District 50, United Mine Workers of America, Etc.

930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these objections. He also found objection 3 to be without merit as it lacked the specificity required by Section 102.69 (a) of the Board's Rules and Regulations, and accordingly directed that no testimony be taken thereupon. A hearing was held on January 8, 9, and 10, 1963, before hearing officer Joseph Kulkis, in Detroit, Michigan. All parties appeared and participated at the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded to all parties. On February 18, 1963, the hearing officer issued a report on objec- tions to elections in which he found merit in Petitioner's objections 1, 2A, 2B (in part), and 2C and recommended that the election held in this case be set aside. He further recommended that Petitioner's objections 2B (in part) and 2D be overruled. The Employer filed timely exceptions, and a supporting brief, to said report. On March 21, 1963, the Regional Director transferred this case to the Board for ruling on the exceptions of the Employer to the hearing officer's report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. The Board, has considered the hearing officer's report, the Employer's exceptions and supporting brief,2 and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the hearing officer, with the modification noted below.3 [The Board set aside the election conducted on October 19, 1962.] [Text of Direction of Second Election omitted from publication.] 2 We find the Employer's exceptions to the hearing officer 's report on objections without merit. To the extent the exceptions relate to the credibility findings of the hearing officer, it is Board policy not to overrule a hearing officer's findings of credibility , unless the preponderance of all the relevant evidence convinces us that be is incorrect . Upon the entire record , such conclusion is not warranted here. Manchester Modes, Inc, et al., 111 NLRB 755 , 760 Of. Standard Dry Wall Products, 91 NLRB 544 , enfd 188 F 2d 362 (C.A. 3). 3In adopting the hearing officer's report on objections we do not rely upon objection 1 insofar as it relates to the speech made by superintendent of Agencies Pate on October 17, 1962. District 50, United Mine Workers of America and Local 15173, District 50, United Mine Workers of America and Central Soya Company, Inc. Case No. 25-CB-492. June 5, 1963 DECISION AND ORDER On October 12, 1962, Trial Examiner George L. Powell issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair 142 NLRB No. 105. DISTRICT 50, UNITED MINE WORKERS OF AMERICA, ETC. 931 labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondents and the General Coun- sel filed exceptions to the Intermediate Report and briefs in support thereof. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the following modification : Delete from paragraphs 2 (b) and 2 (c) the words "Kenneth Hirschy, president of Respondent Local 15173, and Ralph Courtley, assistant regional director of Respondent District 50," and substitute therefor the words "Respondents' representatives." The names and titles of these individuals shall also be deleted from the signature portions of the Appendix and the words "(Representative)" and "(Title)" shall be substituted therefor. 'We note and correct the following inadvertent errors made by the Trial Examiner which do not affect his findings and conclusions or our concurrence therein: In that por- tion of the Intermediate Report concerned with the contentions of the parties on request for review, the Brewery Workers Union is inadvertently referred to as "Petitioner" in- stead of "Intervenor" Also in the Conclusions of Law, paragraph 4, I'S (b) (3)" should be substituted for "8(a) (3)." INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding began with the filing of a charge on May 7, 1962,1 by Central Soya Company, Inc., the Employer herein, and, with all parties represented, was heard before Trial Examiner George L. Powell, in Decatur, Indiana, on August 1 and 2, 1962, on complaint 2 of the General Counsel and answer of District 50, United Mine Workers of America and Local 15173, District 50, United Mine Workers of America, herein called Respondents or Respondent District 50 or Respondent Local 15173. The issue in the case is whether Respondents insisted and demanded that certain agricultural employees who were expressly excluded from the certified appropriate bargaining unit be included in the unit in bargaining negotiations between the Em- ployer and the Respondents. All parties participated in the hearing and were permitted to develop testimony concerning the issues .3 The defense, in essence, is that the bargaining was a series of misunderstandings; that the bargaining was in good faith on the part of the 3 All dates occur in the year 1962 , unless otherwise specified. z The General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-fifth Region, issued his complaint and notice of hearing on June 28, 1962, based upon the above charges, alleging that the Respondents violated Section 8 (b)(3) and Section 2 ( 6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. Briefs were filed by Respondents and the General Counsel on September 10, 1962. 712-548-64-vol. 142-60 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent District 50 and on the part of Respondent Local 15173 after its creation; that all demands of Respondents were made with the understanding that they were fully negotiable and could be passed over; that there was no impasse nor was any demand made as a condition precedent to entering into a contract; and finally the contention was made in defense that the unit certified was inappropriate in that it excluded certain employees as agricultural laborers and that the Board's determina- tion of this unit was arbitrary and capricious. Upon the entire record in the case and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Employer is an Indiana corporation maintaining its principal office and place of business in Fort Wayne, Indiana, and a factory and processing plant in Decatur, Indiana, herein called the Decatur plant, and various other plants and facilities in Indiana and other States of the United States at which it is now and has been at all times material herein, engaged in the manufacture, processing, sale, and distribution of soybeans and food, and related products. During the year ending June 1, 1962, the Employer, in the course and conduct of its business operations, manufactured, sold, and distributed at the Decatur plant products valued in excess of $100,000, of which products valued in excess of $50,000 were shipped from said Decatur plant directly to States of the United States other than the State of Indiana, and in foreign commerce to foreign countries. Also during the year ending June 1, 1962, the Em- ployer in the course and conduct of its business operations manufactured, sold, and distributed at its other plants products valued in excess of $100,000, of which products valued in excess of $50,000 were shipped from these plants directly to States of the United States other than the State in which the plants were located. I find the Employer is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Respondent District 5 has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act and Respondent Local 15173, has been since March 1, 1962, a labor organization within the meaning of Section 2(5) of the Act? III. THE UNFAIR LABOR PRACTICES Background The Regional Director for the Twenty-fifth Region on October 12, 1961, issued a Decision and Direction of Election in Case No. 25-RC-2069, based upon a petition for an election filed by Respondent District 50 involving the employees at the Em- ployer's Decatur plant. The unit found appropriate for the purposes of collective bargaining within Section 9(b) of the Act, and later certified, was: All production and maintenance employees, including the scheduling clerk in the feed mill employed in the Employer's plants at Decatur, Indiana, and the lecithin, elevator, maintenance, solvent, feed mill, yard, steam power, trucking departments, and laboratories (including the analytical, feed research and technical sections thereof), exclusive of office clerical employees, plant clerical employees, sales per- sonnel, guards, professional employees, agricultural laborers, temporary employees, supervisory foremen, assistant superintendents, and all other supervisors as defined in the Act. The decision of the Regional Director went on to state that: Except for the exclusion of agricultural employees (infra) the appropriate unit is based on the agreement of the parties. Although the Employer over Petitioner's and Intervenor's 5 objections would exclude certain employees in the laboratories, it concedes the propriety of including others. Accordingly the department itself must be included in the unit. The Employer's assertion with respect to exclusions however, will be considered infra. 4 By stipulation of the parties. 5 The International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, Local 261, AFL-CIO, herein called the Brewery Workers, was per- mitted to intervene at the hearing on the basis of an existing contract with the Employer. DISTRICT 50, UNITED MINE WORKERS OF AMERICA, ETC. 933 Petitioner and Intervenor would include in and the Employer would exclude from the unit certain alleged . .. employees employed on the Employer's experimental farms and in its experimental feed mill who the Employer asserts are agricultural laborers All such employees are included within the scope of the Employer's current contract with the Intervenor. Because of its importance in this case the complete determination of the Regional Director with respect to the alleged agricultural laborers is set forth as follows: Alleged Agricultural Laborers (a) The experimental farm The Employer is engaged inter alia in the storing, processing and merchandis- ing of soy beans and grain and the production of animal. and poultry feeds. In connection with the feed research section of the laboratory department it oper- ates two experimental farms. Employees of the farms perform the customary work performed by laborers on a livestock farm including vaccinating, watering, feeding, and bedding down and generally caring for and maintaining livestock and poultry. Under Section 3(f) of the Fair Labor Standard's Act, which is determinative of their status,6 the employees of the experimental farms are agricultural laborers Dr. Salsbury's Laboratories, Inc., 122 NLRB 559, 562; U.S. Dept. of Labor, Wage and Hour and Public Contracts Division, Interpre- tive Bulletin, Title 29, Part 780, Subpart A-Agricultute §§ 780.8, 780.12(a) (1). They are accordingly excluded from the unit.? (b) The experimental feed mill Several other employees are employed in the Employer 's experimental feed mill located not on the experimental farm but in the Employer's plant. There, upon the direction of and in accordance with special test formulae furnished by the Director of Feed Research they prepare small batches of feed to be used by the experimental farms so that the Employer may test the utility of products new]) available on the market for use in its product . Section 3(f) of the Fair Labor Standards Act provides: Agriculture includes farming in all its branches and among other things includes . the raising of livestock . . . or poultry, and any practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operations (emphasis supplied). The experimental feed mill employees ( 1) not falling within the primary italicized definition and (2 ) not working on the Employer 's farms, fall within Section 3 (f) only if the Employer be deemed a "farmer " and the experimental feed mill is operated "as an incident to or in connection with [its] farming opera- tions " Were the purpose of the experimental mill the preparation of feed for the Employer's livestock, its employees would in fact be agricultural laborers. G. K. Livestock Co., 104 NLRB 924; J. G. Boswell Co., 107 NLRB 360. How- ever the record shows that the purpose of the experimental feed mill is not so much to feed the livestock and poultry on the experimental farm (which could be done equally well with the Employer's normal products ) but to test available products so that the Employer may improve its commercial product. The work of the employees of the experimental feed mill is therefore performed "as an incident to or in connection with " the Employer's production of animal and poultry feeds rather than its farming operations .8 The employees of the experi- mental feed mill accordingly are not agricultural employees and are included in the unit. Dr. Salsbury's Laboratories, 122 NLRB 559. 0 Swift & Co , 104 NLRB 922, 923. 7 Since agricultural laborers are expressly excluded from coverage by Sec 2(3) of the Act, they cannot be included in the unit , collective bargaining history to the con- trary notwithstanding. Cf. Leedom v. Kyne, 358 U S 184 s Although the entire farming operation is incidental to the manufacturing opera- tions , the underscored portion of Section 3 ( f) includes all primary agricultural en- deavor such as that performed by the employees on the experimental farms irrespective of whether it is incidental to manufacturing operations Dr. Salsbury's Laboratories, Inc, 122 NLRB 559 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer and the Intervenor are the only parties who filed a request for a review of the matter with the Board; Respondent District 50 did not. The Employer, while agreeing with the Regional Director that the employees of the farms are agri- cultural laborers and hence were properly excluded from the unit, contended that employees working in the experimental feed mill should likewise have been excluded from the unit as agricultural laborers. On the other hand, the Intervenor argued that "the exclusion of the so-called agricultural laborers from the unit" by the Regional Director was "clearly erroneous" and "prejudicial to the rights of the Intervenor." The Intervenor summarized the evidence in the case and argued that the portion of the Regional Director's Decision and Direction of Election which found that the employees on the experimental farms were agricultural laborers should be set aside and the feed research employees on the "old" and "new" farms should be included in the bargaining unit In the alternative the Petitioner argued "that the case should be remanded to the Regional Director for further investigation of the nature of the duties of the feed research employees and of the length of time the livestock is kept on the Employer's premises." The requests for review were denied by the Board on November 3, 1961. Thereafter, on January 18, 1962, a majority of the employees of the Employer in the unit described above, by a secret ballot election, designated and selected Re- spondent District 50 as their representative for the purposes of collective bargaining with the Employer, and on or about February 14 the Regional Director certified Respondent District 50 as the exclusive collective-bargaining representative of the employees in said unit. By stipulation, the parties agreed at all times since February 14, 1962, and continuing to date, Respondent District 50 has been the representative for the purpose of collective bargaining of the employees in the unit described above and, by virtue of Section 9(a) of the Act, has been and is now the exclusive representative of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. The parties further stipulated that the term "Respondents" would include and mean "District 50, United Mine Workers of America," and "Local Union No. 15173, District 50, United Mine Workers of America." 6 The Bargaining Meetings Warren Druetzler, personnel manager of the Decatur plant and member of the plant negotiating committee, credibly testified that the Employer and Respondents had five meetings. These took place on February 22, April 18, April 26, May 1, and May 16 Kenneth Hirschy, president of Respondent Local 15173, was present at each of these meetings although it is noted that Respondent Local 15173 did not come into existence until March 1. The Meeting on February 22 Some 11 persons represented the Company at this meeting with Bob Chappuis, labor relations director, being the spokesman, and some 11 persons represented the Union with Ralph Courtley, assistant regional director of Respondent District 50, acting as spokesman for the Respondents. Respondents sought to process out- standing grievances but this was objected to by the Company on the grounds that the meeting was to negotiate a new contract. Courtley stated a desire to continue the existing contract between the Employer and the Brewery Workers, the Intervenor in the representation case noted above.'1 This proposal by Courtley was rejected by the Company. The matter of agricultural laborers being included in the unit was not mentioned at this meeting although the Brewery Workers' contract unit did include them, as stated earlier. Courtley asked the Employer to O The Employer filed a motion to clarify or amend certification of representatives on February 15, 1962 This motion dealt solely and specifically with certain dock foremen not involved in this case. The Board ruled on the motion on June 4, 1962 , including the dock working foremen in the unit contrary to the position taken by the Employer (This is put in this decision to show two things: ( 1) The Employer's position respecting agri- cultural laborers had been abandoned , and (2 ) the Employer took all possible appeals to further its position whereas there is no evidence that Respondent District 50 ever per- fected an appeal from the adverse ruling of the Board.) 7 This contract had not yet expired according to its terms. However, as it exceeded 2 years in duration , the Board held in the representation case that it would not be a bar to the representation election which Respondent District 50 won , thereby putting an end to the contract. The Employer had submitted briefs to the Board urging that the contract constituted a bar to the election proceedings . Courtley contended that due to these briefs- the Company also desired a contract identical with that of the Brewery Workers. DISTRICT 50, UNITED MINE WORKERS OF AMERICA, ETC. 935 recognize authorization cards for the deduction of union dues starting the first of March to be paid to Respondent District 50. Chappuis replied that the negotiation of specific items would be taken up as they come up in the process of negotiating the contract. The authorization cards were not recognized. Some additional discus- sions took place but they have no bearing on the issues presented in this matter. The meeting then broke up. The Negotiating Meeting of April 18 Some 23 persons attended this meeting, there being 13 on the side of the Employer and 10 on the side of the Respondents. Courtley argued that the Employer, in effect, wished to continue the existing Brewery Workers' contract in its brief filed with the Board. The Employer denied this stating that its brief was directed to a review of the decision of the Board. At this meeting the Respondents tendered a written proposal of a contract. As it is contended by the General Counsel that the unit involved in this proposed contract is substantially the same as the unit in the old Brewery Workers' contract, the units of each are set out below in full. Both the proposed agreement and the Brewery Workers' contract first stated that the term "employees" shall mean and include all employees engaged in production (and "maintenance" in the proposal) in the Company's plant at Decatur, Indiana. The units included: In Respondents' proposed contract In the Brewery Workers' contract 1. Elevator department 1. Lecithin department 2. Lecithin department 2. Elevator department 3. Maintenance department 3. Maintenance department 4. Solvent department 4. Solvent department 5. Feed mill department 5. Feed mill department 6. Steam power department 6. Yard department 7. Trucking department 7. Steam-power department 8. Feed research department 8. Trucking department 9. Laboratories 9. Laboratories a. analytical lab. a. analytical division b. feed research c technical department d. chemical engineering The following employees under both the proposal and the Brewery Workers' contract were not to be included in the bargaining unit. Respondents' proposed contract The Brewery Workers' contract 1. Employees engaged in sales 1. Employees engaged in sales 2. Employees engaged in office work 2. Employees engaged in office work 3. Supervisory foreman 3. Supervisory foreman 4. Assistant superintendents 4. Assistant superintendents 5. Superintendents 5. Superintendents 6. Plant guards 6. Plant guards Chappuis, for the Employer, stated that the Employer did not intend to bargain with the Union for the feed research employees as they were people they were not entitled to bargain for under the Board unit determination. Courtley replied that his union was entitled to bargain for these people. There followed a discussion in- volving the legality of the inclusion and exclusion of the agricultural laborers. Chap- puis mentioned that the Board made the decision concerning the exclusion of the agricultural laborers and that the Respondents' quarrel, if any, was with the Board and not with the Employer. Courtley's stated position was that the Respondents had the right to bargain for these employees. The witness testified that Chappuis "said he would not bargain for the people that the Union was not entitled to represent, on the basis of the National Labor Rela- tions Board decision which was made prior to the election, which made the determi- nation of the appropriate unit." Reference was made to these people as "feeder research department," the witness testifying that Courtley's position was that "they had the right to bargain for these employees." It is noted by the above that the exclusions of both the proposal and the old Brewery Workers' contract are identical, yet the intervening Board-certified unit excluded agricultural laborers. Also the inclusions blurred any distinction between the excluded employees in the laboratories and those included in the Board unit. I find this proposed contract unit to be substantially the same as the unit in the Brewery Workers' contract in that both included employees found by the Board to be agricultural laborers. Agricultural laborers must, under applicable law, be excluded. There is no dispute as to the law on this point. 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Because some employees in the laboratories were included while others were not, it can be seen that confusion as to identity might be possible . But it is only technical. From my observation of the witnesses and the fact that they have been associated with bargaining before, I find a claim by either that they were confused as to the identity of the unit to be specious. The Respondents' attempt to force the Employer into including the excluded agricultural laborers by pointing out that this was the position of the Employer in its briefs before the Board is a good attempt in bargain- ing to gain a point. However, it was rejected by the Employer who correctly pointed out that what was involved in the briefs was not involved after the unit had been determined. Other provisions of the contract were read and discussed at this meeting. At the conclusion of the submitted proposals the Employer asked for the rest of the pro- posals which the Respondents indicated would be given it in the future . The Em- ployer said in effect that it would not "buy the contract until they knew what the whole package was." The Respondents made no statement that their position was that the Employer would either have to bargain for agricultural laborers or there would be no further bargaining . However, I find from the bargaining that the Respondents had not retreated from that position and that the Employer had resisted the demand. This created an impasse on the point The Meeting of April 26 Some 24 persons attended this meeting, 13 representing the Employer and 11 representing the Respondents. Again Courtley was the spokesman for the Union and Chappuis was the spokesman for the Company . The sole topic at this meeting had to do with the inclusion of the agricultural laborers. Chappuis stated that the Company did not intend to bargain with the Union concerning the inclusion of the agricultural laborers within the unit and Courtley stated that the Respondents had the right to represent these people The parties read the unit determination made in the Decision and Direction of Election in the representation case referred to above. The Meeting of May 1 Some 21 persons attended this meeting, 11 on the side of the Employer and 10 on the side of the Respondents . The same men acted as spokesmen for their sides. At this meeting Company Representative Bill Small proposed that the recognition clause in the contract specifically exclude agricultural laborers and to strike out the term "feed research" and insert the phrase "experimental feed mill." Courtley for the Respondents rejected this proposal. Chappuis stated that "it is possible that we will have to seek the aid of a third party in order to determine this " Druetzler credibly testified that Chappuis referred to the National Labor Relations Board and that he apparently would have to file an unfair labor practice charge against the Respondents because they were desiring to bargain for people whom they were not legally entitled to bargain for. Courtley suggested that he was concerned about the moral rights of the agricultural laborers and that they should have an opportunity to bump back into the bargaining unit . Chappuis rejected this proposal on the ground that a person should not be bumped by one exempt from the bargaining unit. The meeting adjourned with the parties understanding that they would reconsider their position on the inclusion of the agricultural laborers and Courtley would notify the Employer when he was available for a further meeting. This seems to indicate a relaxation of the impasse. The Meeting of May 16 Some 20 persons attended this meeting , 11 representing the Employer and 9 the Respondents ; again the spokesmen were Chappuis and Courtley . At this meeting Chappuis specifically asked the question, "Would the Union be willing to exclude the agricultural laborers from these negotiations?" to which Courtley replied, "No, not now." Chappuis stated, "Well , would you be willing to exclude the agricultural laborers in the future ?" to which Courtley replied , "I don't know. I may . " or words to that effect . Again there was the usual discussion about the continuance of the old Brewery Workers' contract , which included the agricultural laborers, and once again the Respondents replied that they were not willing to exclude agricultural laborers in the feed research department . Courtley asked if the Employer would give the feed research employees on the "old" and "new" farm, the agricultural laborers, an opportunity to bump back into the appropriate bargaining unit. Chap- puis told the Respondents it was a waste of time to dwell on this issue and that the matter would have to be determined by the Board . However, Druetzler credibly testified that at no time did Courtley or any member representing District 50 specifically insist upon including the feed research department in any contract as a DISTRICT 50, UNITED MINE WORKERS OF AMERICA, ETC. 937 condition precedent to bargaining or to executing a contract if they could arrive at one. Article VIII, paragraph 126 of the Union's proposed contract contains the follow- ing provision - "The Union [ defined as District 50, United Mine Workers of America, on behalf of Local Union No. 15173] proposes that any or all employees who were recognized as part of an established bargaining unit , until excluded by the N.L.R.B. be given the right to exercise their established seniority rights, to be placed in de- partments that are certified as part of the appropriate bargaining unit." Additional Evidence Courtley credibly testified that the only unit proposed in the contract at the Feb- ruary 22 meeting was the unit involved in the Brewery Workers contract. He admitted the Board changed the unit in the Brewery Workers contract in the Board's direction of election and that they had deleted the agricultural laborers. Courtley's testimony on this aspect of the case is as follows: ". . I had in mind that these employees that were excluded by the Board under this particular clause would be given an opportunity to clarify their position, or if need be, as seems to be intended there, that they would be given an opportunity to exercise certain seniority rights, if they so desired . It was something that we hoped we would be able to work out during the negotiations of a new contract." He testified that it was his intention to protect the rights of the agricultural laborers with all legal means that he had during the negotiation meeting of February 22. He admitted that he wanted to bargain with the Employer about the employees who had been covered by the Brewery Workers contract but were not covered in the new unit. Courtley referred to a publication put out by the Employer to its employees, on May 17, to the effect that the Employer was using the term "feed research" and that this term was still con- fusing. His position was that the Employer itself kept referring to the feed research employees rather than agricultural employees and inasmuch as the term "feed re- search" is included in the umt that there was a question in the minds of the Union as to what was to be bargained over. However, the exhibit Respondents referred to and put into the record states as follows: Contract negotiations adjourned yesterday without any agreement concern- ing the status of Feed Research employees . Union representatives continue to insist that the Company turn their head and not observe a ruling made by the NLRB. The ruling clearing states that the Feed Research employees are ex- cluded from the Union. No agreement was made concerning when the next meeting would be held. The union representatives agreed to contact the Company when they were pre- pared to resume negotiations. It is clear from the above reference to the ruling made by the National Labor Rela- tions Board that although the term "feed research" was used there was no doubt that the employees referred to were the so-called agricultural laborers. Courtley admitted on recross-examination that District 50 had never abandoned its request that the agri- cultural laborers be included in the unit. He then testified that he was now willing to bargain excluding the agricultural laborers. He also admitted that ". . . we couldn't get the Company to move off this one item unless we withdrew our proposals to represent the feed research department." The following questions and answers took place at the close of Courtley 's testi- mony : TRIAL EXAMINER: Mr. Courtley, in reading from the decision and direction of election, in Case No. 25-RC-2069, dated October 12, 1961, I want you to tell me if this is a correct statement: "Petitioner and intervenor-" Now the petitioner in this case is District 50, and the intervenor was the Brewers, is that right? The WITNESS. Yes. "The petitioner and intervenor would include in, and the employer would exclude from the unit, certain alleged working supervisors and technical em- ployees, and employees employed on the employer's experimental farm, and in its experimental feed mill, who the employer asserts are agricultural laborers. All of such employees are included within the scope of the employer's current contract with the intervenor." Is that a correct statement? The WITNESS: Yes, Sir. TRIAL EXAMINER: Then the decision goes on, talking about the experimental farm. It says, "In connection with the feed research section of the laboratory department, it operates two experimental farms. Employees of the farms per- 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form the customary work performed by laborers on a livestock farm, including vaccinating, watering, feeding, and bedding down and general caring for and maintaining livestock and poultry." And then without showing the citations , it concludes with the statement, "The employees of the experimental farm are agricultural laborers. They are accord- ingly excluded from the unit." Then it talks about the experimental feed mill. "Several other employees are employed in the employer's experimental feed mill located not on the experi- mental farm but in the employer's plant." After discussing that, he concludes, "However, the record shows that the purpose of the experimental feed mill is not so much to feed the livestock and poultry on the experimental farm, but to test available products so that the employer may improve its commercial prod- ucts. The work of the employees of the experimental feed mill is therefore per- formed `as an incident to, or in connection with ' the employer's production of animal and poultry feeds , rather than its farming operations . The employees of the experimental feed mill accordingly are not agricultural employees and are included in the unit." From this definition you are still not sure of the employees involved, which employees are those that are excluded and which are those that are included in the unit? The WITNESS : No, sir, I am not sure. TRIAL EXAMINER . But a while ago you wanted to include those that are-I mean a while ago you testified that you wished to include those in the unit that worked on the experimental farms, and they were the ones that were included in the current contract with the Brewers? The WITNESS : Yes, sir. TRIAL EXAMINER : And yet the director here excludes them. Do you under- stand that? The WITNESS : Yes, sir. TRIAL EXAMINER : And that is your present position on bargaining? You wish to bargain over these at the present time? The WITNESS : Yes, sir, because, sir , as we stated, we are not certain of the status of these employees , because they have transferred across depart- mental lines, and we are particularly concerned about their seniority, their vacation pay, their hours of work , and whether they are going to be unilaterally brought over by the company into duties that are performed by employees that are in the certified departments of the plant. And as it was stated in the record, I believe in the Board's Exhibit No. 10 the question that we had a moral right to represent these people was erroneous . My statement to the company on that particular occasion was that we felt that the company had a moral obligation to consider these employees rights at their option , to come back and exercise their seniority in these departments, and the answer was-that was because of long years of service with the company-and the answer was that, "We have no moral obligation to these employees . We are in the feed business." I am certainly glad that you mentioned that because I wanted to correct that. I did not say that we had a moral right to represent those employees I said the employer had a moral obligation to them as long-time employees. TRIAL EXAMINER : Thank you. William H . Small, salary and wage administrator of the Employer , credibly testified as the rebuttal witness for the General Counsel as follows: There was no dispute as to the men working in the feed research depart- ment who had been determined to be agricultural laborers by the Regional Director. The fact of the matter is that the two that worked in the ex- perimental mill that were assigned to the feed research department were pointed out by name and Mr. Winters indicated that they were not excluded from the unit and that they could vote. He credibly testified that Courtley was present when the two men were named. Accordingly, I find that Courtley knew precisely who the excluded agricultural laborers were and who the included experimental feed mill employees were. The Regional Director's Unit Determination One of the contentions of the Respondents in the matter is that the Regional Di- rector's action was arbitrary and capricious in defining certain employees as agri- cultural laborers . During the trial of the case when the Trial Examiner refused to permit testimony as to the duties of these employees on the grounds that the unit determination made by the Board was binding upon him, counsel for the Respondents DISTRICT 50, UNITED MINE WORKERS OF AMERICA, ETC. 939 made an offer of proof with respect to the duties of certain employees in the feed research department. The General Counsel moved to reject the offer of proof on the ground that: (1) the matter had been resolved in the representation case; (2) District 50 was represented at that hearing as was the Brewery Workers and they both had opportunity to put witnesses on the stand and to cross-examine the Em- ployer's witness on any function of any employee on the farm; and (3) this is an attempt by Respondents to relitigate this issue and accordingly it is untimely. The Trial Examiner reserved ruling on the motion. However, after due consideration of the briefs and the records involved I hereby grant the motion of the General Counsel and reject the offer of proof basing my decision upon the well established principle of the Board that this matter is one that should have been raised by the parties at the representation level and not in an unfair labor practice proceeding. No con- tention has been made that there is newly discovered evidence. Analysis and Conclusions The evidence clearly establishes that the Respondents sought to include certain agricultural laborers expressly excluded from the appropriate unit in the Decision and Direction of Election in Case No. 25-RC-2069 in bargaining negotiations be- tween the Employer and the Respondents. This began with the first negotiation meeting held between the Respondents and the Employer on February 22, 1962, and continued through the last negotiation meeting between the parties on May 16, 1962. Indeed, even continuing to the time of the hearing, the Respondents asked the Employer to bargain concerning the agricultural laborers as part of the certified unit. Respondents attempted to show that there was "confusion" with respect to just who was involved in the unit, but I have heretofore found no confusion in fact. It is also clear from the testimony that Respondents at no time have specifically insisted that these excluded employees be included in the unit before a contract would be executed or finally negotiated. However, such an explicit impasse is not necessary to stop good-faith bargaining. It is clear that the Employer continually resisted the attempt to include the specifically excluded employees before going to further subjects, but this had no effect as in each meeting the same point was raised by the Respondents. Obviously if one party is permitted to continually bring up an issue that the other part has specifically stated should be left alone, good-faith bargaining never gets started and an impasse has taken place in bargaining. The phrase "insist and demand" means no more than this. The law is clear that proposals relating to employees outside the appropriate unit are proposals not within the mandatory subjects of bargaining. A. D. Cheatham Painting Company, 126 NLRB 997, 1002. It is unlawful to insist upon matters outside the scope of mandatory bargaining and employees not in the bargaining unit are outside the scope of mandatory bargaining. N.L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342. Anheuser-Busch, Inc., 102 NLRB 800, 812-813. Likewise, the law is clear that an employer has the right to confine the negotiations to the appropriate unit and that a union violates Section 8(b)(3) of the Act, as a matter of law, when it presses demands for a unit broader than that certified by the Board. International Longshoremen's Association (New York Shipping Association), 118 NLRB 1481, 1483; Retail Clerks International Associa- tion (Safeway Stores, Incorporated), 100 NLRB 390. The Board has ordered unions to cease and desist from demanding that a collective-bargaining agreement with an employer cover employees in a unit other than the unit previously found appropriate in a representation proceeding. International Longshoremen's Asso- ciation (New York Shipping Association), 118 NLRB 1481, 277 F. 2d 681 (C.A.D.C.) (enforcement denied on other grounds). The Board has said in Texlite, Inc., 119 NLRB 1792, 1796: A union which is the statutory representative of employees in an appropriate unit has the obligation, as does the employer, to bargain in good faith . . . for employees in that unit. . Hence a union which insists upon bargaining only for an inappropriate unit does not fulfill its obligation to bargain as defined in the Act One party to collective-bargaining negotiations may not with impunity deny the Board's authority to determine the appropriate bargaining unit and unilaterally de- mand, over the objection of the other party, a change in the unit. That such a demand interferes with required bargaining over rates of pay, wages, and hours and conditions of employment and that such a demand is tantamount to a refusal to bargain in good faith is indisputable. Douds v. International Longshoremen's Association, 241 F. 2d 278, 283 (C.A. 2); Texlite, Inc., 119 NLRB 1792, 1796; International Typographical Union (Haverhill Gazette Company), 123 NLRB 806, 823. 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Attempted Relitigation of Previous Representation Case The Board has continually expressed the policy that in an unfair labor practice proceeding involving charges of refusal to bargain with certified representatives, the issues decided in a prior representation proceeding may not be relitigated and are, with certain specific exceptions, res judicata. United Insurance Company, 122 NLRB 911; National Van Lines, 123 NLRB 1272, 1273; The Borden Company, 127 NLRB 304, 306, 307, footnote 6; Boetticher & Kellogg Co., Inc., 137 NLRB 1392. Respondents charge the Regional Director with arbitrary and capricious action be- cause he excluded certain employees as being agricultural laborers. The Respondents take issue with the decision of the Regional Director. The duty is on Respondents, in matters of this sort, to carry the burden of proof in its affirmative defense that the Regional Director was arbitrary and capricious. As there is no evidence of fraud or misconduct presented, the only possible hook on which Respondents can hang their serious charges would be one made by proving that the Regional Director made such a gross mistake as to imply bad faith.8 Did Respondents prove a gross mistake? I think not. The Respondents attempted to put on evidence of the work performed by certain employees. This evidence was properly matter that should have been introduced at the representation proceeding and there is nothing in the record to indicate that it is newly discovered evidence. Accordingly the evidence is untimely and should not be considered. Eklund Brothers Transport, Inc., 136 NLRB 471. Responsibility of Respondents Courtley credibly testified that Respondent Local 15173 was set up by Respondent District 50 to take into membership employees of Employer and to help Respondent District 50 negotiate a collective-bargaining agreement with Employer and to administer the contract after it was negotiated Both Respondent Local 15173 and Respondent District 50 would sign any collective-bargaining agreement entered into with the Employer and then only after ratification by the membership of Respondent Local 15173 and approval of Respondent District 50. Hirschy, later elected presi- dent of Respondent Local 15173, was an elected member of the local negotiating committee and attended the February 22 meeting before the Respondent Local 15173 came into being on March 1. As Respondent Local 15173 is the successor to the local negotiating committee, it receives all benefits from its predecessor as well as all responsibilities. Accordingly, I find that both Respondents, beginning with the February 22 meeting, refused to bargain in good faith within the meaning of Section 8(b)(3) of the Act. However, as the remedy is the same regardless of when the violation took place, I find both Respondents likewise refused to bargain in good faith within the meaning of Section 8(b)(3) of the Act in the subsequent meetings after March 1, 1962. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, set forth in section III, above, occurring in connection with the operations of the Employer described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It having been found that the Respondents engaged in unfair labor practices by refusing on and after February 22, 1962, and in any event, on and after April 18, 1962, to bargain with the Employer, in an appropriate unit, it will be recommended that Respondents bargain with the Employer on all proposals which raise bargainable issues, and if an understanding is reached, embody such understanding in a signed agreement, and, in bargaining, to cease seeking to represent agricultural laborers. 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 The Respondents are labor organizations within the meaning of Section 2(5) of the Act. 8An honest error of judgment does not constitute arbitrary and capricious action by the Regional Director N L.R B. v. Volney Felt Mills, Inc, 210 F. 2d 559 (CA 6) , N L R B v J W. Rem Co , 243 F. 2d 356 (CA. 3) DISTRICT 50, UNITED MINE WORKERS OF AMERICA, ETC. 941 2. All production and maintenance employees, including the scheduling clerk in the feed mill employed in the Employer's plants at Decatur, Indiana, and the lecithin, elevator, maintenance, solvent, feed mill, yard, steam power, trucking departments, and laboratories (including the analytical, feed research, and technical sections there- of), exclusive of office clerical employees, plant clerical employees, sales personnel, guards, professional employees, agricultural laborers, temporary employees, super- visory foreman, assistant superintendents, and all other supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 3. Respondent District 50 was on February 22, 1962, and at all times since been the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing on and after February 22, 1962, to bargain collectively with the Employer over employees in the aforesaid appropriate unit, Respondent District 50 has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. By refusing on and after April 18, 1962, to bargain collectively with the Employer in the aforesaid appropriate unit, Respondent Local 15173 has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (3) 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. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law and upon the entire record in the case, it is recommended that Respondents, their officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from refusing to bargain collectively with the Employer in the previously described appropriate unit by bargaining or attempting to bargain over employees excluded from the unit such as the agricultural laborers. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Employer in the previously de- scribed appropriate unit with respect to rates of pay, wages, hours of work, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at the Respondent Local 15173 office in Decatur, Indiana, or at a place provided by Respondent Local 15173 for meetings with employees of Employer, copies of the attached notice marked "Appendix." And post at the Respondent Dis- trict 50's office in South Bend, Indiana, or at a place provided by Respondent District 50 for meetings with employees of the Employer, copies of the attached notice marked "Appendix " 9 Copies of the said notice, to be furnished by the Regional Director for the Twenty-fifth Region, shall, after being duly signed by Kenneth Hirschy, presi- dent of Respondent Local 15173, and Ralph Courtley, assistant regional director of Respondent District 50, be posted immediately upon receipt thereof, and maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (c) Mail or deliver to the Regional Director for the Twenty-fifth Region copies of the attached notice duly signed by Kenneth Hirschy, president of Respondent Local 15173, and Ralph Courtley, assistant regional director of Respondent District 50, for posting by Employer, it being willing, in places where it customarily posts notices to its employees Copies of said notice, to be furnished by the Regional Di- rector for the Twenty-fifth Region, shall, after being duly signed as provided above, be forthwith returned to said Regional Director for Employer's permissive posting. (d) Notify the Regional Director for the Twenty-fifth Region, in writing, within 9In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" In the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order" 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps Respondents have taken to comply herewith.I° "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director, in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS OF DISTRICT 50, UNITED MINE WORKERS OF AMERICA AND LOCAL 15173, DISTRICT 50, UNITED MINE WORKERS OF AMERICA Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify you that: WE WILL, upon request, bargain collectively with Central Soya Company, Inc., in the following unit of employees with respect to rates of pay, wages, hours of work, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement: All production and maintenance employees, including the scheduling clerk in the feed mill, employed in the Employer's plants at Decatur, Indiana, and the lecithin, elevator, maintenance, solvent, feed mill, yard, steam power, trucking departments, and laboratories (including the analyti- cal, feed research, and technical sections thereof), exclusive of office clerical employees, plant clerical employees, sales personnel, guards, pro- fessional employees, agricultural laborers, temporary employees, supervisory foremen, assistant superintendents, and all other supervisors as defined in the Act. WE WILL NOT seek to include in the unit excluded employees such as agricul- tural laborers. DISTRICT 50, UNITED MINE WORKERS OF AMERICA, Labor Organization. Dated------------------- By------------------------------------------- (RALPH COURTLRY, Assistant Regional Director) LOCAL 15173, DISTRICT 50, UNITED MINE WORKERS OF AMERICA, Labor Organization. Dated------------------- By--------- ------------------------- (KENNETH HIRSCHY , President) This notice must remain posted for 60 days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana, 46204, Telephone No. Mel- rose 3-8921, if they have any questions concerning this notice or compliance with its provisions. Mooney Aircraft, Inc. and Lodge 725, International Association of Machinists, AFL-CIO. Case No. 23-CA-1475. June 5, 1963 DECISION AND ORDER On March 25, 1963, Trial Examiner Laurence A. Knapp issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 142 NLRB No. 106.