that time had determined that it would not continue to negotiate with the Union except upon its own terms. The Respondent here relies upon N.L.R.B. v. Globe Automatic Sprinkler Com- pany of Pennsylvania, 199 F. 2d 64 (C.A. 3) to justify the Company's acceptance as final of the representations made to it by Harger and by the filing of the de- certification petition. In that case it clearly appears that the Trial Examiner had found that Globe had failed to bargain in good faith with the union and that the Board in its Decision and Order had disagreed with the Trial Examiner. The Court of Appeals, in denying the petition of the Board for enforcement of its order, said in part: Failure or refusal of an employer to bargain with a union for "at least 1 year" following its certification constitutes an unfair labor practice, says the Board, even though, as in the instant case (1) the union had lost every one of its mem- bers; (2) such loss of memberships cannot be attributed to any activities, pro- scribed or otherwise, of the employer; and (3) the employer has, in good faith and in accordance with every requirement of the Act, bargained with the union prior to the loss of its membership. The Board contends that both its "one-year rule" and its application along the lines stated have been accorded judicial sanction. It says we approved its rule "in principle" in N.L.R.B. v. Swift & Co., 3 Cir., 1947, 162 F. 2d 575, 584-585, certiorari denied, 332 U.S. 791. The Trial Examiner here finds that the Company, although it met over a compara- tively long period of time with the Union, nevertheless failed to bargain in good faith after December 13, 1957. In the Globe case, the Board decided to petition for enforcement of its order solely on the basis that the Company had broken off negotiations with the Union without regard to whether or not unfair labor practices had been committed, and therefore Globe was in violation of Section 5 of the Act. Here, the Trial Examiner specifically finds the existence of an unfair labor practice (refusal to bargain in good faith) prior to the time that the Company decided to recognize the claims asserted in the decertification petition and to accept the state- ment of Harger that some 70 percent of the employees in the bargaining unit had signed a petition requesting that the Company not deal further with the Union. If the Trial Examiner is correct in his findings herein, then Globe is not applicable to the facts. Nor has it been shown here that the petition for decertification was arbitrarily dismissed. The Trial Examiner must accept in the absence of a showing of any kind of arbitrary action on the part of the Regional Director or the General Counsel, that administrative procedure leading up to the dismissal of the petition for decertifi- cation was regular and in accordance with established procedures. The Act does not compel any agreement whatsoever between employees and employers. Nor does the Act regulate the substantive terms governing wages, hours, and working conditions which are incorporated in an agreement. N.L.R.B. v. American National Insurance Co., 343 U.S. 395; and either party may insist upon its position as to matters within the area of mandatory bargaining. See N.L.R.B. v. Borg-Warner, 356 U.S. 342, wherein the Court said: "Read together, these provi- sions (Section 8(a)(5) and 8(d)) establish the obligation of the employer and the representative of its employees to bargain with each other in good faith with respect to `wages, hours, and other terms and conditions of employment.' The duty is limited to those subjects, and within that area neither party is legally obligated to yield." These cases, cited in the brief filed for the Respondent, state good law; however, good-faith bargaining must be evidenced before the principles so stated will apply. Here, the withdrawal of all proposals by the Company prior to the December 19 meeting, its inflexible attitude with respect to delay for a period of time expressed in its written memorandum given to union representatives on Decem- ber 19, the attitude of the company representatives at the subsequent meetings held February 6 and 13, together with the eagerness and prompt haste with which the Company accepted Harger's representation that a large majority of the employees wished not to be represented by the Union, and the granting of a bonus at a time when the Company was still under a duty to bargain with the Union, constitutes conclusive evidence of bad faith on the part of the Company, and the Trial Examiner so finds. Nor does the Trial Examiner accept the circumstance of the freeze in early December as sufficient reason for the Company to decline to negotiate on basic items of the contract that had no relation to the financial position of the 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent . There is sufficient evidence contained in the record herein to establish that in several instances the Union amended its proposals and changed its position to meet company objection , only to find that after this had been done the Company would not agree to what had been proposed by the Company , or that the Company wanted further amendment . This, of course , had the necessary effect of widening the differences between the parties , and is presumptive evidence of bad faith. N.L.R.B . v. Tower Hosiery Mills, Inc., 180 F. 2d 701 (C.A. 4), certiorari denied, 340 U .S. 811. For the reasons stated, the Trial Examiner finds that the Company by refusing to bargain in good faith on and after December 13, 1957, violated and is violating Section 8 (a)(5) and ( 1), and by the implied recognition of the claims asserted by Harger in his letter to the Company of February 21, 1958, and the granting of the bonus as announced on April 18, 1958, the Company has violated and is violating Section 8 (a)(1) of the Act. The Respondent's motions to strike and to dismiss are denied except as this denial is inconsistent with the above findings of fact. 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 certain unfair labor practices, the Trial Examiner shall recommend that , upon request by the Union , negotiations between it and the Respondent be renewed. On the basis of the foregoing findings of fact, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent , Minute Maid Corporation , is, and at all times material hereto has been, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Cannery, Citrus Workers, Drivers, Warehousemen and Allied Em- ployees , Local 444, is, and during the times material hereto has been, a labor organization within the meaning of Section 2 ( 5) of the Act. 3. All' production and maintenance employees , including warehousemen, checkers, cafeteria employees , leadmen , and peel oil operators, but excluding office and office clerical employees , print shop employees , truckdrivers, garage employees , fruit scale men, all new construction and installation employees , agricultural employees, first- aid personnel, laboratory technicians , professional employees, night watchmen, guards, inspectors , subforemen and foremen, the cafeteria supervisor, and all super- visors as defined in the Act, employed at the Respondent's plant in Auburndale, Florida, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. The aforesaid labor organization, on February 21, 1957, was, and at all times thereafter has been , the exclusive representative of all employees in the above- described unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to bargain collectively with said labor organization as the exclu- sive representative of its employees in an appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) of the Act. 6. By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act , by refusing to bargain collectively with the said labor organization, and by the unilateral granting of a bonus, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] MILMNS APPENDIX 389 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, upon request, bargain collectively with International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, Cannery, Citrus Workers, Drivers, Warehousemen and Allied Employees, Local 444, as the exclusive representative of all employees in the following bargaining unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement . The bargaining unit is: All production and maintenance employees, including warehousemen, checkers, cafeteria employees, leadmen and peel oil operators , but exclud- ing office and office clerical employees , print shop employees, truck- drivers, garage employees, fruit scale men , all new construction and installation employees , agriculture employees , first-aid personnel, labora- tory technicians, professional employees , night watchmen , guards, in- spectors, subforemen and foremen, the cafeteria supervisor, and all super- visors as defined in the Act, employed at the Respondent's plant in Auburndale, Florida. MINUTE MAID CORPORATION, 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. Milens 1 and Warehouse Union Local No. 6, International Long- shoremen's and Warehousemen's Union (Ind.), Petitioner. Case No. 20-RC-3782. August 10, 1959 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Albert Schneider, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations here involved claim to represent certain employees of the Employer 2 1 The names of the parties appear as corrected at the hearing. 2 Department & Specialty Store Employees' Union, Local No. 1265, Retail Clerks In- ternational Association, AFL-CIO, herein called Local 1265, and Local No. 1179, Re- tail Clerks International Association , AFI-CIO, herein called Local 1179, intervened in this proceeding on the basis of alleged contractual interests. 124 NLRB No. 51.