J. R. Simplot Co.

National Labor Relations Board - Board Decisions

Aug 17, 1962

138 N.L.R.B. 172 (N.L.R.B. 1962)

172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plan to discharge a member of the bargaining unit. Accordingly, it held the dis-
charge in abeyance pending the advice of counsel.
It is apparent from the record as a whole that while Cycowicz was technically
competent, his traits of personality militated against his productivity as an engineer
and exasperated management, as illustrated by the testimony of Albert Sanders,
previously set forth. Cycowicz exhibited some of these traits while on the witness
stand. He was in turn unresponsive and eager , argumentative and opinionated. I
found him engaging and intelligent and at no point untruthful or hostile. But the
categorical was beyond him, and what he had to say was lost in the saying of it.
I have no doubt that as a technical project engineer Respondent found him frus-
trating and that his personality traits, though subjective, were real and resulted in
a substantial falling off in his productivity.
I conclude and find that Respondent discharged Cycowicz for legitimate business
reasons and not because of his union membership and activity.
B. Alleged acts of interference, restraint, and coercion
Several witnesses called by the General Counsel testified that during the week
prior to February 9 and after Respondent's receipt of a copy of the Union's repre-
sentation petition filed on February 2, Albert Sanders discussed with them the
Union 's appearance in the plant and during the conversation stated that he had
just hired a labor attorney at an expense of $1,000 and that this would have to
come "off the top" of Respondent's profit-sharing plan. Sanders admitted the sub-
stance of this attributed remark which he testified, and which I find, was in accord
with the facts. Respondent's profit-sharing plan is set up in such a way that all
profits over $20,000 go into the plan. Its operation was a subject for discussion and,
on occasion, for criticism among the employees. Sanders' explanation for his
remark is that he thought dissatisfaction with the plan might have been the reason
for bringing in the Union and he wished to point out that the money in the plan had
been diminished by $1,000 because of its advent . In the circumstances I do not find
Sanders' statement to constitute a threat of reprisal , or to be interference , restraint,
or coercion within the meaning of Section 8(a) (1) of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. The operations of Respondent occur in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Architectural & Engineering Guild, Local 66, American Federation of Tech-
nical Engineers , AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent, in discharging Izchak Cycowicz on February 9, 1962, did not
engage in unfair labor practices as alleged in the complaint within the - meaning of
Section 8(a)(3) and (1) of the Act.
4. Respondent did not violate Section 8 (a) (1) of the Act by threatening to reduce
payments to employees from its profit-sharing plan if they designated the Union as
their bargaining representative.
5. Contrary to the allegations of the complaint, Respondent did not commit
unfair labor practices by interrogation of employees concerning their union mem-
bership or activity.
RECOMMENDATION
Upon the basis of the foregoing findings of fact and conclusions of law, I recom-
mend that the complaint herein be dismissed.
J. R. Simplot Company and American Federation of Grain
Millers, AFL-CIO. Case No. 19-CA-2374. August 77, 1962
DECISION AND ORDER
Upon charges duly filed by the American Federation of Grain
Millers, AFL-CIO, herein called the Grain Millers, the General
138 NLRB No. 20.
J. R. SIMPLOT COMPANY 173
Counsel of the National Labor Relations Board, by the Regional
Director for the Nineteenth Region, issued a complaint dated Febru-
ary 26, 1962, against J. R. Simplot Company, herein called the Re-
spondent, alleging that the Respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section
8(a) (1) and (5) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge, complaint, and no-
tice of hearing before a Trial Examiner were duly served upon the
Respondent and the Charging Party.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Rodgers and Fanning].
With respect to the unfair labor practices, the complaint alleges,
in substance , that the Grain Millers was and is the exclusive repre-
sentative of all production and maintenance employees in the Re-
spondent's Heyburn, Idaho, starch plant in an appropriate unit certi-
fied by the Board on October 27, 1961, and at all times thereafter, the
Respondent unlawfully refused to bargain collectively with the Grain
Millers.
The Respondent's answer, dated March 20, 1962, admits certain
jurisdictional and factual allegations of the complaint, but denies the
commission of any unfair labor practices.
On April 9, 1962, all parties to this proceeding entered into a, stipu-
lation and jointly moved to transfer this proceeding directly to the
Board for findings of fact, conclusions of law, and Decision and
Order. The motion states that the parties have waived their rights
to a hearing before a Trial Examiner, the making of findings of fact
and conclusions of law by a Trial Examiner, and the issuance of an
Intermediate Report and Recommended Order. The motion also
provides that the parties' stipulation and certain specified documents
constitute the entire record in the case.
On May 1, 1962, the Board granted the parties' motion to transfer
the case to the Board. Briefs were thereafter filed by the General
Counsel and the Respondent. Upon the basis of the parties' stipula-
tion, the briefs, and the entire record in the case, the Board makes the
following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Nevada corporation with its principal office and
place of business at Boise, Idaho, is engaged in a variety of enter-
prises in Idaho, including food processing, fertilizer manufacturing,
mining, lumbering, and farming. During its last fiscal year prior to
the instant proceeding, the Respondent, in the course and conduct of
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its manufacturing and business operations in Idaho, produced com-
modities for sale valued in excess of $50,000, which it delivered to cus-
tomers outside Idaho, and during the same period, Respondent also
purchased goods and materials valued in excess of $50,000 from sources
outside Idaho, for use at its plants in Idaho.
The Respondent admits, and we find, that it is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
American Federation of Grain Millers, AFL-CIO, is a labor or-
ganization as defined in Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Pursuant to an Amended Decision and Direction of Elections dated
March 9,1961,1 an election by secret ballot was conducted on March 22,
1961, under the direction and supervision of the Regional Director
for the Nineteenth Region, in two separate voting groups.a Follow-
ing the election, the Regional Director served upon the parties a tally
of ballots which showed that, in voting group A, of approximately W
eligible voters, 10 cast valid ballots, of which 3 were for the Grain
Millers, none were for the Teamsters Food Processing Employees'
Union, Local No. 897, herein called the Teamsters, and 7 were against
both labor organizations. A similar tally of ballots for group B
showed that of approximately 629 eligible voters, 574 cast valid bal-
lots, of which 216 were for the Grain Millers, 20 were for the Team-
sters, 336 were cast against both labor organizations, and 2 ballots
were challenged.3
Thereafter, on or about March 28, 1961, the Grain Millers filed
timely objections to conduct which it asserted affected the results of
the election. In substance, the Grain Millers objected that prior to
the conduct of the election, the Respondent interfered with its em-
ployees by (1) granting wage increases; 4 (2) promising the employees
1130 NLRB 1283. The original Decision and Direction of Elections , 130 NLRB 272,
had been issued by the Board on February 15, 1961 On or about February 24, 1961, the
Grain Millers filed a motion for reconsideration of that Decision and Direction of Elections
In the Amended Decision and Direction of Elections the Board modified its original unit
determinations . See 130 NLRB 1283, 1284.
2 Group A-all production and maintenance employees in the Employer 's starch plant,
Heyburn, Idaho, excluding the employees in group B.
Group B-all production and maintenance employees in the Employer' s processing plant
and packing and sorting sheds, Heyburn , Idaho, including truckdrivers , and the laboratory
and technical employees in the starch plant, excluding all employees in group A.
Excluded from each voting group were construction carpenters and millwrights , guards,
and supervisors as defined in the Act.
The final determinations of appropriate unit or units was left open , pending the results
of the elections . See 130 NLRB 1283, 1284.
3 Although the stipulation herein sets forth the number of challenged ballots as "three,"
an examination of the tally of ballots itself shows "two."
,'On April 20, 1961, the Grain Millers filed Section 8(a) (1) and ( 2) charges against
the Respondent , predicating the alleged violations on the wage increase and the establish-
ment of the so-called workmen's Committee . Complaint issued and a hearing was held
J. It. SIMPLOT COMPANY 175
that they would get anything that the Union got the employees at
.the other unionized plants of the company; (3) holding captive
audience meetings on the day prior to the election; and (4) putting
,on "a terrific antiunion campaign for several days just prior to the
election, with promises of things that they would do for them if they
voted `no union."' For these reasons the Grain Millers asked that
the election be set aside.
On June 7, 1961, the Regional Director filed his report on objections
in which he concluded that objection 1 (wage increase) and objections
2 and 4 (antiunion campaign) be sustained and the election be set
aside and a new election be ordered. In his report, the Regional Di-
rector concluded, inter alia, that the Respondent's campaign, con-
sidered together with a wage increase on February 20, 1961, conveyed
to the employees the assurance that they would attain all the benefits
of union membership without the cost of such membership. Accord-
ingly, the Regional Director concluded that the Respondent "gen-
erated an atmosphere which was calculated to, and did, interfere
with the elections by destroying the laboratory conditions requisite
thereto."' On or about June 16, 1961, the Respondent filed its excep-
tions to report on objections to election in which it took the position
that its wage increase was granted in order "to maintain, if possible,
a standard wage rate in all [its] plants" and that the Regional Direc-
tor's conclusions as to the facts surrounding the conduct of the elec-
tion "are inferential by their own admission, and the statements
therein contain so much sham, irrelevant, and redundant matter that
they should be disregarded in their entirety by the Board."
On August 16, 1961, the Board issued its Supplemental Decision,
Order, and Direction of Second Election 5 in which it adopted the
Regional Director's conclusions that the conduct with respect to ob-
jections 1 and 2 "constituted promises of and granting of benefits
which were calculated to interfere with the election and formed a
basis for setting it aside." The Board expressly did not pass upon
objection 4 and the question whether the Respondent's conduct con-
sidered as a whole created an atmosphere rendering the expression of
free choice impossible. Accordingly, the Board ordered that the elec-
tion be set aside and directed that a new election be held. On Au-
gust 31, 1961, upon motion of the Respondent predicted upon lack of
a representative complement of employees, the Board issued an Order
Amending Direction of Second Election in which it directed that the
second election be conducted within 75 days instead of 30 days.
before a Trial Examiner who concluded that the Respondent violated Section 8(a) (1)
and (2 ) by dominating and assisting the formation and functioning of the workmen's
Committee , but did not violate Section 8(a) (1) by the wage increase . No exceptions
were filed by either the Respondent or the General Counsel to the Intermediate Report,
and the Order recommended by the Trial Examiner became final under Section 10(c) of
the Act without any Board consideration of the merits.
5 Not reported in printed volumes of Board decisions.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 19, 1961, the second election was held. The tally of
ballots showed that, in voting group A, of approximately 19 eligible
voters, 17 cast valid ballots, of which 9 were for the Grain Millers,
3 were for the Teamsters, and 5 were against both labor organizations.
In voting group B, of approximately 546 eligible voters, 472 cast valid
ballots, of which 175 were for the Grain Millers, 21 were for the
Teamsters, 272 were against both labor organizations, and 4 ballots
were challenged. No objections to this election were filed. On Oc-
tober 27, 1961, the Regional Director issued a certification of repre-
sentative for voting group A and a certification of results of election
for voting group B.
On December 26, 1961, the Grain Millers requested that the Re-
spondent meet with it for the purpose of negotiating an agreement
covering the employees in the certified unit. On January 4, 1962,
and at all times thereafter, the Respondent refused to meet and bar-
gain with the Grain Millers. The Respondent justifies its refusal to
recognize and bargain with the Grain Millers upon the ground that
the Board arbitrarily and capriciously set aside the first election with-
out first ordering a hearing on the Regional Director's report on ob-
jections and the Respondent's exceptions to report on objections to
election. Accordingly, the Respondent argues that the second elec-
tion, held within 12 months of a valid election, was invalid, that the
certification is therefore of no force and effect, and the Respondent,
consequently, has not violated Section 8(a) (1) and (5) of the Act
by refusing to recognize and bargain with the union certified by the
results of the second election.
The Board has rejected the contention that a Respondent is entitled,
as a matter of right, to a hearing on objections to an election,' or, as
herein advanced, to exceptions to a Regional Director's report on
objections. The Board's Rules and Regulations provide for the hold-
ing of a hearing when it appears to the Board that exceptions to the
report on objections raise substantial and material factual issues;' the
party excepting to the "Report on Objections" must supply specific
evidence which prima facie would warrant the Board rejecting the
Report.' The Respondent herein, in its "Exceptions to the Report on
Objections," made no showing that the facts surrounding the conduct
of the election, which included more than just the wage increase, were
different from those found by the Regional Director. In view of
these facts, the Board properly found that the conduct "constituted
promises of and granting of benefits which were calculated to inter-
fere with the election and formed a basis for setting it aside."
6 0 K Van and Storage, Inc ., 127 NLRB 1537, 1539, enfd . 297 F 2d 74 (C.A 5). See
also Administrative Procedures Act, 60 Stat . 237, 243 ; 5 U S.C. 1001 at seq.
NLRB Rules and Regulations 102.69(d).
0 K Van and Storage, 127 NLRB 1537, 1539.
J. R. SIMPLOT COMPANY 177
We do not quarrel with the proposition that an unfair labor prac-
tice charge and complaint, alleging this same conduct as violative of
Section 8 (a) (1), would have followed different procedures, and that
the Respondent would have been entitled to a hearing as a matter of
right. However, we have in no way adjudicated that the Respondent
has committed an unfair labor practice by setting aside the election
on grounds which could, in an adjudicative proceeding, be a basis for
an unfair labor practice finding.'
Inasmuch as the Respondent is relying upon substantive matters
which the Board has considered and rejected in the prior proceedings
as the justification for refusing to,bargain with the Grain Millers as
the representative of certain of its employees in an appropriate unit,
we find that the Respondent, by these actions, has committed unfair
labor practices within the meaning of Section 8 (a) (5) and (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, oc-
curring in connection with its operations as described 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 dis-
putes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a) (1) and (5) of the Act,
we shall order that it cease and desist therefrom and, upon request,
bargain collectively with the Grain Millers as the exclusive representa-
tive of all employees in the appropriate unit, and if an understanding
is reached, embody such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. American Federation of Grain Millers, AFL-CIO, is a labor
organization as defined in Section 2(5) of the Act.
2. All production and maintenance employees in the Respondent's
Heyburn, Idaho, starch plant, excluding laboratory and technical em-
ployees, construction carpenters, carpenters and millwrights, guards,
and supervisors as defined in the Act, constitute a unit appropriate for
'The Respondent makes note of the fact that a Trial Examiner has found that the
granting of the wage increase herein did not violate Section 8 ( a) (1) by interfering with
a Section 7 right. Assuming argaendo that the Trial Examiner considered the wage in-
crease against the entire background of the conduct covered by objection No 2, the Board
is in no way bound by that finding which was never appealed .' Moreover , as set forth
supra, the Respondent had the opportunity, in its exceptions to the report on objections
to election to establish a prima facie case in accordance with the Board 's published Rules
and Regulations , which it did not do
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
3. The above-named labor organization was on October 27, 1961,
and at all times thereafter, the exclusive representative of all em-
ployees in the aforesaid appropriate unit for purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
4. By refusing, on and since January 4,1962, to bargain collectively
in good faith with the above-named labor organization as the exclu-
sive representative of its employees in the aforesaid appropriate unit,
the Respondent engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a) (5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, J. R. Simplot, Heyburn,
Idaho, its officers, agents, successors , and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively concerning wages, hours, and
other terms and conditions of employment, with American Federation
of Grain Millers, AFL-CIO, as the exclusive representative of all its
employees in the following appropriate unit: all production and main-
tenance employees in its Heyburn, Idaho, starch plant, excluding lab-
oratory and technical employees, construction carpenters, carpenters
and millrights, guards, and supervisors as defined in the Act.
(b) In any like or related manner, interfering with the efforts of
American Federation of Grain Millers, AFL-CIO, to bargain col-
lectively.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the above-named labor
organization as the exclusive representative of all employees in the
appropriate unit, and if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its starch plant, Heyburn, Idaho, copies of the notice
hereto attached marked "Appendix A." 10 Copies of said notice, to be
furnished by the Regional Director for the Nineteenth Region, shall,
after being duly signed by the Respondent's authorized representative,
be posted by the Respondent immediately upon receipt thereof, in con-
10 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
J. R. SIMPLOT COMPANY 179
spicuous places including all places where notices to employees are
customarily posted, and maintained by it for at least 60 consecutive
days thereafter. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the Nineteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that:
IVE WILL, upon request , bargain with American Federation of
Grain Millers, AFL-CIO, as the exclusive representative of all the
employees in the bargaining unit described below with respect
to rates of pay, wages , hours of employment , and other condi-
tions of employment , and if an understanding is reached, em-
body such understanding in a signed agreement.
tiVE WILL NOT in any like or related manner interfere with the
efforts of American Federation of Grain Millers , AFL-CIO, to
bargain collectively.
The bargaining unit is :
All production and maintenance employees of the Eu1-
ployer in its Heyburn, Idaho, starch plant, excluding lab-
oratory and technical employees , construction carpenters,
carpenters and millwrights , guards, and supervisors as de-
fined in the Act.
J. R. SIMPLOT COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 327 Logan Building, 500 Union Street, Seattle 4, Washington,
Telephone Number, Mutual 2-3300, Extension 553, if they have any
question concerning this notice or compliance with its provisions.
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