Riverside Produce Co.

RIVERSIDE PRODUCE COMPANY Victor Miceli and Sam Miceli d/b/a Riverside Pro- duce Company and General Truck Drivers, Ware- housemen & Helpers Union, Local 467, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 21- CA- 15776 May 29, 1979 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE On February 22, 1978, Administrative Law Judge James T. Rasbury issued the attached Decision in the above-entitled proceeding finding that Victor Miceli and Sam Miceli d/b/a Riverside Produce Company (herein Respondent) had violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by failing to adhere to its then current collective-bar- gaining agreement with the Union and by refusing, upon request, to bargain with the Union in good faith in an effort to reach a new agreement. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs. By Order dated August 3, 1978. the National La- bor Relations Board remanded this proceeding to the Administrative Law Judge for the purpose of receiv- ing evidence on Respondent's alleged objective con- siderations for doubting the Union's majority status at the time of the alleged refusal to bargain. On De- cember 19, 1978, the Administrative Law Judge is- sued his Supplemental Decision, also attached hereto, containing new findings of fact, conclusions of law, and a recommended Order. Thereafter, Respondent and the General Counsel filed exceptions to the Ad- ministrative Law Judge's Supplemental Decision and briefs in support thereof, and Respondent filed an an- swering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record and the attached Decision and Supplemental Decision in light of all the exceptions and briefs and has decided to affirm the rulings, findings.' and conclusions2 of the I The General Counsel and Respondent excepted to certain credibility findings made by the Administrative law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Drv Wall Producis, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 The Administrative Law Judge concluded. inter alia. that Respondent separately violated Sec. 8(a}(5) and (I) of the Act by unilaterally changing previously established terms and conditions of employment. by failing and refusing to furnish employee information to the U'nion, and hby refusing to Administrative Law Judge and to adopt his recom- mended Order, as set forth in the said Supplemental Decision and as modified herein.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as set forth in his Supplemental Decision and as modified below, and hereby orders that the Respondent, Victor Miceli and Sam Miceli d/b/a Riverside Produce Company, Riverside, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Substitute the following for paragraph 2(a): "(a) Make contributions to the pension and health welfare trust funds on behalf of the employees who were in the appropriate unit, thereby restoring any losses or expense they have suffered as a result of Respondent's failure to comply with terms of the trust funds and Union contract which expired on July 4. 1977." 2. Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs accordingly: process grievances or union complaints up to and including the expiration date of Respondent's contract with the Union. Respondent excepts to these conclusions on the ground. inter aulia. that the complaint did not specifically allege these violations Although the complaint did not specifically allege the foregoing violations found by the Administrative Law Judge, the allegations were generally encompassed in the complaint, the issues were fully litigated at the hearing. and the record fully supports his conclusions. Accordingly, we adopt the Administrative Law Judge's finding of these violations. See Gerald G. Gogin d/hla Gogin Trucking, 229 NlRB 529 1977). 'The Administrative Law Judge found that Respondent violated the Act by refusing to furnish certain data concerning unit employees as requested by the Union and by refusing to process gnevances or union complaints. ie declined, however. to provide an affirmative remedy for these violations in view of the fact that, at the time of his Supplemental Decision, a year and a half had passed since the expiration of Respondent's contract with the Union. We do not agree that the mere passage of time relieves Respondent of its obligation to affirmatively remedy these violations. Nevertheless, with regard to the processing of grievances and complaints we find that an affir- mative remedial provision is unwarranted herein, but we do so only because it is clear that the matters complained of in the grievances will he remedied by our affirmative "make whole" provision herein. However, with respect to Respondent's refusal to provide the requested employee data, Inasmuch as the specific purpose of the Union's request is not clear from the record. we shall require Respondent. upon request, to furnish such data to the Union. Additionally, with regard to the Administrative Law Judge's "make whole" provision of his recommended Order. we note that because the provisions of employee benefit fund agreements are variable and complex. the Board does not provide at the adjudicatory stage of a proceeding for the addition of interest at a fixed rate on unlawfully withheld fund payments. We leave to the compliance stage of this proceeding the question of whether Respondent must pay any additional amounts into the pension and health and welfare trust funds in order to satisfy our "make whole" remedy. These additional amounts may be determined, depending upon the circumstances of each case, by reference toi provisions in the documents governing the funds and, if there are no governing provisions, by evidence of any loss directly attnbut- able to the unlawful withholding action, which might include the loss of return on investment of the portion of funds withheld, additional administra- tive costs. etc . but not collateral losses Inland Cities, Inc , 241 N .RB No. 56 (19791 We shall modify the recommended Order accordingly. 242 NLRB No. 96 615 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "(b) Upon request, furnish to the Union the em- ployee data requested by the Union on or about June 9, 1977." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representa- tive they choose To act together for collective bargaining or other mutual aid and protection To refrain from any and all such activities except to the extent that the employees' bar- gaining representative and employer may have a collective-bargaining agreement which im- poses a lawful requirement that employees be- come union members. In recognition of these rights, we hereby notify our employees that: WE WILL NOT refuse to abide by all the terms and conditions of the contract between us and General Truck Drivers, Warehousemen & Help- ers Union, Local 467, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, specifically the payments to the pension and health and welfare trust funds up to the expiration date of the union contract, July 4, 1977. WE WILL NOT refuse to provide the Union with necessary and requested employee data or refuse to process employee complaints or grievances in a manner consistent with the then effective labor management agreement up to its expiration date, July 4, 1977. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees In the exercise of rights guaranteed them by the National Labor Relations Act. WE WILL make payment to the pension and health and welfare funds on behalf of the em- ployees who were in the appropriate unit to re- store the amount of the contributions due to the trust funds pursuant to the union contract up to the contract expiration date, July 4, 1977. WE WILL, upon request, furnish to the Union the employee data requested by the Union on or about June 9, 1977. VICTOR MICELI AND SAM MICELI D/B/A RIVERSIDE PRODUCE COMPANY SUPPLEMENTAL DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge: This case was first heard before me in Riverside, California, on Octo- ber 20 and 21, 1977, pursuant to a complaint and notice of hearing issued on July 13, 1977, by the Regional Director of the National Labor Relations Board for Region 21. The complaint alleged violations of Section 8(a)( ) and (a)(5) of the National Labor Relations Act, as amended (herein the Act). The charge giving rise to the complaint and notice of hearing was filed by the General Truck Drivers, Ware- housemen & Helpers Union, Local 467, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein Union, or Loci 467) on June 2, 1977. On February 22, 1978, I rendered a Decision on the is- sues raised by the pleadings and the evidence received on October 20 and 21. 1977. In that Decision, I reached the conclusion that Respondent herein was a successor em- ployer and because of its course of conduct in making some payments to the pension and health and welfare trust funds as set forth in the union contract, it had adopted the prede- cessor employer's labor management agreement. The predecessor's agreement was not due to expire until July 4, 1977, thus when Respondent herein failed to make the re- quired trust fund payments for the months of May, June, and July, 1977, and when it failed to provide the Union with requested employee information and/or respond to its grievances and requests for negotiations on a new contract, I found Respondent guilty of violating Section 8(a)(5) and (1) of the Act. In my earlier Decision, I directed Respon- dent to reimburse the Union's pension trust and health and welfare trust for any financial losses suffered by reason of Respondent's failure to comply with the terms of the trust funds and union contract up to its expiration date of July 4, 1977. with appropriate interest thereon. Respondent was also ordered to recognize and upon request bargain collec- tively with the Union and if an understanding was reached to embody such understanding in a signed agreement. During the first hearing, Respondent sought to offer evi- dence through Victor Miceli of Respondent's asserted good faith doubt, based on objective considerations, of the Union's majority status. This evidence was excluded be- cause, as I set forth in a footnote of my prior Decision, I was of the opinion that Respondent was seeking to litigate the propriety of an RM petition in the context of an unfair labor practice case. However, an offer of proof was made and appears in the record at page 267. On August 3, 1978, the Board ordered that the record in this proceeding be reopened and that a further hearing be held to receive evidence on Respondent's asserted good faith doubt, based on objective considerations, of the 616 RIVERSIDE PRODUCE COMPANY Union's majority status as of the time of the alleged refusal to bargain. A hearing was held in Los Angeles, California, on Sep- tember 27, 1978, at which all parties were represented by counsel and given a full opportunity to present evidence as directed by the Board in its Order. Upon the entire record in this case and based upon my observations of the witnesses and the briefs of the parties, I hereby make the following: SUPPLEMENTAL FINDINGS OF FACT I. THE ADDITIONAL EVIDENCE Victor Miceli testified that in late February or early March 1977, he had a conversation with Jack Johnson, a driver-salesman, in which Johnson informed him "that he was unhappy with the Union, because he had made a num- ber of contacts to the Union concerning specific problems that he had, and that they never afforded him the courtesy of returning his call. And he stated to me that he was dissat- isfied with the Union and that he didn't think the Union was doing him any good." During the same time, Miceli testified that he had a con- versation with Eddie Stanwick, a driver-salesman, who ad- vised him that he had formerly been employed by a "union house" and "if Riverside Produce went union, that he would no longer work for the Riverside Produce; he would go some place else." Stanwick further told him, "any place that he [Stanwick] had worked where they had a union, they became uncompetitive and unable to meet the compe- tition and that the prospects of the business being a success were not good." About the same time, Miceli testified that John Romo, a driver-salesman, told him that he (Romo) was opposed to the Union because he had worked at a produce company where he had a grievance and the Union had failed to sup- port him. According to Miceli, Romo "did not want to be- come or would not become a part of the Union." According to Miceli, during the same time, he had a con- versation with Tony Douglas, a driver-salesman, who told him, "That he was not for the Union. He was against the Union. And that he would not join, I believe is what he said; he would not join the Union." Miceli further testified that sometime in April 1977, John Romo quit and was replaced by employee Pat de Francisco during the first part of June 1977. According to Miceli. shortly after de Francisco became an employee, he told Miceli, "he didn't want to join any goddamn union" and asked what he could do to prevent it. According to Miceli, he suggested that he (de Francisco) contact the National Labor Relations Board and ask them what he should do.' Ne;'her the Charging Party's counsel nor the counsel for the General Counsel called additional witnesses, but were content to cross-examine Victor Miceli. The cross-examina- tion established that while Miceli was able to recall with great clarity and precision the antiunion comments of the employees as heretofore set forth, he was not able to recall The testimony of Miceli concerning what he was told by his employees regarding the Union is almost identical to the offer of proof that appears in the record of the first hearing. in any instance what conversation may have preceeded the antiunion remarks or why the employees elected to volun- teer, without solicitation, their antiunion remarks Analysis and Conclusions Respondent's objective considerations of its good faith doubt of the Union's majority status would seem to be three pronged. First, his conversation with four of the probable six employees in the bargaining unit:' second, the fact that payments to the trust funds had only been made on behalf of two employees-Johnson and Martinez: third, that lie (Victor Miceli) had never received any communication from the Union that there existed a union contract. There exists no objective basis on which it might be said that the testimony of Victor Miceli regarding the antiunion comments of four of Repondent's employees was anything but truthful. Neither the General Counsel nor Respondent subpenaed any of the employees and their version of what might have been said in the critical conversations has not been heard. However, I remain suspect as to the total can- dor of Victor Miceli's testimony for the following reasons. Victor Miceli contended that he had no knowledge of the Union until Respondent received the Union's form letter dated April 5, 1977, which requested the opening of the contract for negotiations. However, in August 1976, shortly after Victor and Sam Miceli acquired the business, Sam Miceli and Bill Bousman, an employee, had a difference of opinion in which the Union was brought into the conversa- tion. In November 1976, Molina, the Union's business agent, called on Respondent and met and talked with Sam Miceli. In February 1977, Molina again called at the prem- ises of Respondent and visited with Sam Miceli. At that time, there was a discussion between Molina and Sam Miceli regarding one of the employees with whom Sam Miceli contended he was having problems and later an ex- change of correspondence regarding the matter. It is incon- ceivabie that this knowledge of the Union on the part of Sam Miceli was not imparted to this brother Victor.' In addition, as was pointed out in the earlier Decision, Victor Miceli had a conversation with Jack Johnson, in February, concerning whether or not a particular day was to be re- garded as a holiday and the matter was resolved by refer- ring to an unsigned copy of a union contract which Johnson provided Victor Miceli. Perhaps the strongest and most convincing evidence of Victor Miceli's knowledge of the Union's presence and bargaining role stem from the fact that he (Victor Miceli) signed the August and December 1976 pension payments to the trust funds. As to Respondent's claim that there were only two named employees out of the six employees in the bargain- ing unit that appeared on the monthly trust fund reports, : As indicated In the first Decision, Miceli listed Stanwick, Johnson, Mar- tinez. and Romo as regular employees in April 1977. Teno Sanchez, one if the former owners, who was employed by Respondent to make the ear'. morning drive to the Los Angeles market to purchase and return to Riverside with the newly acquired produce, and Tony Douglas, a part-time employee, would probably cor,.prise the entire unit. 3 Moreover, it makes no difference legally, because Victor and Sam Miceli were partners and knowledge on the part of one responsible supervisor and agent of Respondent would be sufficient to regard Respondent as having knowledge. 6i 7 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this situation stemmed from Respondent's own misconduct. The usual procedure is for the employer to delete or add names of new employees as the situation demands and as provided for on the forms accompanying payment. In this instance, Respondent had failed to add the names of the new employees as they were hired. Omissions by an em- ployer are generally only picked up at the time of an audit by the trust fund representatives. It was Respondent that was at fault and it would hardly seem right or equitable to allow Respondent to benefit from its own misconduct. There is no basis for Respondent to claim that it had never been apprised of the role of the Union in representing Respondent's employees in view of the undenied testimony of Robert Molina, a union business agent, that he called on Sam Miceli in November 1976 and again in February 1977. Moreover, as was pointed out in the prior Decision in this matter, Sam Miceli and Molina discussed on the occasion of the November visit by Molina the nonunion status of the H & L Produce Company, a competitor of Respondent, at which time Sam Miceli responded, "we don't mind being in the Union as long as our competition is too." This knowl- edge of the Union's representational status and the continu- ous payments of the pension and welfare trust monies from August 1976 through March 1977, even though the pay- ments did not include all of the employees for whom pay- ments should have been made, are clearly convincing of Respondent's adoption of the union contract. I find, as I did in the prior Decision, that from August 4, 1976, until July 4, 1977, the Union was the exclusive bar- gaining representative of all employees in an appropriate bargaining unit within the meaning of Section 9(a) of the Act and Respondent's unilateral action in changing those wages, hours, and working conditions without negotiating with the exclusive bargaining representative was a violation of Section 8(a)(5) and (I) of the Act. Moreover, Respon- dent's failure to provide the Union with requested em- ployee information and the refusal to follow the grievance procedure set forth in the then effective contract was fur- ther violative of Section 8(a)(5) and (1) of the Act. Suspicious as I am of Victor Miceli's testimony regarding the conversations with a majority of the employees in the then existing bargaining unit, which conversations form the basis of his objective considerations creating his good faith doubt as to the Union's majority status, nevertheless these suspicions are based on inferences only and it is entirely possible that a majority of the employees are no longer desirous of being represented by the Union. The Regional Office operates under the supervision of the General Counsel of the National Labor Relations Board and has an investigative responsibility to the public, to the employers and the employees to see that the purposes and directives as set forth in the Act are fully adhered to. The offer Jf proof set out in the record of the first hearing out- lined in brief form the names and comments of each of the employees whom Victor Miceli claimed voluntarily re- ported their disenchantment with the Union. In preparation fbr the supplemental hearing it would have been relatively easy to have interviewed each of those employees and ob- tained their versions of the incidents. If their versions of the incidents were different from that indicated in the offer of proof, each of them could easily have been subpenaed to testify at the second hearing. Because of the General Coun- sel's failure to come forward with this readily accessible testimony, it tends to lend credence to Victor Miceli's ver- sion of the conversations. Accepting Miceli's version of the four employees disenchantment with the Union and the time of these conversations-late February or early March 1977-this was at a time prior to the discontinuance of the pension and welfare trust fund payments and thus the em- ployees' attitudes toward the Union were not created be- cause of Respondent's unfair labor practices and Respon- dent will not be benefiting from its own misconduct.' Based on all the evidence and the logical inferences to be drawn therefrom, I find that Respondent had a good faith doubt, based on objective considerations, of the Union's majority on or about April 27, 1977, when the RM petition was filed. CONCLUSIONS OF LAW I. Respondent is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. General Truck Drivers, Warehousemen & Helpers Union, Local 467, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of Respondent at its Riverside, Califor- nia, location, excluding clericals, office workers, janitors, and supervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Respondent was, and is, a legal successor to the prior owner and, because of a course of conduct it adopted the predecessor's union contract and is obligated to adhere to the terms of said contract until the contract's expiration date which was July 4, 1977. 5. By failing and refusing, since on or about April 1977, to recognize and bargain with the Union as the exclusive representative of the employees in the appropriate bargain- ing unit until the contract's termination date, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By unilaterally changing previously established terms and conditions of employment for unit employees after hav- ing adopted the predecessor's contract and becoming bound thereby, and by failing to adhere to the obligations as set forth in the labor management agreement, Respon- dent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. By failing and refusing to furnish employee informa- tion to the Union, and by refusing to process grievances or union complaints up to and including the expiration date of the union contract (July 4, 1977), Respondent violated Sec- tion 8(a)(5) and (1) of the Act. 8. Since on or about April 1977, Respondent has had reason to believe, based on objective considerations, that the Union no longer represented a majority of the employ- ees involved in an appropriate bargaining unit. 'Cf. C d C Plywood Corporation and Veneers, Inc., 163 NLRB 1022 (1967). 618 RIVERSIDE PRODUCE COMPANY THE REMEI)Y Having found that Respondent has committed certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom, and that it take the affirma- tive action provided for in the recommended Order below. which I find necessary to effectuate the policies of the Act.5 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER6 The Respondent, Victor Miceli and Sam Miceli d/b/a Riverside Produce Company, its agents, successors, and as- signs shall: I. Cease and desist from: (a) Refusing to abide by all the terms and conditions of the contract between the Union and Respondent, specifi- cally the payments to the pension and health and welfare trust funds up to the expiration date of the Union contract, July 4, 1977. (b) Refusing to provide the Union with necessary and requested employee data and refusing to process union grievances or complaints in a manner consistent with the then effective labor management agreement up to its expi- ration date, July 4, 1977. In view of the fact that a year and a half has passed since the union contract expired, I shall not direct Respondent to furnish the employee data requested or to take any corrective action because of its failure to process employee grievances arising after Respondent's good faith doubt of the Union's majority status. 6 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed them by the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Make the Union's pension and health and welfare trust funds whole for any financial losses the, may have suffered by reason of Respondent's failure to comply with terms of the trust funds and union contract which expired on July 4, 1977, with interest thereon at the rate and in the manner provided by the Board in Florida Steel Corporation, 231 NLRB 651 (1977).7 (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying. all pay- roll records, social security payment records, timecards. personnel records, and all other records relevant or neces- sary to facilitate the determination of the amounts due the trust funds under the terms of this Order. (c) Post at its place of business in Riverside, California, the notice attached hereto as "Appendix."' Copies of said notice, on forms provided by the Regional Director for Re- gion 21. after being signed by Respondent's representative, shall be posted by it 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 to ensure that said notices are not altered. defaced, or covered by any other material. (d) Notify the Regional Director, in writing. within 20 days from the date of the date of this Order, what steps Respondent has taken to comply herewith. 'See, generally, Isis Plumbing & Heatring Co., 138 NI.RB 716 (1962. 8 In the event that this Order is enfiorced by a Judgment ofla United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 619