Snokist Growers, Inc.

National Labor Relations Board - Board Decisions

Sep 19, 1974

213 N.L.R.B. 368 (N.L.R.B. 1974)

368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Snokist Growers , Inc. and Fruit and Vegetable Packers
and Warehousemen 's Union Local 760, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, Independent. Case 19-CA-6554
September 19, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On June 28, 1974, Administrative Law Judge Jer-
rold H. Shapiro issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
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 Respondent, Snokist Growers, Inc., Yaki-
ma, Washington, its officers, agents , successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: Upon a
charge filed on July 27, 1973, by Fruit and Vegetable Pack-
ers and Warehousemen's Union Local 760, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Independent,
herein called Union, and duly served on Snokist Growers,
Inc., herein called Respondent, the General Counsel of the
National Labor Relations Board, herein called the Board,
by the Regional Director for Region 19, issued a complaint
on August 10, 1973, against Respondent, alleging that Re-
spondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section
8(a)(5) and (1) of the National Labor Relations Act, as
amended. The gravamen of the complaint is the refusal of
the Respondent to bargain with the Union. The basic issues,
however, go to the validity of the representation election
which resulted in the certification of the Union as the exclu-
sive bargaining representative of Respondent's employees.
In its answer to the complaint Respondent admits the refus-
al to bargain but challenges the validity of the Union's
certification and, in this regard, affirmatively alleges that
prior to the representation election the Union, by offering
to waive initiation fees and by misrepresenting the Union's
pension plan with respect to seasonal employees, engaged
in conduct which invalidates the election. This matter was
heard in Yakima, Washington, on May 28, 1974.
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, Snokist Growers, Inc., is a Washington cor-
poration with its plant located in Yakima, Washington,
where it is engaged in the processing and canning of fruits.
Annually, the Respondent makes sales in excess of $50,000
directly to business enterprises located outside the State of
Washington.
I find, on the basis of the foregoing, that Respondent is,
and has been at all times material, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act, and that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Fruit and Vegetable Packers and Warehousemen's Union
Local 760 affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Independent, the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
Review of the record, including Case 19-RC-632 1, re-
veals an election conducted on September 28, 1972, pur-
suant to a Stipulation for Certification Upon Consent
Election, resulting in 313 votes cast in favor of the Union,
306 votes against the Union, with 9 challenged ballots. Re-
spondent filed timely objections to the Union's conduct
affecting the results of the election which, in substance,
alleged that the Union had offered to waive initiation fees
and had misrepresented material facts regarding
Respondent's wages and the Union's pension plan. The
Acting Regional Director, following an investigation on
November 17, 1972, issued a Report on Objections to Elec-
tion and Challenged Ballots in which he recommended that
' Official notice is taken of the record in the representation proceeding,
Case 19-RC-6321, as the term "record" is defined in Sec . 102.68 and 102
.69(f) of the Board 's Rules and Regulations , Series 8, as amended . See Sec.
9(d) of the Act.
SNOKIST GROWERS, INC.
the objections be overruled in their entirety and the Union
certified. Respondent then filed with the Board timely ex-
ceptions to the Regional Director's report. The Board con-
sidered these exceptions and found they raised no material
or substantial issues of fact or law warranting the reversal
of the Regional Director's recommendations or requiring a
hearing. Accordingly, the Board adopted the findings, con-
clusions, and recommendations of the Regional Director
and certified the Union in its Decision and Certification of
Representative issued on June 20, 1973.
B. The Unfair Labor Practice Case
On June 26, 1973, the Union requested the Respondent
to recognize and bargain with it as the certified representa-
tive of the Respondent's employees. The Respondent on
July 13, 1973, refused to comply with this request. On July
27, 1973, the Union filed a charge initiating the instant
proceeding, and the complaint followed on August 10, 1973.
The Respondent filed its answer on August 20, admitting
the refusal to bargain but contending that it was under no
duty to bargain because of the alleged invalidity of the
representation election. Specifically, the Respondent al-
leged that prior to the representation election the Union
offered to waive initiation fees and, with respect to seasonal
employees, had misrepresented the Union's pension plan.
These allegations had been raised previously by Respon-
dent in the representation case as Objections 1 and 2, re-
spectively, and were considered and overruled by the
Board.2
On August 23, 1973, counsel for the General Counsel
filed directly with the Board a Motion for Summary Judg-
ment . Respondent thereafter filed an opposition thereto and
a "Motion for Summary Judgment in its favor." Subse-
quently, on October 2 the Board issued an Order Transfer-
ring the Proceeding to the Board and Notice to Show Cause
why the General Counsel's Motion for Summary Judgment
should not be granted. On October 12, the Respondent filed
a response to the Notice to Show Cause which in substance
opposed the Motion for Summary Judgment. Respondent
in its opposition to the General Counsel's Motion for Sum-
mary Judgment and in its Motion for Summary Judgment
relied on the matters contained in Objections I and 2 which
Respondent has raised in the representation case . Regard-
ing Objection 1-the Union's waiver of initiation fees-the
Board in the representation case had sustained the Acting
Regional Director's conclusion that this objection was not
meritorious, based on the Board's decision in DIT-MCO,
Inc., 163 NLRB 1019 (1967). When the Board issued its
certification in the representation case and when the instant
proceeding commenced, the United States Supreme Court
had not expressed its views on the issue of the permissibility
of a union's offer to waive initiation fees during an election
campaign. Thereafter, on December 17, 1973, subsequent to
the Board's Notice to Show Cause issued in this proceeding,
the Supreme Court issued its opinion in N.L.R.B v. Savair
Manufacturing Company, 414 U.S. 270 (1973).
2 Respondent 's Objection 3-the alleged misrepresentation regarding em-
ployees' wages-raised in the representation case , was not raised by the
Respondent as a defense in the instant proceeding.
369
On April 26, 1974, the Board entered an order in the
instant unfair labor practice proceeding which, after briefly
describing the various motions filed by the parties and the
Board's Notice to Show Case, went on to say:
The Board, having duly considered the matter, is of
the opinion that in light of the Supreme Court's deci-
sion in N.L.R.B. v. Savair Manufacturing Co., 94 S. Ct.
495, the issue raised by the Respondent, with respect
thereto, could best be resolved by a hearing. Accord-
ingly,
IT IS HEREBY ORDERED that the General Counsel's and
Respondent's Motions for Summary Judgment be, and
they hereby are, denied.
IT IS FURTHER ORDERED that a hearing be held before
a duly designated Administrative Law Judge to be des-
ignated by the Chief, Division of Judges, for the pur-
pose of taking evidence to resolve said issue and that
the Regional Director for Region 19 be, and he hereby
is, authorized to issue notice thereof.
IT IS FURTHER ORDERED that, upon conclusion of the
hearing, the Administrative Law Judge shall prepare
and serve upon the parties a decision containing find-
ings of fact, conclusions of law, and recommendations
based upon the evidence received pursuant to the pro-
visions of this order.. . .
Thereafter, the Regional Director for Region 19 duly noted
the case for hearing and the hearing convened on May 28,
1974.
C. The Question to be Decided
Respondent in its answer to the complaint and in its
opposition to the General Counsel's Motion for Summary
Judgment has preserved Objections 1 and 2 raised during
the representation case going to the validity of the certifica-
tion. Respondent, therefore, is entitled to raise these issues
during subsequent steps in the unfair labor practice pro-
ceeding. That is to say, Respondent may ask the Board to
reverse its earlier rulings relating to these objections and it
may ask a reviewing court to reverse them. So far as this
stage of the proceeding is concerned, however, an Adminis-
trative Law Judge is not free except under extraordinary
circumstances, not present here, to reverse determinations
already made at earlier stages by the Board. In the instant
case the Board, after considering the Motions for Summary
Judgment and the Respondent's opposition, remanded for
hearing the issue raised by Respondent's Objection 1 involv-
ing the Union's offer to waive initiation fees. I understand
this to mean that the issues raised by Objections 2 and 3 are
not before me for ruling and that I am to accept previous
rulings by the Board on these matters .3 Accordingly, at the
hearing I precluded Respondent from adducing evidence
relating to its allegations contained in Objection 2 insofar
as such evidence was not newly discovered or previously
unavailable. In this regard, the evidence which Respondent
3 See Pittsburgh Plate Glass Co. v. N.L. R. B., 313 U.S. 146, 162; Board Rules
and Regulations , Series 8, as amended, Secs. 102.67(1) and 102.69(c).
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offered to adduce in this proceeding was not newly discov-
ered nor was it the type of evidence previously unavailable
nor did the Respondent advance any special circumstances
which, in my opinion, would require the Board to re-exam-
ine its decision on this matter made in the representation
proceeding. In short, the sole question which is left for me
to decide is whether the waiver of initiation fees made by
the Union prior to the representation election was permissi-
ble under the Savair, supra, opinion of the Supreme Court.
If such conduct was permissible, then-so far as the ques-
tions before me are concerned-the election and certifica-
tion were valid.
D. The Union's Waiver of Initiation Fees
1. The evidence
During the period of time material to this case, the Union
charged a $30 membership initiation fee. However, the
constitution and bylaws of the Union and its International
Union provide for the waiver of initiation fees during an
organizational campaign. The Union's bylaws, in pertinent
part, in substance provide that, when employees are being
organized, initiation fees may be waived at the discretion of
the Union's executive board. The constitution of the
Union's International in substance, in pertinent part, pro-
vides that, in situations involving "new organization," the
International's executive board is authorized to prospective-
ly waive initiation fees owing to a local union by any mem-
ber or person.
On March 23, 1971, the Union's principal official, Secre-
tary-Treasurer William Wallace wrote to the International
Union as follows:
This Local Union is presently engaged in organizing
activities among the employees of the following con-
cerns [listing several employers , including Respondent]
and hereby request that you grant our Local Union the
authority to waive initiation fees and re-initiation fees
to persons employed in these newly organized con-
cerns, for the period beginning with the commence-
ment of organizing activities for a particular group and
ending on the 31st day following the execution of our
initial Labor Agreement covering that particular
group.
Our experience over the years in this geographical area
has proved that it is impossible to organize the type of
industry we are involved with if the Initiation Fees and
Re-Initiation Fees are not waived by the Local Union
in every case.
In response, on April 9, 1971, the secretary-treasurer of the
International Union, by letter, notified the Union that "the
General Executive Board [of the International Union] has
voted to grant your request for waiver of the International
portion of initiation fees" and further explained that the
waiver "will be in effect for the period beginning with the
commencement of the initial Labor Agreement . . . with
the understanding that initiation fees will not be paid to the
Local by the members."
Respondent called four witnesses in support of its claim
that the Union impermissibly waived initiation fees: em-
ployees Velma Wirt, Adam Zerr, Judy McKelheer, and
Cora Rosseau, and the Union's secretary-treasurer, William
Wallace.
Employee Wirt was unable to shed any light on the state-
ments made by agents of the Union on the subject of the
initiation fee. She testified that no one had spoken directly
to her about an initiation fee or whether there would be an
initiation fee to join the Union.
Employee Zeer, one of the most active of the Union's
adherents, testified that prior to the election he told employ-
ees "there would be no initiation fee for anybody on the
payroll but the dues would start after the contract was
signed."
Employee McKelheer testified that prior to the election
at a union organizational meeting Secretary-Treasurer Wal-
lace told the employees "that as long as [employees] were
employed at the time of the election [they] would pay no
initiation fee."
Employee Rosseau testified that prior to the election at
a union organizational meeting Secretary-Treasurer Wal-
lace told the employees that anyone employed at the time
of the election would pay no initiation fee and would not
have to pay membership dues until after the contract was
signed.
The Union's Secretary Treasurer Wallace testified that at
one pre-election organizational meeting he read the Interna-
tional Union's letter of April 9, and that prior to the election
he told employees at union meetings and whenever the sub-
ject was brought up that all of the employees employed by
the Company at the time of the election would not have to
pay an initiation fee and that they would not have to pay
membership dues until the 31st day after a collective-bar-
gaining agreement was signed."
An organizational pamphlet apparently drafted by a
group of employees who were union adherents which was
given wide distribution among the employees prior to the
election, among other things, stated that there would be "no
union initiation fee for present employees [working or laid
off and] no union dues have to be paid until contract is
negotiated, signed and put into effect."
2. Concluding findings
On consideration of all the testimony, I am led to the
conclusion that during the election campaign, the Union
advised the employees that all employees employed by the
Respondent at the time of the paying an initiation fee and
that membership dues would not begin until the Respon-
dent and Union had entered into a collective- bargaining
agreement . In other words, the waiver of initiation fees in
the instant case was available to all eligible voters in the
election, was obtainable before or after the election, and
was clearly not conditioned upon the expression of support
for the Union in any form during the electoral process .5 In
Employee McKelheer admitted that Wallace did mention a 31-day peri-
od and that she understood from what was said "that [employees) had 31
dais before they would have to join the Union."
The fact that the Union appears to have limited the availability of the
SNOKIST GROWERS, INC.
such circumstances, I am of the view that the Savair issue
as presented in this case is governed by the holding in End-
less Mold, Inc., 210 NLRB No. 34, and, for the reasons
stated therein, I find that the Union's waiver of initiation
fees did not interfere with employees' free choice in the
election and, consequently, recommend that Respondent's
Objection 1 be overruled. Accordingly, since the Board has
overruled Respondent's other objections to the election, I
find that the representation election conducted in Case 19-
RC-6321 is a valid election and that, as alleged in the com-
plaint in this proceeding, Respondent's refusal to bargain
with the Union constitutes a violation of Section 8(a)(5) and
(1) of the Act.
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
1. Snokist Growers, Inc., the Respondent, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Fruit and Vegetable Packers and Warehousemen's
Union Local 760 affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Independent, the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
3. All employees employed by the Respondent at its Yak-
ima, Washington, canning operation, excluding office cleri-
cal employees, professional employees, guards and
supervisors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since June 20, 1973, the above-named labor organiza-
tion has been and now is the certified and exclusive repre-
sentative of all employees in the aforesaid appropriate unit
for the purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By refusing on or about July 13, 1973, and at all times
thereafter, to bargain collectively with the above-named
labor organization as the exclusive bargaining representa-
tive of all the employees of Respondent in the appropriate
unit, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respondent has
interfered with, restrained, and coerced, and is interfering
with, restraining, and coercing employees in the exercise of
the rights guaranteed to them in Section 7 of the Act, and
thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
waiver to only those individuals who were employed at the time of the
election would not, in my view , be deemed to have affected the election.
Whatever the impact of such limitation , it is clear that it could only affect
those individuals hired after the election who, in any event, could not have
participated in the election and could not have had any affect on its outcome.
THE REMEDY
371
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act, I shall recommend that
it cease and desist therefrom and, upon request, bargain
collectively with the Union as the exclusive representative
of all employees in the appropriate unit and, if an under-
standing is reached, embody such understanding in a signed
agreement.
In order to insure that the employees in the appropriate
unit will be accorded the services of their selected bargain-
ing agent for the period provided by law, I shall recommend
that the initial period of certification be construed as begin-
ning on the date Respondent commences to bargain in good
faith with the Union as the recognized bargaining represen-
tative in the appropriate unit. See Mar-Jac Poultry Compa-
ny, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5,
1964), cert denied 379 U.S. 817 (1964).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER6
Respondent, Snokist Growers, Inc., Yakima, Washing-
ton, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with Fruit and Vegetable Packers and
Warehousemen's Union Local 760, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Independent, as the
exclusive bargaining representative of its employees in the
following appropriate unit:
All employees employed by the Respondent at its Yaki-
ma, Washington, canning operation, excluding office
clerical employees, professional employees, guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain with the above-named labor
organization as the exclusive representative of all employees
in the aforesaid appropriate unit with respect to rates of pay,
wages , hours, and other terms and conditions of employ-
ment and, if an understanding is reached, embody such
understanding in a signed agreement.
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions , and order, and all objections thereto shall be deemed
waived for all purposes.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its place of business in Yakima, Washington,
copies of the attached notice marked "Appendix." 7 Copies
of said notice, on forms provided by the Regional Director
for Region 19, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 consec-
utive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced or covered by any
other material.
(c) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
r 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."
feurs, Warehousemen and Helpers of America, Inde-
pendent, as the exclusive representative of the employ-
ees in the bargaining unit described, below.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, upon request, bargain with the above-
named Union as the exclusive representative of all em-
ployees in the bargaining unit described below, with
respect to rates of pay, wages, hours, and other terms
and conditions of employment and, if an under-
standing is reached, embody such understanding in a
signed agreement.
The bargaining unit is:
All employees employed by us at our Yakima, Wash-
ington, canning operation, excluding office clerical
employees, professional employees, guards and su-
pervisors as defined in the Act.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively concerning
rates of pay, wages, hours, and other terms and condi-
tions of employment with Fruit and Vegetable Packers
and Warehousemen's Union, Local 760, affiliated with
the International Brotherhood of Teamsters, Chauf-
Dated By
SNOKIST GROWERS, INC.
(Employer)
(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 direct-
ed to the Board's Office, 10th Floor, Republic Building,
1511 Third Avenue, Seattle, Washington 98101, Telephone
206-442-4532.