Continental Nut Co.

508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Continental Nut Company and Warehousemen's Union Local 17, International Longshoremen's and Warehousemen's Union. Case 20-CA-4360. May 10, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS Upon a charge filed by Warehousemen's Union Local 17, International Longshoremen's and Warehousemen's Union, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint dated February 2, 1967, against Continental Nut Company, herein called Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served upon the Respondent. With respect to the unfair labor practices, the complaint alleges, in substance, that on or about December 1, 1966, the Regional Director for Region 20 duly certified the Union as the exclusive bargaining representative of Respondent's employees in the unit stipulated by the parties to be appropriate and that, since on or about December 28, 1966, and continuing to date, Respondent has refused and is refusing to recognize or bargain with the Union as such exclusive bargaining representative, although the Union has requested and is requesting it to do so. On or about February 13, 1967, the Respondent filed its answer denying the commission of the unfair labor practices alleged. On March 2, 1967, the General Counsel filed with the Board a motion for summary judgment, asserting, in view of admissions contained in the Respondent's answer and other relevant material annexed as appendixes to the moving papers, that there are no issues of fact or law requiring a hearing, and praying the issuance of a Decision and Order finding the violations as alleged in the complaint. Thereafter, on March 7, 1967, the Board issued an order transferring proceeding to the Board, and, on the same date, a notice to show cause on or before March 21, 1967, why the General Counsel's motion for summary judgment should not be granted. On March 23, 1967, the Respondent filed an answer to the notice to show cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. Upon the entire record in this case, the Board makes the following: Ruling on the Motion for Summary Judgment The record establishes that on August 17, 1966, the Union filed a petition seeking to represent certain employees of Respondent (Case 20-RC-7136). On September 12, 1966, the Regional Director approved an agreement for consent election executed by the parties which stated that the following employees of the Respondent constituted an appropriate unit: All production and maintenance employees of the Employer at its processing plant in Chico, California, including warehousemen, but excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act. On October 28, 1966, an election was conducted among the employees in the above unit with the Union receiving a majority of the valid votes cast.' On or about November 4, 1966, Respondent filed objections to conduct affecting results of election. On December 1, 1966, the Regional Director overruled the objections and certified the Union as bargaining representative of the employees in the appropriate unit. By letter dated December 19, 1966, the Union requested Respondent to meet with it for the purpose of negotiating a collective-bargaining agreement. By letter dated December 28, 1966, Respondent refused the request. In its answer to the notice to show cause, Respondent defends its refusal to bargain on the ground that the Regional Director erred in failing to sustain its objections to the election. We disagree. Prior to the election the parties executed a consent-election agreement. Under the terms of that agreement the Regional Director's rulings on objections are to be "final and binding."2 Subsequent to the election Respondent filed objections which alleged that the Union had promised a number of employees that it would waive their initiation fees if it were selected as their bargaining representative. The Regional Director investigated the objections and found that the Union had told employees that the initiation fees for all employees would be reduced if the Union won the election. He further found that at two separate preelection meetings the Union, in response to inquiries, told employees that in the past the Union had reduced initiation fees when a large group of employees had joined the Union at the same time. The Regional Director concluded that the promises were not objectionable because the employees understood that any reduction in the initiation fee I There were two challenged ballots which were not and Regulations, Series 8, as amended, Sec 102 62(a), p 24 Also, determinative of the election see agreement for consent election, par 6, attached to the formal 2 Jas. A Matthews Co ,145 NLRB 1680, 1683 See NLRB Rules papers as Appendix 2 164 NLRB No. 72 CONTINENTAL NUT CO. 509 would apply to all employees as a group and would not be contingent on how individual employees voted. Accordingly, he overruled the objections. Respondent contends that the Regional Director erred in his findings and conclusions. However, as noted, Respondent agreed to be bound by the Regional Director's findings and conclusions. Therefore, we do not pass upon the merits of his decision. In order for the Employer to prevail here, it must be alleged, and proved, that the Regional Director's determinations were arbitrary or capricious .3 In this case , Respondent's allegations and evidence in support thereof fall far short of such proof. Accordingly, there are no issues of fact or law which require a hearing. Thus, as all material issues have been decided by the Board in accordance with the allegations in the complaint, the General Counsel's motion for summary judgment is granted. On the basis of the record before it, the Board makes the following: FINDING OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a California corporation engaged in the processing and sale of nuts at its place of business in Chico, California . During the past year, Respondent sold goods and merchandise valued in excess of $500,000 , of which more than $50,000 in value represented sales to purchasers located outside the State of California. During the same period , Respondent purchased goods and merchandise valued in excess of $50,000 directly from sellers located outside the State. Respondent admits, and we find , that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Warehousemen's Union Local 17, International Longshoremen's and Warehousemen's Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees of the Respondent at its processing plant at Chico, California, including warehousemen, but excluding office clerical employees , salesmen, guards, and supervisors as defined in the Act. 2. The certification On or about October 28, 1966, a majority of the employees of Respondent in said unit, in a secret election conducted under the supervision of the Regional Director for Region 20, designated the Union as their collective-bargaining representative for the purpose of collective bargaining with Respondent. On December 1, 1966, the Board certified the Union as the exclusive collective- bargaining representative of the employees in said unit and the Union continues to be such representative. B. The Request to Bargain and the Respondent's Refusal Commencing on or about December 19, 1966, and continuing to date, the Union has requested and is requesting Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Since December 28, 1966, and continuing to date, Respondent did refuse, and continues to refuse, to bargain collectively with the Union as the exclusive collective-bargaining representative of all employees in said unit. Accordingly, we find that the Union was duly certified by the Board as the collective-bargaining representative of the employees of the Respondent in the appropriate unit described above in the Board's certification, and that the Union at all times since December 1, 1966, has been and now is the exclusive bargaining representative of all the employees in the aforesaid unit, within the meaning of Section 9(a) of the Act. We further find that Respondent has, since December 28, 1966, refused to bargain collectively with the Union as the exclusive bargaining representative of its employees in the appropriate unit, and that, by such refusal, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship 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. 3 Jas A Matthews Co , supra 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request , bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached , embody such understanding in a signed agreement. CONCLUSIONS OF LAW 1. Continental Nut Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Warehousemen's Union Local 17, International Longshoremen's and Warehousemen's Union , is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of the Respondent at its processing plant at Chico, California, including warehousemen , but excluding office clerical employees , salesmen , guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since December 1, 1966, the above-named labor organization has 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. 5. By refusing on or about December 28, 1966, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with , restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Continental Nut Company, Chico, California, its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Warehousemen's Union Local 17, International Longshoremen's and Warehousemen's Union , as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees of the Respondent at its processing plant at Chico, California, including warehousemen , but excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization , as the exclusive representative of all employees in the aforesaid appropriate unit, with respect to rates of pay , wages, hours, and other terms and conditions of employment and, if an understanding is reached , embody such understanding in a signed agreement. (b) Post at its Chico, California, place of business, copies of the attached notice marked "Appendix."4 Copies of said notice , to be furnished by the Regional Director for Region 20, after being duly signed by Respondent's representative , shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. " In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT refuse to bargain collectively with Warehousemen's Union Local 17, International Longshoremen's and Warehousemen 's Union, as the exclusive representative of the employees in the bargaining unit described below. CONTINENTAL NUT CO. WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request , bargain with the above-named Union, as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached , embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees at our processing plant at Chico, California, including warehousemen, but excluding office clerical employees , salesmen, guards and supervisors as defined in the Act. 511 CONTINENTAL NUT COMPANY (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, 13050 Federal Building, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 556 3197, if they have any questions concerning this notice or compliance with its provisions.