Maywood Packing Co.

National Labor Relations Board - Board Decisions

Mar 24, 1970

181 N.L.R.B. 778 (N.L.R.B. 1970)

778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maywood Packing Company and Cannery, Dried
Fruit and Nut Workers Union , Local 849,
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America.
Case 20-CA-5236
March 24, 1970
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On October 27, 1969, Trial Examiner Leo F.
Lightner issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief,
and the General Counsel filed a brief in support of
the Trial Examiner's Decision
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings,' conclusions, and
recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Maywood
Packing Company, Corning, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
'We find, in agreement with the Trial Examiner, that the doctrine of
presumed continuing majority is operative here Terre!! Machine Company,
173 NLRB No 230, enfd Terrell Machine Company v N L R B B. 73
LRRM 2381 (C A 4), Burroughs Corporation. 180 NLRB No 72 The
presumption of continued majority after the certification year may be
rebutted either by an affirmative showing that the Union no longer
commands a majority, or by an affirmative showing of good-faith doubt
based upon objective considerations Neither showing has been made
herein It is clear that the mere passage of time is insufficient to rebut the
presumption Kentucky News, Inc , 165 NLRB 777, 779
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
U
LEO F. LIGHTNER, Trial Examiner This proceeding was
heard before me in Oroville, California, on August 19,
1969, on the complaint of General Counsel and the answer
of Maywood Packing Company, herein called the
Respondent' The complaint alleges violation of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Labor
Management Relations Act, 1947, as amended, 61 Stat
136, herein called the Act The parties waived oral
argument and briefs filed by the General Counsel and
Respondent have been carefully considered
Upon the entire record," and from my observation of
the witnesses, I make the following-
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
Respondent is a California corporation with its office
and place of business at Corning, Calif , where it is
engaged in the processing and distribution of olive
products. In the fiscal year preceding the issuance of the
complaint, a representative period, Respondent sold and
shipped directly to customers located outside the State of
California goods valued in excess of $50,000. The
complaint alleges, the answer admits, and I find
Respondent is an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act
11. THE LABOR ORGANIZATION INVOLVED
Cannery, Dried Fruit & Nut Workers Union, Local
849, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, herein referred to
as the Union, is a labor organization within the meaning
of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
The principal issues raised by the pleadings and
litigated at the hearing are whether the Respondent (a),
by failing and refusing to bargain collectively in good
faith, with the Union, on and after September 18, 1968; or
(b), by unilaterally modifying wage rates, holidays, and
insurance benefits, and other terms and conditions of
employment, affecting its employees in an appropriate
unit, on or about September 16, 1968, and on or about
October 1, 1968, engaged in unfair labor practices in
contravention of the provisions of Section 8(a)(5) and (1)
of the Act Respondent, by answer, acknowledges that it
did make unilateral adjustments in wage rates and fringe
benefits, asserting that this was done to maintain a
competitive position, and that the Union was not
consulted as the Union had shown no interest in
negotiating an agreement over a period of 17 months
Respondent also acknowledges that it refused to bargain,
'A charge herein was filed on October 8 , 1968 A complaint was issued
on April 11, 1969
'On September 23, General Counsel filed a motion to correct the record
in three particulars No opposition to said motion has been filed Finding
General Counsel ' s motion well taken, the motion is granted
181 NLRB No. 120
MAYWOOD PACKING CO. 779
asserting a substantial number of employees had expressed
concern over how to get rid of the Union Respondent
asserts that it suggested that the Union file a petition for
a new election, and that when the Union failed to do so
the Company did, on September 20, 1969' Respondent
denies the commission of any unfair labor practice
Supervisory Personnel and Agents.
The complaint alleges, the answer admits, and I find
that Lee Newkirk and Joe Miller are, and at all times
material herein were, agents of the Respondent within the
meaning of Section 2(13) and supervisors within the
meaning of Section 2(11) of the Act.4
Background
The facts set forth under this subsection are undisputed.
There has'been no prior history of collective bargaining
between the Respondent and the Union
An election held on February 9, 1967, under the
supervision of the Regional Director for Region 20, with
46 eligible voters, resulted in a vote of 27 for, 15 against,
the Union and one challenged ballot. The Regional
Director on February 17, 1967, certified the Union as the
exclusive representative, for the purposes of collective
bargaining, of the employees in an appropriate unit
described as follows
All production and maintenance employees of
Respondent's Corning, California, plant, excluding
office clerical employees, guards and supervisors as
defined in the Act
On February 27, 1967, Roy L. Ross, secretary-treasurer
of the Union, by letter addressed to Lee H. Newkirk,
general manager, requested Respondent to meet and
bargain
Respondent's activity is seasonal Normally a season of
employment, commences in October and continues
through February The 1966-67 season began
approximately October l and continued until
approximately the middle of March, between 45 and 50
unit employees were engaged. The 1967-68 season, due to
a crop which was only approximately 8 percent of the
normal crop, extended only from December 12 to
December 31, with a complement of 32 unit employees In
what appears to have been a nonrepetitive situation,
imported olives were processed during the 5-day period
commencing May 20 and ending May 24, 1968, with 20
unit employees so engaged. The 1968-69 season
commenced September 24 and continued through May 26,
1969, with a complement of 45 unit employees
Refusal to Bargain
Sequence of Events
In the letter of February 27, Ross advised Respondent
'Upon the issuance of the Complaint herein, the Petition was dismissed
'Both of those named are described in the complaint as corporate
officers Miller , who testified , related that he was secretary and
comptroller of Respondent Newkirk, whose title appears on Respondent's
communication to employees, September 12, 1968, as Vice President and
General Manager, did npt appear as a witness
'I find of no consequence the assertion of Miller that he never saw this
letter It is undisputed that the return receipt is signed by Mrs Harris,
office manager for Respondent It is also undisputed that Respondent
received the letter
that the Union had bargaining agreements with other
employers in the olive industry in the Oroville area, and
that the Union had decided to "stabilize" [obtain
uniformity] working conditions. Ross related that the
Union had collective bargaining agreements with Olive
Products and a separate agreement with a firm formerly
identified as Wyandotte Olive Growers Association,
presently California Canners and Growers or CPI, both
located in Oroville Subject to reopening, or renewal, these
agreements contained a termination date of June 15, 1967.
Notice of intent to reopen was given by the Union in
March
In late March or shortly thereafter, the Union
submitted contract modification proposals, to three
employers, covering wages, vacations, holidays, health and
welfare payments and other items .' Ross asserted that he
explained to Newkirk and Miller that the Union was
desirous of obtaining a uniform contract and, for that
reason, suggested joint negotiations between the Union
and the three companies identified. Ross asserted that this
proposal was agreed to by Newkirk and Miller and that,
in fact, they attended the first meeting which was held on
June 9 Ross identified others present at this meeting as
Gordon E. Franklin, president of Olive Products, Harold
Graves, acting manager of California Canners, and Jack
McLaughlin of the Visalia local of the Union The same
parties, except Newkirk, were present at the subsequent
meeting on June 19 These meetings were held at the
location of Olive Products Company, in Oroville.
According to Ross, whom I find credible, inferentially
on June 19, Miller requested that Respondent be excused
from attending further negotiating sessions , pending
arrival at an agreement, after which Ross could come to
Respondent's plant, in Corning, and they would negotiate
a contract. While the Union continued negotiating
meetings with Olive Products and California Canners, it is
undisputed that Respondent did not attend, after June 19 '
It is undisputed that the negotiations with Olive
Products, and the inferentially California Canners,
continued from June 1967, until agreement was reached
with the former on May 7, 1968. Ross related that on
three or four occasions, during this span of time, he
visited a Respondent's plant and advised either Miller or
Newkirk, or both, of modifications of the Union's
proposals, which had been made during the course of
negotiations Explaining that Respondent's plant is 60
"While Ross asserted that these proposals were presented to either
Newkirk or Miller, at Respondent 's plant, about 2 weeks after the Union's
request for bargaining of February 27, i do not find the time of
presentation precise, in view of the fact that the Union's notice of
reopening to Olive Products and California Canners did not occur until
March 23 A fortiori , proposals followed the notice of reopening
'Miller denied receiving any request for the negotiations after the
certification of the Union Miller acknowledged attending two meetings,
which he described as involving negotiations between the Union and Olive
Products, which he asserted were held on April 10 and April 20 Miller
asserted that he was there merely "for the purpose of observation,"
asserting that either they were "invited to attend as an observer or
requested permission to attend as an observer , merely to learn in essence
what the negotiations would constitute " Miller acknowledged that it was
either Ross or Franklin , of Olive Products, who advised him of the time
and place of the meetings Miller denied ever seeing a copy of the Union's
proposed modifications of the existing wages and working conditions, but
was uncertain if he had seen a copy of the Union's draft contract proposal
Miller denied requesting that Respondent be excused from further
negotiation sessions, asserting that he was available at any time Miller
then asserted that he did not make such a request "to the best of my
knowledge" To the extent these assertions of Miller are at variance with
those of Ross, I credit the latter
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
miles from Oroville, Ross asserted that on three or four
other occasions he advised Miller or Newkirk on the
progress of negotiations by telephone. During some of
these conversations, the reduction in work resulting from
the crop failure was also discussed 8
Miller acknowledged that, in May 1968, when
Respondent was processing the foreign crop, Miller did
call Ross to advise the Respondent was placing in effect a
10 cents per hour wage increase However, Miller denied
awareness of any obligation to talk to the Union relative
to the increase, asserting this was "not necessarily" the
reason for his phone call. Miller denied soliciting the
approval or disapproval of Ross, for this increase
In early June, at Respondent's plant, Ross delivered a
copy of the collective-bargaining agreement the Union had
negotiated with Olive Products to Miller Ross asserted
that Miller advised that he would have to send it to the
main office in Boston. In answer to the inquiry of Ross,
Miller asserted that this would require 2 or 3 weeks After
waiting that period, Ross called Miller and was advised
that Respondent had not had time to study the agreement
Later, on a date unspecified, Ross was advised that
Newkirk was on vacation or ill and had not had an
opportunity to study the proposed contract 9
On September 12, 1968, over the signature of Newkirk,
Respondent, by a letter to each of the employees advised,
inter alia, that receiving operations would commence
September 23, that to retain a favorable position with
respect to competition, effective September 16,
Respondent was placing in effect a raise of 8 cents an
hour, in all wage schedules, that effective October 1, the
company would assume the cost of group insurance,
during periods of employment. While night shift work was
increased 10 cents per hour, the effective date is not
stated. The identity of seven paid holidays is set forth. It
is undisputed that this action was taken, and these
changes were made, without notice to the Union."'
Miller acknowledged that, pursuant to a request from
Ross, the parties met at Respondent's plant on September
18. 1968. It is undisputed that those present were Ross,
Newkirk, Miller , and Lewis. Lewis was introduced to
Ross as the individual retained by Respondent to
represent it in the bargaining negotiations Ross presented
the contract between the Union and Olive Products as the
union's proposal for a contract with Respondent. Newkirk
advised Ross that Respondent did not believe the Union
represented the employees, and requested Ross to consent
'Miller denied that Ross ever reported as to the status of negotiations
and asserted that his conversations with Ross were confined to matters of
the crop failure and the possibility of closing operations To the extent
these assertions of Miller conflict with those of Ross, I credit the latter
'Miller's version of the delivery of the contract was that Ross met Miller
as Miller was at the door leaving the plant and advised Miller that he had
left a copy of the agreement with Olive Products on Miller's desk to look
over Miller asserted that Ross did not at that time request negotiations
Miller denied making any reference relative to consultation with anyone in
the East, then acknowledged that two directors of Respondent are in the
East Miller denied there was ever any understanding, on the part of the
Respondent, that Respondent would examine the end product of the
negotiations between the Union and Olive Products Miller denied that he
ever had any subsequent discussion relative to this agreement with Ross
To the extent these assertions of Miller conflict with those of Ross, I credit
the latter
"I do not credit Miller 's attempted explanation that Respondent at that
time felt that the Union had dropped the whole matter Miller asserted a
second reason for Respondent ' s action was that they were confronted with
competitive conditions , inferentially related to availability of essential
manpower
to a new Board election. It is patent that Respondent
refused to enter into negotiations at that time "
Good-Faith Doubt of Union Majority
Respondent sought to establish that it had a basis for a
good faith belief that the Union no longer represented a
majority of the employees. The evidence relative to this
contention is next set forth
Miller related that there were three instances in which
an employee or employees sought information on how
union representation could be terminated. Miller asserted
that the first instance, which occurred in 1968, was
reported to him by Superintendent Develter Miller
asserted that he advised Develter to advise the employee
to contact the Board, as Respondent was not in a position
to discuss the matter further.'2
Miller asserted the second inquiry was, shortly after the
first, when he was approached by Mrs. Rybarczyk, who
stated that she would appreciate information on how they
could terminate the representation of the Union, and
represented she was speaking for a number of employees.
Miller asserted that he advised Rybarczyk to contact the
Board that he could not discuss the situation with her 13
Rybarczyk, who appeared as a witness for Respondent,
corroborated the assertion of Develter, relative to her
inquiry in May 1968 Rybarczyk asserted that Develter
had advised her to write to the Labor Board in San
Francisco. Rybarczyk similarly corroborated the
assertions of Miller that, a few days later, she made the
same inquiry of Miller, who advised that he could not give
her any information She acknowledged that she did not
contact the Board, asserting that she did not know how to
go about it. Rybarczyk asserted that she advised Miller
she was speaking for 12 or more employees Rybarczyk
was then self-contradictory in asserting that she had not
specified the number of employees involved Rybarczyk
then related that a number of the employees did not speak
to her until after her conversations with Develter and
Miller
Miller asserted the third instance was reported to him
by Newkirk "that he had had similar contacts with other
employees.""
Miller acknowledged the incident involving Develter,
and inferentially the inquiry by Rybarczyk to Miller, was
prior to his conversation with Ross, when Ross delivered
the Olive Products agreement Miller acknowledged that
he did not, at that time, raise any question relative to the
existence of the Union's majority. There is not a scintilla
"The version presented by Miller relative to these events is only slightly
at variance with the presentation of Ross Miller asserted that it was
Lewis, not Newkirk , who advised Ross "that due to the lapse of time
involved [Lewis ] felt that the Union no longer represented the majority of
the employees " Miller related that Lewis "suggested" that Ross file for
another election, advising that Lewis would file if Ross did not
After asserting that Ross stated he would not negotiate with Lewis,
Miller acknowledged negotiations did not proceed because of Respondent's
asserted good faith doubt of the Union's majority status
"Eldon Develter corroborated these assertions of Miller Develter
identified the employee making the inquiry as Mrs Rybarczyk, and
asserted the incident occurred about the middle of May 1968 However, at
variance with the recitation of Miller, Develter asserted that he
immediately advised Rybarczyk to contact the Board , in San Francisco,
and later reported the incident to Miller
"Why Rybarczyk sought this advice from Miller, if in fact she had
previously received it from Develter, is unexplained
"As noted, supra. Newkirk did not appear as a witness, and no
explanation was given for his failure to appear The hearsay nature of
Miller's assertion , and his demeanor , cause me to reject this purported
evidence
MAYWOOD PACKING CO.
of evidence in this record that the question of existence of
majority was raised at any time prior to the retention of
Lewis, by Respondent, and that it was first mentioned at
the meeting of September 18 Accordingly, these
recitations of Miller, Develter, and Rybarczyk are rejected
as implausible
Miller acknowledged that Respondent has two seniority
lists, for unit employees, one involving two key people
who work on repairs and maintenance after the canning
season, and the other for the balance who are seasonal
employees According to Miller, when the Respondent
resumed operations in the fall of 1968, all of the seasonal
employees were recalled While Miller asserted that there
were 12 or 13 who did not report, it is patent that the
reporting date was after September 18, and Miller had no
knowledge of precisely who would report on September
18 Miller, asserting that he knew there would be a
turnover, asserted the good faith doubt related to the
employees whom he felt certain would return, upon recall
It is undisputed that Respondent issued a letter to its
employees, over the signature of Newkirk, during the last
week of October 1968. In this letter, the employees were
advised that the company had filed a petition for election
with the Board, to determine whether the majority of
Respondent's employees "still" desired to be represented
by the Union The letter then states "This action has
been taken by the management because a great many of
you have indicated to us that an outside representative is
no longer wanted or needed '+i s
The third paragraph of the October letter states'
"Many of you, in fact, most of you, were employed here
when we had a similar National Labor Relations Board
election some nineteen or twenty months ago During the
intervening period, through no fault of ours, there were no
meaningful negotiations conducted and consequently we
feel that another election is absolutely necessary"
Respondent's effort to obtain a new election, in the light
of this record, is thus revealed as an effort to reap the
rewards of its duplicity, by making the union's efforts on
behalf of the employees appear as an exercise in futility.
Contentions of the Parties, and Concluding Findings
Respondent, in its brief, urges that the passage of time,
1 1/2 years, during which the union did not persist in
requests for bargaining lays a premise for Respondent's
doubt of the existence of the Union's continued majority
This premise must be considered as untenable and
inaccurate
General Counsel, in his brief, calls attention to the fact
that Respondent's plant was in operation only short
periods of time, December 12 to 31, 1967, and May 20 to
24, 1968, during the period of the prolonged negotiations
between the Union and Olive Products. It is undisputed
the short period of operation resulted from a poor crop
year General Counsel urges, and I have found, that delay
in negotiations was the result of a mutual agreement
between the Union and Respondent that negotiations
would be withheld pending the completion of the
negotiations between the Union and Olive Products and
California Canners Likewise, General Counsel urges, and
I have found, that the delay in negotiations between June
"Respondent 's failure to produce any employee, other than Rybarczyk,
in an effort to substantiate its asserted good faith doubt , as well as the
failure of Miller and Develter to identify any other unit employee who
gave voice to the antiunion sentiments , permits only a conclusion that
Respondent ' s assertion that "a great many" employees had indicated
disenchantment with the Union is specious , and the representation is a
blatant falsity
781
15, when Ross delivered a copy of- the Olive Products
agreement to Miller, and September 18 was due to
Miller's request for time to submit the agreement to
Respondent's representatives in Boston and, thereafter, an
assertion that Newkirk was ill or on vacation and had not
had an opportunity to study the proposal
It is undisputed that while Respondent's "good faith
doubt" of the Union's continued majority status
purportedly arose by reason of the inquiry of Rybarczyk,
in May, no reference or allusion to such doubt was called
to the Union's attention at any time prior to September
18, 1968 It would appear that it was Lewis, newly
retained representative of Respondent, who initially
advanced the premise of the existence of a good faith
doubt of majority status
General Counsel relies on two Board decisions which
hold that while a certified Union's majority status is
presumed to continue even after the initial certification
year has elapsed, the presumption is rebuttable.'" In the
Laystrom case, supra, the Board reaffirmed its view that
there must be an affirmative showing that the union no
longer commands a majority. Id at 1483." The Board
explicated A showing of such doubt, however, requires
more than an employer's mere assertion of it and more
than proof of the employer's subjective state of mind. The
assertion must be supported by objective considerations.
The applicable test, as defined in the Celanese case,1s is
whether objective facts furnish a "reasonable basis" for
the asserted doubt, or, put another way, whether or not
there are "some reasonable grounds for believing the
Union has lost its majority status since its certification."
Id at 148419
In the Laystrom case the Board also held that
employee turnover standing alone does not provide a
reasonable basis for believing that the union had lost its
majority since the prior election This is particularly true
in the light of the Board's previous holdings that new
employees will be presumed to support a Union in the
same ratio as those whom they have replaced. Id at 1484.20
The Board held there was no rebuttal of the
presumption where no independent evidence was presented
from which an inference could be drawn that replacements
of union adherents supported the Union less strongly these
the employees replaced. The absence of Union animosity
or of independent unfair labor practices, although
consistent with a subjective good-faith belief that the
Union had lost its majority, does not establish that the
Respondent had a "reasonable basis" or "reasonable
grounds" for believing that the Union had lost its
majority. The Board thus distinguished the situation where
evidence of probative value in rebutting the presumption
was presented, as in Frito-Lay, inc , supra at 33
Respondent, in its brief, asserts Not only did the
[Respondent] have reasonable grounds for believing the
Union did not represent a majority because of the long
lapse of time, but also in the fact that in May or June of
1968, the [Respondent] had been told by employees on
several occasions of their dissatisfaction with the Union It
is undisputed, in this record, that Rybarczyk alone, of
"Laystrom Manufacturing Co. 151 NLRB 1482 , enforcement denied
359 F 2d 799 (C A 7), Celanece Corporation of America, 95 NLRB 664
"Citing Frito-Lay. Inc, 151 NLRB 28 See also, Quaker Too! & Die,
Inc, 162 NLRB 1307
"Celanese Corporation of America, supra
"See also United States Gypsum Company. 157 NLRB 652, 655, J C
Penney Company, 162 NLRB 1553
'"Citing John F Swift Co, Inc, 133 NLRB 185, enfd 302 F 2d 342
(C A 7), National Plastics Co , 78 NLRB 699, 706, affd 175 F 2d 755
(C A 4)
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some 45 employees, voiced opposition to continued union
representation, to management Respondent's assertion is
thus without evidentiary support. Rybarczyk could not
identify more than 12 employees whom, she asserted, had
similarly expressed opposition to the Union Even were I
to find the recitation of Rybarczyk credible, and I do not,
this evidence is insubstantial, in a unit comprised of 45 to
50 employees ='
Respondent's reliance on the Celanese case, supra, is
misplaced. Therein, the Board held, as Respondent
correctly states- There must, first of all, have been some
reasonable grounds for believing that the Union had lost
its majority status since its certification Id at 673 The
mere passage of 18 months, particularly in the light of the
dilatory tactics of Respondent which I have found, do not
provide the requisite reasonable grounds for a good faith
belief
It is undisputed that Respondent unilaterally instituted
changes in wages and working conditions, by a separate
letter to each employee, all of whom were then in layoff
status, on September 12, 1968, without notice to or
consultation with the Union. As stated by General
Counsel. Inasmuch as the record establishes that
Respondent had no legally sufficient reason to refuse to
bargain with the Union at the time these increases were
[announced and later instituted], Respondent's actions in
this regard violated Section 8(a)(5) and (I) of the Act
NLRB v. Katz, 369 U.S 736
Accordingly, upon consideration of the entire record,
for the reasons set forth, I find Respondent's
announcement of a wage increase and modification of
working conditions, by letter of September 12, 1968, the
placing of such modifications into effect, in October 1968,
and Respondent's admitted failure and refusal to bargain
with the Union, on September 18, 1968, without a basis in
fact for its asserted good faith belief that the Union had
lost its majority status, is, in each instance, conduct
violative of the provisions of Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's
operations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and such of them as
have been found to be unfair labor practices tend to lead
to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V THE REMEDY
Having found that Respondent has engaged, and is
engaging, in certain unfair labor practices, it will be
recommended that it cease and desist therefrom and take
affirmative action designed to effectuate the policies of the
Act
It having been found that Respondent, on and after
September 18, 1968, refused to and continues to refuse to
bargain collectively with the Union, and that the
Respondent, on September 12, 1968, announced, and in
early October 1968 placed into effect, wage increases and
modifications in working conditions, without notice to or
consultation with the Union, I shall recommend that
Respondent cease and desist from making unilateral
modifications in either wages or working conditions, and,
upon request, bargain collectively with the Union with
"Kentucky News, Incorporated. 165 NLRB No 119, Vanette Hosiery
Mills, 114 NLRB 1107, 1122
respect to wages, hours, and other terms and conditions of
employment, and, upon request, embody in a signed
agreement any understanding reached However, nothing
herein is intended to require Respondent to vary the
wages, hours, and other conditions of employment
heretofore established
It is further recommended that Respondent be ordered
to cease and desist from in any like or related manner
infringing upon rights guaranteed to its employees by
Section 7 of the Act.
Upon the foregoing findings of fact and upon the entire
record in the case, I make the following.
CONCLUSIONS OF LAW
I Respondent is an employer within the meaning of
Section 2(2) and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2. Cannery, Dried Fruit and Nut Workers Union,
Local 849, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act
3. All production and maintenance employees of
Respondent's Corning, California, plant, excluding office
clerical employees, guards and supervisors' as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act
4 At all times since February 17, 1967, Cannery, Dried
Fruit and Nut Workers Union, Local 849, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, has been the exclusive representative
of all the employees in the aforesaid unit for the purpose
of collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment
5. By failing and refusing to bargain in good faith with
the aforesaid labor organization, on and after September
18, 1968, by unilaterally announcing modifications of
existing wages and working conditions, on September 12,
1968, and effectuating said modifications in October 1968,
Respondent has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(5) and (I) of
the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record of the case,
I recommend that the Respondent, Maywood Packing
Company, its officers, agents, successors, and assigns,
shall
1. Cease and desist from:
(a) Failing and refusing to recognize and bargain
collectively, in good faith, concerning wages, hours and
other terms and conditions of employment, with Cannery,
Dried Fruit and Nut Workers Union, Local 849,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the exclusive
representative of its employees in the following
appropriate unit:
All production and maintenance employees of
Respondent's Corning, California, plait, excluding
office clerical employees, guards and supervisors as
defined in the Act
MAYWOOD PACKING CO
(b) Unilaterally, without notice to and agreement by the
Union, publishing, circulating, or unilaterally adopting or
placing in effect terms and conditions of employment for
employees in the aforesaid unit.
(c) In any like or related manner interfering with,
restraining, or coercing, its employees in the exercise of
their right to self-organization, to form labor
organizations, to join or assist Cannery, Dried Fruit and
Nut Workers Union, Local 849, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection guaranteed in Section 7 of the Act, or to
refrain from any and all such activities, except to the
extent that such right may be affected by an agreement
requiring membership in labor organization as a condition
of employment as authorized in Section 8(a)(3) of the Act,
as modified by the Labor Management Reporting and
Disclosure Act of 1959
2. Take the following affirmative action which it is
found will effectuate the policies of the Act.
(a) Upon request, recognize and bargain collectively
with Cannery, Dried Fruit and Nut Workers Union, Local
849, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, as the exclusive
representative of all the employees in the aforesaid
appropriate unit, and, if an understanding is reached,
upon request, embody such understanding in a signed
agreement.
(b) Post at its Corning, California, plant copies of the
attached notice marked Appendix 22 Copies of said notice
to be furnished by the Regional Director for Region 20,
after being signed by Respondent's representative, shall be
posted by the Respondent and maintained by it for 60
consecutive days thereafter, in conspicuous places,
including each of Respondent's bulletin boards
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 Region 20, in
writing, within 20 days from the receipt of this Trial
Examiner's Decision what steps it has taken to comply
therewith.
IT IS FURTHER RECOMMENDED and unless Respondent
shall within 20 days from the receipt of this Trial
Examiner's Decision notify said Regional Director, in
writing, it will comply with the foregoing Recommended
"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 , recommendations , 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 In the event
the Board 's Order is enforced by a judgment of the 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 "
"In the event this Recommended Order be adopted by the Board, this
provision shall be modified to read "Notify said Regional Director, ,m
writing, within 10 days from the date of this Order what steps Respondent
has taken to comply herewith "
783
Order," the National Labor Relations Board issue an
Order requiring the Respondent to take the action
aforesaid
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL, upon request, recognize and bargain
collectively with Cannery, Dried Fruit and Nut
Workers Union, Local 849, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, 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 terms and conditions of employment, and, if
an understanding is reached, we will embody such
understanding in a signed contract The bargaining unit
is
All production and maintenance employees of our
Corning, California, plant, excluding office clerical
employees, guards and supervisors as defined in the
Act
WE WILL NOT unilaterally, without notice to and
agreement by the Union, publish, circulate, adopt, or
place in effect, rates of pay, wages, or other terms and
conditions of employment for the employees in the
aforesaid unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce, our employees in the exercise
of their right to self-organization, to form labor
organizations, to join or assist Cannery, Dried Fruit
and Nut Workers Union, Local 849, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, or any other labor organization,
to bargain collectively through representatives of their
own choosing, and engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection guaranteed in Section 7 of the Act, or to
refrain from any and all such activities, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section
8(a)(3) of the Act, as modified by the Labor
Management Reporting and Disclosure Act of 1959
MAYWOOD PACKING
COMPANY
(Employer)
Dated By
(Representative ) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 13050 Federal
Building, 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone 556-3197