Glacier Packing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1973

204 N.L.R.B. 597 (N.L.R.B. 1973)

GLACIER PACKING CO.
Glacier Packing Co ., Inc. and Western Conference of
Teamsters , Food Processing Division , International
Brotherhood of Teamsters, Chauffeurs , Warehouse-
men and Helpers of America and United Electrical,
Radio and Machine Workers of America, Local
1014. Cases 20-CA-7766 and 20-CA-7773
June 27, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY AND PENELLO
On March 23, 1973, Administrative Law Judge
James T. Rasbury issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. The General Counsel filed a
brief in support of the Decision and in opposition to
Respondent's exceptions and a motion to strike decla-
ration of Respondent's attorney. Respondent filed (1)
a motion for special leave to file an answering brief I
and (2) an opposition to the General Counsel's mo-
tion to strike declaration of Respondent's attorney.
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 record and the at-
tached Decision in light of the exceptions and briefs,2
and has decided to affirm the rulings,' findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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
Order of the Administrative Law Judge and hereby
orders that Glacier Packing Co., Inc., Sanger, Califor-
nia, its officers, agents successors, and assigns, shall
take the action set forth in the said recommended
Order.
i The motion was denied by the Executive Secretary on June 12, 1973
2 As the record, exceptions , and briefs adequately present the issues and
positions of the parties , Respondent 's request for oral argument is hereby
denied.
J Respondent contends in its brief and the supporting declaration of its
attorney that the Administrative Law Judge erred in denying its motion for
continuance on the ground that said attorney was detained at another Board
proceeding Although we find that the declaration was properly filed, we
conclude, for reasons given by the Administrative Law Judge , that he ruled
correctly with respect of the motion for continuance
DECISION
STATEMENT OF THE CASE
597
JAMES T. RASBURY, Administrative Law Judge: This co-t-
solidated case was tried before me in Fresno, California, )n
February 27, 1973, on a consolidated complaint alleging
that Respondent had violated Section 8(a)(1) of the Nation-
al Labor Relations Act, as amended (herein the Act).'
Respondent's answer denied the commission of any unfair
labor practices.
Attorney William C. Wright of the firm of Littler, Men-
delson & Fastiff made a special appearance on behalf of
Respondent for the limited purpose of presenting and argu-
ing a motion for continuance. After hearing argument in
support of the motion as made by Attorney Wright, and the
argument in opposition to the motion as made by General
Counsel, a brief recess was taken to give the Administrative
Law Judge an opportunity to review the instruments com-
prising the formal file as a further basis for ruling on the
motion. Because these instruments reflect the inordinate
delay occurring herein, and thus were vital considerations
in the decision to deny the motion for continuance, but are
not set forth in the transcript, it seems appropriate to briefly
include the chronology of events as "Appendix B" to be
attached hereto as a part of this Decision.
Upon denying Respondent's motion for a further contin-
uance, the General Counsel was directed to go ahead and
present his proof.
Upon the entire record including my observation of the
witnesses, I make the following:
FINDINGS AND CONCLUSIONS
I JURISDICTION
The complaint alleges and the Respondent admits in its
answer that Respondent is a California corporation with a
place of business at Sanger, California, where it is engaged
in the processing of frozen food products. During the past
year in the course and conduct of its business operations,
Respondent sold and shipped goods and products valued in
excess of $50,000 directly to purchasers located outside the
State of California. I find that at all times material herein
Respondent has been an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
i The complaint was based on an initial charge filed in Case 20-CA-7766
on September 7, 1972, with a copy served on Respondent on the same date
A first amended charge in Case 20-CA-7766 was filed on November 28,
1972, and a copy served on Respondent on the same date The initial charge
in Case 20-CA-7773 was filed on September 8, 1972, with a copy served
Respondent on the same date A first amended charge in Case 20-CA-7773
was filed on November 10, 1972, with a copy served on Respondent on the
same date The cases were consolidated by the Regional Director for Region
20 pursuant to Section 102 33 of the Board's Rules and Regulations, Series
8, as amended, the consolidated complaint was served on Respondent on
November 30, 1972
204 NLRB No. 103
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11 THE LABOR ORGANIZATIONS INVOLVED its other plants. Studdard then related the health and medi-
cal insurance , the vacation pay, and the pension program
that were paid for by the parent corporation at the other
plants. When questioned concerning these benefits only
being available to employees that had worked a certain
number of hours, the witness testified that Studdard replied
that under the Seabrook policy all employees received these
benefits after working for 60 days. Urrita said that Studdard
stated these were the benefits the employees would receive
if the Union did not get in. The witness testified that she
questioned Studdard about the fact that he was making
promises to which he responded that he was not. The wit-
ness testified that she had a number of conversations with
Mr. Napolitano in which he told her that she should allow
the people to give Seabrook a chance. "And he also said we
didn't need a union there that the company-what could we
get from the union that the company couldn't give us. And
he said that we didn't need the union, that I could go, you
know, get a committee or a lot of people and go and talk
to the company and that we could bargain and get, you
know, things done by ourselves without a union."
Mrs. Aurora Hernandez testified that she has been em-
ployed by the Respondent and has worked on the produc-
tion line for almost a year. She said she attended meetings
in a trailer during the summer of 1972 which were conduct-
ed by Bob Studdard. The witness testified that Studdard
"told us that he could give us benefits that other plants had,
if we gave him a chance and Seabrook." In response to a
question concerning what further Mr. Studdard had said,
the witness replied: "He told us that if a union was voted
in that all he'd have to do was just go in and say-and listen
to negotiations and not agree to anything; and that if a
union was voted in and there was a strike, we stood a chance
of being replaced permanently; and also, if there was a
strike and the cost became too high for the company, that
they would be shut down permanently." The witness identi-
fied General Counsel's Exhibit 2 as a handbill which she
had been handed by a young boy who was passing out the
handbills while on property owned by Respondent. The
witness testified that at the time she received the handbill
the employees were not receiving paid holidays or vaca-
tions , and did not have a pension plan. Mrs. Hernandez
stated she had had one conversation with Napolitano about
September 7, 1972, at which time she questioned him con-
cerning the handbill. According to the witness Napolitano
replied: "Those were things we could have if we didn't vote
a union in." Mrs. Hernandez stated that Napolitano used
the name of Juan Martinez.
Mrs. Mary Morales testified she has been employed by
Respondent for about 6 years and that she attended meet-
ings during the summer of 1972 which were conducted by
Bobby Studdard. The witness testified that Studdard told
the employees that if they had problems they could bring
their problems to him and "that he would try to help us
out." The witness testified that at one of the meetings she
had asked a number of questions and at one point Studdard
said to her: "I wish I had you on my side. If I win this
election, I'm going to make sure you're sitting next to me in
my office as my assistant." The witness identified General
Counsel's Exhibit 2 as the handbill which she had been
given by a lady employed in the office of Respondent.
The Western Conference of Teamsters, Food Processing
Division, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, and the U-
nited Electrical, Radio and Machine Workers of America,
Local 1014, are labor organizations within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
Has Respondent by the acts and conduct of its agents
interfered with , restrained , or coerced employees in the ex-
ercise of their rights as guaranteed by Section 7 of the Act?
B. The Facts
Richard Napolitano testified that he was contacted by
lawyers in San Francisco and requested to talk to Mr. Bob
Studdard in Sanger, California, concerning employment.
Mr. Studdard was identified as the personnel manager for
Seabrook Farms, the parent corporation of the Respondent.
Napolitano testified that he was hired by Studdard to go to
Sanger and talk to the employees of Respondent concerning
unionization. Napolitano said that he had free access to all
of the employees on both the day and night shifts.
Napolitano testified: "I would mingle with them and try
to explain to them the benefits that they would receive
without having to have a union come in." After visiting with
the employees and hearing their gripes and complaints, the
witness said he discussed these with Bob Studdard and later
that he told the employees, "I had talked to Bob, and he
would go ahead and see what he could do, as far as the
conversations that him and I had about the conditions that
the workers would complain about."
Napolitano testified that he sometimes used the names of
Gonzales, Rodriguez, and Martinez because he was trying
to hide his real identity from the workers. Napolitano testi-
fied that he had been involved in the labor movement previ-
ously and that he at one time had been a lieutenant to Cesar
Chavez, but had defected and since his defection had spent
time speaking to farm workers all over California as well as
other parts of the country trying to make them understand
what the Chavez movement meant and what it would do to
the farm workers. Napolitano testified that he worked for
Respondent until 2 or 3 days prior to the election and that
he received a total of $700 for his 4 days' work among the
employees.
Alice Urrita testified that she has been employed by Re-
spondent since March 1972 and that in the latter part of
August or the first part of September she attended two
employee meetings that were conducted by Studdard. These
meetings were held in a trailer that was located on the
company property and approximately 20 other employees
of the Respondent attended each of these meetings at the
same time she attended. Witness said that Studdard started
his speech by stating that he couldn't make any promises or
guarantees because of the federal law but that he would tell
the employees what other Seabrook employees received at
GLACIER PACKING CO.
Analysis
The testimony of General Counsel's witnesses stands in
the record unrefuted. Moreover, I was impressed with the
humble sincerity and earnestness of the witnesses. I believe
their testimony to be entirely credible. The evidence needs
no detailed legal analysis. The statements attributed to
Studdard clearly constituted promises of benefits if the em-
ployees voted against the Union; Studdard's remarks con-
stituted veiled threats as to what might occur in the event
the Union was voted in; the handbill (G.C. Exh. 2) carries
a connotation that Glacier Packing Co. employees will re-
ceive additional employment benefits. Napolitano's own
testimony as to the role he played for Respondent clearly
establishes interference with the employees ' rights as guar-
anteed in Section 7 of the Act. Studdard and Napolitano are
agents of Respondent and their course of conduct and acts
may be attributed to the Respondent.
The allegation of the complaint relating to the interroga-
tion of employees on the part of Alberta Cade was deleted
at the hearing.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, as set forth in section III,
above, occurring in connection with the operations of Re-
spondent set forth in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce
among the several states and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V THE REMEDY
Having found that Respondent engaged in , and is engag-
ing in, certain unfair labor practices, I shall recommend that
it cease and desist therefrom and that it take certain affirma-
tive action which I find necessary to remedy and remove the
effects of the unfair labor practices and to effectuate the
policies of the Act. Because of the nature and extent of the
unfair labor practices engaged in by Respondent, I deem it
necessary to recommend that Respondent cease and desist
from in any other manner infringing on the rights of em-
ployees as guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce, and
a business affecting commerce, within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Unions are labor organizations within the mean-
ing of Section 2(5) of the Act.
2. By questioning employees concerning their concerted
activities, by promising employees benefits which do not
now prevail in the event the employees vote against the
Union, and by threatening employees with the possible loss
of jobs in the event the Union is voted in, Respondent has
violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
599
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
upon the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER2
Respondent, Glacier Packing Co., Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating the employees regarding their concert-
ed activities.
(b) Making promises of employment benefits to employ-
ees calculated to induce them to vote against the participat-
ing Unions in a Board-conducted election.
(c) Threatening employees with loss of employment, or
closing of the entire plant, in the event the employees select
a union as their representative.
(d) In any like or related manner interfering with, re-
straining, or coercing the employees in their rights and ef-
forts to bargain collectively or to assert and enjoy their
rights as guaranteed under Section 7 of the National Labor
Relations Act, as amended.
2. Take the following affirmative action which will effec-
tuate the policies of the Act:
(a) Post in Respondent's plant located at Sanger, Califor-
nia, copies of the attached notice marked "Appendix A".3
Copies of said notice, on forms provided by the Board's
Regional Director for Region 20, after being signed by
Respondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof and main-
tained by it for a period of 60 days thereafter, in conspicu-
ous 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 cov-
ered by any other material.
(b) Notify the Regional Director for Region 20, in writ-
ing within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
2 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Section
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
3 In the event that the Board's 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The National Labor Relations Act gives you as em-
ployees the following rights:
To engage in self-organization, to form, join, or
help unions.
To bargain collectively through a representative of
your own choosing.
To act together with other employees, to bargain
collectively for mutual aid or protection, and, if you
wish, not to do any of these things.
WE WILL NOT interrogate or question our employees
regarding their concerted activities.
WE WILL NOT make promises of employment benefits
to employees calculated to solicit their vote against the
Union, or otherwise interfere with the free choice of the
employees in the selection of their representative.
WE WILL NOT threaten our employees with the loss of
employment or the closing of this plant in the event the
employees should select a union as their representative
in a National Labor Relations Board-conducted elec-
tion.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights and efforts to bargain collectively or to
assert and enjoy their rights as guaranteed under Sec-
tion 7 of the National Labor Relations Act, as amend-
ed.
GLACIER PACKING CO, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed-to the Board's Office, 13018
Federal Building , Box 36047, 450 Golden Gate Avenue, San
Francisco, California 94102. Telephone 415-556-0335.
APPENDIX B
1. Sept. 7, 1972, charge filed in Case 20-CA-7766 and
Respondent advised.
2. Sept. 8, 1972, charge filed in Case 20-CA-7773 and
Respondent advised.
3. Nov. 10, 1972, amended charge filed alleging violation
of Sec. 8(a)(1) in Case 20-CA-7773 and Respondent ad-
vised.
4. Nov. 28, 1972, amended charge filed alleging violation
of Sec. 8(a)(1) in Case 20-CA-7766 and Respondent ad-
vised.
5. Nov. 30, 1972, consolidated complaint served on Re-
spondent fixing Jan. 30, 1973, as date for hearing.
6. Dec. 7, 1972, Respondent's counsel, Allen W. Teagle,
of the Littler, Mendelson & Fastiff firm requested an exten-
sion of the answer date to Jan. 5, 1973.
7. Dec. 8, 1972, Regional Director granted Respondent's
request to file answer on Jan. 5, 1973.
8. Jan. 5, 1973, Respondent filed answer to consolidated
complaint.
9. Jan. 5, 1973, Respondent filed: (a) motion to sever
cases ; (b) bill of particulars demanding 21 separately stated
specifications and particulars relating to the General
Counsel's consolidated complaint; (c) motion to strike; (d)
motion to make more definite
10. Jan. 12, 1973, General Counsel filed motion in oppo-
sition to Respondent's motions to sever, to strike, to make
more definite, and bill of particulars.
11. Jan. 16, 1973, Respondent, by its attorney, Allen W.
Teagle, requested postponement of hearing from Jan. 30 to
a date after Mar. 10, 1973.
12. Jan. 17, 1973, Administrative Law Judge Irving Ro-
gosin denied all of Respondent's motions.
13. Jan. 22, 1973, Regional Director rescheduled the
hearing to Feb. 27, 1973.
14. Feb. 21, 1973, Respondent, by its attorney, Allen W.
Teagle, requested a continuance until the latter part of Mar.
1973.
15. Feb. 22, 1973, Regional Director denied further con-
tinuance and advised parties; case remained scheduled for
Feb. 27, 1973.
16. Feb. 23, 1973, Respondent, by its attorney, Wesley J.
Fastiff, renewed request for continuance until after Mar. 26,
1973.
17. Feb. 26, 1973, Regional Director again denied further
postponement of the hearing date.