Sweetlake Land and Oil Co., Inc.

SWEETLAKE LAND AND OIL COMPANY, INC. 821 All production and maintenance employees at our plant in Indianapolis, Indiana, including plant clerical employees and field assemblers and service employees, but excluding all office clerical employees , draftsmen , profes- sional employees, guards, and supervisors as defined in the Act. WE WILL NOT threaten our employees with reprisals or question them about their union activities , poll our employees as to which union they prefer, or bargain individually with them. WE WILL NOT in any other manner interfere with, restrain , or coerce em- ployees in the exercise of the right to self-organization , to form labor organiza- tions, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to en- gage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. ELLIOTT-WILLIAMS CO., INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive 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. Melrose 3-8921, if they have any question concerning this notice or compliance with its provisions. Sweetlake Land and Oil Company, Inc. and Rice Workers Local 300, Amalgamated Meat Cutters and Butcher Workmen of N.A., AFL-CIO. Case No. 15-CA-V90. July X44. 1963 DECISION AND ORDER On May 7, 1963, Trial Examiner James T. Barker issued his Inter- mediate 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 attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Interme- diate Report and a memorandum in support of its exception; the General Counsel filed a brief in support of the Intermediate 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 Leedom and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered, the Interme- diate Report, the Respondent's exceptions and memorandum, the Gen- eral Counsel's brief in support, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. 143 NLRB No. 81. 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed on November 2, 1962, an amended charge filed November 27, 1962, and a second amended charge filed December 19, 1962, by Rice Workers Local 300, Amalgamated Meat Cutters and Butcher Workmen of N.A., AFL-CIO, here- inafter called the Union, the Regional Director of the National Labor Relations Board for the Fifteenth Region on January 28, 1963, issued a complaint against Sweetlake Land and Oil Company, Inc., hereinafter referred to as Respondent, al- leging violations of Section 8(a)(1) and (5) of the National Labor Relations Act, hereinafter called the Act. In its duly filed answer, Respondent admitted certain allegations of the complaint but denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before Trial Examiner James T. Barker at Lake Charles, Louisiana, on March 18, 1963.1 All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs with me. Thereafter, on April 8, 1963, the parties filed briefs with me. Upon consideration of the entire record and the briefs of the parties, and upon my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a Louisiana corporation with its principal office and place of business in Lake Charles, Lousiana, where it is engaged in the production of rice, livestock and eggs, and in activities connected therewith. During the 12-month period immediately preceding the issuance of the complaint herein, Respondent in the course and conduct of its business operations 1 During the hearing upon application of Respondent's counsel, the Trial Examiner issued a subpoena ducea tecum which was served upon the Board requiring the produc- tion of "[t]he originals of that certain `administrative' advice secured from the Depart- ment of Labor relative Case No. 15-RC-2500, referred to and relied upon in the Decision and Direction of Election In such case bearing date of August 15, 1962, numbered 138 NLRB 155, together with any and all correspondence and documents constituting such administrative advice." The hearing was held open pending compliance with the subpena, or for other ultimate disposition with reference to the issuance thereof as should become necessary. Thereafter, on March 25, 1963, through its Associate Executive Secretary the Board produced copies of the following documents: 1. Office copy of a five-page letter dated June 19, 1962, from Saul J Jaffe, Associate Solicitor, National Labor Relations Board, addressed to Mr. Harold Nystrom, Asso- ciate Solicitor, Department of Labor, Washington, D.C. 2. The original of a six-page letter dated July 16, 1962, from Harold Nystrom, Associate Solicitor, Department of Labor, addressed to Mr. Saul J. Jaffe, Associate Solicitor, National Labor Relations Board. Subsequently, on April 2, 1963, the hearing in the instant matter was closed pursuant to an order of the Trial Examiner. The following correspondence and documents pertinent to the foregoing have been formally marked as "Trial Examiner's Exhibits" and on the motion of the Trial Examiner received in evidence: TX Exhibit 1-a-Subpoena ducea tecum B-44527 Issued at Lake Charles, Louisiana, March 18, 1963, with return receipt attached, showing date of delivery of March 19, 1963. TX Exhibit 1-b-March 18, 1963, letter to the Honorable Ogden W. Fields, Execu- tive Secretary, National Labor Relations Board. TX Exhibit 1-c-March 27, 1963, letter from Everett R. Scott, Jr., to James T. Barker, Trial Examiner. TX Exhibit 2-a-Copy of five-page letter dated June 19, 1962, from Saul J. Jaffe, Associate Solicitor, National Labor Relations Board, addressed Ito Mr Harold Nystrom, Associate Solicitor, Department of Labor, Washington, D.C. TX Exhibit 2-b-Copy of a six-page letter dated July 16, 1962, from Harold Nystrom, Associate Solicitor, Department of Labor, addressed to Mr. Saul J. Jaffe, Associate Solicitor, National Labor Relations Board. TX Exhibit 2-c-March 25, 1963, letter from Thomas W. Kennedy, Associate Execu- tive Secretary, National Labor Relations Board to James T. Barker, Trial Examiner. TX Exhibit 2-d-Trial Examiner's Order Closing Hearing. SWEETLAKE LAND AND OIL COMPANY, INC. 823 sold livestock, rice and eggs valued in excess of $500,000 During this same period, Respondent sold rice valued in excess of $300,000 of which a quantity in excess of 50 percent was sold to American Rice Growers Association, Louisiana State Rice Milling Company, Inc., and Farmers' Rice Mill, Inc., each of which, during all times material herein, sold rice valued in excess of $50,000 to customers located outside the State of Louisiana. Upon these admitted facts, I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION Rice Workers Local 300, Amalgamated Meat Cutters and Butcher Workmen of NA., AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The General Counsel contends that commencing on or about November 6, 1962, and at all times thereafter, Respondent refused to bargain collectively with the Union as the certified and exclusive collective-bargaining representative of the production and maintenance employees of the Respondent, and further alleges that on or about October 26, 1962, Respondent, by its agent, Charles Giovanni, threat- ened employees at Respondent's Holmwood, Louisiana, rice warehouse with layoffs because they had selected the Union as their bargaining representative The Respondent denies these allegations, contending, initially, that the individuals encompassed within the allegedly appropriate production and maintenance unit are not employees of Respondent but are agricultural laborers over whom the Board is precluded from asserting jurisdiction; and asserting, secondly, that it did not threaten its employees as alleged in the complaint or in any manner violative of the Act. A. The alleged refusal to bargain 1. The Board certification The pertinent background facts relating to the certification, as predicated essen- tially upon the stipulation of the parties at the hearing, are as follows: On February 19, 1962, the Union filed a petition in Case No. 15-RC-2500, re- questing representation among all regular production and maintenance employees of the Respondent. On March 13, 1962, a hearing was conducted at Lake Charles, Louisiana, in the aforesaid representation case. Thereafter, on April 11, 1962, the Regional Director for the Fifteenth Region transferred the representation case to the Board pursuant to Section 102 67 of the Board's Rules and Regulations, Series 8, as amended. Subsequently, on August 15, 1962, the Board issued a Decision and Direction of Election in the case? The Board found the following employees consti- tuted a unit appropriate for the purpose of collective bargaining within the meaning of the Act: All production and maintenance employees at the Employer's Holmwood, Louisiana, rice drier and warehouse, including the weigher and clerk, but exclud- ing all office clerical employees, professional employees, guards, watchmen, foremen, and all other supervisors as defined in the Act. On September 5, 1962, Respondent petitioned for a preliminary injunction in Divi- sion A of the Federal District Court in New Orleans, Civil Action No. 12611,3 to restrain the conduct of the representation election order by the Board in the afore- said Decision and Direction of Election. The court granted the Regional Director's motion to dismiss the complaint on the ground that the court had no jurisdiction of the subject matter. In the court proceeding, as in the representation matter before the Board, the Respondent contended that the employees in the unit found appro- priate by the Board were agricultural laborers. Thereafter on September 12, 1962, a representation election was conducted among the employees in the unit which the Board had found appropriate. Thirteen ballots were cast in the election and the Respondent challenged each of them on the ground that they were cast by individuals employed as agricultural laborers within the mean- ing of Section 2(3) of the Act. No objections to the election were filed. by either party. Following an investigation of the challenges the Regional Director, on October 11, 1962, issued a Supplemental Decision overruling the challenges to the 2 The Sweetlake Land and Oil Company, Inc., 138 NLRB 155 3 The Sweetlake Land and Oil Company, Inc. v. John F. Le Bus, Individual, and as Regional Director for the Fifteenth Region, JA ational Labor Relations Board, et at. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 13 ballots and directing that the 13 ballots be opened and counted at the time and place to be determined by him. Neither of the parties filed exceptions to the Regional Director's Supplemental Decision. Thereafter, on October 26, 1962, a revised tally of ballots was served upon the parties certifying that seven votes were cast for the petitioner and six votes were cast against it. On November 1, 1962, the Regional Director for the Fifteenth Region certified the Union as the exclusive collective-bargaining representative of the employees in the unit which the Board had found to constitute the appropriate unit. 2. The request and refusal Thereafter, on November 6, 1962, by certified letter with return receipt requested, and on December 8, 1962, by telegram, the Union requested Respondent to bargain collectively with it with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. The Union received no response from Respondent. The Respondent on the two dates aforesaid, and at all times thereafter, refused and continued until the time of the hearing to refuse to bargain collectively with the Union, contending that all employees involved in the unit were and continued to be employed as agricultural laborers, and hence, not employees as defined in Section 2(3) of the National Labor Relations Act, as amended.4 At the hearing International Representative Mitchell testified concerning conversa- tions with Respondent's attorney, Everett Scott, Jr , on December 7 and 26, respec- tively, wherein Scott asserted, in substance, that the Respondent was "not prepared to meet with [the Union] to negotiate a contract" as the employees in the certified bargaining unit were agricultural employees H. G. Chalkley, president of Respondent, testified at the hearing that he had re- ceived the Union's November 6, 1962, letter and its December 8, 1962, telegram. Mr. Chalkley further testified as follows: Q. (By Mr. GARDNER.) Sir, what is your position at present in regard to bargaining with the Union? A. The Employees referred to are agricultural laborers. Q. You refused to bargain with the Union on these? A. Yes, sir. B The alleged interference, restraint, and coercion On October 26, 1962, the same day on which the Regional Director issued the revised tally of ballots in the representation proceeding, Warehouse Superintendent Charles Giovanni met with seven employees of Respondent. Present also were Management Trainee Henry Alexander, Foreman DeVille, and one Floyd Bordier whose position with Respondent is not reflected in the record. Employee Manuel Dugas credibly testified concerning this meeting as follows: Q. Will you tell us in your own words what Mr. Giovanni said to you? A. Mr. Giovanni said, "As you fellows know today the ballots was counted and the Union have won their election seven to six I don't know whether it matters to you all how Mr. Chalkley feels about it" but he said, "I can say he is very mad about it and I am not satisfied about it myself. I am very mad my- self," he said "In the past you know that when work slacks-slows down that we are-somehow made work for you, find work for you, to keep going," but he said, "in the future there will be changes made." He said, "There will be lay-offs." And said, "I am sorry six of you voted against the Union, you are in the same boat as the rest. You had your day now, but I will have my day later." Q. Do you recall anything else being said? A. Nothing else that I remember. Q. Do you remember how long this lasted? A. Oh, approximately five or ten minutes. 4 The stipulation of the parties was supported by the introduction into evidence of a November 6, 1962, letter from Harry L Mitchell, International representative of the Union, wherein the Union requested a meeting with Respondent "at an early date to nego- tiate a contract concerning matters of wages, hours and working conditions" of Respond- ent's employee's A copy of contract proposals was attached thereto Similarly intro- duced into evidence was a copy of a December 8, 1962, telegram from Mitchell to the Respondent demanding that Respondent meet with the Union for the purposes of collec- tive bargaining. SWEETLAKE LAND AND OIL COMPANY, INC. 825 The substance of Dugas' testimony is supported by the credited testimony of Irwin Jones, Curles Davis, Desire Dugas, Charles Bellard, Joseph Bellard, and Adam Dugas Although Warehouse Superintendent Giovanni was called as a witness and testified concerning other matters he did not testify concerning the foregoing incident Conclusions Disposition of this proceeding turns on nrinciples by now well established Issues once raised and determined in a prior representation proceeding may not be relitigated in a complaint proceeding. Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146, 158, 161, 162; Allis-Chalmers Manufacturing Company v. N.L.R.B., 162 F. 2d 435, 440-441 (C.A. 7); N.L R B. v. Worcester Woolen Mills Corporation, 170 F. 2d 13 (C.A. 1); N.L.R.B. v. American Steel Buck Corp., 227 F. 2d 927, 929 (C.A. 2); NLRB. v West Kentucky Coal Company, 152 F. 2d 198, 200201 (CA. 6), cert. denied 328 U S. 866; Quaker City Life Insurance Company, 138 NLRB 61. A Trial Examiner of the Board is bound by the Board's earlier unit determinations and the resultant certifications. N.L R.B. v West Kentucky Coal Company, supra; Esquire, Inc., 109 NLRB 530, 539 enfd. 222 F. 2d 253 (C A. 7). In the prior representation case pertinent herein, the Board determined that the individuals whom the Union sought to represent were employees and not "agricultural laborers" excluded from the coverage of the Act, as the Respondent had contended. In the instant hearing on the unfair labor practice charge, the Respondent endeavored to introduce evidence (which was rejected) only to show that the duties of the indi- 1viduals found by the Board to be employees had at all times material since the Board's determination remained unchanged; this, consonant with Respondent's avowed purpose of achieving court review of the Board's unit determination. No evidence newly discovered or unavailable to Respondent at the time of the representa- tion proceeding, or going to any alleged change in the status of employees was offered. In view of the foregoing circumstances, including the Board's unit determina- tion which is controlling upon me, I conclude and find that all times material herein the Union has been and now is the certified collective-bargaining representative of Respondent's employees in the following described unit which I conclude and find is an appropriate unit for the purposes of collective bargaining within the meaning of the Act: All production and maintenance employees at Respondent's Holmwood, Louisiana, rice drier and warehouse, including the weigher and clerk, but excluding all office clerical employees, professional employees, guards, watchmen, foremen, and all other supervisors as defined in the Act. I further conclude and find that since November 6, 1962, Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit above found; and that Respondent by such refusal has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act.5 Interference, Restraint, and Coercion I also conclude and find that on October 26, 1962, Warehouse Superintendent Giovanni threatened Respondent's employees with layoffs as reprisals against them for the Union's success in the recently conducted representation election. These remarks were coercive because they contained a threat to the employees of an im- pending diminution of employment prospects engendered solely because of the union adherence of the majority, reasonably tending to cause all employees, union adherents and nonadherents alike, to refrain from any future union activity or allegiance. By such conduct, Respondent interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and violated Section 8(a)(1) of the Acts IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 5 See Waldo Rohnert Co., 136 NLRB X89; Edward P Tepper d/b/a Sheen berg Farms, 132 NLRB 1331. 6 See Electric Steam Radiator Corporation, et al., 136 NLRB 923, 924 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Rice Workers Local 300, Amalgamated Meat Cutters and Butcher Workmen of N.A., AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Respondent's Holmwood, Louisiana, rice drier and warehouse, including the weigher and clerk, but excluding all office clerical employees , professional employees , guards, watchmen , foremen, and all other supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. On November 1, 1962, and at all times thereafter , the Union was and now is the representative of the Respondent's employees in the appropriate unit described above for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on November 6, 1962 , and thereafter, to bargain collectively with the Union as the exclusive representative of all its employees in the above-described appropriate unit, Respondent has engaged in and is engaging in an unfair labor prac- tice within the meaning of Section 8(a) (5) and (1) of the Act. 6. By threatening its employees with layoffs as reprisals against them for the Union's success in a Board-conducted election , the Respondent interfered with , restrained, and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a) (1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record of the case, I recommend that Respondent, Sweetlake Land and Oil Company, Inc., its officers , agents, successors , and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Rice Workers Local 300, Amalgamated Meat Cutters and Butcher Workmen of N.A, AFL-CIO , as the exclusive bargaining representative of all its production and maintenance employees at its Holmwood, Louisiana, rice drier and warehouse, including the weigher and clerk, but excluding all office clerical employees , professional employees, guards, watchmen , foremen, and all other supervisors as defined in the Act. (b)Threatening its employees with layoffs because the Union was successful in a Board-conducted representation election. (c) In any like or related manner interfering with the efforts of the above-named Union to bargain collectively with Respondent on behalf of the employees in the above-described unit. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive repre- sentative of all employees in the appropriate unit, and embody in a signed agreement any uderstanding reached (b) Post at its Holmwood , Louisiana , plant, copies of the attached notice marked "Appendix." 7 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall after being duly signed by an authorized representative of Respondent, be posted immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all 7In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "A 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 Count of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." ADAMS DIVISION, LFTOURNEAU WESTINGHOUSE CO. 827 places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps Respondent has taken to comply herewith.8 8 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES 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 Re- lations Act, as amended, we hereby notify our employees that: WE WILL bargain collectively, upon request, with Rice Workers Local 300, Amalgamated Meat Cutters and Butcher Workmen of N. A., AFL-CIO, as the exclusive bargaining representative of all our employees in the appropriate unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an agreement is reached, em- body such agreement in a signed contract. The appropriate unit is: All production and maintenance employees at our Holmwood, Louisiana, rice drier and warehouse, including the weigher and clerk, but excluding all office and clerical employees, professional employees, guards, watchmen, foremen, and all other supervisors as defined in the Act. WE WILL NOT threaten our employees with layoffs because the Union was successful in a representation election conducted by the National Labor Rela- tions Board. WE WILL NOT in any like or related manner interfere with the efforts of said Union to bargain collectively with us, or refuse to bargain with said Union as the representative of our employees in the above-described appropriate unit. SWEETLAKE LAND AND OIL COMPANY, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive 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, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, 70113, Telephone No. 529-2411, if they have any question concerning this notice or com- pliance with its provisions. Adams Division, LeTourneau Westinghouse Company (Indian- apolis plant) and Joseph Kellams, Jr. United Steelworkers of America, AFL-CIO and United Steel- workers of America, AFL-CIO, Local 1262 and Joseph Kellams, Jr. Cases Nos. 25-CA-1640 and 95-CB-508. July 24, 1963 DECISION AND ORDER On April 15, 1963, Trial Examiner George J. Bott issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- 143 NLRB No. 79.