Diamond Walnut Growers

National Labor Relations Board - Board Decisions

Sep 13, 1993

312 N.L.R.B. 61 (N.L.R.B. 1993)

61
312 NLRB No. 21
DIAMOND WALNUT GROWERS
1 On February 24, 1993, Administrative Law Judge Michael D.
Stevenson issued the attached decision. The Respondent filed excep-
tions and a supporting brief.
2 In the absence of exceptions, we adopt, pro forma, the judge’s
conclusion that the Respondent violated Sec. 8(a)(5) by failing to
provide the Union, in a timely manner, with the names and address-
es of strike replacements.
1 After 3 days of hearing, Attorney Climpson dropped out of the
case due to illness; she was replaced by Attorney Davison who fin-
ished the case and prepared the General Counsel’s brief.
2 All dates herein refer to 1991 unless otherwise indicated.
3 On October 16, 1992, without objection, I granted General Coun-
sel’s motion to consolidate consolidated complaints in Cases 32–
CA–12303 and 32–CA–12397 with Cases 32–CA–12702–1 and 32–
CA–12702–2 (G.C. Exh. 1(m)(m)).
Diamond Walnut Growers, Inc. and Cannery
Workers, Processors, Warehousemen & Help-
ers Local 601, International Brotherhood of
Teamsters, AFL–CIO. Cases 32–CA–12303, 32–
CA–12397, 32–CA–12702–1, and 32–CA–12702–
2
September 13, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The question presented for Board review in this case
is whether the judge correctly found that the Respond-
ent violated Section 8(a)(1) of the Act by filing a state
court libel suit against the Union.1 The Board has con-
sidered the decision and the record in light of the ex-
ceptions and brief and has decided to affirm the
judge’s rulings, findings, and conclusions2 and to
adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Diamond Walnut Growers,
Inc., Stockton, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Barbara D. Davison, and Elaine D. Climpson, Esqs.,1 for the
General Counsel.
Robert G. Hulteng and Edward J. Goddard, Esqs. (Littler,
Mendelson, Fastiff & Tichy), of San Francisco, California,
for the Respondent.
Kirsten Snow Spalding, Esq. (Beeson, Tayer, Bodine & Liv-
ingston), of San Francisco, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at Stockton, California, on July 7–
9 and November 18, 1992,2 pursuant to two consolidated
complaints3 issued by the Regional Director for the National
Labor Relations Board for Region 32 on March 13, 1992
(32–CA–12303), and April 10, 1992 (32–CA–12397), con-
solidated by order on April 10, 1992 (G.C. Exh. 1(k)), and
September 24, 1992, consolidated complaint (32–CA–12702–
1 and 32–CA–12702–2) and which are based on charges
filed by Cannery Workers, Processors, Warehousemen &
Helpers, Local 601, International Brotherhood of Teamsters,
AFL–CIO (the Union) on January 21, 1992 (32–CA–12303),
March 6, 1992 (32–CA–12397), August 24, 1992 (32–CA–
12702–1 and 32–CA–12702–2). The complaint alleges that
Diamond Walnut Growers, Inc. (the Respondent) has en-
gaged in certain violations of Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act).
Issues
1 Whether Respondent has failed to supply the Union with
certain requested information such as names, addresses, and
social security numbers of Respondent’s nonstriking employ-
ees and, if so, whether Respondent violated the Act in refus-
ing to supply the information; if Respondent did supply the
information, was it supplied on a timely basis.
2. Whether Respondent filed in state court a frivolous and
retaliatory lawsuit against the Union because the Union en-
gaged in certain activities protected by the Act.
3. Whether Respondent, acting through a supervisor or
agent, unlawfully advised one or more employees that they
were ineligible for vested health insurance benefits as a result
of their participation in a strike;
4. Whether Respondent unilaterally changed certain job
prerequisites, without prior notice to the Union and without
affording the Union an opportunity to bargain.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and to cross-examine
witnesses, to argue orally and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of Gen-
eral Counsel and Respondent.
On the entire record of the case, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent admits that it is a California corporation en-
gaged in the processing, nonretail sale and distribution of
walnut products and having an office and place of business
located in Stockton, California. It further admits that during
the past year, in the course and conduct of its business, it
has sold and shipped goods or provided services valued in
excess of $50,000 directly to customers located outside the
State of California. Accordingly, it admits, and I find, that
it is an employer engaged in commerce and in a business af-
fecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Cannery Workers,
Processors, Warehousemen & Helpers Local 601, Inter-
national Brotherhood of Teamsters, AFL–CIO is a labor or-
ganization within the meaning of Section 2(5) of the Act.
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 On September 4, Respondent wrote to the Union, withdrawing its
final offer of July 3, declining to request additional negotiations ‘‘at
this time,’’ and stating that it would assess its position if the Union
requested additional negotiations (Jt. Exh. 5). Notwithstanding these
representations, the parties had at least six additional bargaining ses-
sions after the strike began (Jt. Exh. 33).
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
For a number of years prior to 1991, Respondent and the
Union have maintained a collective-bargaining relationship.
The last agreement between the parties began on July 18,
1988, and expired on June 30 (Jt. Exh. 1, sec. 2). Subse-
quently, the parties were unable to reach agreement on a new
collective-bargaining agreement. By letter of July 26, Re-
spondent’s attorney, Robert Hulteng, advised the Union’s at-
torney, Kenneth Absalom, that, effective immediately, Re-
spondent was implementing ‘‘most of the terms of the final
offer.’’ (Jt. Exhs. 2, 3). At 10 p.m., on September 4, the
Union called a strike at Respondent’s facility,4 which has
continued up to and beyond the final day of hearing.
After the strike began Respondent hired permanent re-
placements for the strikers. These replacements together with
those strikers who crossed the picket line to return to work
(crossovers) were sufficient to continue Respondent’s pro-
duction during its relatively short 8- to 10-week fall season.
During the hearing, the parties placed into issue conduct of
the strikers, both on the picket line and away from it, and
conduct of the nonstrikers. Some of the disputes over appro-
priate conduct has spilled over into state court, where various
temporary restraining orders, rules to show cause, and in-
junctions have been issued (Jt. Exhs. 4, 6, 9, and 10). The
Union has denied any striker misconduct for which it can be
held accountable.
To decide the issue over Respondent’s failure to provide
information requested by the Union—where striker conduct
is directly in issue and the other issues contained in this
case—I turn to the record.
B. Analysis and Conclusions
1. Respondent’s failure to furnish requested information
a. Facts
Some 5 weeks or so after the strike began, Tony Gamino,
secretary/treasurer of the Union, and witness for the General
Counsel, wrote a letter to Vince Brown, Respondent’s direc-
tor of human resources and witness for the Respondent. The
letter reads as follows (Jt. Exh. 16):
October 11, 1991
Vince Brown, Director/Human Resources
P.O. Box 1727
Stockton, CA 95201
Dear Vince:
At the time the current strike began, your employees
were working under wages, hours, terms and conditions
of employment which were unilaterally implemented by
the company. For reasons that are self-evident, the
Union has a direct interest, as representatives of the
work force performing bargaining unit work, in verify-
ing the continued application of these terms and condi-
tions in the present circumstances.
We are accordingly requesting the name and address-
es and social security numbers of all employees pres-
ently performing bargaining unit work. We intend to
communicate with these individuals concerning their
terms and conditions of employment, and to hold the
Company to the commitments it made when the modi-
fications were unilaterally put into effect.
Sincerely,
TEAMSTERS LOCAL UNION #601
/s/ Tony S. Gamino
Tony S. Gamino
Secretary-Treasurer
cc: Ken Absalon [sic]
Brown promptly replied (Jt. Exh. 17):
October 17, 1991
Mr. Tony S. Gamino
Secretary/Treasurer
Cannery Workers, Processors,
Warehousemen and Helpers Union,
Local No. 601
745 East Miner Avenue
Stockton, CA 95202
Dear Tony:
This is in response to your letter of October 1, 1991,
requesting the names, addresses and social security
numbers of all employees presently performing bargain-
ing unit work at Diamond Walnut. While the Company
recognizes the Union’s right to communicate with its
members regarding terms and conditions of employ-
ment, in light of recent events, we are unable to provide
this information to you.
Since the strike began, certain cross-over and re-
placement employees have been subjected to continuing
harassment at their homes. This harassment has in-
cluded guns being fired at private residences, slashing
of car tires, throwing of rocks through windows, plant-
ing of picket signs in yards and obscene and threatening
phone calls. Releasing the information you requested is
in direct contradiction to the Company’s desire to pro-
tect its employees from harassment, trespass, property
damage and physical harm by union sympathizers, or
any other individuals.
The Company is willing, however, to accommodate
the Union’s desire to communicate with Diamond em-
ployees. To that end, the Company will furnish the
names and addresses of all working employees to an
independent mailing service. The mailing service will,
without disclosing the names and addresses to the
Union, mail all information which the Union wishes to
communicate. The mailed information will not be re-
vealed to the Company. Arrangements can be made to
have the mailing service certify the accuracy of any
mailings conducted.
It is the Company’s belief that this alternative fur-
thers both the Union’s needs while protecting the inter-
ests of our working employees as well. If you would
like to discuss this in further detail, please let me know.
63DIAMOND WALNUT GROWERS
5 Any damage caused to nonstrikers’ real or personal property was
repaired or replaced at Respondent’s expense as long as it was prop-
erly reported to Brown and/or Heinze and as long as they determined
the damage was strike-related. Ultimately Respondent spent about
$25,000 for this purpose.
Very truly yours,
/s/ Vince Brown
Vince Brown
Director of Human Resources
Gamino also promptly responded (Jt. Exh. 18):
October 22, 1991
Vince Brown, Director/Human Resources
DIAMOND WALNUT GROWERS, INC.
P.O. Box 1727
Stockton, CA 95201
Dear Vince:
In response to your letter dated October 17, 1991 in
which the Company refuses to provide the Union with
the names, addresses and Social Security numbers of all
employees presently performing bargaining unit work at
Diamond Walnut; it is the Union’s contention that this
will not suffice.
The Union certainly has the right to know what rates
of pay are in effect and also the conditions of employ-
ment.
As to the alleged harassment of employees presently
working, the Union would like to assure you that it
does not condone this kind of behavior. Furthermore, if
you can supply us with facts as to the alleged incidents,
we would gladly investigate in order to put an end to
them. Also, it is not the Union’s intention to supply the
striking employees with the information which we have
requested.
If you do not comply with this request, you leave us
no choice but to file charges with the National Labor
Relations Board.
Sincerely,
TEAMSTERS CANNERY WORKERS LOCAL #601
/s/ Tony s. Gamino
Tony S. Gamino
Secretary-Treasurer
cc: Ken Abaslom [sic]
Finally, on November 1, Brown wrote the last letter in this
series (Jt. Exh. 22):
November 1, 1991
Mr. Tony S. Gamino
Secretary-Treasurer
Cannery Workers Union
Local 601
745 E. Miner Avenue
Stockton, CA 95202
Dear Tony:
The Company is in complete agreement with the
statement in your letter of October 22, 1991, that the
Union has the right to know what rates of pay and con-
ditions of employment are currently in effect. You are,
however, already in possession of this information. As
we have consistently stated, the terms and conditions of
employment included in the Company’s final proposal
of July 3 were implemented on July 26, 1991. These
implemented terms and conditions of employment con-
tinue to remain in effect. For specific questions regard-
ing rates of pay and conditions of employment, we sug-
gest that you refer to the provisions of the implemented
proposal.
In your October 11, 1991 letter, you stated that you
desired the names, addresses and social security num-
bers of all employees presently performing bargaining
unit work in order to ‘‘communicate with these individ-
uals concerning the terms and conditions of
employment[.]’’ The Company believes that the alter-
native of using an independent mailing service to com-
municate with employees satisfactorily accommodates
the interests of both the Union and the affected employ-
ees. We are, however, more than willing to discuss any
other alternatives which you believe are more appro-
priate under the circumstances. Please forward your al-
ternative proposals to me at your convenience.
Very truly yours,
/s/ Vince
Vincent H. Brown, Jr.
Director of Human Resources
About 9 months after Gamino made his first request for
information, the Union’s attorney, Absalom, on July 22,
1992, wrote to Hulteng asking for, among other information,
the names of all replacement employees (G.C. Exh. 15).
With respect to the July 22, 1992 request, the parties stipu-
lated that the Employer was continuing to refuse to provide
names and addresses of replacement employees, for the same
reasons the Employer had earlier advanced (Tr. 870).
According to Gamino, about 500 to 600 persons went on
strike. From this group, about 17 to 18 persons resigned from
the Union and returned to work. He testified that he needed
the names and addresses of the nonstrikers in order to have
face-to-face contact with them. Such contact would provide
information to the Union on such subjects as whether Re-
spondent was paying the appropriate rates of pay pursuant to
the implemented proposal, whether the other terms and con-
ditions of employment were proper, and who was performing
bargaining unit work and with what qualifications.
Respondent, on the other hand, provided witnesses and
other evidence to explain why it did not provide the re-
quested information. First, I note Respondent’s procedure for
any strike-related incidents either at the picket line or away
from it. All incidents were to be timely reported by written
form either to Brown or to Wendy Heinze, now supervisor
of recruiting, compensation and compliance, formerly during
the beginning strike months, supervisor of labor relations.
Extra security was provided in and around Respondent’s
premises, and even a bus for a few days to ferry nonstrikers
back and forth to places where they could park their car
without fear of vandalism.5 Some of the witnesses called by
Respondent to recite their experience also provided declara-
tions to Respondent’s attorneys who submitted them to state
court in support of requests for injunctions against mass
picketing or other improper picket line activity. Unless other-
wise identified, all Respondent witnesses whose testimony is
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Torres was called by General Counsel in rebuttal and denied the
misconduct attributed to him. I found his denials lacking in credibil-
ity and I do not credit his testimony. I make no finding, however,
express or implied, as to his fitness to return to work as that issue
is not presented by this case.
summarized below are or were nonstriking employees work-
ing in unit jobs.
Because neither General Counsel nor the Union contend
that the events recited by Respondent’s witnesses and sum-
marized below failed to occur, I credit that portion of the
witnesses’ testimony describing their experience. At the con-
clusion of the summary, I will make a finding based on Re-
spondent’s evidence whether the Union has been shown to
be responsible for the strike misconduct.
Name of Witness What Happened Where/When Reported to Re-spondent or Police Result
(1) John Gray (Bus
driver for Taylor
Tours—provided 1-
1/2 weeks of bus
service for nonstrikers
to and from various
lots where car parked.
3 times, rocks thrown at bus, bus hit
w/picket sign & bus followed almost
daily.
At plant as bus en-
tering and leav-
ing.
Employer only. Witness submitted a dec-
laration in support of
Modified Temporary
Restraining Order (R.
Exh. 4).
(2) Jerry Bahma Re-
spondent vice presi-
dent and chief finan-
cial officer
Window of brother’s motor home shot
out by BB pellets.
In front of witness’
home; Oct. 6; 10
p.m.
Employer & police No arrests. Unknown who
shot windows.
(3) Paul Hallmark
(Cross-over em-
ployee)
(a) Striker named Mack said he fucked. In plant, Sept. 10. Employer Unknown.
(b) Pickup truck spray painted w/ words
‘‘scab,’’ ‘‘prick.’’
At home, Sept. 11,
4 a.m.
Employer & police No arrest/unknown van-
dal—witness expects
Company to pay for
damage.
(c) Person following shuttle bus from
plant & videotaping nonstrikers
exiting to cars.
No report. Unknown.
(4) Powell Smith Van followed witness out of plant and
harassed and threatened on freeway.
At plant, Oct. 1. Verbal report to
Employer.
Witness recognized driver
of van as striker—no ar-
rest & no report to po-
lice.
(5) Steve Brodie (a) Witness followed and tailgated as
drove home after midnight (5 or 6
times).
From plant, late Oc-
tober or Novem-
ber.
No official report. No arrest or ID of assail-
ant.
(b) Tires slashed on vehicle (total of 4
times).
At home, overnight. No official report.
(c) Sliding glass window broken by
thrown patio chair.
At home, over night. Employer & police
(6) Scott Gomez Witness severely beaten at nearby gro-
cery store by 2–3 men who made
statements indicating strike-related.
Grocery store/April
1991
Employer only. Witness offered oppor-
tunity to ID assailants
by looking at employee
badges but refused. No
arrests or ID of assail-
ants.
(7) Enrique San Jose Witness dropped off at parking lot after
work and found 3 flat tires on vehi-
cle.
K-Mart parking lot,
September 10.
Employer only. No arrests. Company paid
for tire replacements.
65DIAMOND WALNUT GROWERS
Name of Witness What Happened Where/When Reported to Re-spondent or Police Result
(8) Clifford Mello (a) As witness exiting plant, vehicle
blocked by striker Jess Torres6 who
then hit Mello’s vehicle with a picket
sign; someone threw 3 rocks at
Mello’s vehicle.
At plant, September
5
Employer only. No result.
(b) As witness exiting plant, pickup
slowly driving ahead of witness driv-
en by striker Benny Pacheco, ‘‘who
gave thumbs down’’ gesture. After
Mello passed vehicle, a chase ensued
for several minutes.
At plant, September
9
Employer only. No result.
(c) Witness found vehicle with all four
tires punctured.
In front of home, 9
a.m. on Septem-
ber 21.
Employer only. Employer paid for new
tires $500.
(d) Several miscellaneous incidents of
following witness with vehicles driv-
en by strikers Dwayne Vanderpool
and Jess Torres, confronting him with
possible gun barrel in pickup truck,
addressing him with vulgar language
and using fingers of hand to simulate
a gun pointing at witness.
On roads near
plant—early to
mid-September.
Employer only. Employer provided secu-
rity guard to ride in
Mello’s vehicle with
him on three different
occasions.
(9) Gene Clark (a) Wife found picket sign in front yard
on two occasions and a rock was
thrown at his home.
At home on Sep-
tember 6.
Employer only. No arrest nor identification
of perpetrators.
(b) Leaving plant, witness followed in a
vehicle, driven by striker Lucio
Reyes.
At plant, September
7.
Employer only.
(c) Witness received report that call
made to plant threatening him with
violence.
At plant, September
8.
(d) On four to six occasions, witness’
vehicle had windows broken.
At home during Oc-
tober.
Employer only. Employer paid for replace-
ment (about $1000) and
assigned security guard
at home for 1-1/2
months.
(10) Earl Stutler Witness’ home and car covered by bro-
ken eggs.
At home October 1,
between midnight
and 4 a.m.
Employer only. No arrest and no ID-Em-
ployer paid for repairs.
(11) Anita Cruz (a) Front windows of home broken with
large rocks.
At home, September
28, 1:30 a.m.
Employer only. No arrest or ID. Employer
paid for repairs.
(b) 2 bullet holes in another window of
house.
Mid-October. No report.
(12) Kirk Berry As witness walking to car after work,
unknown person drove up and said,
‘‘You’ll never work for a Union
again. We have your license number
and all the info we need.’’
At Costco parking
lot on September
17.
Employer only. No action.
(13) Von Wassin (a) Garage door painted with witness’
name, ‘‘No. 1 Scab,’’ ‘‘Fuck.’’
At home, September
12.
Can’t recall if re-
ported to em-
ployer.
No action.
(b) 2730 anonymous phone calls: ‘‘We
know where you live and going to get
you—won’t have to worry about fam-
ily if continue to work at Diamond
Walnut.’’
September/October. Can’t recall if re-
ported, didn’t
take calls too se-
riously.
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 I also note one or more complaints in the record by the Union
regarding alleged misconduct of nonstrikers. See, e.g., letter of Octo-
ber 1 (Jt. Exh. 11).
Name of Witness What Happened Where/When Reported to Re-spondent or Police Result
(14) Vince Brown Threatened by picket captain Manuel
Arvizu: ‘‘Vince Brown I know where
you live, I’m coming to your house
and I’m going to do things my way.
You’re going to pay alright, I’ll be at
your house.’’
Near picket line on
Respondent’s
property January
28, 1992, 12:50
p.m.
Employer and
Stockton police.
Brown sent letter to Tony
Gamino complaining of
incident (R. Exh. 19); 1
week later, Gamino ac-
knowledged complaint
and promised investiga-
tion ‘‘in the very near
future’’ (G.C. Exh. 14);
Gamino made no further
responses on grounds
that Arvizu had denied
incident.
(15) Wendy Heinze (a) Heard a striker named Mack who
was in the plant with permission to
retrieve his tools, say to a nonstriker
named Rowland, ‘‘You’re fucked
Charles you’re fucked.’’ (Mack made
a similar comment to Hallmark.)
In plant on Septem-
ber 10.
No result.
(b) After leaving job, witness was fol-
lowed at night about half way to her
home by person driving brown truck
with shell on back.
Early October. Employer. Following day witness saw
same brown truck
parked in area where
pickets park vehicles;
no action taken.
In addition to the witnesses whose testimony is summa-
rized above, Respondent provided numerous incident reports
and declarations of witnesses reciting alleged strike-related
events (R. Exhs. 23, 24, and 25). The matters contained in
these reports are similar to those personally described by Re-
spondent’s witnesses noted above. Also as noted above, Re-
spondent offered into evidence certain orders of the state
court that name the Union and others as defendants and
which orders regulate and control picket conduct (Jt. Exhs.
4, 6, 9, 10).7
Notwithstanding Respondent’s evidence referred to above,
presented in support of its refusal to provide the Union with
the names, addresses, and social security numbers of the non-
striking employees, the parties stipulated at hearing that on
September 28, 1992, Respondent provided to the NLRB Re-
gional Office and to the Union, a document commonly re-
ferred to as an Excelsior list containing the names and ad-
dresses of all unit employees, i.e., all permanent replace-
ments and all crossovers, then working.
b. Legal principles
In New England Telephone Co., 309 NLRB 558 (1992),
the Board affirmed the decision of the administrative law
judge directing the Respondent to provide certain information
to the union. At 561, the administrative law judge recites cer-
tain relevant principles of law:
Under settled principles of labor law, ‘‘an employer
is obligated to provide a union with requested informa-
tion if there is a probability that such data is relevant
and will be of use to the union in fulfilling its statutory
duties and responsibilities as the employees’ exclusive
bargaining representative’’; the issue in such a case is
‘‘whether the requested information has probable and
potential relevance to the union’s statutory obligation to
represent employees within the contractual units’’; and,
‘‘whatever the eventual merits of the [union’s] claim
. . . [it is] entitled to the requested information under
the discovery type standard announced in NLRB v.
Acme Industrial Co., 385 US 432, 437 (1967), to judge
for [itself] whether to press [its] claim in the contractual
grievance procedure or before the Board or Courts
. . . .’’ See Maben Energy Corp., 295 NLRB 149
(1989) and cases cited.
. . . .
In addition, as recently restated in Safelite Glass, 283
NLRB 929, 948 fn. 26 (1987):
It is well established that there must be more than
a speculative concern on the part of an employer
. . . there must be a clear and present danger of har-
assment and violence . . . to justify a refusal to fur-
nish a union with relevant information . . . [citations
omitted].
See also Browne & Sharpe Manufacturing Co., 299
NLRB 586 (1990).
Accordingly, where the issue is whether the Union is enti-
tled to the names and addresses of employees, the general
rule under the liberal discovery standard quoted above is the
information must be provided. NLRB v. Associated General
Contractors, 633 F.2d 766, 733 (9th Cir. 1980); NLRB v.
Pearl Bookbinding Co., 517 F.2d 1108, 1113 (1st Cir. 1975);
United Aircraft Corp. v. NLRB, 434 F.2d 1198, 1204 (2d Cir.
1970), cert. denied 401 U.S. 993 (1971). Cf., NLRB v.
Wyman-Gordon, 394 U.S. 759, 787 (1969).
67DIAMOND WALNUT GROWERS
8 Employee social security numbers are not presumptively relevant
and thus need not be furnished absent a showing of the numbers’
potential or probable relevance. Sea-Jet Trucking Corp., 304 NLRB
67, 68, and fn. 2 (1991). Because neither General Counsel nor the
Union has made any such showing here, I do not fault Respondent
for failing to provide nonstrikers’ social security numbers.
Where the issue is whether the Union is entitled to the
names and addresses of strike replacement employees, the
focus of the inquiry changes somewhat, but the Board still
finds a strong presumption in favor of production. See
Trumball Memorial Hospital, 288 NLRB 1429 (1988); Chi-
cago Tribune Co., 303 NLRB 682 (1991) enf. denied 965
F.2d 244 (7th Cir. 1992). Put differently, unless an employer
can prove a clear and present danger to its nonstrikers, the
employer must provide the names and addresses to the union
as requested. Georgetown Associates, 235 NLRB 485, 486
(1978); Chicago Tribune Co., supra.
In Chicago Tribune Co. v. NLRB, supra at 246–248, the
court discussed with disapproval the origins of the ‘‘clear
and present danger’’ doctrine in a labor law context and re-
fused to enforce the Board’s decision. In its opinion, the
court noted the description of the Board’s standard by one
court as a ‘‘settled rule.’’ Lear Siegler, Inc. v. NLRB, 890
F.2d 1573, 1581 (10th Cir. 1989). Numerous other courts of
appeals decisions, including a very recent decision of the
Seventh Circuit itself have also approved the Board’s stand-
ard. See NLRB v. Illinois American Water Co., 933 F.2d
1368, 1377 (7th Cir. 1991).
Not surprisingly, Respondent cites Chicago Tribune Co. v.
NLRB, with approval in its brief. There at fn. 10, Respondent
contends that the ‘‘clear and present danger’’ standard is
overly burdensome and inappropriate in an unfair labor prac-
tice proceeding. As an administrative law judge for the Na-
tional Labor Relations Board, I am bound by the Board’s de-
cisions. Iowa Beef Packers, 144 NLRB 615, 616 (1963). I
therefore reject Respondent’s invitation to reconsider the ap-
plication of the Board’s standard to unfair labor practice
cases, since I have no power or authority to do so.
Applying the ‘‘clear and present danger’’ test to the in-
stant case, I find that Respondent has failed to meet its bur-
den. With respect to the witnesses presented as summarized
above, I note that many of the incidents are very serious mis-
conduct. However, in most of the incidents the perpetrator is
unknown. When a specific person is named, there is no evi-
dence that said person is a current official or agent of the
union. For example, Reyes was a former secretary/treasurer
of the Union in 1989 or 1990; Mack was a former shop
steward; Arvizu was a current picket captain but this status
does not make him an agent of the Union. Moreover, there
is no evidence that any named individual had access to union
files or computers.
Respondent also directs my attention to the sundry orders
of a state court. However, one or more restraining orders
issued by a state judge does not necessarily reflect that the
union has forsaken a peaceful, legal process. See Clear Pine
Mouldings v. NLRB, 632 F.2d 721, 730 (9th Cir. 1980), cert.
denied 451 U.S. 984 (1981).
The issue in this case is directly governed by the Board’s
decision in Chicago Tribune Co., supra, where the names
and addresses of the nonstrikers were eventually released by
the employer prior to any ruling by the administrative law
judge. The administrative law judge noted this disclosure and
found that it tended to support his decision that no ‘‘clear
and present danger’’ had been proven. Similarly, in the in-
stant case, I find the eventual release on September 28, 1992,
of the names and addresses in issue as part of an Excelsior
list supports my findings and conclusions that no clear and
present danger existed.
In conclusion, I consider Respondent’s proposed alter-
native of releasing the names and addresses in issue to an
independent mailing service who could then forward the
Union’s mailings to the nonstrikers. I find that Respondent’s
proposal was not reasonable because Gamino credibly testi-
fied that it was necessary for the Union to have an oppor-
tunity for face-to-face contact with the strikers to make its
case. Of course, the nonstriker is not required to speak to the
Union’s representative and one can speculate as to how many
nonstrikers in this case would be inclined to listen. This is
not the point, however. Respondent’s alternative simply did
not advance the bargaining process.
Because Respondent did not reply to the Union’s two
valid requests for information, in a timely manner, I find that
Respondent violated Section 8(a)(5) of the Act on September
28, 1992, when it finally furnished the Union with the names
and addresses of nonstrikers. Teamsters Local 921, 309
NLRB 901 (1992); NLRB v. John S. Swift Co., 277 F.2d 641
(7th Cir. 1960); EPE Inc., 284 NLRB 191, 200 (1987).8
2. Respondent’s state court civil action for libel
a. Facts
On October 22, the president of the California School Em-
ployees Association (CSEA), a labor organization, sent a let-
ter to See’s Candies, an important customer of Respondent’s.
The letter reads as follows (Jt. Exh. 19):
October 22, 1991
See’s Candies
1 210 El Camino Real
San Francisco, CA 94080–9971
Dear Sirs:
Subject: Boycott of Diamond Walnut Growers
The Board of Directors of the California School Em-
ployees Association (CSEA) has voted to boycott your
company because of your past business relationship
with Diamond Walnut Growers, Inc. As you can see
from the attached letter, we are boycotting Diamond
Walnut Growers and their customers because Diamond
refuses to negotiate with the members of the Cannery
Workers, Processors, Warehousemen and Helpers,
Local No. 601.
We have no animosity toward your company because
you seem to have a good relationship with your em-
ployees, but it is imperative that we send a clear mes-
sage to the management of Diamond Walnut Growers
to end their strike and settle this matter equitably.
We do not take boycotts lightly. We will act and we
will act in large numbers–our 108,000 members
throughout California will encourage their friends and
families to join our boycott until this matter is settled.
Sincerely,
California School Employees Association
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 As the judge sustained the demurrer without leave to amend, he
stated, ‘‘I may be wrong. But as I say, I don’t think anybody, as
a matter of fact, can take this all that seriously. That is anything
other than simply an expression of or allegations of hostility and dis-
like toward—to the employer. It’s not a statement of fact.’’ (R. Exh.
1, p. 9.)
/s/ Bill Ellis
Bill Ellis
State President
On the same date, a second letter was sent by CSEA to
Respondent and it reads as follows (R. Exh. 2):
October 22, 1991
Bill Cuff, President
Diamond Walnut Growers, Inc.
P.O. Box 1727
Stockton, CA 95201
Dear Mr. Cuff:
The Board of Directors for the California School
Employees Association (CSEA) has voted to boycott
your company, and all companies that purchase walnuts
from you (as listed below), until you reach a contract
agreement with the members of the Cannery Workers,
Processors, Warehousemen and Helpers, Local No. 601.
We do not take boycotts lightly. We will act and we
will act in large numbers—our 108,000 members
throughout California will encourage their friends and
families to join our boycott of your company and the
companies listed below until this matter is settled.
The members of Local 601 took unprecedented pay
cuts in 1985 to help you through some difficult finan-
cial times. Now, with Diamond Walnuts having posted
record sales in 1990, it is time to bring your employees
wages to a level comparable with other cannery work-
ers.
We hope that our boycott will be short lived and that
you will return to the bargaining table, end the strike
and settle this matter equitably.
Sincerely,
California School Employees Association
/s/ Bill Ellis
Bill Ellis
State President
General Mills Betty Crocker
Friendly Ice Cream Quaker Oats
Kellogg’s Nestle’s
Keebler Pepperidge Farms
Ralston Stouffer
Chef Francisco Dreyer’s
Post Frito Lay
See’s Candies Entenmann’s
Nabisco Weight Watchers
Mother’s Cookies Mc Kee
Yoplait Sara Lee
Crescent Pillsbury
Godiva Wal Netto
9 Proctor & Gamble General Foods
Pretiago Farms Haagen Dazs
The companies listed at the bottom of this second letter are
all major customers of Respondent’s and all or most received
letters similar to Joint Exhibit 19.
Respondent presented evidence from two of its officials,
Brown and Dan Hagerty, to prove that Respondent believed
that a statement contained in Joint Exhibit 19, ‘‘Diamond re-
fuses to negotiate with the members of the Cannery Workers,
Processors, Warehousemen and Helpers, Local No. 601,’’
was false. In addition, Respondent believed that dissemina-
tion of the allegedly false allegation to its major customers,
some of whom were themselves unionized, would hurt Re-
spondent’s business. In light of these facts, on October 31,
Respondent filed in California state court, a ‘‘complaint for
Damages For Libel’’ (No. 238729) (Jt. Exh. 21), against the
Union, against CSEA, and against 10 Doe Associations al-
leging the knowing dissemination of false statements con-
tained in Joint Exhibit 19, recited above (Jt. Exh. 21). Ac-
cording to Brown, the Union was named as a co-defendant
because it was the only party that could have benefited from
the letter and the only party who knew the identity of Re-
spondent’s customers. Moreover, according to Brown, CSEA
representatives had been observed doing some picketing on
Respondent’s premises.
On or about January 6, 1992, the Union and apparently
CSEA as well, filed a demurrer in state court to the Employ-
er’s libel action (Jt. Exh. 25). On February 6, 1992, the Em-
ployer filed a memorandum of points and authorities in op-
position (Jt. Exh. 26), and defendants subsequently filed a
reply brief (Jt. Exh. 27). On February 24, 1992, the state
court judge issued an ‘‘Order Sustaining Demurrer Without
Leave to Amend, ‘‘on the grounds that the alleged defama-
tory statements are protected statements of opinion . . . and
that therefore the Complaint fails to state facts sufficient to
constitute a cause of action.’’ (Jt. Exh. 30).
Respondent claims in its brief, page 38, that the state court
judge expressed misgivings about his decision to sustain the
demurrer.9 Assuming for the sake of argument only that Re-
spondent’s interpretation of the judge’s remarks are accurate,
I am puzzled by Respondent’s failure to appeal from the
court’s order.
b. Legal principles
In Operating Engineers Local 520 (Alberici Construction
Co.), 309 NLRB 1199 (1992), the Board had occasion to re-
view the principles of Bill Johnson’s Restaurants v. NLRB,
461 U.S. 731 (1983), in the context of a state court lawsuit
by a union against one of its members for slander and libel.
In Operating Engineers Local 520, the Board stated, that it
has
consistently interpreted Bill Johnson’s Restaurants to
hold that if the plaintiff’s lawsuit has been finally adju-
dicated and the plaintiff has not prevailed, its lawsuit
is deemed meritless, and the Board’s inquiry for resolv-
ing the unfair labor practice issue; proceeds to resolving
whether the respondent/plaintiff acted with a retaliatory
motive in filing the lawsuit. [Citations omitted.]
69DIAMOND WALNUT GROWERS
10 The Board’s analysis follows the Court’s decision in Bill John-
son’s Restaurants, 461 U.S. at 747, in which the court stated ‘‘If
judgment goes against the employer in state court, however, or if his
suit is withdrawn or is otherwise shown to be without merit, the em-
ployer has had its day in court, the interest of the State in providing
a forum for its citizens has been vindicated, and the Board may then
proceed to adjudicate the . . . unfair labor practice case.’’
11 Equally plausible is CSEA’s interest in establishing good will or
an I.O.U. so a powerful Union might be available to assist CSEA
in battling its own continuing labor and political disputes throughout
the State of California.
In the instant case, Respondent’s lawsuit is no longer
pending and it did not prevail. Accordingly, I must decide
whether the lawsuit was filed for a retaliatory reason.10
I begin this segment of the decision by finding that Re-
spondent’s state court lawsuit against the Union was entirely
baseless. I note Brown’s testimony providing reasons for
naming the Union as a defendant: because it was the only
party that could have benefited from the boycott letter, be-
cause it was the only party who knew the identity of Re-
spondent’s customers, and because CSEA representatives had
been observed on at least one occasion picketing during the
strike. By themselves and when considered in their totality,
these alleged reasons fall short of establishing a reasonable
basis for naming a party as a defendant. Thus CSEA could
have undertaken its boycott campaign strictly on its own in
the interests of union solidarity.11 The names of Respond-
ent’s customers could have been obtained from a nonagent
of the Union who was sympathic to the goals of the strike.
And CSEA’s mere presence on the picket line hardly im-
putes CSEA’s alleged misconduct to the Union.
At page 15 of General Counsel’s brief, counsel notes the
lack of evidence showing any involvement by the Union in
CSEA’s decision to send the letter. Moreover, the Union was
not signatory to any of the letters sent, and there was no evi-
dence that the Union engaged in any conduct which would
constitute publication of CSEA’s letter. I adopt these argu-
ments and note further that Respondent never called a CSEA
representative at hearing or presented other credible evidence
to show a concert of action, agency, or some other reason-
able basis for naming the Union as a defendant.
Because Respondent’s lawsuit against the Union was base-
less, I find Respondent’s motive was retaliatory. This conclu-
sion is supported by one other factor. Respondent sought
$500,000 in punitive damages (Jt. Exh. 21, p. 4). As the
Board noted in Operating Engineers, this claim for punitive
damages is evidence of a retaliatory motive.
Respondent argues (brief, pp. 39–44) that it cannot be
found guilty of violating Section 8(a)(1) of the Act by filing
a baseless lawsuit for retaliatory reasons because it did not
sue individual employees in state court and only employees
may engage in protected concerted activity. I find that Re-
spondent’s argument lacks merit. Respondent itself notes the
case of Phoenix Newspapers, 294 NLRB 47 (1989), in which
a plaintiff/respondent filed a libel action against a union and
several employees. The filing of the lawsuit was found to be
an unfair labor practice by the Board. See also Dahl Fish
Co., 279 NLRB 1084, 1105–1106 (1986), enfd. 813 F.2d
1254 (D.C. Cir. 1987), and Giant Food Stores, 295 NLRB
330, 333–334 (1989). The cases show that for the Board to
find an unfair labor practice pursuant to a Bill Johnson’s
Restaurants analysis, it is not necessary for the
plaintiff/respondent to sue employees in state court nor to sue
a union and employees. It is sufficient to sue a union only
as in this case.
In support of this conclusion, I note that the filing and
maintaining of a baseless lawsuit for retaliatory motives as
recited above, had the direct and reasonably foreseeable ef-
fect of draining limited union time and assets in defense of
the state court action. This in turn directly impacted on em-
ployees who were participating in their Section 7 right to
strike. For example, Union Official George reported to mem-
bers on the existence and progress of various court actions
filed against the Union. Thus Respondent’s state court law-
suit restrained and coerced employees in the exercise of their
rights guaranteed by Section 7 of the Act and thereby vio-
lated Section 8(a)(1) of the Act.
3. The alleged statement regarding loss of health
insurance for strikers
A. Facts
According to General Counsel witness and striker Josie
Gonzales, an employee with 34 years of employment with
Respondent, she had some medical tests performed at a lab
in late September. An employee of the lab told her she had
no health insurance coverage at the time. On hearing this,
Gonzales called Donel Doty, Respondent’s then supervisor of
benefits and recruiting. Gonzales testified that Doty con-
firmed that she was without health insurance. Gonzales then
complained to Union Official George, a former employee of
Respondent then on a leave of absence. George then called
Doty herself regarding health insurance. According to
George, Doty allegedly confirmed that Gonzales and other
strikers lacked health insurance. When George protested that
the rule for coverage was that anyone who worked 80 hours
or more in a prior month was eligible for health insurance
in the current month—Gonzales had worked over 80 hours
in August—Doty agreed, but then allegedly added that once
employees voluntarily went on strike, that stopped coverage.
George concluded the conversation by telling Doty she in-
tended to seek legal advice from union attorneys.
Doty testified for Respondent and recalled both conversa-
tions in question. As to the Gonzales conversation, Doty re-
called it because she had known about Gonzales’ medical
condition for which Gonzales had the lab tests. According to
Doty, she told Gonzales that she was covered by health in-
surance during September. Doty specifically denied telling
Gonzales or anyone else they lost health insurance because
they went on strike. As to the following month, Gonzales
would be eligible under the COBRA law to continue her
health insurance at her own expense.
This simple message, according to Doty, had been con-
veyed to close to 100 employees, who had gone on strike on
September 4 and called to inquire about their coverage. Part
of the confusion was caused by Respondent’s implementation
as of August 1 of a new health insurance plan called OMNI.
As noted above, to be eligible for coverage, an employee had
initially to enroll in the plan and had to have worked 80
hours or more in each month before the month for which
coverage was claimed. Because all or most strikers who had
enrolled in the plan had worked over 80 hours in August,
they were covered in September.
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Doty also recalled talking on the telephone to George—
about 12 times during the course of the strike with respect
to OMNI coverage. Within the first week of the strike, Doty
recalled George calling to ask about Gonzales’ coverage and
two other strikers under the OMNI plan. As was her habit,
Doty looked up the records of all three strikers and specifi-
cally recalled telling George that Gonzales was covered for
September. Again Doty denied telling George that strikers
lost health insurance because they went on strike.
It is unnecessary to recite legal principles here as I do not
credit the testimony of Gonzales and George. Prior to the
strike and in an attempt to explain its new health insurance
plan, Respondent distributed to its employees and to the
Union, voluminous material. For example, Respondent Ex-
hibit 5 (General OMNI Plan Information), Respondent Ex-
hibit 6 (Most Frequently Asked Questions), Respendent Ex-
hibit 7 (Letter to employees regarding OMNI) and Respond-
ent Exhibit 13 (More Frequently Asked Questions). All of
this information makes it as clear as possible to employees
that they were covered if they enrolled and worked at least
the requisite number of hours in the month before coverage
was questioned.
Besides this general information, Respondent also intro-
duced Gonzales’ enrollment form in OMNI dated August 8
(R. Exh. 8), Gonzales’ authorization for Deduction of Health
Benefit Co-Pay, dated August 7 (R. Exh. 9), and Gonzales’
September co-payment check for $11.91 dated October 11,
honored by Respondent though almost 2 weeks late (R. Exh.
11).
Since I do not believe Gonzales intentionally lied, I as-
sume that due to the stress and uncertainty of the strike, she
misunderstood what Doty was telling her, a misunderstanding
perhaps related to the failure of the OMNI plan to cover the
particular lab work that Gonzales was having performed.
It is more difficult to explain charitably George’s testi-
mony, yet I have no difficulty at all in reaffirming any fail-
ure to credit her testimony. To support my discrediting of
George, I note the following factors. With hundreds of em-
ployees on strike, why would Doty tell only Gonzales she
was not covered by health insurance due to her participation
in the strike. General Counsel presented no evidence of ani-
mus between the two; indeed I find no animus between Doty
and either Gonzales or George. I find no motive for Doty to
give misinformation regarding insurance coverage to a single
employee. I also find that Doty did not mistakenly give out
the information in issue as she was fully versed in the OMNI
plan and its requirements for coverage.
Other inconsistencies abound in George’s testimony. For
example, though she doubted the alleged information sup-
plied by Doty so as to immediately consult with legal coun-
sel—at least that’s what she told Doty—she nevertheless then
supposedly repeated this suspect information to about 100
strikers. I don’t believe this either.
Finally, although George had a cordial relationship with
Brown as she did with Doty, she never sought to confirm
with Brown the information allegedly supplied by Doty—in-
formation contrary to much of the documents supplied by
Respondent about OMNI and how the plan works.
For all the reasons stated above, I will recommend to the
Board that, on credibility grounds, this allegation be dis-
missed.
4. The alleged unilateral change in terms and conditions
of employment
a. Facts
On July 22, 1992, union counsel wrote to Respondent
counsel requesting that Respondent provide a listing of all
regular and seasonal positions for the 1992 season ‘‘in order
to assist [the Union] in evaluating the Company’s revised
proposal dated July 1, 1992.’’ (G.C. Exh. 15.) In response,
Respondent presented to the Union at an August 4, bargain-
ing session a list of seasonal jobs (G.C. Exh. 16). With the
list of seasonal jobs, Respondent also provided to the Union,
job bids containing job descriptions and prerequisites which
were different from job requirements in past years (G.C.
Exhs. 17(a)–(z)). More specifically many or most of the new
job requirements required testing to qualify for the positions
whereas in the past testing was not required. The job bids
given to the Union on August 4, 1992, had sometime before
that, been posted in the plant by Heinze. Union Representa-
tive George who received the information from Respondent
on August 4, 1992, did not then notice the change in job re-
quirements and no one gave her notice then or before, that
the changes were contained in the job bids. No discussion of
the changes occurred on August 4, nor on August 26, 1992,
when the parties met for another negotiating session. Alleg-
edly it was sometime after the August 26 negotiating session
when George noticed the changes required testing. On dis-
covery, George notified only union counsel, but did not con-
tact Respondent to protest the changes, to request bargaining
or for any other purpose.
Respondent never implemented the testing requirements
for the 1992 season on the grounds it was too busy. In addi-
tion, Respondent prudently decided to await the outcome of
this hearing.
b. Legal principles
An employer’s unilateral change of a working condition is
a violation of Section 8(a)(5) of the Act because it cir-
cumvents the employer’s duty to negotiate with the Union in
good faith. NLRB v. Katz, 369 U.S. 736, 743 (1962). In the
instant case, it is undisputed that Respondent unilaterally
changed the job requirements of certain positions—by adding
a testing requirement. I find that said change in a term and
condition of employment is material, substantial, and signifi-
cant. Alamo Cement Co., 281 NLRB 737, 738 (1986); Angel-
ica Healthcare Services, 284 NLRB 844, 853 (1978).
Respondent argues that no violation of the Act occurred
because the unilateral changes were never implemented. It is
unnecessary to debate over what constitutes implementation.
In this case, Respondent developed the changes, posted them
in the plant in accord with normal procedures and even an-
nounced them to the Union, on August 4, 1992. That em-
ployees were never actually required to take the tests is of
little moment and no defense.
Respondent also contends that the Union waived the right
to bargain by not demanding same once it became aware of
the unilateral changes. When an employer has failed to give
formal notice to a union of a proposed change in working
conditions, the employer is not necessarily in violation of
Section 8(a)(5) if the Union (1) receives actual notification
of the contemplated change at a time that would allow for
71DIAMOND WALNUT GROWERS
12 This past practice is still another reason why I cannot believe
the Union never reviewed the job bids until sometime after August
26, 1992.
13 Interstate Food Processing, supra, 283 NLRB at 306.
18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
meaningful negotiations on the matter and (2) does not act
with due diligence thereafter in requesting bargaining. Absent
a request for bargaining by the union, the employer’s will-
ingness to bargain has never been tested and, having never
been tested, the employer’s conduct may not be found viola-
tive of the Act. Armour & Co., 280 NLRB 824, 828–829
(1986).
Because it is undisputed in the instant case that the Union
failed to request bargaining once it became aware of the uni-
lateral changes, I must ascertain whether it was excused from
requesting bargaining on the grounds that said changes were
presented as a fait accomplis indicating any such request
would have been futile. Keystone Consolidated Industries,
309 NLRB 294 (1992).
For several reasons, I find the Union waived its right to
bargain and I will recommend that this allegation be dis-
missed. To recapitulate the facts, the Union received notice
of the job requirement changes on August 4. However, be-
cause Respondent failed to give clear notice of the job
changes, the Union’s duty to act ran from the time George
became aware of the job changes. According to George, she
became aware of the changes ‘‘probably after the 26th of
August because I would have brought it up to [union coun-
sel] if it was before’’ (Tr. 900–901). Because Union Counsel
Absalom had requested the information regarding regular and
seasonal jobs on July 22 (G.C. Exh. 15), because George was
an experienced and assertive union official, and because no
reason was given to explain the Union’s failure to review the
tendered job bids, I cannot credit George’s testimony. This
conclusion is further supported by the fact that the charge on
which this issue is based was filed by the Union on August
24, 1992 (G.C. Exh. 1(h)(h)). I find that the Union became
aware of the job bids at least a few days prior to August 26
when the parties met to negotiate. For reasons unknown, the
Union failed to request bargaining on that date regarding the
new testing requirement. Even if I credited George’s testi-
mony, however, I would still find waiver by the Union.
The jobs in question were to be filed at or near the begin-
ning of the walnut season which began in the first week of
September (Tr. 912). This was ample time for the Union to
request bargaining, particularly in light of the past practice
then in effect. After posting of job bids in the past, where
job requirements had been changed, George would first call
Heinze or Brown to attempt to resolve the matter. Thereafter,
if no resolution of the matter occurred, the Union filed a
grievance.12
I find the Union here did not act with the requisite dili-
gence as George’s notifying union counsel does not satisfy
the Union’s burden when union counsel files a charge with
the Board in lieu of requesting bargaining. Moreover, I note
the Board’s decision in WPIX, Inc., 299 NLRB 525, 525–526
(1990), in which the Board found that the Union’s failure to
request bargaining with a week’s notice of a unilateral
change (and certain other factors as well) meant that the
Union had waived its rights. In dismissing the complaint in
its entirety, the Board rejected the Union’s assertion that any
request for bargaining would have been futile. I recommend
to the Board in this case, the same course of action.
CONCLUSIONS OF LAW
1. Respondent Diamond Walnut Growers, Inc. is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Cannery Workers, Processors, Warehousemen & Help-
ers Union, Local 601, International Brotherhood of Team-
sters, AFL–CIO is a labor organization within the meaning
of Section 2(5) of the Act.
3. By failing to provide to the Union, in a timely manner,
names and addresses of strike replacements, Respondent has
violated Section 8(a)(1) and (5) of the Act.
4. By initiating and maintaining a baseless civil action for
libel against Cannery Workers, Processors, Warehousemen &
Helpers Union, Local 601, International Brotherhood of
Teamsters, AFL–CIO in retaliation for protected concerted
activity of its members, Respondent has violated Section
8(a)(1) of the Act.
5. Other than specifically found herein, Respondent has
committed no other unfair labor practices.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom. I will not recommend that Re-
spondent be ordered to furnish the requested information be-
cause the information already has been given the Charging
Party. Consequently, a cease-and-desist order will suffice to
remedy the violation found.13
Having found that the Respondent’s filing and pursuit of
the lawsuit against the Union violated the Act, I shall also
recommend that the Respondent be ordered to reimburse the
Union for all legal and other expenses it incurred in defend-
ing the Respondent’s suit, plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). See
Teamsters Local 776 (Rite Aid Corp.), 305 NLRB 832 fn. 20
(1991).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondent, Diamond Walnut Growers, Inc., Stock-
ton, California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing to provide to the Cannery Workers, Processors,
Warehousemen & Helpers Union, Local 601, International
Brotherhood of Teamsters, AFL–CIO, in a timely manner,
names and addresses of nonstrikers which is information rel-
evant for the administration of the collective-bargaining
agreement.
(b) Initiating or maintaining a baseless lawsuit against
Cannery Workers, Processors, Warehousemen & Helpers
Union, Local 601, International Brotherhood of Teamsters,
AFL–CIO in retaliation for members’ protected concerted ac-
tivities.
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 If this Order is enforced by a judgment of a 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.’’
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reimburse Cannery Workers, Processors, Warehouse-
men & Helpers Union, Local 601, International Brotherhood
of Teamsters, AFL–CIO for all legal and other expenses in-
curred in the defense of Respondent’s state court lawsuit
[No. 238729] in the manner set forth in the remedy section.
(b) Post at its facilities in Stockton, California, copies of
the attached notice marked ‘‘Appendix.’’15 Copies of the no-
tice, on forms provided by the Regional Director for Region
32, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the 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 this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail to provide to the Cannery Workers,
Processors, Warehousemen & Helpers Union, Local 601,
International Brotherhood of Teamsters, AFL–CIO, in a
timely manner, names and addresses of nonstrikers which is
information relevant for the administration of the collective-
bargaining agreement.
WE WILL NOT initiate or maintain a baseless lawsuit
against the Cannery Workers, Processors, Warehousemen &
Helpers, Union, Local 601, International Brotherhood of
Teamsters, AFL–CIO in retaliation for members’ protected
concerted activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL reimburse the Cannery Workers, Processors,
Warehousemen & Helpers Union, Local 601, International
Brotherhood of Teamsters, AFL–CIO, for all legal expenses
incurred in the defense of our lawsuit (Case No. 238729)
plus interest.
DIAMOND WALNUT GROWERS, INC.