Farmers Co-Operative Gin Association

FARMERS CO-OPERATIVE GIN ASSOCIATION 367 Farmers Co-Operative Gin Association and Dallas General Drivers, Warehousemen and Helpers, Local Union 745, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 16-CA-2738 and 16-CA-2834 November 21, 1967 DECISION AND ORDER STATEMENT OF THE CASES On April 3, 1967, Farmers Co-Operative Gin Association, herein called the Respondent, and counsel for the General Counsel of the National Labor Relations Board, herein called the Board, en- tered into a Settlement Stipulation, subject to ap- proval of the Board, providing for the entry of a consent order by the Board, and a consent decree by any appropriate United States Court of Appeals. The parties waived all further and other procedure before the Board to which they may be entitled under the National Labor Relations Act, as amended, and the Rules and Regulations of the Board, and the Respondent waived its right to con- test the entry of a consent decree or to receive further notice of the application therefor. The Charging Party, Dallas General Drivers, Warehousemen and Helpers, Local Union 745, af- filiated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, has refused to join in the settlement agree- ment and has filed with the Board a statement of ob- jections together with a memorandum in support thereof. Essentially, these objections are the same as those raised by the Charging Party's counsel at the various stages of this proceeding, including a conference with Regional Office personnel held on April 12, 1967, to discuss settlement. Following the conference, the Regional Director, on April 13, 1967, wrote counsel for the Charging Party a letter enclosing a copy of the stipulation for approval and advising him that he had 5 days to submit any objec- tions to the agreement.' By letter dated'April 19, 1967, the Charging Party stated its objections and in his reply of May 10, 1967, the Regional Director dealt with each of the' objections, gave his reasons for approving the stipulation, and advised the Charging Party he was recommending approval by the General Counsel. Thereafter, the Charging Party renewed its objections to the General Coun- sel. On July 21, 1967, the General Counsel in- formed the Charging Party, by letter, that he had approved the settlement agreement, and was recommending its approval to the Board, and ad- vised the Charging Party that pursuant to Section 101.9(c) of the Board's Statements of Procedure it could submit objections to the Board.2 In brief, the Charging Party asserts that: (1) the settlement agreement does not provide for rein- statement and backpay for Luther Robinson and Pat Rhodes; (2) the backpay amounts have been ar- bitrarily reduced; (3) the Charging Party is entitled to a court decree in Cases 16-CA-2487 and 16-CA-2553 in which a Board Decision and Order is now before the Court of Appeals for the District of Columbia on review; (4) since no hearing will be held, the Charging Party is denied the opportunity to present evidence justifying additional make- whole remedies. In reviewing these objections, which the Charg- ing Party believes clearly justify rejection of the set- tlement agreement, there are certain principles and policies that guide the Board in resolving its posi- tion in this difficult area.The Board has long had the policy of encourgaging settlements which effectuate the purposes of the Act. The Wallace Corporation v. N.L.R.B., 323 U.S. 248, 253-254. In considering settlements, the Board must weigh such factors as the risks involved in protracted litigation which may be lost in whole or in part, the early restoration of industrial harmony by making concessions, and the conservation of the Board's resources. Moreover, the Board must evaluate the legal and factual merits disclosed by the administrative investigation to determine whether the allegations of violations in the complaint can be so clearly proved that no remedy, less than the maximum, can be accepted. in arriving at this decision, the discretion of the Board is recognized as broad. Textile Workers Union ofAmerica v. N.L.R.B., supra. With the above considerations before us, we shall now examine the specific objections mentioned above. As to the first, the administrative investiga- tion conducted by the Regional Office showed that Rhodes was a supervisor at the time of the July 1966 strike and was not reinstated at the conclusion thereof. The Charging Party's appeal to the General Counsel from the Regional Director's refusal to proceed on that portion of the charge related to Rhodes was denied by the General Counsel on July 19, 1967. Under the provisions Section 3(d) of the Act, the action of the General Counsel is not reviewable. With respect to Robinson, the Regional Office's investigation disclosed that his threat to an assistant foreman made on April 1, 1966, was so serious as to warrant the Respondent's refusal to On April 14, 1967, a supervisory examiner for the Region, who at- tended the conference with Charging Party's counsel, sent a letter explain- ing the Region's position with respect to the objections voiced by the Charging Party ' We believe the meticulous procedure followed prior to submission of the matter to the Board and our own findings made hereinafter have met all the requirements of due process and opportunity to be heard to which the Charging Party is entitled Textile Workers- Union of America, AFL-CIO [Roselle Shoe Corp ] v N L R B , 294 F 2d 738 (C A D C , 1961), enfd after remand 3 15 F 2d 41, Local 282, International Brother- hood of Teamsters [White Ready-Mix Concrete] v N L R B , 339 F 2d 795 (C A 2, 1964), Leeds & Northrup Company v N L R B , 357 F 2d 527 (C A 3, 1966) 168 NLRB No. 64 368 DECISIONS OF NATIONAL reinstate him.3 As to the second objection, given the risks of litigation in the present case and the certain- ty of delay in payment to the discriminatees if a hearing were held, the amount 'proposed in settle- ment appears to be reasonable in all the circum- stances. Turning to the matter of a court decree, the instant stipulation provides for the entry of a con- sent decree in any appropriate circuit to which Respondent waives its right to notice or presenta- tion of any defense. To the extent that the Charging Party is referring to compliance with the Board's Decision and Order in Case 16-CA-2487 and 16-CA-2553, this proceeding is now before the Court of Appeals for the District of Columbia Cir- cuit after argument, and the Board has no jurisdic- tion over the matter. In either case, therefore, the Charging Party will obtain a court decree remedy- ing the unfair labor practice found. Concerning the fourth objection, the stipulation provides a full remedy with respect to all aspects of the 8(a)(5) violations alleged in the complaint and amended complaint to which the Charging Party is entitled under current Board law. See Monroe Auto Equip- ment Company, Hartwell Division, 164 NLRB 1051. Indeed, it seems to us that the affirmative provi- sions of the stipulation requiring the Respondent to furnish certain wage and job data and to bargain with the Union with respect to wages, hours, and conditions of employment are substantial and effec- tive remedies which, coupled with the issuance of a court decree, should fully achieve the goal the Charging Party seeks. For the foregoing reasons and in light of the prin- ciples stated above, the investigative reports and the recommendations of the General Counsel and the Regional Director, we conclude that the Charg- ing Party's objections are lacking in merit and con- stitute no basis for rejecting the settlement agree- ment. We further find that the provisions of the stipulation adequately remedy the violations alleged in the complaint and the amended complaint and that it will effectuate the purposes of the Act to adopt the terms of the agreement. The aforesaid Settlement Stipulation is hereby approved and made a part of the record herein, and the proceeding is hereby transferred to and con- tinued before the Board for the entry of a decision and order pursuant to the provisions of the said Set- tlement Stipulation. Upon the basis of the aforesaid Settlement Stipu- lation and the entire record in these cases, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Farmers Co-Operative Gin As- sociation, a Texas corporation, maintains its prin- LABOR RELATIONS BOARD cipal offices and plants at Sulphur Springs, Texas, herein called the plants, where it is engaged in the custom mixing, grinding, and blending of feeds and the sale of fertilizer supplies. In the course and conduct of its business opera- tions at its Sulphur Springs, Texas, plants during the past 12 months, the Respondent purchased sup- plies, goods, and materials valued in excess of $50,000, which were transported to said plants directly from States of the United States other than the State of Texas, and, during said period, it sold and shipped to points located outside the State of Texas products valued in excess of $50,000. The Respondent admits, and we find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Dallas General Drivers, Warehousemen and Helpers, Local Union 745, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE APPROPRIATE UNIT All production and maintenance employees and truck drivers located at the Employer's Sulphur Springs, Texas, operation, excluding office clerical employees, supervisors, guards, and watchmen as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. ORDER Upon the basis of the above findings of fact, the Settlement Stipulation, and the entire record in the cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Re- spondent, Farmers Co-Operative Gin Association, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Dallas General Drivers, Warehousemen and Helpers, Local Union 745, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the exclusive bargaining representative of its employees in the following certified bargaining unit: All production and maintenance employees and truck drivers located at the Employer's Sulphur Springs, Texas, operation, excluding office clerical employees, supervisors, guards, and watchmen as defined in the Act. (b) Unilaterally changing the wages, hours of Cf Bernhard Conrad Embroidery Company, 156 NLRB 1056, 1058 FARMERS CO-OPERATIVE GIN ASSOCIATION 369 work, rates of pay, and vacation benefits of its em- ployees in the certified bargaining unit. (c) Unilaterally promulgating and effectuating work rules applicable to its employees in the cer- tified bargaining unit. (d) Refusing to furnish the Union, upon request, data with respect to the names, job classifications, wage rates, hours of work, and work rules applica- ble to its employees in the certified bargaining unit. (e) Discouraging membership in the Dallas General Drivers, Warehousemen and Helpers, Local Union 745, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization, by refusing immediate reinstatement to those of its employees who were on strike on and after July 18, 1966, and who were thereafter denied immediate reinstatement upon their unconditional application for return to work, or in any other manner discriminating with regard to the hire or tenure of employment of said em- ployees or any other term or condition of that em- ployment. (f) Interrogating its employees with respect to their union membership and concerted activities. (g) In any other manner interfering with, restraining, or coercing their employees in the exer- cise of their right to self-organization, to form labor organizations, or to join or assist Dallas General Drivers, Warehousemen and Helpers, Local Union 745, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the National Labor Relations Act, as amended: (a) Upon request, bargain collectively in good faith with the Union, Dallas General Drivers, Ware- housemen and Helpers, Local Union 745, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all production and maintenance employees and truck drivers located at the Employer's Sulphur Springs, Texas, operation, excluding office clerical em- ployees, supervisors, guards, and watchmen as defined in the Act, for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Rescind in plant work rules unilaterally promulgated and instituted in September 1966. (c) Furnish the Union, upon request, data with respect to the names, job classifications, wage rates, hours of work, and work rules applicable to its employees in the certified bargaining unit. (d) Reinstate, as of October 17, 1966, to their former or substantially equivalent positions, with- out prejudice to their seniority or other rights and privileges, all those employees who were on strike on and after July 18, 1966, and who have not been reinstated to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and notify said em- ployees, if presently serving in the Armed Forces of the United States, of their right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after dis- charge from the Armed Forces. (e) Make whole the employees specified in para- graph 2(d) above for any loss of pay they may have suffered by reason of Respondent's failure, if any, to reinstate them in the manner provided in para- graph 2(d) above, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from 5 days after the date on which he applied uncon- ditionally for reinstatement to the date of Respond- ent's offer of reinstatement, less his net earnings, if any, during said period; such pay loss to be com- puted with interest at the rate of 6 percent per annum. (f) Post at its Sulphur Springs, Texas, plants copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's authorized representative, shall be posted by the 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records, social security payment records, timecards, personnel cards and reports, and all other records necessary to analyze the amounts of backpay which may be or become due and the rights of employment under the terms of this Order. (h) Notify the Regional Director for Region 16, 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 En- forcing an Order " 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, based upon a stipulation providing for a consent decree of an appropriate cir- cuit of the United States court of Appeals, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL bargain collectively in good faith with the Union, Dallas General Drivers, Warehousemen and Helpers, Local Union 745, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargain- ing representative of all employees in the ap- propriate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other terms and con- ditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. The appropriate bargain- ing unit is: All production and maintenance em- ployees and truck drivers located at the Employer's Sulphur Springs, Texas, operation, excluding office clerical em- ployees, supervisors, guards, and watchmen as defined in the Act. WE WILL NOT unilaterally change the wages, hours of work, rates of pay, vacation benefits and work rules applicable to our employees in the certified bargaining unit without first con- sulting and bargaining with Dallas General Drivers, Warehousemen and Helpers, Local Union 745, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of our em- ployees. WE WILL rescind the plant work rules promulgated and instituted in September 1966. WE WILL furnish the Union, upon request, data with respect to the names, job classifica- tions, wage rates, hours of work, and work rules applicable to employees in the ap- propriate bargaining unit. WE WILL immediately reinstate to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, all our employees who were on strike on and after July 18, 1966, who have not been reinstated to their former or sub- stantially equivalent positions without preju- dice to their seniority or other rights and privileges, and notify said employees, if presently serving in the Armed Forces of the United States, of their right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Milita- ry Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL make each such employee whole for any loss of pay suffered by him as a result of our failure to reinstate him within 5 days after his unconditional application for rein- statement. WE WILL NOT discourage membership in the Dallas General Drivers, Warehousemen and Helpers, Local Union 745, affiliated with In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization, by discrimina- torily refusing reinstatement or in any other manner discriminating in regard to the hire or tenure of employment or other terms or condi- tions of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist the above-named Union, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted ac- tivities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from engaging in any or all such activities. Dated By FARMERS CO-OPERATIVE GIN ASSOCIATION (Employer) (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 8A24, Federal Office Building, 819 Taylor street, Fort Worth, Texas 76102, Telephone 334-2941.