Sun-Maid Growers Of California

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sun-Maid Growers of California and International Brotherhood of Electrical Workers, Local Union No. 100 and International Association of Machinists and District Lodge No. 87 of the International Asso- ciation of Machinists, Party to the Contract. Case 32-CA 513 November 17, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMLIBERS JENKINS AND) PEN I LLO On August 7, 1978, Administrative Law Judge William J. Pannier Ill issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National lIabor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Sun-Maid Growers of California, Kingsburg, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. In agreeing with the Administrative Law Judge's finding that Jack Brown was not a supervisor while working at Kingsburg, we note that Brown was the most experienced electrician and, has Ing worked at Respon- dent's plant since it opened in 1962. was most familiar with the plant's machinery and equipment Furthermore, Brown received instructions from Respondent's supervisors, had no authority to call in additional help when conditions warranted it, and did not wear the red "hard hat" worn by all supervisors at Respondent's plant Accordingly. we find that Brown was, at most, a leadman who acted as a conduit between Respondent and SMull and Robinson See American I umber Sales Inc. 229 NL RB 414 (1977; ( revr ( hemrtal (omrpan. 2 13 NL.RB 885 (1974); franA koiundrie, (orporariion. 213 Nl RB 391 (19741 ' In affirming the Administrative Ldaw Jucge's recommended renied). we note that the remedy is consistent with prior Board precedent. See Siuft Enterprise, a I.nmited Partne-rship. 220 NL RB 738 (1975. Chairman Fan- ning adheres to his dissent in (;reui ('hinte .4irle rican Se.:rin (o mnpun., Esprit de (Corp. 227 NLRB 1670 (1977). cited bs the Administrative lIaw Judge, but finds no need to rely on it in adopting the recommentded Remedy as that case involved the closing of a plant. a situation not present here DECISION STATEMENT OF IHE CASE WILLIAM J PANNIER Ill. Administrative Law Judge: This matter was heard by me in Fresno, California, on March 28 and 29, 1978. On December 29, 1977,' the Regional Director for Region 32 of the National Labor Relations Board issued a complaint and notice of hearing, based on an unfair labor practice charge filed on November 1, alleg- ing violations of Section 8(aX)(1), (2), (3), and (5) of the National Labor Relations Act, as amended, 29 U.S.C. 151, er seq., herein called the Act. 2 All parties have been afforded full opportunity to ap- pear, to introduce evidence, to examine and cross-examine witnesses, and to file briefs. Based on the entire record, upon the briefs filed on behalf of the parties, and upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACI I JURISDICTION Sun-Maid Growers of California,3 herein called Respon- dent, has, at all times material, been a cooperative duly organized and existing by virtue of the laws of the State of California, with an office and business located in Kings- burg, California, where it has been engaged in the pro- cessing and marketing of raisins. During the 12-month pe- riod prior to issuance of the complaint, Respondent, in the course and conduct of its business operations, sold and shipped goods valued in excess of $50,000 directly to cus- tomers located outside the State of California. Therefore, I find, as admitted in the answer of Respondent, that at all times material, Respondent has been an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATIONS INVOLVED In its answer, Respondent denied, for lack of informa- tion and belief, that International Brotherhood of Electri- cal Workers, Local Union No. 100, herein called IBEW, has been a labor organization at all times material. How- ever, the record discloses that employees are members of IBEW and that at the time of the hearing IBEW had a collective-bargaining agreement with East Central Califor- nia Chapter, National Electrical Contractors Association, Inc., herein called Association, representing various em- ployers whose employees were represented by IBEW. Therefore, I find that at all times material, IBEW has been a labor organization within the meaning of Section 2(5) of the Act. I nless otherwise stated. all dates occurred in 1977. 2 At the hearing. the General ( ounsel's motion "to withdraw the 8(aX3) allegation In the complaint and to issue only the 8(a)(5) and the 8(a)(2)" was granted Namne of Respondent amended at the hearing 346 SUN-MAID GROWERS OF CALIFORNIA It is undenied, and accordingly I find, that at all times material, International Association of Machinists and Dis- trict Lodge No. 87 of the International Association of Ma- chinists, herein called Machinists, has been a labor organi- zation within the meaning of Section 2(5) of the Act. Ill THE ALLEGED tUNFAIR LABOR PRACTICES A. Background The issues in this case find their genesis in a verbal con- tract between Respondent and Control Electric, Inc., herein called Control, whereby, between August 1976 and October 1977, Control supplied three maintenance electri- cians-Jack Brown, James E. Mull, and Les A. Robinson -to work at Respondent's Kingsburg, California, facility. The General Counsel contends that during that period, a joint employer relationship existed between Control and Respondent regarding those three employees with the re- sult that Respondent violated Section 8(a)(5) and (I) of the Act by terminating them without prior notification to IBEW, their collective-bargaining representative. The Gen- eral Counsel contends that Respondent violated Section 8(a)(l) and (2) of the Act by recognizing Machinists as the representative of the employees whom Respondent hired to perform the work that the three maintenance electricians had been performing, and by extending the terms of the then-current collective-bargaining agreement between Re- spondent and the Machinists to cover those replacement employees. Respondent denies these allegations. Affirma- tively, it contends that the unit alleged to be appropriate in the complaint is not, in fact, an appropriate bargaining unit, that the work was a valid accretion to Machinists' bargaining unit, and, further, that IBEW had ample notice of the termination of the maintenance electricians, but failed to make a proper demand for bargaining with Re- spondent concerning this matter.4 Following construction of the Kingsburg facility in the early 1960's, Respondent contracted the in-plant electrical maintenance work-involving principally the installation, maintenance, repair, and modification of the electrical facets of production equipment, as well as occasional elec- trical repair work on the plant-to Electric Motor Shop, herein called EMS, a contractor whose employees were represented by IBEW. There has never been any financial or other relationship between Respondent and EMS. Moreover, at no time has there been any direct dealings between Respondent and IBEW. In July 1976, IBEW, having failed to achieve resolution of its negotiations with the Association, of which EMS was 4In its bnrief, Respondent. also, argues that the complaint is defective and should be dismissed on the additional ground that par. Xll(bh, alleging that Respondent has refused to bargain since October 27 and has unilaterally modified the agreement with the Union by discharging three employees without prior notification to the Union, referred to "the unit described above in par. V." which Is the par. listing the alleged agents and supervisors of Respondent, rz. 'er than to par. VI. which sets forth the bargaining unit which is alleged to be appropriate. Since the issues In this case have been fully litigated and briefed by Respondent, I find that it has not been preju- diced by this obvious typographical error a member, called a strike. While there was no picketing of Respondent's facility, the maintenance electricians did not report for work. Confronted with the need to complete per- imeter lighting on which the maintenance electricians had been working, Respondent retained Glen J. Bedgood, the president, general manager, and operating manager of Control. Although Control was also a member of the Asso- ciation, Bedgood had an individual contract license which he used as the basis for continuing to perform the projects which Control had been performing prior to the strike. us- ing the striking employees of Control after first having signed an interim agreement with IBEW. Although Bed- good had been performing construction electrical work for Respondent prior to this time, there is no financial or other relationship between Respondent and Control. Bedgood agreed to complete the perimeter lighting. While doing so, he was approached by Ronald Regine Ras- mussen, designer of plant engineering for Respondent, re- garding the performance of the maintenance electrical work that EMS had been doing prior to the strike. Bed- good expressed interest, pointing out that he had 10 or 12 employees whose specialty enabled them to do this type of work. Rasmussen, however, said that Respondent would particularly like to have the three EMS employees 5 contin- ue performing the work in light of their familiarity with the Kingsburg facility.6 Although unfamiliar with these em- ployees, Bedgood replied that he would attempt to hire them, and later that day during a meeting with then Manu- facturing Manager Richard Shoults, 7 Bedgood inquired about them and promised to attempt to hire them. Shoults acknowledged that, like Rasmussen, he had asked Bedgood if it would be possible to hire Brown, Mull, and Robinson. However, both Rasmussen and Shoults testified that per- formance of the work by these three maintenance electn- cians had not been a condition to Bedgood obtaining the contract. Bedgood confirmed their testimonies in this re- gard. Bedgood then contacted IBEW and secured its agree- ment to permit Brown, Mull, and Robinson to be hired to work at Respondent's plant. When Bedgood, then, notified Rasmussen of IBEW's argument, Rasmussen replied that these three employees knew what their shifts were and should report the following day. They continued working at that location until October, when Respondent terminat- ed its agreement with Bedgood 8 and replaced them with its own newly hired employees. With the exception of Brown, Rasmussen did not appear to hare been particularly familia: with the names of the other two maintenance electri- cians As late as the time of his appearance at the hearing, he was able only to testify "I believe" that the other two were Mull and Robinson Accord- ingl, I attach no significance to the fact that during a subsequent meeting. described infra, it had been Bedgood who had first inquired about the names of the maintenance electricians who had been working for EMS This does not negate the fact that Rasmussen had requested their employment during his earlier conversation with Bedgood. It shows only that Bedgood was attempting to be certain of their identities. Brown had worked at Kingsburg since the facility had opened Robin- sn had been working there for 7 sears prinor to the strike, and Mull had been employed there since 1975. In August 1977. Shoults became manufactunng project manager. a posi- tion which he occupied at the time of the hearing B) letter dated December 26, 1976. Bedgood notified Respondent that as agreement had been reached between IBFW and the Association, "all the (Contnued 347 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Relationship Between Respondent and Bedgood/Control The fundamental issue in this case is the nature of the relationship between Respondent and Bedgood/Control. 9 For absent a finding of joint employer relationship, all fur- ther consideration of Respondent's potential liability under Section 8(a)(5) of the Act ends. The contract between Respondent and Control was ver- bal. Bedgood testified, without contradiction, that it simply had continued the agreement between EMS and Respon- dent for performance of the electrical maintenance work. The contract provided for payment by Respondent to Con- trol on a cost plus basis. The costs were based on the wage rates of the maintenance electricians which, in turn, were determined by Control's collective-bargaining agreement with IBEW. These costs were periodically raised to corre- spond with the periodic increases required under that col- lective-bargaining agreement.' So far as the record disclos- es, Respondent had no authority to disapprove these wage rates and increases in wage rates. Cf. Hamburg Industries, Inc., Fidelity Services, Inc. & Industrial Technical Services, Inc., 193 NLRB 67 (1971): Ref-Chem Company and El Paso Products Co., 169 NLRB 376 (1968), enforcement denied 418 F.2d 127 (5th Cir. 1969). Apparently, it had been understood at the time the con- tract had been agreed upon that it would be terminable at the will of either party. However, there is no evidence that the parties, at the time of reaching agreement, had under- stood that it would be, of other than a continuing duration, as had been the case with Respondent's contract with EMS. Cf. Cabot Corporation and Payne and Keller of Louisi- ana, Inc., 223 NLRB 1388 (1976), affd. sub nom., Chemical Workers, Local 483 v. N.L.R.B., 95 LRRM 2591 (D.C. Cir. 1977). Moreover, there is no evidence that Respondent and Control had agreed specifically that the latter would be an independent contractor. Consequently, their contract did not "bespeak an intent by [Respondent] to look primarily to results and to vest in [Control] an independence in the control of its employees that is at least facially inconsistent with [Respondent] exercising any substantial degree of control over the manner and means that [Control's] employ- ees were to perform their services." Chemical Workers, Lo- cal 483, supra, 95 LRRM at 2593. Certain other facts are significant with respect to Control's contract with Respondent. Although Respondent had requested that Brown, Robinson, and Mull be hired by Control to perform the electrical maintenance work, the evidence, as found above, does not show that this was a condition precedent to Control's obtaining the contract. Respondent would have accepted any maintenance electri- cians dispatched by Control to the Kingsburg facility. Re- spondent did have authority to tell Control's maintenance electricians to leave its premises, but to the extent that such authority resided with Respondent, the General Counsel electricians will he working for Control Electric. Inc.. and will no longer be working for Glenn J. Bedgood." 9As Control ultimately became the contractor. see fn. 8. supra. It. rather than Bedgood, will be the entity referred to herein as the contractor. These rates were increased by notification from Control to Respondent in December 1976, and again in June. has not shown that it was other than "a natural concomi- tant of the right of any property owner or occupant to protect his premises." Hychem Constructors, Inc., Texas Eastman Company, Division of Eastman Kodak Company, and Hudson Engineering Corporation, 169 NLRB 274, 276 (1968); Accord: Cabot Corporation, supra, 223 NLRB at 1389. There is no evidence that Respondent derived any greater right than this by virtue of its agreement with Con- trol and it had no right to insist upon the complete removal of a maintenance electrician from Control's payroll. Cabot Corporation, supra, 223 NLRB at 1389. Moreover, Respon- dent has never requested nor demanded that Control re- move one of its maintenance electricians from its premises, although, it did agree on one occasion that a maintenance electrician employed by EMS was no longer needed due to a paucity of work. The contract gave Respondent no right to determine whom Control hired, fired, promoted, or disciplined. Nor did it accord Respondent authority to discipline, reclassify, demote, promote, or increase the wage rate of any mainte- nance electrician hired by Control. Respondent could not assign the maintenance electricians dispatched by Control to any location other than the Kingsburg facility. There was no interchange between the maintenance electricians dispatched by Control and the employees hired by Respon- dent, nor was their an instance, so far as the record disclos- es, where Respondent subsequently hired a maintenance electrician dispatched by EMS or by Control. Cf. Mobile Oil Corporation, 219 NLRB 511 (1975), enforcement de- nied 555 F.2d 732 (9th Cir. 1977). Control handles its own payroll. Brown, Robinson, and Mull were paid by Control on the basis of records which they prepared and forwarded directly to Control.'' All pay- roll deductions for them were made by Control. They re- ceived the benefits provided by Control's collective-bar- gaining agreement with IBEW. They enjoyed none of the benefits which Respondent provided for its own employees pursuant to collective-bargaining agreements with labor or- ganizations, other than IBEW, who represented Respon- dent's employees. However, the three maintenance electri- cians observed Respondent's plant rules while working at the Kingsburg facility and, as Bedgood testified, they I The three maintenance electricians each testified that in addition to the work-time records which they had prepared and forwarded to Control, they also had punched the same timeclock. using the same timecards. as had Respondent's employees. Respondent's witnesses, none of whom worked in Respondent's payroll department, had no explanation for this procedure. Industrial Relations Manager John E. Sullivan expressed bafflement as to why they would have done so. It is possible that they had used the timeclock as a means of recording job time spent on shop cards which had been submitted to Respondent to verify Control's billing. If so, this would not advance the General Counsel's argument that Respondent had been a joint employer of these three employees. since it would have beenl consistent with (Respondent's] right to police reimbursable expenses under its cost- plus contract .. ." Hvchem (onstructors, supra See. also Cabol Corpora- tion, supra, 223 NLRB at 1389, and Westinghouse Electric Corporation. 163 NLRB 914, 915 (1967). If this was not the purpose. the General Counsel's argument is still not aided. for it is undisputed that it had been Control who had paid these employees during the time they worked at the Kingsburg facility and it has not been shown that these punched timecards had been prepared and maintained for any reason that would establish a joint-em- ployer relation. In fact, none of the three maintenance electricians even claimed that they had punched these timecards pursuant to instructions from officials of Respondent. 348 SUN-MAID GROWERS OF CALIFORNIA "were excluded out of my rules and regulations . . . be- cause they were working under different conditions." For example, they had not been required to report at 8 a.m. to Control's premises and had not been paid travel time to Respondent's Kingsburg facility.l 2 Moreover. Respondent had issued one of its green identification cards to each of them, even though, as Sullivan acknowledged, employees of contractors are normally not issued such cards, but, in- stead, simply sign in with the guard who issues them visitor passes. Bedgood played but a minimal role in the performance of duties by the maintenance electricians. Only rarely did he visit the Kingsburg plant. Even on such occasions, he exchanged only a few words with whichever of the mainte- nance electricians were on duty. At no point, did he ever assign them work to perform. By contrast, either he or his engineer attempted to make daily visits to construction sites where his construction electricians are working. In fact, when he has construction electrical work to perform for Respondent, it is him or his construction foreman with whom Respondent deal; concerning the work to be done. Respondent, however, contends that this is an insignificant matter, for it asserts that Brown ha'd been a supervisor during the time that Control's maintenance electricians were working at Kingsburg and that Brown had been the one who had handled the work and personnel problems of the three maintenance electricians. Whether or not Brown had been a supervisor within the meaning of Section 2(11) of the Act between August 1976, and October 1977, it is evident that he had occupied a significant role in the coordination of the maintenance electricians' work at Kingsburg. For example, when Robin- son and Mull had sought to change shifts, it had been Brown to whom they had directed their requests. Initially, Brown testified that he had always sought the permission of the maintenance superintendent before agreeing to such shift swaps. While Respondent's officials, particularly Gen- eral Maintenance Superintendent Bob Ozbirn, agreed that Brown had told them of the shift swaps, they denied that they had possessed any authority to permit or to deny shift swapping. These denials tended to be corroborated by Brown himself. For, while he testified that shift swapping between Robinson and Mull had not been uncommon, the only specific conversation that he described with an official of Respondent about the matter pertained to an occasion when an emergency family problem had necessitated that Mull swap shifts with Robinson. On that occasion, conced- ed Brown, the switch had occurred before he had spoken with Ozbirn about it, and further, Brown agreed that he had spoken to Ozbirn merely to notify him of the change. Robinson claimed that Respondent had to approve swaps of shifts. He also testified that there had been occa- 12 Although Bedgood testified that the absence of travel time payments had resulted from an agreement with IBEW, his own vague testimony about this agreement showed that he lacked any knowledge regarding its origin and the parties to it. IBEW Representative Fred A. Hardy appeared as a witness for the General Counsel, but he never claimed that Respondent had been a party to such an agreement nor that Respondent had been the in- tended beneficiary of the agreement. In these circumstances, the best that can be said is that for some reason, possibly the elimination of the need for maintenance electricians to report to EMS's premises each morning. IBEW agreed to waive the travel time provisions. sions when such swapping had been prohibited by Respon- dent. However, he did not "directly recall when or what shift or anything" about such purported refusals by Re- spondent to permit swaps. Moreover, Robinson agreed that his knowledge of Respondent's asserted authority to veto shift swapping was based solely on what had been told to him by Brown-who, as found above, did not testify to even a single instance of his having requested permission of Respondent for Mull and Robinson to switch shifts, much less of refusals by Respondent to permit such swaps. With regard to vacation requests, Mull and Robinson would tell Brown when they wanted to take vacations and, in turn, Brown would report this to an official of Respon- dent. usually the maintenance superintendent. However, while not disputing this sequence, Respondent's officials testified that they had had no authority to permit nor to deny the vacation requests. In effect, they characterized Brown's reports as no more than informational. For exam- ple, Ozbirn testified, "I would be told by Jack that they would be taking a vacation," but that "I didn't approve any vacation schedule." That Respondent's permission for Mull and Robinson to take a vacation was not necessarily required is shown by the fact that when Robinson or Mull did take a vacation, Control would dispatch replacement maintenance electricians to work during those periods. There is no showing that the time of year when Robinson and Mull took their vacations had been a matter of con- cern for any other reason to Respondent. Consequently, there would have been no reason for Respondent to exer- cise any control in this area. Conversely, it had been Con- trol who would have been affected by such requests, since it had been obliged to locate and provide replacements for the vacationing Mull and Robinson. Moreover, it has not been shown that Respondent ever prohibited either Mull or Robinson from taking the vacation he desired. Although Robinson testified that he had spoken, on one occasion, with Shoults regarding his vacation, he was un- able to recall fully the substance of that conversation. So far as his description of what he did recall about the inci- dent, he conceded that he had first "probably mentioned" his request for vacation to Brown and it appeared that he had been simply attempting to enlist the aid of Shoults- who was not the maintenance superintendent and thus not the official of Respondent to whom Brown had spoken about Robinson and Mull's vacations-in secunng vaca- tion time that Robinson preferred. Brown testified that when he, himself, had wanted a vacation, it had been to Bedgood, not Respondent, that he had addressed his noti- fication of that fact. In light of the central role played by Brown in the coordination of relations between Respon- dent and the maintenance electricians, it is likely that the timing of Brown's vacation would have been of infinitely greater significance to Respondent than would those of Mull and Robinson for whom replacements would have been provided under Brown's guidance. The fact that Brown arranged his own vacation with Control tends to demonstrate that Respondent had been notified of Robinson's and Mull's vacations simply as a courtesy, rather than because it exercised authority over the timing of their vacations. Neither Bedgood nor Control was ever contacted when- 349 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever one of the maintenance electncians could not report for work due to illness. Instead, whenever either Mull or Robinson was ill, he would call the telephone number on the back of his identification card and report that fact to one of the guards, who were also employees of a contrac- tor. While Brown testified that the guard would then re- lay to him the substance of the call, he did not know if the guard had made a similar report to Respondent. There is no evidence that the guards did so. According to Brown, if a maintenance electrician needed time off for a doctor's appointment during the day, Brown would report that fact to the maintenance superintendent. However, there is no evidence that in doing so, Brown had been seeking permis- sion for the employee to leave, that Respondent had pos- sessed authority to deny such a request, or that Respon- dent ever had denied a maintenance electrician the opportunity to leave work during the day due to illness or a doctor's appointment. An examination of the manner in which the three main- tenance electricians performed their duties discloses sev- eral factors. First, assuming arguendo that Brown had been a supervisor, there were nevertheless significant periods during their workdays when Robinson and Mull worked without his supervision. Thus, Brown worked normally from 7 a.m. until 3:30 p.m., Robinson reported for work at 5:30 a.m., working until 2 p.m., and Mull reported at 3 p.m., working until 11:30 p.m. Consequently, Mull worked for 8 hours each day and Robinson for 1-1/2 hours each day without Brown being present. While in the case of Robinson this had not been of long duration, it had been Robinson who had reported first in the morning, and his work assignments based largely upon problems which had arisen after Brown had left on the preceding afternoons, had not been made by Brown. Second, while the record is unclear as to how these par- ticular hours came to be assigned to each of the three maintenance electricians, it is clear that the hours worked by them had not been scheduled by Control, but rather had been governed by Respondent's production schedule. When that production schedule was changed by Respon- dent, as, it is undisputed, did occur from time to time, the maintenance electricians were required to conform their hours to those changes. Moreover, when Respondent scheduled weekend production work, the maintenance electricians were notified of that fact by Respondent and reported for work as did Respondent's production and maintenance employees. Similarly, if a job on which a maintenance electrician had been working could not have been completed by that electrician's normal quitting time, it had been by officials of Respondent that that electrician had been authorized to work until it was completed, receiv- ing overtime pay for the excess time worked. Consequent- ly, the source of the maintenance electricians' normal workday and the authority for their performance of over- time work had originated with Respondent. 13 Robinson testified that he had tried to reach one of Respondent's sup- ervisors, whenever he had telephoned, to report that he would be absent due to illness. However, he did not testify that he had ever been able to speak with a supervisor whenever he made such calls. More significantly, he never testified that he had been told that he was required to contact one of Re- spondent's supervisors to report that he would be absent due to illness. TIhird, Brown testified without contradiction that when there had been more work than the three maintenance elec- tricians could handle, he had reported that fact to the maintenance superintendent who would, if he felt it neces- sary, contact EMS or Control for the dispatch of addition- al maintenance electricians. Brown never on his own sought to have additional maintenance electricians dis- patched to Kingsburg. Accordingly, Respondent had been in control of its costs to the extent that it had made the decisions regarding whether the three maintenance electri- cians should work overtime to finish jobs on which they had been working and to the extent that it could determine whether to have the work completed by having extra main- tenance electricians dispatched or by having Brown, Robinson, or Mull work overtime. In addition, Respondent could telephone these maintenance electricians at their homes when they were not on duty and direct them to report to the Kingsburg facility - occurances which had taken place not infrequently during the time that Brown, Mull, and Robinson had been working at Kingsburg. Fourth, it is undisputed that Respondent had not direct- ed the maintenance electricians in the precise steps to fol- low to perform their work. However, it occasionally pro- vided specifications and instructions regarding the manner in which the work could be performed. Further, Respon- dent had told them what work needed to be done. In this regard, virtually all of Respondent's supervisors had as- signed work to the maintenance electricians and, even as- suming Brown's supervisory status, assignments had regu- larly been made directly by Respondent's officials to Robinson and Mull. Moreover, while Brown had assigned work to Mull each day, during the half hour when the shifts overlapped, Mull had been assigned work regularly each night by Respondent's personnel. These assignments had taken precedence over the work which Brown had ear- lier instructed Mull to perform. Moreover, whenever a number of assignments had been made to maintenance electricians and it had been impossible to complete them all, it had been officials of Respondent who had made the decisions as to which had priority. 14 While, as set forth in section III, A, supra, there is no financial relationship between Respondent and Control, "for purposes of the Act, it has been judicially recognized that anyone, whether specifically attached to the enterprise or not, who possesses such a right or power of control over its conduct as to have a responsibility for its labor affairs and relations in fact, may properly be treated as an em- ployer." (Citations omitted) N.L.R.B. v. New Madrid Man- ufacturing Company, d/b/a Jones Manufacturing Company, 215 F.2d 908, 913 (8th Cir. 1954). The fact that Respondent 14 So far as the record discloses, on only one occasion did these assign- ments give rise to any difficulty. Ozbirn testified that once, when he had tried to assign work to Robinson, the latter had said to "talk to" Brown about it, because he "wasn't authorized to do that without John's permis- sion." Aside from the isolated nature of this occurrence, there is no evidence concerning the nature of the assignment which Ozbirn had tried to make to Robinson nor was evidence adduced as to the problem posed at the time. Indeed. Ozbim could not recall anything else about what had transpired. In these circumstances, I place no reliance on this vague and isolated incident. Similarly. the fact that Robinson did not take his lunch break at the precise time once requested for him to do so by Respondent is hardly determina- tive, since he made sure that he was available for work at the time desired bh Respondent. 350 SUN-MAID GROWERS OF CALIFORNIA may not have exercised the full panoply of powers over the maintenance electricians that an employer can exercise does not, of itself, serve to render it any the less a joint employer of the maintenance electricians under Section 2(2) of the Act. So long as Respondent possessed "an area of effective control over labor relations at the plant in- volved herein," it was an employer of the maintenance electricians. Great Southern Chemical Corporation, 96 NLRB 1013, 1014 (1951). For, to establish that it was a joint employer, it need only be found that "Respondent exercisetd] effective control over the working conditions of [the maintenance electricians] and [was] fully competent to bargain with (IBEW] in accordance with the provisions of the Act." Herbert Harvey, Inc., 171 NLRB 238, 239 (1968), enfd. 424 F.2d 770 (D.C. Cir. 1969). In the instant case, as set forth above, there are a num- ber of factors tending to negate the existence of a joint- employer relationship between Respondent and Control with respect to the maintenance electricians. Yet, even ac- cepting as accurate Respondent's contention that Brown had been a supervisor, the fact remains that for substantial and significant portions of their workdays both Robinson and, particularly, Mull had worked without Brown being present at the Kingsburg facility. In Syufy Enterprises, a Limited Partnership, 220 NLRB 738 (1975), the Board con- cluded that the absence of supervision by a contractor pro- viding janitorial services and the performance of superviso- ry functions directly by the owner were sufficient to establish a joint employer relationship. "The actual exer- cise of control by Respondent over matters governing the terms and conditions of employment of the janitors is a separate indication of coemployership. It is one which we deem crucial in the present case in view of the limited terms of the service contract .... " Id. at 740. Of course, Respondent's officials did not hover over the maintenance electricians, directing each turn of their screwdrivers and each connection that they made. How- ever, contrary to Respondent's argument, this is hardly what the Board has meant by control of the "means used to achieve [the] end .... " Cabot Corporation, supra, 223 NLRB at 1389. Here, Respondent's officials assigned work directly to Robinson and Mull. Although the latter may have been assigned other work by Brown, the assignments of Respondent's officials took precedence. Indeed, when- ever there were conflicting assignments made to the main- tenance electricians, such that all of them could not be completed as required by Respondent's officials, it had been Respondent who had made the determination as to which took precedence. The determination regarding the basic workweek that the maintenance electricians would work originated with Respondent by virtue of its preparation of production schedules. Whenever production had been scheduled for weekends, the three maintenance electricians had been ex- pected to and had reported for work to the Kingsburg fa- cility. It had also been Respondent which had determined whether particular work had been of sufficient import to warrant performance of unscheduled overtime work by Brown, Robinson, and Mull. On those occasions when there had been too much work for the three regularly as- signed maintenance electricians to perform, it had been Respondent who had made the determination as to wheth- er additional maintenance electricians should be dis- patched to complete it. Moreover, it had been Respon- dent's officials, not those of Control, who had called the maintenance electricians at their homes when there had been extra work to be performed. Consequently, while the wage rates of the maintenance electricians had been the product of Control's collective-bargaining agreement with IBEW, it had been Respondent who had determined the number of overtime hours and the number of additional maintenance electricians that would be dispatched, thereby exercising a degree of control over its costs under its con- tract with Control. See The Greyhound Corporation (South- ern Greyhound Lines Division) and Floors, Inc. of Florida, 153 NLRB 1488, 1491, fn. 8 (1965). In sum, it had been Control who had possessed the pow- er to hire, fire, discipline, classify and promote the mainte- nance electricians dispatched to Kingsburg, and their wage rates had originated with Control. However, it had been Respondent who had controlled their performance while at its Kingsburg facility by originating their basic workweek schedule, telling them what work needed to be done, in- structing them as to the work to be done directly on a regular basis and without contacting supervisors at Con- trol, determining which of competing assignments had pri- ority, deciding when they would perform overtime work, and determining when additional maintenance electricians would be dispatched to Kingsburg. Through this control over the day-to-day work performance of the maintenance electricians, Respondent exercised authority over signifi- cant aspects of their employment relation, see Floyd Epper- son and United Dairy Farmers, Inc., 202 NLRB 23 (1973), enfd., 491 F.2d 1390 (6th Cir. 1974), particularly where, as here, those three employees had been hired by Control at Respondent's request; their duties had been an integral part of Respondent's production process; they had been treated differently from employees of other contractors to the extent that they had been issued their own identifica- tion cards rather than having to obtain visitor passes as did employees of other contractors; they had observed Re- spondent's plant rules; it had not been contemplated that Control would occupy the status of an independent con- tractor at the time that the contract between it and Re- spondent had been negotiated; and the contract between Control and Respondent had not, so far as the record dis- closes, been contemplated to be of short duration at the time of its negotiation. Only Respondent could have bar- gained effectively with IBEW regarding the indicia of em- ployment over which it had possessed control. In those circumstances, and based upon the record in its entirety, I find that Respondent and Control had been joint em- ployers during the time that Brown, Robinson, and Mull worked at Kingsburg from August 1976 until October 26, 1977. C. The Termination of Control's Contract and Commencement of Performance of the Maintenance Electrical Work by Respondent's Emplovees The pertinent events leading to and following the depar- ture of Brown, Robinson, and Mull from the Kingsburg 351 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facility are undisputed and are relatively straightforward. For approximately I year prior to October, Respondent had given consideration, from time to time, to terminating Control's contract. This was primarily based upon the con- sideration that, while maintenance electricians and me- chanics worked on the same equipment, employees in nei- ther group would perform the duties of the other, thereby giving rise to a situation which Respondent considered to be inflexible and inefficient. Although Respondent negotiated a new collective-bar- gaining agreement with Machinists in August and Septem- ber, there had been no discussion during those negotiations concerning any additions to the historic bargaining unit for which Machinists had been the representative. However, in early October, Respondent approached Machinists regard- ing their willingness to represent maintenance electricians hired by Respondent to replace those being furnished by Control. In addition, in early October, Respondent hired two electricians, Leonard Ingro and Doug Bronaugh, and began familiarizing them with the facility and its opera- tions. This did not go unnoticed, for based upon a call about their presence from Brown to Hardy, who had in turn contacted Bedgood about the matter, Barnes had been contacted by Bedgood in early October. Barnes described their conversation as follows: Glen asked me if the work that was being done by these three gentlemen was adequate, and I told him it certainly was, they are professional electricians. He said he had been contacted, in his words, by the busi- ness agent of the IBEW, stating that he had a rumor that we were going to replace the electricians with ma- chinists. I said that this was not true. Barnes conceded that at the time of this conversation, he had known of the "good probability or possibility" of the termination of Control's contract, but that "we had no in- tel..ion of re,.;acing electricians with machinists . . . only with electricians." That "good probability or possibility" quickly became reality, for on October 24 Sullivan authored a letter to Ma- chinists, agreeing, effective immediately, to add an electri- cian classification to their collective-bargaining agreement, to subdivide that classification into three categories, and to make all other provisions of their collective-bargaining agreement applicable to the electricians, with provision for separate seniority. As Machinists dues records disclose, neither Ingro nor Bronaugh had been a member of Ma- chinists,'5 nor is there any evidence that they had designat- ed Machinists as their bargaining representative by Octo- ber 24. Respondent adduced no specific evidence concerning the precise date upon which it had intended to terminate Control's contract. What was adduced was a conversation of Thursday, October 27, between Brown and Robinson on the one hand and Barnes and Ozbirn on the other. When the two maintenance electricians ascertained during this conversation that Control's contract was to be terminated, ) These records show that both employees paid initiation fees to Machin- ists on November 23. they departed the facility, even though Robinson acknowl- edged that they had been told that they could work at least through Friday. Brown telephoned Mull and told him not to report for work that evening. Following the departure of Brown, Robinson, and Mull, Respondent hired three additional electricians over the course of the succeeding 2 to 3 weeks, thereby bringing its complement of electricians to five in number. While they then commenced performing most of the work that Brown, Robinson, and Mull had been performing, under Respon- dent's maintenance reorganization they also perform some work that had been classified traditionally as mechanics' work. Concomitantly, the mechanics have been performing some of the work performed formerly only by maintenance electricians. Additionally, each supervisor in the mainte- nance department has been assigned responsibility for maintenance work in a particular area of the Kingsburg facility, with a permanent corps of combined classifica- tions from that department, including electricians, working under him and performing the maintenance work in that area. Based upon this sequence of events, the General Counsel alleges that Respondent's conduct violated Section 8(a)(1), (2), and (5) of the Act. A determination of the correctness of this position necessitates resolution of several subsidiary questions. An initial question presented is whether the bargaining unit pleaded in the complaint, a unit of maintenance elec- tricians employed by Control and Respondent at Kings- burg, is appropriate. Whatever the merit in other circum- stances of the General Counsel's argument regarding the appropriateness of such a bargaining unit, Control, as found above, has been a party to a collective-bargaining agreement with IBEW. Cf. Ref-Chem Company and El Paso Products Co., Individually and as Co-Employers, 169 NLRB 376 (1968), enforcement denied 418 F.2d (5th Cir 1969). Brown, Robinson, and Mull were encompassed by the bar- gaining unit in that agreement, which is broader in scope than simply the Kingsburg facility. Accordingly, the unit pleaded in the complaint is deficient in that it fails to con- form to the contractual unit, which is the unit that is "un- questionably appropriate because . . . [it was] the unit in which [IBEW] was afforded recognition." Ref-Chem Com- pany, 169 NLRB at 380. In these circumstances, the fact that a unit confined to the Kingsburg facility might also have been appropriate is not dispositive, for the question is not one that is being determined de novo. See National Gyp- sum Company, 220 NLRB 551, 555 (1975), and cases cited herein. Nevertheless, Respondent was, as found above, a joint employer for that portion of the overall bargaining unit which had been assigned to work at its Kingsburg facility. Only Respondent, as also found above, had been capable of bargaining effectively concerning those facets of Brown's, Robinson's, and Mull's employment relationship which had given rise to its joint-employer status. Moreover, a unit confined to the three maintenance electricians who had been working at Kingsburg would appear to have been appropriate, based upon the separate nature of the func- tions which they had performed and the separate commu- nity of interest which they had possessed, had not a larger 352 SUN-MAID GROWERS OF CALIFORNIA unit been created by virtue of IBEW's collective-bargain- ing relationship. In these circumstances. no policy of the Act would appear to be offended by imposing a bargaining obligation upon Respondent and Control, jointly, for that portion of the overall unit for which they occupied joint- employer status. Therefore, I find that the appropriate bar- gaining unit is the contractual one, but that Respondent shared a bargaining obligation with respect to so much of that unit for which it occupied joint-employer status. The second question presented pertains to IBEW's rep- resentative status. Clearly, in the overall unit, IBEW was the presumptive representative of a majority of the employ- ees in that unit by virtue of the existing collective-bargain- ing agreement.S Moreover, within that portion of the unit employed at Kingsburg, pursuant to Respondent's agree- ment with Control, IBEW was clearly the majority repre- sentative, since Brown, Robinson, and Mull were members of IBEW. Accordingly, I find that at all times material IBEW had been the majority representative of the mainte- nance electricians, both in the bargaining unit and in that portion of the unit assigned to the Kingsburg facility. The third issue involves the extent of Respondent's bar- gaining obligation owed IBEW. As a joint employer, Re- spondent had an obligation to recognize IBEW as the rep- resentative of that segment of the overall bargaining unit employed at the Kingsburg facility. Accordingly, Respon- dent's termination of Control's maintenance electricians "without consultation with [IBEW] would constitute a breach of its duty to bargain." Ref-Chem Company, 169 NLRB at 380. Fourth, Respondent argues that notwithstanding any general bargaining duty which it might have owed as a joint employer, IBEW had failed to demand bargaining of it regarding the terminations even though it had been on notice since, at least, early October of the possibility that Brown, Robinson, and Mull would be terminated. It is, of course, accurate that "there can be no breach of the statu- tory [bargaining] duty by the employer . . . without some indication given to him by [the representative] of [its] desire or willingness to bargain." N.L.R.B. v. Columbian Enamel- ing and Stamping Company, Inc., 306 U.S. 292, 297 (1939). The difficulty. however, with Respondent's situation is that it cannot be said with any degree of certainty that IBEW's failure to attempt to bargain with Respondent concerning the termination of the maintenance electricians at Kings- burg was the product of other than Respondent's own con- duct. As set forth above, when IBEW first learned of the ru- mored terminations, it had contacted Bedgood who, in turn, had contacted Barnes. The latter's own account of their subsequent conversation, as quoted above, makes clear that Barnes deliberately had misled Bedgood. Thus. Barncr had tailored his answer so that it conformed only to Bedgiood's specific question, although it must have been clear to him from Bedgood's concern regarding Respon- dent's satisfaction with the work of "these three gentle- ,, See \t, ,,li (ipkiptu ( -nipaln i uprn ia. and cases cited therein I here x no evidence hiha I RF\BE collecitie -hl rirninig agreemeitnl. , l hith ( ontmIA was ;i part',. hd heen one obtained uinder Set 5ifl if the Acl See Ret ( hint (onmpan N 1. R B. 41X8 F2d a ill men" that Bedgood had been attempting to ascertain if Control would be allowed to continue to dispatch mainte- nance electricians to Kingsburg. Not until the eve of the changeover did Respondent see fit to disclose to the main- tenance electncians the decision that had been made and partially implemented by the hiring of Ingro and Bronaugh - and at that, this disclosure came only after Brown and Robinson had pressed for a specific answer to their ques- tion concerning their future employment at Kingsburg. An employer who intends to change the nature of its operations in a manner that will affect employees in the bargaining unit owes a duty to disclose that fact fully to the bargaining representative of those employees. See, The Lange Compnary, A Division of Garcia Corporation, 222 NLRB 558, 563. 567 (1976), and cases cited therein. That duty is not satisfied where the employer conceals its inten- tions nor where it acts in a manner that is misleading. See. e.g., Republic Engraving and Designing Compaun. A Division of Nutter, Inc., and Swift Graphics, A Division of ('ongdon & Crome, 236 NLRB 1150 (1978). Here, Barnes' comment to Bedgood led the latter to misrepresent the situation to the IBEW. While it was not Respondent, itself, who had di- rectly communicated that misleading information to IBEW, as a joint employer, it was "responsible for the con- duct of [Bedgood] ... " Ref-Chem Company. 169 NI RB at 380. Particularly is this so where, as here, Respondent had originated the misleading information that was ulti- mately communicated to IBEW. It is of course accurate that once it did learn that the termination of Brown, Robinson, and Mull was definite IBEW did not take every step that it might have taken to attempt to meet with Respondent concerning the matter. Yet, Hardy' did make efforts to contact Respondent, and within a week of learning of the terminations of these three employees IBEW filed the charge in the instant matter. Since Respondent had already begun implementing the change by October 27, and since it has evidenced no inten- tion of bargaining with IBEW about the matter, it can hardly be persuasively maintained that visits to itsflant or letters by Hard)' demanding bargaining would have se- cured negotiations concerning the terminations. Indeed, the belated disclosure of Respondent's intentions belie any assertion that IBEW somehow failed in its obligation to demand bargaining in a timely fashion. "Notice, to he ef- fective, must be given sufficiently in advance of actual im- plementation of a decision to allow reasonable scope for bargaining." International Ladies' Garment Workers Union, AFL-CIO [McLoughlin Mfg. Corp., et al.] v. N.L.R.B., 463, F.2d 907. 919 (D.C. Cir. 1972). It may well be that IBEW would have failed to make a proper demand for bargaining had it known earlier of Respondent's decision or had it not been misled by Barnes' carefully tailored answer to Bedgood's inquiry. However, that cannot be known with any degree of certainty and Respondent has only itself to thank for this state of affairs. Cf. The City Hospital of East Liverpool. Ohio. 234 Nl.RB 58 (1978). The fifth question pertains to Respondent's apparent contention that since IBEW failed previously to make known to Respondent that it considered Respondent to he a joint employer of the Kingsburg maintenance electricians, and to owe a bargaining obligation on that account, it 353 DECISIONS OF NATIONAL LABOR RELATIONS BOARD somehow waived its nght to bargain with Respondent as a joint employer. In support of this assertion, Respondent points to Alaska Roughnecks and Drillers Association v. N.L.R.B., 555 F.2d 732 (C.A. 9, 1977). That case, however, involved a prior proximate Board determination, through representation proceedings, that the employees involved were employees of the contractor. Mobil Oil Corporation, which occupied a parallel position in that case to the one which Respondent occupies here, had not been named as an employer and had not participated in the representation proceedings. Based upon that fact, the court pointed out that "([the Board's regulations provide that the petition for certification shall contain the employer's name and that the employer shall be notified of the hearing," and held that "[blecause Mobil was neither named as an employer nor given an opportunity to object as permitted by 29 C.F.R. §102.63, it was entitled to rely on the certification result that Santa Fe was the employer, not Santa Fe and Mobil." 555 F.2d at 736. In the instant case, there has been no representation pro- ceeding and IBEW's representation of the maintenance electricians has not been the product of a Board certifica- tion. Unlike Mobil, therefore, Respondent is not entitled to rely upon a prior Board proceeding to establish that it can- not be held the joint employer of the Kingsburg mainte- nance electricians. Respondent was aware that the employ- ees of EMS and, later, of Control had been represented by IBEW. Accordingly, it was or should have been aware of the potential for it to be bound to bargain with IBEW, concerning the maintenance electricians working in its fa- cility, if it retained sufficient control over their terms and conditions of employment. Notwithstanding that fact, Re- spondent entered into its contract, with Control, retaining sufficient incidents of employment, as found above, to con- stitute it a joint employer. Nor did it make explicit in that contract that Control was to be an independent contractor. Accordingly, Respondent is now in a difficult position to argue that it should not have been bound to the normal joint-employer bargaining obligation. Nor can it be said that IBEW somehow relieved Respon- dent of that obligation. To so find would require a subsid- iary finding that IBEW had waived the employees' statu- tory right to representation vis-a-vis Respondent. The waiver of such a significant statutory right should not be inferred lightly and Respondent points to no affirmative conduct, nor is there any, that would constitute such a waiver. True, IBEW did not at any time prior to October contact Respondent to bargain or to process a grievance directly with it. Yet, there is no evidence of any event or need for IBEW to have done so prior to October. "The fact that no . . . grievances were filed could well mean that the relationship . . . [was] harmonious, or that the employees had simply failed to avail themselves of [IBEW's] assis- tance." Pioneer Inn Associates, d/b/a Pioneer Inn and Pio- neer Inn Casino, 228 NLRB 1263, 1264 (1977). Indeed, once IBEW did learn that action was to be taken against Brown, Robinson. and Mull that would deprive them of further employment at Kingsburg, it immediately did make efforts to contact Respondent concerning the matter. Moreover, where joint bargaining entities, be they em- ployers or unions, exist, the Board has treated them as a single dejure entity, such that the conduct and knowledge of one is imputed to the other. See, e.g., Ref-Chem Compa- ny, supra; Pharmaseal Laboratories, 199 NLRB 324, 325 (1972). Consequently, it was not necessary for IBEW to contact both Respondent and Control on each occasion that it wished to bargain concerning the maintenance elec- tricians assigned to Kingsburg. In these circumstances, IBEW's failure to contact Respondent prior to October does not serve to constitute a waiver of the employees' right to representation vis-a-vis Respondent. Therefore, by terminating the work of the maintenance electricians represented by IBEW at its Kingsburg facility without prior notification to IBEW and without affording it an opportunity to bargain concerning the termination of this work and its effects upon Brown, Robinson, and Mull, Respondent violated Section 8(aX5) and (1) of the Act. Moreover, by then recognizing Machinists as the represen- tative of the employees newly hired to perform that work, by treating that work as an accretion to the bargaining unit historically represented by Machinists, and by applying Machinists collective-bargaining agreement, including its union-security clause to these employees, Respondent vio- lated Section 8 (aX2) and (1) of the Act. That its course of action may have been more economical to Respondent or allowed it greater flexibility in conducting its operations is no defense to its unlawful conduct. These objectives might have been accomplished had it observed its bargaining duty to IBEW and, in any event, they do not serve to ex- cuse Respondent from observing its statutory bargaining obligation. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the operations of 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, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Sun-Maid Growers of California is an employer with- in the meaning of Section 2(2) of the Act, engaged in com- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act, and at all times material herein has been a joint employer with Control Electric, Inc., of maintenance electricials dispatched by Control Electrics, Inc., to work at the Kingsburg, Califor- nia, facility of Sun-Maid Growers of California. 2. International Brotherhood of Electrical Workers, Lo- cal Union No. 100, and International Association of Ma- chinists and District Lodge No. 87 of the International As- sociation of Machinists are each labor organizations within the meaning of Section 2(5) of the Act. 3. A unit appropriate for collective bargaining is all em- ployees performing manual electrical work as described in the collective-bargaining agreement between International 354 SUN-MAID GROWERS OF CALIFORNIA Brotherhood of Electncal Workers, Local Union No. 100, and East Central California Chapter, National Electrical Contractors Association, Inc. 4. At all times material, International Brotherhood of Electrical Workers, Local Union No. 100, has been the exclusive collective-bargaining representative of the em- ployees in the above-described unit, and between August 1976 and October 27, 1977, was the exclusive collective- bargaining representative of those maintenance electricians in the above-described unit who had been dispatched by Control Electric, Inc., to work at the Kingsburg, Califor- nia, facility of Sun-Maid Growers of California, within the meaning of Section 9(a) of the Act. 5. By terminating the maintenance electricians in the above-described bargaining unit who had been dispatched by Control Electric, Inc., to the Kingsburg, California, fa- cility of Sun-Maid Growers of California, without afford- ing prior notification and sufficient opportunity to bargain about that decision and its effects upon Brown, Robinson, and Mull to International Brotherhood of Electrical Work- ers, Local Union No. 100, Sun-Maid Growers of California violated Section 8 (a)(5) and (I) of the Act. 6. By unilaterally terminating employees included in the bargaining unit described in Conclusion of Law 3, above, and by assigning the work which they had been performing to newly hired employees for whom it recognized another labor organization as their collective-bargaining represen- tative, by treating the work as an accretion to the preexist- ing bargaining unit for which that labor organization had been the historic representative, and by applying the ex- isting collective-bargaining agreement with that labor orga- nization, including the union-security clause, to the newly hired employees performing the work formerly performed by the terminated employees, Sun-Maid Growers of Cali- fornia violated Section 8(a)(2) and (1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Sun-Maid Growers of California has engaged in certain unfair labor practices, I shall recom- mend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the poli- cies of the Act. With respect to the latter, Sun-Maid Growers of Califor- nia shall be ordered to offer reinstatement to Jack Brown,17 James E. Mull, and Les A. Robinson, to their former positions of employment or, if those positions no longer exist, to 17 For purposes of analysis in sec. Ill. B. above, I have assumed that Brown had been a supervisor while working at Kingsburg. If he had, in fact, occupied that status, it is unlikely thai the Board could order his reinstate- ment with backpay. See J. D. Lunsford Plumbing, Heating and Air Condi- tioning, Inc., and Lunsford Brothers Mechanical. Inc.. 237 NLRB No. 17 (1978). However, while evidence was adduced regarding Brown's communi- cations with Respondent and with Robinson and Mull, no evidence was elicited concerning his communications with Control, particularly Bedgood. Yet, the record does disclose that on such matters as the caliber of work substantially equivalent positions of employment without prejudice to their seniority or other rights and privileges, dismissing, if necessary, anyone who may have been hired or assigned to perform the work that they had been perform- ing prior toOctober 27, 1977. Since this work is presently being performed by employees of Sun-Maid Growers of California at the same location as Brown, Robinson, and Mull had performed it, and inasmuch as the post-October 27, 1977, changes did not, so far as the record discloses, involve any change in capital structure nor reinvestment of funds, restora- tion of the status quo would not appear to involve any undue economic hardship. Cf. Great Chinese American Sewing Company; Esprit de Corp., 227 NLRB 1670 (1977). More- over, to assure that the status quo is restored to the fullest degree possible, Sun-Maid Growers of Califormia shall be ordered to effect these offers of reinstatement by first offer- ing to reestablish its verbal contract with Control Electric, Inc., so that the joint-employer relationship that existed prior to October 27, 1977, can be restored. However. if Control Electric, Inc., is unwilling to reestablish that con- tract, Sun-Maid Growers of California shall offer reinstate- ment as its own employees to Brown, Robinson, and Mull. In addition, Sun-Maid Growers of California will be re- quired to make Brown. Robinson, and Mull whole for any loss of earnings they may have suffered by reason of their unlawful terminations, and to make whole those employees who performed the maintenance electrical work after Octo- ber 27, 1977, for initiation fees and dues paid pursuant to the Machinists collective-bargaining agreement. Backpay is to be computed on a quarterly basis. making deductions for interim earnings, and with interest to be paid on the amounts owing and to be computed in the manner pre- scribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962). enforcement denied on different grounds 322 F.2d 913 (9th Cir. 1963). Sun-Maid Growers of California shall also be ordered to withdraw recognition of International Association of Ma- chinists and District Lodge No. 87 of the International As- sociation of Machinists as the representative of the mainte- nance electricians employed at the Kingsburg California, facility, and to recognize and bargain with International Brotherhood of Electrical Workers, Local Union No. 100, as their bargaining representative. Upon the foregoing findings of fact, and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: performance of temporary maintenance electrincians dispatched to Kings- burg and vacation requests by Robinson and Mull. Brown did speak with Bedgood before taking any final action. indeed, with respect to vacation requests. it appears that it had been Bedgood who had made the final deci- sion whether to grant these requests based upon whether Respondent had any objection to their being granted. In these circumstances, the record is insufficient to establish that Brown exercised independent judgment suffi- cient to satisfy the requirement of Sec. 2(1 1) of the Act. See. e.g., American Lumber Sales. Inc. 229 NLRB 414, 419 (1977); Westlake United Corpora- nlon. 236 NL RB 1114 (1978). 355 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER '1 The Respondent, Sun-Maid Growers of California, Kingsburg, California, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to recognize and bargain collectively with International Brotherhood of Electrical Workers. Local Union No. 100, as the exclusive bargaining representative of the maintenance electricians employed at Sun-Maid Growers of California's Kingsburg, California, facility, who are included in the appropriate bargaining unit of all employees performing manual electrical work as described in the collective-bargaining agreement between Interna- tional Brotherhood of Electrical Workers, Local Union No. 100, and East Central California Chapter, National Electrical Constructors Association, Inc. (b) Terminating maintenance electricians in the above- described unit without affording prior notification and suf- ficient opportunity to bargain about the decision and its effect upon unit employees to International Brotherhood of Electrical Workers, Local Union No. 100. (c) Continuing to recognize International Association of Machinists and District Lodge No. 87 of the International Association of Machinists as the representative of employ- ees performing maintenance electrical work included in the above-described bargaining unit and continuing to apply the terms and conditions of Sun-Maid Growers of California's collective-bargaining agreement with Interna- tional Association of Machinists to employees performing that work, unless and until International Association of Machinists and District Lodge No. 87 of the International Association of Machinists has been duly certified by the National Labor Relations Board as the exclusive bargain- ing representative of those employees. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Jack Brown, James E. Mull, and Les A. Robin- son immediate and full reinstatement to their former posi- tions of employment in the manner set forth in the section of this Decision entitled "The Remedy," dismissing, if nec- essary, anyone who may have been hired or assigned to perform the work that they had been performing prior to October 27, 1977, or, if their former positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suf- fered as a result of the unfair labor practices committed, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Make whole employees, in the manner described in the section of this Decision entitled "The Remedy." for initiation fees and dues paid as a result of the unlawful application of the collective-bargaining agreement with In- ternational Association of Machinists and District Lodge No. 87 of the International Association of Machinists to employees performing maintenance electrical work at Sun- Maid Growers of California's Kingsburg, California, facil- ity who are included in the above-described bargaining unit. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, Limecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (d) Upon request, recognize and bargain collectively with International Brotherhood of Electrical Workers, Lo- cal Union No. 100, as the collective-bargaining representa- tive of the employees in the above-described bargaining unit employed at the Kingsburg, California, facility of Sun- Maid Growers of California. (e) Post at its Kingsburg, California, facility copies of the attached notice marked "Appendix." 19 Copies of the notice, on forms provided by the Regional Director for Region 32, after being duly signed by Sun-Maid Growers of California's authorized representative, shall be posted by Sun-Maid Growers of California immediately upon re- ceipt thereof and be maintained by it for 60 consecutive dlays thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Sun-Maid Growers of Cali- fornia to ensure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 32, in writ- ing, within 20 days from the date of this Order, what steps Sun-Maid Growers of California has taken to comply here- with. In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions. and Order. and all objections thereto shall be deemed waived for all purposes L4 In the event that this Order is enforced by a judgmrent of a United States (Court of Appeals, the words i,. the notice reading, "Posted by Order of the National Iabhor Relations Board" shall read "Posted Pursuant to a Judgment of the U nited Slates ('ourt of Appeals E nforcing an Order of the National Iabor Relations Board" APPENDIX NoiICE ro EMPLOYEES POSTED BY ORDER OF THE NATIONA. LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities except to the extent that the employees' bargaining represen- tative and employer have a collective-bargaining 356 SUN-MAID GROWERS OF CALIFORNIA agreement which imposes a lawful requirement that employees become union members. WE WILL NOT refuse to recognize and bargain collec- tively with International Brotherhood of Electrical Workers, Local Union No. 100, as the exclusive bar- gaining representative of the maintenance electricians employed at our Kingsburg, California, facility who are included in the appropriate bargaining unit of all employees performing manual electrical work as de- scribed in the collective-bargaining agreement be- tween International Brotherhood of Electrical Work- ers, Local Union No. 100, and East Central California Chapter, National Electrical Contractors Association, Inc. WE WILL NOT terminate maintenance electricians in the above-described bargaining unit without affording prior notification and a sufficient opportunity to bar- gain about the decision and its effects upon unit em- ployees to International Brotherhood of Electrical Workers, Local Union No. 100. WE WILL NOT continue to recognize International As- sociation of Machinists and District Lodge No. 87 of the International Association of Machinists as the rep- resentative of employees in the above-described bar- gaining unit performing maintenance work at our Kingsburg, California, facility, and WE WILL NOT con- tinue to apply the terms and conditions of our collec- tive-bargaining agreement with International Associa- tion of Machinists and District Lodge No. 87 of the International Association of Machinists to those em- ployees unless and until International Association of Machinists and District Lodge No. 87 of the Interna- tional Association of Machinists has been duly certi- fied by the National Labor Relations Board as the exclusive bargaining representative of those employ- ees. WE WILL NOT in any other manner interfere with, restrain, or coerce you in any of your rights set forth above which are guaranteed by the National Labor Relations Act. WE WILL offer Jack Brown, James E. Mull, and Les A. Robinson immediate and full reinstatement to the positions of employment which they occupied on Oc- tober 27, 1977, either jointly with Control Electric, Inc., it being willing, or, if not, as our own employees, dismissing, if necessary, anyone who may have been hired or assigned to perform the work which they had been performing prior to October 27, 1977, or, if their former positions no longer exist, to substantially equivalent positions, without prejudice to their senior- ity or other rights and privileges, and WE WILL make them whole for any loss of pay they may have suffered as a result of our unlawful conduct. WE WILL make whole employees for initiation fees and dues paid as a result of the unlawful application of our collective-bargaining agreement with Interna- tional Association of Machinists and District Lodge No. 87 of the International Association of Machinists to employees performing maintenance electrical work at our Kingsburg, California facility, where those em- ployees should have been included in the above-de- scribed bargaining unit represented by International Brotherhood of Electrical Workers, Local Union No. 100. WE WILL. upon request, recognize and bargain col- lectively with International Brotherhood of Electrical Woriers. Local Union No. 100, as the collective-bar- gaining representative of employees in the above-de- scribed bargaining unit who are employed at our Kingsburg, California, facility. SUN-MAID GROWERS OF CALIFORNIA 357