Stokely-Bordo

STOKELY-BORDO 869 meeting of the Union, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (l) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not engaged in unfair labor practices within the meaning ,of Section 8(a)(1) of the Act, by threatening, through Gilbert Nash, loss of overtime work if the Union were successful in organizing its employees. [Recommendations omitted from publication.] Stokely-Van Camp, Inc. and Bordo Products Co.,_ d/b/a Stokely- Bordo and International Chemical Workers Union and/or its Local No. 666, AFL-CIO and Citrus, Cannery, Food Process- ing and Allied Workers, Drivers, Warehousemen and Helpers Local Union No. 60, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Charging Party. Cases Nos. 1 °.L-CA 906 and 12-CB-9279. February 28,1961 DECISION AND ORDER On February 11, 1960, Trial Examiner Lee J. Best issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report, together with supporting briefs, and the General Counsel filed a brief in support of the Inter- mediate Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in this proceeding, and finds merit in certain of the Respondents' ex- ceptions. Accordingly, the Board adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications : The Respondent Employer is a processor and freezer of citrus fruits. During the period under discussion, it employed at its Haines City, 'In their briefs, the Respondents requested that the Board reject the Intermediate Report and order a new hearing, or in the alternative, decide the case de novo, on the ground that the Trial Examiner considered posthearing evidence, supplied at his request by the Regional Director of the Twelfth Region , over the objections of the Respondents. The evidence referred to by the Respondents does not appear in the Board files, nor is its substance revealed by the Respondents. Moreover, the Intermediate Report makes no reference to any material not found in the record . In these circumstances , it is clear that none of the parties were prejudiced by the Trial Examiner 's action , and accordingly, the Respondents' requests are denied, 130 NLRB No. 84. 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Florida, plant, 18 regular year-round employees and approximately 76 seasonal employees. Both groups had previously been represented under separate contracts by the Charging Party, herein called the Teamsters. On January 17,1958, the Respondent Union, herein called the Chemical Workers, filed a representation petition seeking a single unit of all regular and seasonal employees. Pursuant to that petition, the Board directed an election only among the regular employees, specifically excluding the remaining employees.' Neither union re- ceived a majority of the votes cast, and the Board thereupon directed a runoff election which was held December 9, 1958. However, the runoff election resulted in an 8-8 tie vote, and the Board accordingly certified the results of the election. On the day of the runoff election for the unit of regular employees, the Chemical Workers petitioned for a unit of seasonal employees. A consent election was held for this unit in which the Teamsters also participated, and the seasonal employees selected the Chemical Work- ers as their representative by a vote of 61 to 3. The Board certified the Chemical Workers as bargaining agent for the seasonal unit on January 21, 1959, and the Chemical Workers thereupon reasserted its claim as exclusive representative for the regular employees (notwith- standing the tie runoff election of December 9) and requested recog- nition for all the Employer's employees. On January 27,1959, the Employer and the Chemical Workers met at Tampa, Florida, with respect to a settlement agreement in another case.3 After reaching a "tentative agreement" in that case, the Em- ployer also "tentatively" recognized the Chemical Workers as bar- gaining agent for the regular employees, both agreements allegedly being contingent upon the approval of the Regional Director. The representatives of the Employer and the Chemical Workers then pro- ceeded to the offices of the Regional Director where they conferred with the Regional Attorney. He provided the parties with clerical assistance for typing up the necessary documents for both agreements and received copies thereof. He officially approved the settlement agreement and stated that he saw "nothing wrong" with the recogni- tion agreement .4 The Employer and the Chemical Workers then executed both agreements in his office. At no time did the Chemical Workers offer, nor did the Employer require, proof of the Chemical Workers majority status. On March 12, 1959, 15 regular employees notified the Employer in writing that they did not desire to be represented by the Chemical 2 Stokely-Bordo, Case No. 12-RC-260, not published in NLRB volumes. 3This concerned an alleged Section 8(a) (3) violation and is unrelated to the instant proceeding * The testimony as to this incident was given by the Respondents. The General Counsel refused permission to the Regional Attorney to testify regarding his participation at this meeting. STOKELY-BORDO 871 Workers. A few days later, four of those who actively sought signa- tures for this document were summoned individually to the plant office where they were interrogated by Thomas, the vice president of the Chemical Workers International, in the presence of other union representatives and employer officials. In brief, Thomas asked what had prompted the document and stated that the Employer had recog- nized the Chemical Workers as their bargaining agent, that it was go- ing to bargain for the regular employees, and that it did not want any more letters or petitions circulated in the plant. Thomas also told them that if the regular employees had any problems they wished to air, they should utilize the grievance procedure still retained from the old Teamsters contract. Finally, on June 1, 1959, the Employer and the Chemical Workers entered into a collective-bargaining agreement covering both the regular year-round and the seasonal employees. 1. Estoppel: We agree with the Trial Examiner that the Regional Attorney's ostensible approval of the recognition agreement, upon which the Respondents relied before executing said agreement, is not, as urged by the Respondents, a valid ground for dismissing the con- solidated complaint. We note, first of all, that on January 27, 1959,. the date of recognition, the Chemical Workers did not represent a majority of the regular year-round employees.5 Nevertheless, the Chemical Workers' assertion that it did represent a majority was never questioned or checked by the Employer. As there is nothing in the record to show that the Respondents informed the Regional At- torney that the Chemical Workers did not represent a majority, or that there was even a doubt as to their majority status, it is clear that if he approved the recognition agreement, he had not been fully ap- prised of the facts but had merely stated a legal conclusion based on an assumption of the Respondents. We also note that the Respondents did not seek his advice on any matter that was officially before the National Labor Relations Board pursuant to a complaint, petition, or other formal document. Thus, the advice or recommendations of the Regional Attorney cannot be regarded as an authoritative action of the Board. As informal or personal advice from Board agents is not binding on us, especially when employee rights are violated pursuant to that advice, we shall deny the Respondents' motion to dismiss on the grounds of estoppel.6 2. Variance: The Chemical Workers have excepted to all the Trial Examiner's Section 8(b) (1) (A) findings on the ground that the 5 This issue will be discussed in more detail below. 6In contending that the Board is estopped from processing the complaints , the Re- spondents rely upon Sherry & Gordon Company, Inc ., 107 NLRB 113, wherein the Board dismissed a complaint when it was shown that a Board agent had given erroneous advice to the parties. However, that case is clearly distinguishable from the instant proceeding. There, the Board agent erroneously advised the parties of a fact which was solely within his own knowledge, concerning a matter which was officially before the Board, and the parties' reliance upon this advice did not cause them to violate the Act. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge, complaint, and the proof are at variance with each other. The charge against the Chemical Workers reads as follows : The above named labor organization has restrained and co- erced employees in the exercise of rights guaranteed in Section 7 of the Act by means of threats and promises and by attempting to force representation with their employer upon employees who have not authorized such union to represent them and who are not a part of any unit which said union has been authorized to represent. The Section 8(b) (1) (A) portions of the complaint, based upon this charge, read as follows : 8. Respondent Union, by its agents, threatened employees with a refusal to represent all employees in the processing of their grievances or to permit the circulation of petitions. 9. By the acts described above in paragraph 8, Respondent Union restrained and coerced employees in the rights guaranteed by Section 7 of the Act, thereby violating Section 8(b) (1) (A) of the Act. The Trial Examiner, while conceding that the complaint was "ineptly drawn," nevertheless found that the Chemical Workers had violated Section 8(b) (1) (A) by executing, maintaining, and enforc- ing the unlawful bargaining contract, and by forbidding the circula- tion of petitions in the plant. The Chemical Workers argue that be- cause of the specificity of the complaint, the Trial Examiner is limited, in his Section 8(b) (1) (A) findings, to the allegations that it (1) refused to process grievances and (2) refused to permit the circulation of petitions, and that there is insufficient proof in the rec- ord to sustain either allegation. We agree in part with the contentions of the Chemical Workers. It is well settled that the charge is not a pleading but merely serves to initiate an investigation to determine whether a complaint shall issue. Since a charge must be filed before any complaint may issue, some relationship is required between the charge and the complaint. However, the charge need not serve notice upon the Respondent of the particular conduct by which it is alleged to have violated the Act, nor the legal theory upon which the Respondent is liable, as this function is served by the complaint? It is also the practice to allow the General Counsel considerable leeway in amplifying or expanding certain details not specifically set forth in the complaint if they accord with the general substance of the complaint. As long as those details are fully litigated and offer no element of surprise to the Respondent, they are usually held to be a 7 Triboro Carting Corporation, 117 NLRB 775, 777, and cases cited therein. Hudson Pulp and Paper Corporation, 121 NLRB 1446, 1448, footnote 1. STOKELY-BORDO 873 proper basis for an unfair labor practice finding.' However, when the General Counsel attempts to prove, or the Trial Examiner makes a finding of an entirely new cause of action or violation not covered in the complaint, the Board has rejected such offer of proof or findings! Considering the charge, complaint, and proof, we find, in agreement with the Trial Examiner, that the Chemical Workers violated Sec- tion 8 (b) (1) (A) by interrogating Curry, Smith, Griffey, and Knowles about their participation in circulating the petition protesting repre- sentation by the Chemical Workers. Such acts clearly restrained and coerced the aforementioned employees in the exercise of their rights guaranteed in Section 7. We also find, in agreement with the Trial Examiner, that the Employer, by jointly participating in the aforesaid interrogation, interfered with, restrained, and coerced the employees in the exercise of their rights guaranteed in Section 7 within the meaning of Section 8 (a) (1) of the Act. However, the complaint does not allege that the Chemical Workers violated Section 8(b) (1) (A) by executing, maintaining, and enforc- ing their bargaining contract with the Employer with respect to the regular employees. Other paragraphs of the complaint do allege that the Employer recognized the Chemical Workers and executed a con- tract with it at a time that the Chemical Workers did not represent a majority of the regular employees, and that the Employer contrib- uted support to the Chemical Workers, but these averments are the basis for alleging violations of Section 8(a) (1) and (2), but not Sec- tion 8(b) (1) (A). As an allegation of a violation by an employer is not ipso facto also an allegation against the union, even when they are parties to the same contract, we shall overrule the Trial Examiner's finding that the Chemical Workers violated Section 8(b) (1) (A) by executing, maintaining, and enforcing the unlawful contract.'° We also note that the charge alleged that the Chemical Workers had forced representation upon the regular employees, while the complaint alleged that it refused to represent them in certain matters. Although s Local 138, International Union of Operating Engineers, et al. (Nassau and Suffolk Contractors' Association, Inc.), 123 NLRB 1393, 1396, footnote 8; Pacific Mills, 91 NLRB 60, 61. News paper and Mail Deliverers' Union of New York and Vicinity (New York Times Company, at al.), 101 NLRB 589. 10 Cf. for example Seaboard Terminal and Refrigeration Company, 114 NLRB 1391, 1394, and Eichleay Corporation, 110 NLRB 1295, wherein the Board found that the Respondent Unions had violated 8(b) (1) (A) by executing and maintaining illegal con- tracts even though the complaints did not allege that specific conduct to be a violation. However, in Seaboard, although the complaint did not allege that the Union had violated Section 8(b) (1) (A) by executing and maintaining a memorandum agreement, it did allege that violation regarding the master contract. Similarly, in Eichleay, the complaint alleged that the "Respondents have enforced and are enforcing" the contract in violation of the Act. In both cases, therefore, the complaints alleged a union violation of Section 8(b) (1) (A) pertaining to some aspect of the contract in question. Member Fanning would not, in any event, find a violation of Section 8(b) (1) (A) merely on the ground that the Union signed a contract to represent the regular employees. See his dissenting opinion in Bernhard-Altmann Texas Corporation, 122 NLRB 1289, enfd. 280 F. 2d 616 (C.A.D.C.), petition for certiorari granted 364 U.S. 811. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Trial Examiner did not make a specific finding that the Chemical Workers violated Section 8(b) (1) (A) by "refusing to represent all employees . . .," he nevertheless denied the Chemical Workers' motion to dismiss the complaint on the ground of variance. We believe that the Trial Examiner erred in denying this motion with respect to that portion of the complaint alleging the refusal to represent employees. We perceive no relationship between a charge which alleges a viola- tion based on insistence on representation and a complaint which alleges refusal to represent. Moreover, there is no evidence to support the allegation of the complaint that the Chemical Workers refused to represent employees in the processing of grievances. We shall there- fore dismiss the portion of the complaint applicable thereto. The 8(a) (2) allegation: The Respondents maintain that on January 27, 1959, the recognition date, the Chemical Workers did in fact rep- resent a majority of the regular employees, notwithstanding the tie runoff election of December 9, 1958. As proof of its majority status, the Chemical Workers offered into evidence a total of 6 authorization cards and 22 application cards purportedly signed by the Employer's employees prior to January 27,1959. In his Intermediate Report, the Trial Examiner correctly pointed out that the 6 authorizations had been signed 11 months prior to the runoff election of December 9,1958, and that the total of 28 employees who had signed either the authorization cards or the application cards fell into one or more of the following categories : 10 had already been declared to be "seasonals" by the Board in an earlier decision; 5 had signed the March 12 petition disavowing representation by the Chem- ical Workers; 10 had voted in the "seasonal" election of January 13, 1959; 11 were transferred from "seasonals" to regular employees on June 1, 1959, pursuant to the bargaining contract; and 7 were trans- ferred from "seasonals" to regular employees after January 27, 1959, but before June 1, 1959. The Trial Examiner held that in view of the tie runoff election of December 9, 1958, which resulted in the issuance of a certification of results, the burden of proof shifted to the Respondents to show that unusual circumstances were present to justify a reversal of the Board certification. He also concluded that the signed cards introduced into evidence could not be relied upon to overturn these election results and the Board certification. The Trial Examiner further reasoned that as the runoff election was conducted by the Board, its jurisdiction con- tinued for a reasonable time thereafter, and that any further question as to majority was exclusively for the Board to determine. Although we agree with the Trial Examiner that the Employer violated Section 8 (a) (2) of the Act, we do not agree with all his rea- sons for reaching that result. If, for example, the Chemical Workers had submitted new cards dated shortly before January 27, 1959, signed STOKELY-BORDO 875 by an uncoerced majority of the regular employees, there would be no Section 8(a) (2) violation, notwithstanding the tie runoff election and the certification of results." However, it is clear from the record, particularly from our examination of the authorization and applica- tion cards introduced as exhibits, that the Chemical Workers, as of January 27, 1959, had been authorized by no more than 8 of the 18 regular employees.12 The remaining cards were either undated, were duplications, or were signed by seasonal employees who had been transferred to "regular" status after January 27, 1959. We therefore find that the Employer violated Section 8(a) (2) by granting recog- nition to the Chemical Workers as the exclusive bargaining repre- sentative of the regular employees at a time when the Chemical Work- ers did not represent a majority of those employees.13 ORDER Upon the entire record in these cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. The Respondent Employer, Stokely-Van Camp, Inc. and Bordo Products Co., d/b/a Stokely-Bordo, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Contributing illegal assistance and support to International Chemical Workers Union and/or its Local No. 666, AFL-CIO, or to any other labor organization. (b) Recognizing International Chemical Workers Union and/or its Local No. 666, AFL-CIO, as the representative for purposes of collective bargaining of any of its year-round production and mainte- nance employees in the unit found appropriate by the Board on May 20, 1958, unless and until said labor organization has been duly certi- fied by the National Labor Relations Board as the exclusive repre- sentative of such employees. (c) Giving effect to the aforesaid collective-bargaining agreement -dated June 1, 1959, or to any extension, renewal, or modification thereof insofar as it pertains to regular year-round production and maintenance employees: Provided, however, That nothing in this u See Buitoni Foods Corp., 126 NLRB 767 , where the Board held that an employer inlay rightfully rerecognize a recently decertified union, even within 12 months of decertifi- cation, if no other labor organization is claiming representation rights and if the de- certified union establishes its majority status by means of new authorization cards The Buiton, case also distinguished Midwest Piping & Supply Co ., Inc, 63 NLRB 1060, relied upon by the Trial Examiner in the instant proceeding. 13 Grady Towns, Bobby Dobbins , Hubert McNair, Jack Watson, Grady Mann, Joseph Dyal, John Larsen, and Henry Atkinson . We also note that four of the eight employees had signed cards before the December 9, 1958, election, and thus those cards could not, in any event, be regarded as "new cards" to prove the majority status of the Chemical Workers. See Buitoni Foods Corp., supra. 13 Adam D. Goetti, at at., d/b/a International Metal Products Company, 104 NLRB 1076. 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Decision and Order shall require the Respondent Employer to vary or abandon any wage, hour, seniority, or other substantive feature of its relations with such employees heretofore established in the perform- ance of said agreement or to prejudice the assertion by employees of any rights acquired thereunder. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from the International Chemical Workers Union and/or its Local No. 666, AFL-CIO, as the exclusive bargaining representative of all year-round production and maintenance employees in the unit found appropriate by the Board on May 20, 1958, for the purpose of dealing with their Employer con- cerning grievances, labor disputes, wages, rates of pay, hours of em- ployment, or other conditions of employment, unless and until said labor organization has been duly certified by the National Labor Rela- tions Board as the exclusive representative of such employees. (b) Post in its plant at Haines City, Florida, copies of the notice attached hereto marked "Appendix A." 14 Copies of such notice, to be furnished by the Regional Director for the Twelfth Region, shall, after being duly signed by its authorized representative, be posted by Respondent Employer immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are cus- tomarily posted. Reasonable steps shall be taken by Respondent Em- ployer to insure that such notices are not altered, defaced, or covered by any other material. (c) Post at the same place and under the same conditions as set forth above, copies of the Respondent Union's notice herein, marked "Appendix B," immediately upon receipt thereof from the Regional Director. (d) 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 Employer has taken to comply herewith. B. The Respondent Union, International Chemical Workers Union and/or its Local No. 666, AFL-CIO, its officers, representatives, agents, successors, and assigns, shall : 14 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." STOKELY-BORDO 877 1. Cease and desist from: (a) Interrogating the Employer's regular year-round production .and maintenance employees concerning their participation in the -circulation of a petition protesting representation by International Chemical Workers Union and/or its Local No. 666, AFL-CIO. (b) In any like or related manner, restraining or coercing the em- ployees of Stokely-Bordo in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its offices and meeting hall at Haines City, Florida, ,copies of the notice attached hereto marked "Appendix B." 11 Copies of said notice, to be furnished by the Regional Director for the Twelfth Region, shall, after being signed by the Respondent Union's International and local representatives, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Twelfth Region, signed copies of "Appendix B" for posting by Respondent Employer in its plant at Haines City, Florida, as provided above. Copies of said notice, to be furnished by the said Regional Director, shall, after being signed by the Respondent Union's International and local repre- sentatives, be forthwith returned to the Regional Director for disposi- tion by him. (c) Notify the Regional Director for the Twelfth Region, in writ- ing, within 10 days from the date of this Order, what steps it has taken to comply herewith. MEMBERS RODGERS and KIMBALL took no part in the consideration of the above Decision and Order. ' See footnote 14, supra. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- ment Relations Act, we hereby notify our employees that : 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT assist or contribute support to International Chemical Workers Union and/or its Local No. 666, AFL-CIO, or to any other labor organization of our employees. WE WILL withdraw and withhold all recognition from Inter- national Chemical Workers Union and/or its Local No. 666, AFL-CIO, as the exclusive bargaining representative for all reg- ular year-round production and maintenance employees in the unit found appropriate by the National Labor Relations Board on May 20, 1958, unless and until said labor organization shall have demonstrated its exclusive majority representative status therein pursuant to a Board-conducted election among the em- ployees in said appropriate unit. WE WILL NOT, insofar as it pertains to regular year-round pro- duction and maintenance employees, perform or give effect to our collective-bargaining agreement dated June 1, 1959, with Inter- national Chemical Workers Union and/or its Local No. 666, AFL-CIO, or to any extension, renewal, modification, or sup- plement thereof or to any superseding agreement; provided, how- ever, that nothing in this Decision and Order requires us to vary or abandon any wage, hour, seniority, or other substantive fea- tures of our relations with any of our employees, established in performance of any such agreement, or to prejudice the assertion by employees of any rights they may have thereunder. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the rights guar- anteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Sec- tion 8(a) (3) of the Act. All our employees are free to become and remain or to refrain from becoming or remaining members of any labor organization of their own choosing. STOKELY-VAN CAMP, INC., AND BORDo PROD- UCTS Co., D/B/A STOKELY-BORDO, 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. STOKELY-BORDO APPENDIX B 879 NOTICE To ALL MEMBERS OF INTERNATIONAL CHEMICAL WORKERS UNION AND/OR ITS LOCAL No. 666 , AFL-CIO, AND TO ALL EMPLOY- EES OF STOKELY-VAN CAMP, INC. AND BORDO PRODUCTS CO., D/B/A STOKELY-BORDO Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT interrogate any regular year-round production and maintenance employee of Stokely-Van Camp, Inc. and Bordo Products Co., d/b/a Stokely-Bordo, concerning his participation in the circulation of petitions protesting representation by the International Chemical Workers Union and/or its Local No. 666, AFL-CIO. WE WILL NOT in any like or related manner restrain or coerce the employees of Stokely-Van Camp, Inc. and Bordo Products Co., d/b/a Stokely-Bordo, in the exercise of the rights guaran- teed in Section 7 of the Act. INTERNATIONAL CHEMICAL WORKERS UNION AND/OR ITS LOCAL No. 666, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (International Representative ) (Title) By------------------------------------- (Local 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE With all parties represented, these proceedings were heard before the duly desig- nated Trial Examiner at Tampa and Winter Haven , Florida, on September 1, 2, 3, and 4, 1959, upon a consolidated complaint filed by the General Counsel of the National Labor Relations Board and separate answers thereto filed by Stokely -Bordo, herein called Respondent Employer, and International Chemical Workers Union and/or its Local No. 666, AFL-CIO, herein called the Respondent Union. The principal issues litigated were: (1) Whether, in the absence of majority representation, Respondent Employer violated Section 8(a)(1) and (2) of the National Labor Relations Act by unlaw- fully recognizing and executing with Respondent Union a collective-bargaining agree- ment with respect to regular year-round employees in a unit found to be appropriate by the Board on May 20, 1958. (2) Whether, by conduct alleged in the consolidated complaint, the Respondent Employer violated Section 8(a)(1), and the Respondent Union violated Section 8(b) (1) (A), of the Act by restraining and coercing aforesaid employees in their exercise of the rights guaranteed in Section 7 of the Act. Upon motion of counsel for the General Counsel , paragraph numbered 5 of the consolidated complaint was amended by striking from line 3 thereof the date of March 26, 1959, and inserting in lieu thereof the date of June 1, 1959 . All motions 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of counsel for Respondents to dismiss the complaint are denied for reasons herein- after more adequately explained. All oral argument and written briefs filed with the Trial Examiner have been given due consideration. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF RESPONDENT EMPLOYER Stokely-Bordo is a joint enterprise of Stokely-Van Camp, Inc., of Indianapolis, Indiana, and Bordo Products Company of Winter Haven, Florida, engaged in oper- ating a plant at Haines City, Florida, for the processing of citrus fruits. During the year i 8, whicn period is representative of all times material to this case, the Respondent Employer shipped from said plant products valued in excess of $50,000 to points outside the State of Florida. I find, therefore, that Respondent Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATIONS INVOLVED International Chemical Workers Union and/or its Local No. 666, AFL-CIO, and 'Citrus, Cannery, Food Processing and Allied Workers, Drivers, Warehousemen and Helpers Local Union No. 60, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Teamsters Local Union No. b0, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Historical background In Case No. 10-RC-3580 Teamsters Local Union No. 60 was certified by the Board as exclusive bargaining representative for the regular employees of Respond- ent Employer on October 11, 1956, following the withdrawal on October 3, 1956, of a similar representation petition with respect to seasonal employees in Case No. 10-RC-3643. Thereupon the Respondent Employer recognized said Union as the representative of both regular and seasonal employees by entering into separate contracts covering each group. After the expiration of these agreements, pending negotiations for renewal or new contracts, certain employees filed a petition in Case No. 12-RD-12 on January 6, 1958, seeking decertification of Teamsters Local Union No. 60. Thereafter on January 17, 1958, the Respondent Union (International Chemical Workers Union and/or its Local No. 666, AFL-CIO) filed a representa- tion petition in Case No. 12-RC-260 seeking certification as representative of a single unit consisting of a11-regular and seasonal production and maintenance employees, but alternatively to represent each group in separate units, if the Board should so determine.' Teamsters Local Union No. 60 (as Intervenor) and the Respondent Employer opposed the consolidation of regular and seasonal employees into a single unit. Pending determination of this representation question, Respondent Employer entered into a renewal or new contract with Teamsters Local Union No 60 on March 5, 1958, dealing separately with respect to regular and seasonal employees in a single document. Finding no contract bar, the Board on May 20, 1958, issued a Decision and Direction of Election (not published in NLRB volumes) ordering that an elec- tion by secret ballot shall be conducted among employees in the unit found therein to be appropriate, consisting of All regular year-round production and maintenance employees, including regular warehouse, power and refrigeration employees employed by the Com- pany's plant in Haines City, Florida, but excluding all casual 2 employees, office clerical employees, labora'ory employees, salesmen, and supervisors as defined in the Act. [Emphasis supplied.] Pursuant to the Board's direction, an election by secret ballot was held on June 17, 1958. Out of a total of 34 ballots, 8 votes were cast for the Petitioner, 6 for the Intervenor, 5 against participating labor organizations, and 15 ballots were challenged by the Employer and Intervenor as being cast by seasonal employees 1 Thereupon the decertification petition in Case No. 12-RD-12 was withdrawn on February 25, 1958. a In footnote 2, the Board, inter alia, said : In view of the irregular and temporary nature of their employment, we exclude these nonregulars as casuals and find them ineligible to vote in the election directed herein. Swift t Company, 115 NLRB 755. STOKELY-BORDO 881 not eligible to vote as members of the appropriate unit. The Petitioner contended they were eligible to vote as regular production employees because of the tenure of their employment and the nature of the work performed by them. From the report on challenged ballots, filed by the Regional Director on July 8, 1958, it appears , inter aka, that the Employer has two general categories of em- ployees based upon tenure of employment. One is "year round" and the other is "seasonal." The 15 voters who were challenged all fall within the seasonal category. There are several distinctions between the seasonal and year-round employees. The seasonal employees do not receive the same benefits enjoyed by the regular, viz: vacations and hospitalization and insurance plans; they do not have the same sen- iority rights; their tenure of employment is based primarily upon the availability of quality citrus fruit ; a large percentage of them do not return from season to season; and a large percentage of them do not complete the entire period of production. Further, the jobs performed by the seasonal employees are not in general as highly skilled as the jobs performed by the regular year-round production and maintenance employees. While a certain percentage of the seasonal employees have returned from season to season, and could therefore be considered regular production and maintenance employees, it does not appear that any of this category could be con- sidered year round production and maintenance employees . Thereupon the Regional Director concluded that the 15 challenged voters are not eligible to vote within the unit found appropriate by the Board in Case No . 12-RC-260. Exceptions filed thereto by the Petitioner were overruled, the Regional Director's conclusion and recommendation was adopted by the Board, and the challenges were sustained, 121 NLRB 936. The Petitioner on October 20, 1958, filed a motion for reconsideration, concurring in the Regional Director 's report dated July 8, 1958, concerning the employment status of its regular seasonal employees employed regularly from year to year, and moved the Board to amend its decision of May 20, 1958 , to include within the appropriate unit all seasonal employees who are employed regularly from year to year, or in the alternative to remand Case No. 12-RC-260 to the Regional Director for further testimony and evidence with respect to the status of such em- ployees. Petitioner's motion for reconsideration was denied on November 3, 1958. Thereafter, on December 9, 1958, a runoff election was conducted by the Regional Director in the identical unit found to be appropriate by the Board on May 20, 1958. From an approximate total of 18 regular year-round production and maintenance employees in the appropriate unit, 8 ballots were cast for the Petitioner (Respondent Union), 8 ballots were cast for the Intervenor (Teamsters Local Union No. 60), and there was no void or challenged ballots. Thereupon , it was certified by the Board on December 22, 1958, that a majority of the valid ballots has not been cast for any labor organization appearing on the ballot , and that no such organization is the exclusive representative of all employees in the unit herein involved within the meaning of Section 9(a) of the National Labor Relations Act. On December 9, 1958, Respondent Union filed a representation petition in Case No. 12-RC-441 seeking Board certification as bargaining representative for all sea- sonal employees at the Company 's plant in Haines City, Florida , but excluding all regular year-round production and maintenance employees, etc . Thereafter on Jan- uary 13, 1959, an election was conducted therein by the Board pursuant to agree- ment for consent election describing the appropriate unit as follows: All seasonal employees employed at the Employer 's Haines City, Florida, plant, but excluding office clerical employees , agronomists, laboratory em- ployees, professional employees , regular year-round production and mainte- nance employees, farm employees, field men, sales employees, and all super- visory employees as defined in the Act. From a total of approximately 76 eligible voters in aforesaid consent election, 61 ballots were cast for Respondent Union (Chemical Workers), 3 ballots were cast for Teamsters Local Union No. 60, 1 ballot was void, and there were no challenged ballots. Thereupon, International Chemical Workers Union , AFL-CIO was certi- fied by the Board on January 21, 1959, as exclusive representative of all the seasonal employees of Respondent employer in the unit found appropriate in the aforesaid agreement for consent election. B. Unlawful assistance and support Notwithstanding the runoff election of December 9, 1958, by reason of which the Board issued a certification declaring that neither of the rival labor organizations represented a majority in the appropriate unit of regular year-round production and maintenance employees , the Chemical Workers International Union continued to 597254-G1-vol 130-57 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD claim such majority, and repeatedly requested Respondent Employer to recognize it as exclusive bargaining representative for all year-round and seasonal employees in both separate units. At a conference in the Tampa Terrace Hotel, Tampa, Florida, on January 27, 1959, representatives of Respondent Employer and Respondent Union reached an understanding with respect to a settlement agreement in Case No. 12- CA-443 involving the discriminatory discharge of one Henry Atkinson (year-round employee), and also voluntary recognition of the Chemical Workers International Union as representative of regular year-round employees. Thereupon, Harvey J. Davis, assistant director of industrial relations for Respondent Employer, and J. Harley Thomas, vice president of Respondent Union, went to the Tampa offices of the National Labor Relations Board for the purpose of conferring with Chief Law Officer Martin Sacks with respect to the agreement reached between the parties. Mr. Sacks discussed the subject with them, and provided clerical assistance for typing necessary documents to consummate the agreement, and also received copies thereof after dictation by the parties to a typist employed by the Board. Settlement agreement in the Atkinson case (Company's Exhibit No. 2) was signed by the parties and officially approved by the Regional Director. Unofficially, the parties requested advice from Chief Law Officer Sacks with respect to recognition of the Chemical Workers International Union, and were told by him that he saw nothing wrong with it. Thereupon, the Respondent Employer on January 27, 1959, delivered to Respondent Union a recognition letter, as follows: Mr. J. H. THOMAS, Vice President International Chemical Workers Union, AFL-CIO 815 Forsyth Building Atlanta, Georgia JANUARY 27, 1959. DEAR MR. THOMAS: Under the authority vested in me as Assistant to the Director of Industrial Relations of Stokely-Van Camp, Inc., we do hereby voluntarily agree to recognize Local 666, International Chemical Workers Union, AFL-CIO, as the sole collective bargaining agency as to rates of pay, hours of work and all other conditions of employment of the employees of Stokely-Bordo covered by this agreement, namely, all year round regular and seasonal produc- tion, maintenance and warehouse employees , but excluding foremen, office clerical and plant clerical employees, laboratory employees, fruit buyers, field men, truck drivers, sales employees , guards and supervisors as defined in the National Labor Relations Act, as amended. We further agree to the establishment of a grievance procedure that will provide for the orderly maintenance of discipline and disposition of grievances until such time as a contract can be successfully negotiated. The grievance procedure is to be worked out by the representatives of the company and of the International Union. It is understood that separate seniority lists shall be maintained for seasonal and regular employees, and that the definition and qualifications for each class of employee will be worked out during negotiations. STOKELY-VAN CAMP, INC. HARVEY J. DAVIS, Assistant to the Director of Industrial Relations. cc: Martin Sacks C L. Eldridge W. R. Donaldson R. C. Lewis J. C. Mobley Thereafter, on or about March 12, 1959, 15 regular year-round employees in the appropriate unit by a jointly signed letter or petition notified Respondent Employer that they did not desire representation for the purposes of collective bargaining by the Chemical Workers International Union, and requested that no contract be signed with Respondent Union that would in any way govern their wages, hours, or working conditions. Despite this notice Respondent Employer and Respondent Union nego- tiated and entered into a collective-bargaining agreement effective June 1, 1959, covering a unit described as follows: ARTICLE I-RECOGNITION 1.1-The Employer recognizes the Union as the sole collective bargaining agency as to rates of pay, wages, hours of employment, and all other conditions of employment of the employees covered by this agreement, namely all year- round regular and seasonal production, maintenance, and warehouse employees, STOKELY-BORDO 883 but excluding foremen, office clerical, plant clerical employees, laboratory employees, fruit buyers, fieldmen, over-the-road truck drivers, sales employees, guards, and supervisors as defined in the National Labor Relations Act of 1947 as amended. In granting recognition to Respondent Union on January 27, 1959, and thereafter negotiating the contract effective June 1, 1959, the Respondent Employer required no proof of majority representation and completely ignored the recent runoff elec- tion and certification of the Board that neither of the rival labor organizations represented a majority of employees in the year-round unit found appropriate by the Board. In so doing, Respondent Employer acted at its peril. Respondent Union, however, now seeks to prove its majority by offering in evidence before the Trial Examiner 6 authorization cards (white) and 22 application for membership cards (green) purportedly signed by certain employees of Respondent Employer on or prior to the critical recognition date of January 27, 1959. The aforesaid six white authorization cards signed by employees Grady L. Towns, Henry O. Atkinson, and Bobby Lewis Dobbins on January 13, 1958; Jack Watson on January 17, 1958; James Wood on January 15, 1958; and John C. Larsen on January 14, 1958, bear the stamp of the National Labor Relations Board dated January 17, 1958, and were filed at that time with the Regional Office by Respondent Union to support its repre- sentation petition in Case No. 12-RC-260. The aforesaid green application for membership cards were purportedly signed by employees Grady L. Mann on January 13, 1959; Sterling L. Batson on January 14, 1959; William M. McElmoyl, Hubert A. McNair, Jack Watson, Samuel D. Parker, Ulius Rouse, Leroy Otte, Emmette S. Atkinson, Paul E. Dodson, Johnnie H. Baxley, Ed C. James, Henry R. Hightower, Joel D. Phillips, J. E. Duke, and Dorris M. Dobbins on January 15, 1959; Johnnie H. Linder and Charles G. Bonner on Janu- ary 16, 1959; John H. Conn and W. B. Gadbury on January 17, 1959; William H. Monroe on January 23, 1959; and Joseph W. Dyal on January 27, 1959, on the dates set opposite their respective names? From an examination of context of the foregoing cards, it is apparent that the 6 white authorization cards were all signed approximately 11 months prior to the runoff election of December 9, 1958; and that all of the 22 green application for membership cards were signed after the runoff election and shortly before the critical recognition date of January 27, 1959. The green card signed by Jack Watson appears to be a duplication because he had already signed a white authorization card dated January 17, 1958. The green application for membership card signed by Paul E. Dobson was erroneously dated January 15, 1958, but was actually signed on January 15, 1959. From this entire group of 27 employees the ballots of Jackson 1. Watson, John H. Conn, Samuel D. Parker, Emmette S. Atkinson, Paul E. Dobson, Johnnie H. Baxley, Henry R. Hightower, William H. Monroe, Dorris M. Dobbins, and W. B. Gadbury, had been challenged in the election of June 17, 1958, and by sustaining such challenges the Regional Director and the Board disqualified these employees from voting with the appropriate unit of year-round employees because they were employed on a seasonal or casual basis. It is also noted that Sterling L. Batson, Jack Watson, Grady J. Mann, Joseph W. Dyal, and Charles G. Bonner signed the letter petition to Respondent Employer on March 12, 1959, disavowing repre- sentation by Respondent Union. It further appears from the uncontradicted testi- mony of Hubert A. McNair that Johnnie H. Linder, Ulius Rouse, Leroy Otte, Emmette S. Atkinson, Paul E. Dobson, Johnnie H. Baxley, Ed C. James, Henry R. Hightower, William H. Monroe, Joel D. Phillips, J. E. Duke, Dorris M. Dobbins, W. B. Gadbury, and Charles G. Bonner were recognized by the Respondents as seasonal employees as late as January 13, 1959, by allowing them to vote without challenge in the election of that date in the appropriate unit of seasonal employees. It also appears that William M. McElmoyl (former year-round employee) had been transferred to the status of a seasonal employee in January 1959. Hubert A. McNair credibly testified further in substance that he was the sole official observer for Respondent Union at all of the aforesaid elections on June 17 and December 9, 1958, and January 13, 1959; that he attended certain preelection conferences at which the eligibility lists of employees entitled to vote in these elec- tions were determined; that after the seasonal election of January 13, 1959, the Respondent Employer in negotiations with Respondent Union agreed to transfer certain employees from seasonal to year-round status; that 12 seasonal employees, consisting of Ulius Rouse, Leroy Otte, Emmette S. Atkinson, Paul E. Dobson, Johnnie H. Baxley, Ed C. James, Henry R. Hightower, Joel D. Phillips, J. E. Duke, 8 Cards introduced by Respondent Union, which bear no date or dates subsequent to January 27, 1959, are not acceptable as evidence of a majority on the critical date. 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dorris M. Dobbins, Horace G. Towns, and William M. McElmoyl, were reclassified as year-round employees because each of them had worked at least 2,000 hours in seasonal operations during the past 12 months; and that 7 other seasonal employees consisting of W. B. Gadbury, Sammy L. Taylor, William H. Monroe, Sterling L. Batson, John H. Conn, Samuel D. Parker, and Charles J. Bonner were transferred to year-round jobs. Since the recognition letter of January 27, 1959, supra, in its final paragraph provides "that separate seniority lists shall be maintained for seasonal and regular employees, and that the definition and qualifications for each class of employees will be worked out during negotiations," it is clear that Respondent Employer and Re- spondent Union have by negotiations and contract combined all seasonal and year- round employees into a single unit for the purposes of collective bargaining without the consent of those year-round employees previously found by the Board to consti- tute an appropriate unit for such purpose. C. Interference, restraint, and coercion On or about March 23, 1959, several employee promoters and signers of the aforesaid letter petition, protesting representation by the Chemical Workers Inter- national Union, were summoned to the plant office of Respondent Employer, and separately interrogated by J. Harley Thomas, vice president of the Chemical Workers International Union, in the presence of company officials and union representatives. Present at these interviews were General Manager R. C. Lewis and Plant Superin- tendent Carlisle Mobley representing Respondent Employer; and Vice President J. Harley Thomas, International Representative Leonard Shaw, and Hubert A. McNair (president of Local No. 666) representing Respondent Union. Glynn S. Curry (class "A" mechanic) credibly testified in substance that he was first employed by Stokely-Bordo in 1956, worked for approximately 18 months, and then quit because he had not received a raise in pay; that he did not participate in the runoff election of December 9, 1958, but went back to work in January 1959 as a regular year-round employee and heard that the Chemical Workers International Union was negotiating with the Employer for a collective-bargaining agreement, but did not know that it was bargaining for the year-round employees; that he signed a card for the International Chemical Workers Union on January 15, 1959, but be- came dissatisfied because he heard that it was bankrupt and was preparing to increase union dues and merge with the Oil Workers Union; that he discussed the subject with Raymond V. Smith (a year-round employee), and in company with Bill Parrish (year-round employee) went to see Business Representative Teague of Teamsters Local Union No. 60, who prepared the letter petition to Respondent Employer pro- testing representation of the regular year-round employees by the Chemical Workers International Union; and that he then solicited year-round employees (only) to sign the petition in triplicate, personally witnessed each signature thereon, and thereafter mailed a copy to Respondent Employer, Teamsters Local Union No. 60, and the National Labor Relations Board, respectively. This witness credibly testified further that on March 23, 1959, he was called to the office of the plant superintendent, and upon arrival was told by Plant Superintendent Carlisle Mobley that Respondent Union Vice President J. Harley Thomas wished to talk to him about the petition; that after waiting approximately 45 minutes for the arrival of General Manager R. C. Lewis, Vice President Thomas inquired concerning his reason for circulating the petition, and told thim that the Chemical Workers Union was going to bargain for both the regular year-round and seasonal employees; that a grievance procedure had been set up and he was not going to have petitions or rumors going around in any plant with which he had a contract; and that Thomas was the only person present who interrogated him on the subject. This witness credibly identified as regular year-round employees only those that work in the service division consisting of (1) warehouse and shipping department, (2) mechanical and electrical department, (3) refrigeration and power department, and (4) general plant department (see General Counsel's Exhibit No. 6, p. 1 of 4), as follows: Bobby Lewis Dobbins,* Joseph Dyals,* Mack M. Griffey,* John T. Kelly, Raymond V. Smith,* Roy Lee Rizer,* Howard S. Costello, John C. Larsen,* Samuel D. Parker, Sterling L. Batson,* Glynn S. Curry,* Joseph A. Torman, Coy R. Green, Gene E. Wiggins, Grady L. Towns,* Hubert A. McNair, Perry F Ander- son,* Willie F. Davis, Julius M. Guy, Horace G. Towns, and Jackson I. Watson.* Raymond V. Smith ( class "B" mechanic) credibly testified that he is presently employed by Respondent on a year-round basis and voted as such in the runoff .Signature appears on the petition. STOKELY-BORDO 885 election of December 9, 1958; that he was at the time and still is a member of Teamsters Local Union No. 60, and has never been a member or signed a card of the International Chemical Workers Union; that he heard rumors that the Inter- national Chemical Workers Union was trying to negotiate a contract for the year- round employees with Respondent Employer; that he did not desire representation by the International Chemical Workers Union, so he accompanied Glynn S. Curry (year-round employee) to the office of Business Representative Teague, and was present when the protest letter petition to Respondent Employer was typed; that he signed the petition himself, assisted Curry in circulating the petition, and witnessed thereon the signature of three other regular year-round employees; that he was there- after called to the plant office into the presence of General Manager R. C. Lewis, Plant Superintendent Carlisle Mobley, Local No. 666 President Hubert A. McNair, and others, and was questioned concerning the petition by J. Harley Thomas, vice president of the International Chemical Workers Union, but no threats or promises were made to him by anyone; and that Thomas inquired why he signed the petition, and stated that they were going to bargain for the year-round men whether or not they wanted the Union to represent them. Mack M. Griffey (class "A" mechanic) credibly testified in substance that he is presently and has been continuously employed by Respondent Employer since November 17, 1955, as a year-round employee; that in January 1958, 11 employees of Respondent Employer, including himself, signed a written statement to the effect that they wanted to vote out the Teamster Union as their bargaining representative (see General Counsel's Exhibit No. 12); that this document was written in longhand by Foreman Ed Baxley and left lying on his desk to be signed by employees; that on the following morning, Plant Superintendent Carlisle Mobley handed him an en- velope containing the foregoing signed statement and paid him a certain sum of money for his use in going to offices of the National Labor Relations Board in Tampa, Florida, to file a decertification petition against the Teamsters; that Re- spondent Employer's chief engineer (unnamed) advanced the sum of $5 to buy gasoline; and that he went to Tampa and filed such a petition on January 6, 1958, in Case No. 12-RD-12, using the aforesaid longhand statement of employees in support thereof. This witness credibly testified further that at a later date in March 1959 he signed the letter petition (General Counsel's Exhibit No. 4) protesting against representation by the International Chemical Workers Union when brought to him at his home by Glynn S. Curry and Raymond V. Smith (year-round employees); that approximately 2 weeks thereafter he was called to the plant office of Superin tendent Mobley and interrogated about the petition by J. Harley Thomas, vice presi- dent of the International Chemical Workers Union; that Thomas made a statement to the effect that they were going to bargain for the year-round employees the same as seasonal workers, were going to handle their grievances whether they wanted him to or not, and were not going to have any more petitions circulated; that Thomas inquired at least three times whether he desired to take his name off the petition; that Local President Hubert A. McNair inquired, "Didn't I tell you in the boiler room that we were going to bargain for you?"; and that General Manager R. C. Lewis made a statement to the effect that the International Chemical Workers Union were going to bargain for us a year, that he wanted to get along with both the Union and the employees, not have any trouble, and operate the plant in harmony. J. Harley Thomas (vice president of the International Chemical Workers Union) credibly testified in substance that it was reported to him that a petition had been circulated among employees at the plant by reason of which a turmoil had been caused by year-round employees Glynn S. Curry, R. V. Smith, Mack M. Griffey, and Russell J. Knowles. For that reason he requested the Respondent Employer to call these employees into the plant office to be interviewed in the presence of repre- sentatives of both the Employer and the Union for the purpose of explaining to them that the International Chemical Workers Union had been recognized by their em- ployer as bargaining representative for both regular and seasonal employees. He told them that the Union had an obligation to represent all of the employees, whether or not they were members of the Union, and had agreed upon a grievance procedure to be followed; that the Union preferred to use the grievance procedure so that no one would get in trouble by circulating a petition; and that the Union did not use a system of petitions. When Curry raised the question of rumors that the Union was bankrupt, and preparing to increase union dues and merge with the Oil Workers Union, he did not attempt to discuss the rumors, but told Curry that the Local Union would be the only one that could increase his dues. He suggested to Griffey that he could have his name removed from the petition, but Griffey declined to do so. Thereupon, he told Griffey that it was up to him to do as he pleased about it, said 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nothing to threaten or coerce any of these employees, and did not forbid any of them to circulate petitions. Hubert A. McNair (president of Local No. 666) credibly testified in substance that Vice President Thomas told the year-round employees (Curry, Smith, Griffey, and Knowles) that he was not trying to get anybody in trouble about circulating the peti- tion, but wanted to know why and what it was all about; that Thomas told them that the recognition letter from Respondent Employer dated January 27, 1959, had been drafted at a meeting with the National Labor Relations Board authorizing the International Chemical Workers Union to represent all employees in the plant except clerical office workers and laboratory personnel; that a grievance procedure had been orally agreed upon identical with the first three steps of Respondent Employer's old contract with the Teamsters Local Union No. 60, and that grievances would be processed for them whether or not they were members of the Union, but there would be no arbitration; and that Thomas made no threats of any kind and did not forbid them to circulate petitions. D. The motions to dismiss 1. Respondent Union filed a motion to dismiss the complaint for alleged variance or nonconformity with the charge filed in Case No. 12-CB-279, which reads, as follows: The above named labor organization has restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act by means of threats and promises and by attempting to force representation with their employer upon employees who have not authorized such union to represent them and who are not a part of any unit which said union has been authorized to represent. In support of the motion, Respondent Union directs attention to paragraph numbered 8 of the complaint, which alleges a violationof Section 8(b) (1) (A), as follows: Respondent Union, by its agent, threatened employees with a refusal to repre- sent all employees in the processing of their grievances or to permit the circula- tion of petitions. Thereupon, it is contended that any finding by the Trial Examiner of a violation of Section 8(b) (1) (A) must be limited specifically to a finding that "Respondent Union, by its agent, threatened employees with a refusal to represent all employees in the processing of their grievances or to permit the circulation of petitions." As to such specific acts or conduct, it is further contended that counsel for the General Counsel has failed to show that any unfair labor practice has been engaged in by Respondent Umon in that respect. With respect to the allegation that Respondent Union threatened employees with a refusal to represent all employees in the proces- sing of their grievances, it must be conceded that paragraph numbered 8 of the complaint is ineptly drawn, because all evidence introduced plainly indicates to the contrary that the gravamen of any offense by Respondent Umon was its insistence on representing year-round employees in an appropriate unit recently found by Board certification not to be represented by either of the two rival labor organizations. The language used in the original charge, supra, more clearly defines the conduct engaged in by the Respondent Union. Notwithstanding the ineptness of the complaint, I am constrained to find that Re- spondent was fully apprised of the nature of the charge with respect to violation of Section 8(b) (1) (A); that the entire issue therein respecting the conduct engaged in was fully litigated at the hearing; and that with respect thereto all parties including Respondent Union were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to all issues involved. For that reason the motion of Respondent Union to dismiss the pending complaint in Case No. 12-CB-279, because same is not predicated upon a proper legal charge as is required in the manner and form of the statute (29 U.S.C.A., Secs. 158 and 160 (b) ), is hereby denied. 2. Both Respondents filed a motion to dismiss the consolidated complaint because of their reliance in good faith upon the advice and counsel of the Chief Law Officer employed by the National Labor Relations Board at its Regional Office in Tampa, Florida, to the effect that he saw nothing wrong in voluntary recognition by Re- spondent Employer of International Chemical Workers Union and/or its Local 666, AFL-CIO, as outlined in its letter of January 27, 1959.4 With respect to the determination of a question of representation affecting com- merce, Section 9(c) of the Act clearly prescribes and -limits the duties and powers 4 See Official Exhibit No. GC-5. STOKELY-BORDO 887 of the Board to investigation of a petition duly filed in accordance with such regula- tions as may be prescribed by the Board, providing for an appropriate hearing thereon; and, thereafter, upon a finding from the record of such hearing that such question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof. Although an officer or employee may conduct such hear- ing, the Act clearly provides that he shall not make any recommendations with re- spect thereto. It is not entirely clear from the record to what extent the Chief Law Officer in the Regional Office was informed as to the majority representation claimed by the Respondent Union , and in any event his unofficial approval of the recognition of Respondent Union under the circumstances here is void and of no effect. The question of good faith is not an issue that can be considered here in determining whether Respondents have violated Section 8(a)(1) and (2) and 8(b)(1)(A) of the Act. All motions to dismiss the complaint are denied. Concluding Findings Under the circumstances of this case, I do not agree with the contentions of Re- spondents that the burden is upon the General Counsel to prove by a preponderance of the evidence that Respondent Union was not the exclusive bargaining representa- tive of all year-round production and maintenance employees at the Company's plant in Haines City, Florida, at time of recognition as such by the Respondent Employer on January 27, 1959. It had already been established by the runoff election in Case No. 12-RC-260 on December 9, 1958, and the Board certification of December 22, 1958 , that Respondent Union did not represent a majority of such employees in the appropriate unit. The burden is therefore upon the Respondents to show that unusual circumstances have arisen to justify a reversal of the Board certification. This it has failed to show , and I am constrained to find that the signed cards intro- duced in evidence by Respondent Union cannot be relied upon to overrule the election results and Board certification herein. Furthermore, I am convinced that the facts herein present an issue which is or should be controlled by the long-settled Midwest Piping doctrine 5 of the Board in order to protect the rights of employees in the appropriate unit and avoid industrial strife between rival labor organizations until such rights have been finally determined under the special procedures provided in the Act. In its "Certificate of Results of Election" issued on December 22, 1958, the Board certified that a majority of the valid ballots in the runoff election of December 9, 1958, had not been cast for any labor organization appearing on the ballot , and that no such organization is the exclusive representative of all the employees in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act. Having assumed jurisdiction over the dispute and the parties with respect to the existing question of representation, it is reasonably contemplated by the statute that such jurisdiction will continue for a reasonable time in the absence of unusual circumstances, and that any further question arising thereunder be exclusively one for the Board to determine. Certainly the Respondent Employer could not assume to judge for itself and select the contending union of its choice to be the statutory representative of the employees involved without the consent of a majority in the unit found to be appropriate by the Board. From the preponderance of the evidence and the entire record in this case, I find, therefore, that by extending recognition to International Chemical Workers Union, AFL-CIO, on January 27, 1959, and thereafter entering into a collective -bargaining agreement with International Chemical Workers Union and/or its Local No. 666, AFL-CIO, effective June 1, 1959, as the alleged exclusive bargaining representative of all year-round regular production , maintenance, and warehouse employees, the Respondent Employer interfered with, restrained , and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and rendered unlawful assistance to a labor organization within the meaning of Section 8(a)(1) and (2) of the Act. I find also that by negotiating, executing, and maintaining the aforesaid collective-bargaining agreement as the exclusive bargaining representative of all year-round production, maintenance, and warehouse employees in the unit found appropriate by the Board on May 20, 1958, a majority of whom it did not represent at any time subsequent to the runoff election of December 9, 1958, the Respondent Union restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act within the meaning of Section 8 (b) (1) (A) of the Act .6 6 Midwest Piping A Supply Co., Inc., 63 NLRB 1060; Novak Logging Company, 119 NLRB 1573; Shea Chemical Corporation, 121 NLRB 1027. 6Bernhard.Altmann Tesas Corporation, 122 NLRB 1289. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From a preponderance of the evidence, I also find that Respondents for the purpose of maintaining and enforcing the aforesaid collective-bargaining agreement on or about March 23, 1959, called employees Glynn S. Curry, R. V. Smith, Mack M. Griffey, and Russell J. Knowles to the office of Respondent Employer, where in the presence of representatives of both Respondents they were interrogated concerning their participation in the circulation of a petition protesting representation by Re- spondent Union. By jointly participating in such conduct the Respondent Employer interfered with, restrained, and coerced employees in the exercise of the rights guar- anteed in Section 7 within the meaning of Section 8(a)( I) of the Act; and the Re- spondent Union likewise restrained and coerced employees within the meaning of Section 8(b) (1) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of Respondents set forth in section 555, above, occurring in connec- tion with the operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent Employer and Respondent Union have engaged in certain unfair labor practices, I shall recommend that each of them cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent Employer has interfered with, restrained, and coerced its employees in the exercise of the right to freely select their own bargain- ing representative, and has accorded unlawful assistance and support to Inter- national Chemical Workers Union and/or its Local No. 666, AFL-CIO, I shall recommend that Respondent Employer withdraw and withhold all recognition from International Chemical Workers Union and/or its Local No. 666, AFL-CIO, as the exculsive bargaining representative of employees in the unit heretofore found appropriate by the Board consisting of "All regular year-round production and maintenance employees, including regular warehouse, power and refrigeration em- ployees employed at the Company's plant in Haines City, Florida, but excluding all casual employees, office clerical employees, laboratory employees, salesmen, and supervisors as defined in the Act"; and cease giving effect to the aforesaid collective-bargaining agreement or to any renewal or extension thereof, until such time as International Chemical Workers Union and/or its Local No. 666, AFL- CIO, shall have been certified by the Board as the exclusive representative of the employees in question . Nothing herein shall, however, be construed to require Respondent Employer to vary or abandon any existing term or condition of em- ployment. I shall also recommend that Respondent Union cease and desist from acting as the collective-bargaining representative of all regular year-round produc- tion and maintenance employees of Respondent Employer in the appropriate unit aforesaid, unless and until said Union shall have demonstrated its exclusive ma- jority status pursuant to a Board-conducted election among the regular year-round employees of the Respondent Employer in the unit heretofore found appropriate. I shall also recommend that Respondent Union refrain from seeking to enforce any collective-bargaining agreement now in effect with respect to aforesaid employees in the year-round unit. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Stokely-Bordo is an employer within the meaning of Section 2(2) and Section 8(a)(1) and (2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Chemical Workers Union and/or its Local 666, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By recognizing and entering into a collective-bargaining agreement with Inter- national Chemical Workers Union and/or its Local No. 666, AFL-CIO, as the alleged exclusive bargaining representative of its regular year-round production and maintenance employees in the unit found appropriate by the Board on May 20, 1958, Stokely-Van Camp Inc. and Bordo Products Co., d/b/a Stokely-Bordo, con- tributed illegal assistance and support to a labor organization and thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. GOODYEAR TIRE & RUBBER COMPANY, ETC. 889 4. By negotiating, executing, and maintaining the aforesaid collective-bargaining agreement with Respondent Employer as the alleged exclusive bargaining repre- sentative of said year-round production and maintenance employees , International Chemical Workers Union and/or its Local No. 666, AFL-CIO, engaged in and are engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 5. By aforesaid conduct and by the interrogation of employees, Glynn S. Curry, R. V. Smith, Mack M. Griffey, and Russell J . Knowles in the presence of union and company officials in the plant office on March 23, 1959, for the purpose of en- forcing the illegal collective-bargaining agreement, Respondent Employer and Re- spondent Union interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) and 8 (b)(1) (A) of the Act, respectively. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Goodyear Tire & Rubber Company (Houston Synthetic Rubber Plant) ' and J. H. Blann, Petitioner and Local 347, Interna- tional Union of Operating Engineers, AFL-CIO.' Case No. 23-RD-81. February 28, 1961 DECISION AND DIRECTION OF ELECTION Upon a decertification petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Wilton Waldrop, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner, an employee of the Employer, contends that the Union is no longer the exclusive bargaining representative of the employees involved herein within the meaning of Section 9(a) of the Act. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks a decertification election in a unit of process control chemists. The bargaining history at the plant shows that in 1952, in a consent election, the process control chemists voted to be represented by the Union. They were thereupon included in a pro- duction and maintenance unit and represented by Houston Metal Trades Council. This arrangement continued until 1956, when, pur- suant to another consent election, the Union was certified for a unit of production employees, including the process control chemists. In 1 The name of the Employer appears as amended at the hearing. 2 Herein called the Union. 130 NLRB No. 65.