Sun-Maid Growers Of California

National Labor Relations Board - Board Decisions

Nov 17, 1978

239 N.L.R.B. 346 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sun-Maid Growers of California and International
Brotherhood of Electrical Workers, Local Union
No. 100 and International Association of Machinists
and District Lodge No. 87 of the International Asso-
ciation of Machinists, Party to the Contract. Case
32-CA 513
November 17, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMLIBERS JENKINS
AND) PEN I LLO
On August 7, 1978, Administrative Law Judge
William J. Pannier Ill issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National lIabor 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
and has decided to affirm the rulings, findings,' and
conclusions 2 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Sun-Maid Growers of
California, Kingsburg, California, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
In agreeing with the Administrative Law Judge's finding that Jack
Brown was not a supervisor while working at Kingsburg, we note that
Brown was the most experienced electrician and, has Ing worked at Respon-
dent's plant since it opened in 1962. was most familiar with the plant's
machinery and equipment Furthermore, Brown received instructions from
Respondent's supervisors, had no authority to call in additional help when
conditions warranted it, and did not wear the red "hard hat" worn by all
supervisors at Respondent's plant Accordingly. we find that Brown was, at
most, a leadman who acted as a conduit between Respondent and SMull and
Robinson See American I umber Sales Inc. 229 NL RB 414 (1977; ( revr
( hemrtal (omrpan. 2 13 NL.RB 885 (1974); franA koiundrie, (orporariion.
213 Nl RB 391 (19741
' In affirming the Administrative Ldaw Jucge's recommended renied). we
note that the remedy is consistent with prior Board precedent. See Siuft
Enterprise, a I.nmited Partne-rship. 220 NL RB 738 (1975. Chairman Fan-
ning adheres to his dissent in (;reui ('hinte .4irle rican Se.:rin (o mnpun.,
Esprit de (Corp. 227 NLRB 1670 (1977). cited bs the Administrative lIaw
Judge, but finds no need to rely on it in adopting the recommentded Remedy
as that case involved the closing of a plant. a situation not present here
DECISION
STATEMENT OF IHE CASE
WILLIAM J PANNIER Ill. Administrative Law Judge: This
matter was heard by me in Fresno, California, on March
28 and 29, 1978. On December 29, 1977,' the Regional
Director for Region 32 of the National Labor Relations
Board issued a complaint and notice of hearing, based on
an unfair labor practice charge filed on November 1, alleg-
ing violations of Section 8(aX)(1), (2), (3), and (5) of the
National Labor Relations Act, as amended, 29 U.S.C. 151,
er seq., herein called the Act. 2
All parties have been afforded full opportunity to ap-
pear, to introduce evidence, to examine and cross-examine
witnesses, and to file briefs. Based on the entire record,
upon the briefs filed on behalf of the parties, and upon my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACI
I JURISDICTION
Sun-Maid Growers of California,3 herein called Respon-
dent, has, at all times material, been a cooperative duly
organized and existing by virtue of the laws of the State of
California, with an office and business located in Kings-
burg, California, where it has been engaged in the pro-
cessing and marketing of raisins. During the 12-month pe-
riod prior to issuance of the complaint, Respondent, in the
course and conduct of its business operations, sold and
shipped goods valued in excess of $50,000 directly to cus-
tomers located outside the State of California. Therefore, I
find, as admitted in the answer of Respondent, that at all
times material, Respondent has been an employer engaged
in commerce and in a business affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II THE LABOR ORGANIZATIONS INVOLVED
In its answer, Respondent denied, for lack of informa-
tion and belief, that International Brotherhood of Electri-
cal Workers, Local Union No. 100, herein called IBEW,
has been a labor organization at all times material. How-
ever, the record discloses that employees are members of
IBEW and that at the time of the hearing IBEW had a
collective-bargaining agreement with East Central Califor-
nia Chapter, National Electrical Contractors Association,
Inc., herein called Association, representing various em-
ployers whose employees were represented by IBEW.
Therefore, I find that at all times material, IBEW has been
a labor organization within the meaning of Section 2(5) of
the Act.
I nless otherwise stated. all dates occurred in 1977.
2 At the hearing. the General ( ounsel's motion "to withdraw the 8(aX3)
allegation In the complaint and to issue only the 8(a)(5) and the 8(a)(2)" was
granted
Namne of Respondent amended at the hearing
346
SUN-MAID GROWERS OF CALIFORNIA
It is undenied, and accordingly I find, that at all times
material, International Association of Machinists and Dis-
trict Lodge No. 87 of the International Association of Ma-
chinists, herein called Machinists, has been a labor organi-
zation within the meaning of Section 2(5) of the Act.
Ill THE ALLEGED tUNFAIR LABOR PRACTICES
A. Background
The issues in this case find their genesis in a verbal con-
tract between Respondent and Control Electric, Inc.,
herein called Control, whereby, between August 1976 and
October 1977, Control supplied three maintenance electri-
cians-Jack Brown, James E. Mull, and Les A. Robinson
-to work at Respondent's Kingsburg, California, facility.
The General Counsel contends that during that period, a
joint employer relationship existed between Control and
Respondent regarding those three employees with the re-
sult that Respondent violated Section 8(a)(5) and (I) of the
Act by terminating them without prior notification to
IBEW, their collective-bargaining representative. The Gen-
eral Counsel contends that Respondent violated Section
8(a)(l) and (2) of the Act by recognizing Machinists as the
representative of the employees whom Respondent hired to
perform the work that the three maintenance electricians
had been performing, and by extending the terms of the
then-current collective-bargaining agreement between Re-
spondent and the Machinists to cover those replacement
employees. Respondent denies these allegations. Affirma-
tively, it contends that the unit alleged to be appropriate in
the complaint is not, in fact, an appropriate bargaining
unit, that the work was a valid accretion to Machinists'
bargaining unit, and, further, that IBEW had ample notice
of the termination of the maintenance electricians, but
failed to make a proper demand for bargaining with Re-
spondent concerning this matter.4
Following construction of the Kingsburg facility in the
early 1960's, Respondent contracted the in-plant electrical
maintenance work-involving principally the installation,
maintenance, repair, and modification of the electrical
facets of production equipment, as well as occasional elec-
trical repair work on the plant-to Electric Motor Shop,
herein called EMS, a contractor whose employees were
represented by IBEW. There has never been any financial
or other relationship between Respondent and EMS.
Moreover, at no time has there been any direct dealings
between Respondent and IBEW.
In July 1976, IBEW, having failed to achieve resolution
of its negotiations with the Association, of which EMS was
4In its bnrief, Respondent. also, argues that the complaint is defective and
should be dismissed on the additional ground that par. Xll(bh, alleging that
Respondent has refused to bargain since October 27 and has unilaterally
modified the agreement with the Union by discharging three employees
without prior notification to the Union, referred to "the unit described
above in par. V." which Is the par. listing the alleged agents and supervisors
of Respondent, rz. 'er than to par. VI. which sets forth the bargaining unit
which is alleged to be appropriate. Since the issues In this case have been
fully litigated and briefed by Respondent, I find that it has not been preju-
diced by this obvious typographical error
a member, called a strike. While there was no picketing of
Respondent's facility, the maintenance electricians did not
report for work. Confronted with the need to complete per-
imeter lighting on which the maintenance electricians had
been working, Respondent retained Glen J. Bedgood, the
president, general manager, and operating manager of
Control. Although Control was also a member of the Asso-
ciation, Bedgood had an individual contract license which
he used as the basis for continuing to perform the projects
which Control had been performing prior to the strike. us-
ing the striking employees of Control after first having
signed an interim agreement with IBEW. Although Bed-
good had been performing construction electrical work for
Respondent prior to this time, there is no financial or other
relationship between Respondent and Control.
Bedgood agreed to complete the perimeter lighting.
While doing so, he was approached by Ronald Regine Ras-
mussen, designer of plant engineering for Respondent, re-
garding the performance of the maintenance electrical
work that EMS had been doing prior to the strike. Bed-
good expressed interest, pointing out that he had 10 or 12
employees whose specialty enabled them to do this type of
work. Rasmussen, however, said that Respondent would
particularly like to have the three EMS employees 5 contin-
ue performing the work in light of their familiarity with the
Kingsburg facility.6 Although unfamiliar with these em-
ployees, Bedgood replied that he would attempt to hire
them, and later that day during a meeting with then Manu-
facturing Manager Richard Shoults, 7 Bedgood inquired
about them and promised to attempt to hire them. Shoults
acknowledged that, like Rasmussen, he had asked Bedgood
if it would be possible to hire Brown, Mull, and Robinson.
However, both Rasmussen and Shoults testified that per-
formance of the work by these three maintenance electn-
cians had not been a condition to Bedgood obtaining the
contract. Bedgood confirmed their testimonies in this re-
gard.
Bedgood then contacted IBEW and secured its agree-
ment to permit Brown, Mull, and Robinson to be hired to
work at Respondent's plant. When Bedgood, then, notified
Rasmussen of IBEW's argument, Rasmussen replied that
these three employees knew what their shifts were and
should report the following day. They continued working
at that location until October, when Respondent terminat-
ed its agreement with Bedgood 8 and replaced them with its
own newly hired employees.
With the exception of Brown, Rasmussen did not appear to hare been
particularly familia: with the names of the other two maintenance electri-
cians As late as the time of his appearance at the hearing, he was able only
to testify "I believe" that the other two were Mull and Robinson Accord-
ingl, I attach no significance to the fact that during a subsequent meeting.
described infra, it had been Bedgood who had first inquired about the
names of the maintenance electricians who had been working for EMS This
does not negate the fact that Rasmussen had requested their employment
during his earlier conversation with Bedgood. It shows only that Bedgood
was attempting to be certain of their identities.
Brown had worked at Kingsburg since the facility had opened Robin-
sn had been working there for 7 sears prinor to the strike, and Mull had
been employed there since 1975.
In August 1977. Shoults became manufactunng project manager. a posi-
tion which he occupied at the time of the hearing
B) letter dated December 26, 1976. Bedgood notified Respondent that
as agreement had been reached between IBFW and the Association, "all the
(Contnued
347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Relationship Between Respondent and
Bedgood/Control
The fundamental issue in this case is the nature of the
relationship between Respondent and Bedgood/Control. 9
For absent a finding of joint employer relationship, all fur-
ther consideration of Respondent's potential liability under
Section 8(a)(5) of the Act ends.
The contract between Respondent and Control was ver-
bal. Bedgood testified, without contradiction, that it simply
had continued the agreement between EMS and Respon-
dent for performance of the electrical maintenance work.
The contract provided for payment by Respondent to Con-
trol on a cost plus basis. The costs were based on the wage
rates of the maintenance electricians which, in turn, were
determined by Control's collective-bargaining agreement
with IBEW. These costs were periodically raised to corre-
spond with the periodic increases required under that col-
lective-bargaining agreement.' So far as the record disclos-
es, Respondent had no authority to disapprove these wage
rates and increases in wage rates. Cf. Hamburg Industries,
Inc., Fidelity Services, Inc. & Industrial Technical Services,
Inc., 193 NLRB 67 (1971): Ref-Chem Company and El Paso
Products Co., 169 NLRB 376 (1968), enforcement denied
418 F.2d 127 (5th Cir. 1969).
Apparently, it had been understood at the time the con-
tract had been agreed upon that it would be terminable at
the will of either party. However, there is no evidence that
the parties, at the time of reaching agreement, had under-
stood that it would be, of other than a continuing duration,
as had been the case with Respondent's contract with
EMS. Cf. Cabot Corporation and Payne and Keller of Louisi-
ana, Inc., 223 NLRB 1388 (1976), affd. sub nom., Chemical
Workers, Local 483 v. N.L.R.B., 95 LRRM 2591 (D.C. Cir.
1977). Moreover, there is no evidence that Respondent and
Control had agreed specifically that the latter would be an
independent contractor. Consequently, their contract did
not "bespeak an intent by [Respondent] to look primarily
to results and to vest in [Control] an independence in the
control of its employees that is at least facially inconsistent
with [Respondent] exercising any substantial degree of
control over the manner and means that [Control's] employ-
ees were to perform their services." Chemical Workers, Lo-
cal 483, supra, 95 LRRM at 2593.
Certain other facts are significant with respect to
Control's contract with Respondent. Although Respondent
had requested that Brown, Robinson, and Mull be hired by
Control to perform the electrical maintenance work, the
evidence, as found above, does not show that this was a
condition precedent to Control's obtaining the contract.
Respondent would have accepted any maintenance electri-
cians dispatched by Control to the Kingsburg facility. Re-
spondent did have authority to tell Control's maintenance
electricians to leave its premises, but to the extent that such
authority resided with Respondent, the General Counsel
electricians will he working for Control Electric. Inc.. and will no longer be
working for Glenn J. Bedgood."
9As Control ultimately became the contractor. see fn. 8. supra. It. rather
than Bedgood, will be the entity referred to herein as the contractor.
These rates were increased by notification from Control to Respondent
in December 1976, and again in June.
has not shown that it was other than "a natural concomi-
tant of the right of any property owner or occupant to
protect his premises." Hychem Constructors, Inc., Texas
Eastman Company, Division of Eastman Kodak Company,
and Hudson Engineering Corporation, 169 NLRB 274, 276
(1968); Accord: Cabot Corporation, supra, 223 NLRB at
1389. There is no evidence that Respondent derived any
greater right than this by virtue of its agreement with Con-
trol and it had no right to insist upon the complete removal
of a maintenance electrician from Control's payroll. Cabot
Corporation, supra, 223 NLRB at 1389. Moreover, Respon-
dent has never requested nor demanded that Control re-
move one of its maintenance electricians from its premises,
although, it did agree on one occasion that a maintenance
electrician employed by EMS was no longer needed due to
a paucity of work.
The contract gave Respondent no right to determine
whom Control hired, fired, promoted, or disciplined. Nor
did it accord Respondent authority to discipline, reclassify,
demote, promote, or increase the wage rate of any mainte-
nance electrician hired by Control. Respondent could not
assign the maintenance electricians dispatched by Control
to any location other than the Kingsburg facility. There
was no interchange between the maintenance electricians
dispatched by Control and the employees hired by Respon-
dent, nor was their an instance, so far as the record disclos-
es, where Respondent subsequently hired a maintenance
electrician dispatched by EMS or by Control. Cf. Mobile
Oil Corporation, 219 NLRB 511 (1975), enforcement de-
nied 555 F.2d 732 (9th Cir. 1977).
Control handles its own payroll. Brown, Robinson, and
Mull were paid by Control on the basis of records which
they prepared and forwarded directly to Control.'' All pay-
roll deductions for them were made by Control. They re-
ceived the benefits provided by Control's collective-bar-
gaining agreement with IBEW. They enjoyed none of the
benefits which Respondent provided for its own employees
pursuant to collective-bargaining agreements with labor or-
ganizations, other than IBEW, who represented Respon-
dent's employees. However, the three maintenance electri-
cians observed Respondent's plant rules while working at
the Kingsburg facility and, as Bedgood testified, they
I The three maintenance electricians each testified that in addition to the
work-time records which they had prepared and forwarded to Control, they
also had punched the same timeclock. using the same timecards. as had
Respondent's employees. Respondent's witnesses, none of whom worked in
Respondent's payroll department, had no explanation for this procedure.
Industrial Relations Manager John E. Sullivan expressed bafflement as to
why they would have done so. It is possible that they had used the timeclock
as a means of recording job time spent on shop cards which had been
submitted to Respondent to verify Control's billing. If so, this would not
advance the General Counsel's argument that Respondent had been a joint
employer of these three employees. since it would have beenl consistent
with (Respondent's] right to police reimbursable expenses under its cost-
plus contract .. ." Hvchem (onstructors, supra See. also Cabol Corpora-
tion, supra, 223 NLRB at 1389, and Westinghouse Electric Corporation. 163
NLRB 914, 915 (1967). If this was not the purpose. the General Counsel's
argument is still not aided. for it is undisputed that it had been Control who
had paid these employees during the time they worked at the Kingsburg
facility and it has not been shown that these punched timecards had been
prepared and maintained for any reason that would establish a joint-em-
ployer relation. In fact, none of the three maintenance electricians even
claimed that they had punched these timecards pursuant to instructions
from officials of Respondent.
348
SUN-MAID GROWERS OF CALIFORNIA
"were excluded out of my rules and regulations . . . be-
cause they were working under different conditions." For
example, they had not been required to report at 8 a.m. to
Control's premises and had not been paid travel time to
Respondent's Kingsburg facility.l 2 Moreover. Respondent
had issued one of its green identification cards to each of
them, even though, as Sullivan acknowledged, employees
of contractors are normally not issued such cards, but, in-
stead, simply sign in with the guard who issues them visitor
passes.
Bedgood played but a minimal role in the performance
of duties by the maintenance electricians. Only rarely did
he visit the Kingsburg plant. Even on such occasions, he
exchanged only a few words with whichever of the mainte-
nance electricians were on duty. At no point, did he ever
assign them work to perform. By contrast, either he or his
engineer attempted to make daily visits to construction
sites where his construction electricians are working. In
fact, when he has construction electrical work to perform
for Respondent, it is him or his construction foreman with
whom Respondent deal; concerning the work to be done.
Respondent, however, contends that this is an insignificant
matter, for it asserts that Brown ha'd been a supervisor
during the time that Control's maintenance electricians
were working at Kingsburg and that Brown had been the
one who had handled the work and personnel problems of
the three maintenance electricians.
Whether or not Brown had been a supervisor within the
meaning of Section 2(11) of the Act between August 1976,
and October 1977, it is evident that he had occupied a
significant role in the coordination of the maintenance
electricians' work at Kingsburg. For example, when Robin-
son and Mull had sought to change shifts, it had been
Brown to whom they had directed their requests. Initially,
Brown testified that he had always sought the permission
of the maintenance superintendent before agreeing to such
shift swaps. While Respondent's officials, particularly Gen-
eral Maintenance Superintendent Bob Ozbirn, agreed that
Brown had told them of the shift swaps, they denied that
they had possessed any authority to permit or to deny shift
swapping. These denials tended to be corroborated by
Brown himself. For, while he testified that shift swapping
between Robinson and Mull had not been uncommon, the
only specific conversation that he described with an official
of Respondent about the matter pertained to an occasion
when an emergency family problem had necessitated that
Mull swap shifts with Robinson. On that occasion, conced-
ed Brown, the switch had occurred before he had spoken
with Ozbirn about it, and further, Brown agreed that he
had spoken to Ozbirn merely to notify him of the change.
Robinson claimed that Respondent had to approve
swaps of shifts. He also testified that there had been occa-
12 Although Bedgood testified that the absence of travel time payments
had resulted from an agreement with IBEW, his own vague testimony about
this agreement showed that he lacked any knowledge regarding its origin
and the parties to it. IBEW Representative Fred A. Hardy appeared as a
witness for the General Counsel, but he never claimed that Respondent had
been a party to such an agreement nor that Respondent had been the in-
tended beneficiary of the agreement. In these circumstances, the best that
can be said is that for some reason, possibly the elimination of the need for
maintenance electricians to report to EMS's premises each morning. IBEW
agreed to waive the travel time provisions.
sions when such swapping had been prohibited by Respon-
dent. However, he did not "directly recall when or what
shift or anything" about such purported refusals by Re-
spondent to permit swaps. Moreover, Robinson agreed
that his knowledge of Respondent's asserted authority to
veto shift swapping was based solely on what had been told
to him by Brown-who, as found above, did not testify to
even a single instance of his having requested permission of
Respondent for Mull and Robinson to switch shifts, much
less of refusals by Respondent to permit such swaps.
With regard to vacation requests, Mull and Robinson
would tell Brown when they wanted to take vacations and,
in turn, Brown would report this to an official of Respon-
dent. usually the maintenance superintendent. However,
while not disputing this sequence, Respondent's officials
testified that they had had no authority to permit nor to
deny the vacation requests. In effect, they characterized
Brown's reports as no more than informational. For exam-
ple, Ozbirn testified, "I would be told by Jack that they
would be taking a vacation," but that "I didn't approve
any vacation schedule." That Respondent's permission for
Mull and Robinson to take a vacation was not necessarily
required is shown by the fact that when Robinson or Mull
did take a vacation, Control would dispatch replacement
maintenance electricians to work during those periods.
There is no showing that the time of year when Robinson
and Mull took their vacations had been a matter of con-
cern for any other reason to Respondent. Consequently,
there would have been no reason for Respondent to exer-
cise any control in this area. Conversely, it had been Con-
trol who would have been affected by such requests, since
it had been obliged to locate and provide replacements for
the vacationing Mull and Robinson. Moreover, it has not
been shown that Respondent ever prohibited either Mull
or Robinson from taking the vacation he desired.
Although Robinson testified that he had spoken, on one
occasion, with Shoults regarding his vacation, he was un-
able to recall fully the substance of that conversation. So
far as his description of what he did recall about the inci-
dent, he conceded that he had first "probably mentioned"
his request for vacation to Brown and it appeared that he
had been simply attempting to enlist the aid of Shoults-
who was not the maintenance superintendent and thus not
the official of Respondent to whom Brown had spoken
about Robinson and Mull's vacations-in secunng vaca-
tion time that Robinson preferred. Brown testified that
when he, himself, had wanted a vacation, it had been to
Bedgood, not Respondent, that he had addressed his noti-
fication of that fact. In light of the central role played by
Brown in the coordination of relations between Respon-
dent and the maintenance electricians, it is likely that the
timing of Brown's vacation would have been of infinitely
greater significance to Respondent than would those of
Mull and Robinson for whom replacements would have
been provided under Brown's guidance. The fact that
Brown arranged his own vacation with Control tends to
demonstrate that Respondent had been notified of
Robinson's and Mull's vacations simply as a courtesy,
rather than because it exercised authority over the timing
of their vacations.
Neither Bedgood nor Control was ever contacted when-
349
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever one of the maintenance electncians could not report
for work due to illness. Instead, whenever either Mull or
Robinson was ill, he would call the telephone number on
the back of his identification card and report that fact to
one of the guards, who were also employees of a contrac-
tor. While Brown testified that the guard would then re-
lay to him the substance of the call, he did not know if the
guard had made a similar report to Respondent. There is
no evidence that the guards did so. According to Brown, if
a maintenance electrician needed time off for a doctor's
appointment during the day, Brown would report that fact
to the maintenance superintendent. However, there is no
evidence that in doing so, Brown had been seeking permis-
sion for the employee to leave, that Respondent had pos-
sessed authority to deny such a request, or that Respon-
dent ever had denied a maintenance electrician the
opportunity to leave work during the day due to illness or
a doctor's appointment.
An examination of the manner in which the three main-
tenance electricians performed their duties discloses sev-
eral factors. First, assuming arguendo that Brown had been
a supervisor, there were nevertheless significant periods
during their workdays when Robinson and Mull worked
without his supervision. Thus, Brown worked normally
from 7 a.m. until 3:30 p.m., Robinson reported for work at
5:30 a.m., working until 2 p.m., and Mull reported at 3
p.m., working until 11:30 p.m. Consequently, Mull worked
for 8 hours each day and Robinson for 1-1/2 hours each
day without Brown being present. While in the case of
Robinson this had not been of long duration, it had been
Robinson who had reported first in the morning, and his
work assignments based largely upon problems which had
arisen after Brown had left on the preceding afternoons,
had not been made by Brown.
Second, while the record is unclear as to how these par-
ticular hours came to be assigned to each of the three
maintenance electricians, it is clear that the hours worked
by them had not been scheduled by Control, but rather
had been governed by Respondent's production schedule.
When that production schedule was changed by Respon-
dent, as, it is undisputed, did occur from time to time, the
maintenance electricians were required to conform their
hours to those changes. Moreover, when Respondent
scheduled weekend production work, the maintenance
electricians were notified of that fact by Respondent and
reported for work as did Respondent's production and
maintenance employees. Similarly, if a job on which a
maintenance electrician had been working could not have
been completed by that electrician's normal quitting time,
it had been by officials of Respondent that that electrician
had been authorized to work until it was completed, receiv-
ing overtime pay for the excess time worked. Consequent-
ly, the source of the maintenance electricians' normal
workday and the authority for their performance of over-
time work had originated with Respondent.
13 Robinson testified that he had tried to reach one of Respondent's sup-
ervisors, whenever he had telephoned, to report that he would be absent due
to illness. However, he did not testify that he had ever been able to speak
with a supervisor whenever he made such calls. More significantly, he never
testified that he had been told that he was required to contact one of Re-
spondent's supervisors to report that he would be absent due to illness.
TIhird, Brown testified without contradiction that when
there had been more work than the three maintenance elec-
tricians could handle, he had reported that fact to the
maintenance superintendent who would, if he felt it neces-
sary, contact EMS or Control for the dispatch of addition-
al maintenance electricians. Brown never on his own
sought to have additional maintenance electricians dis-
patched to Kingsburg. Accordingly, Respondent had been
in control of its costs to the extent that it had made the
decisions regarding whether the three maintenance electri-
cians should work overtime to finish jobs on which they
had been working and to the extent that it could determine
whether to have the work completed by having extra main-
tenance electricians dispatched or by having Brown,
Robinson, or Mull work overtime. In addition, Respondent
could telephone these maintenance electricians at their
homes when they were not on duty and direct them to
report to the Kingsburg facility - occurances which had
taken place not infrequently during the time that Brown,
Mull, and Robinson had been working at Kingsburg.
Fourth, it is undisputed that Respondent had not direct-
ed the maintenance electricians in the precise steps to fol-
low to perform their work. However, it occasionally pro-
vided specifications and instructions regarding the manner
in which the work could be performed. Further, Respon-
dent had told them what work needed to be done. In this
regard, virtually all of Respondent's supervisors had as-
signed work to the maintenance electricians and, even as-
suming Brown's supervisory status, assignments had regu-
larly been made directly by Respondent's officials to
Robinson and Mull. Moreover, while Brown had assigned
work to Mull each day, during the half hour when the
shifts overlapped, Mull had been assigned work regularly
each night by Respondent's personnel. These assignments
had taken precedence over the work which Brown had ear-
lier instructed Mull to perform. Moreover, whenever a
number of assignments had been made to maintenance
electricians and it had been impossible to complete them
all, it had been officials of Respondent who had made the
decisions as to which had priority. 14
While, as set forth in section III, A, supra, there is no
financial relationship between Respondent and Control,
"for purposes of the Act, it has been judicially recognized
that anyone, whether specifically attached to the enterprise
or not, who possesses such a right or power of control over
its conduct as to have a responsibility for its labor affairs
and relations in fact, may properly be treated as an em-
ployer." (Citations omitted) N.L.R.B. v. New Madrid Man-
ufacturing Company, d/b/a Jones Manufacturing Company,
215 F.2d 908, 913 (8th Cir. 1954). The fact that Respondent
14 So far as the record discloses, on only one occasion did these assign-
ments give rise to any difficulty. Ozbirn testified that once, when he had
tried to assign work to Robinson, the latter had said to "talk to" Brown
about it, because he "wasn't authorized to do that without John's permis-
sion." Aside from the isolated nature of this occurrence, there is no evidence
concerning the nature of the assignment which Ozbirn had tried to make to
Robinson nor was evidence adduced as to the problem posed at the time.
Indeed. Ozbim could not recall anything else about what had transpired. In
these circumstances, I place no reliance on this vague and isolated incident.
Similarly. the fact that Robinson did not take his lunch break at the precise
time once requested for him to do so by Respondent is hardly determina-
tive, since he made sure that he was available for work at the time desired
bh Respondent.
350
SUN-MAID GROWERS OF CALIFORNIA
may not have exercised the full panoply of powers over the
maintenance electricians that an employer can exercise
does not, of itself, serve to render it any the less a joint
employer of the maintenance electricians under Section
2(2) of the Act. So long as Respondent possessed "an area
of effective control over labor relations at the plant in-
volved herein," it was an employer of the maintenance
electricians. Great Southern Chemical Corporation, 96
NLRB 1013, 1014 (1951). For, to establish that it was a
joint employer, it need only be found that "Respondent
exercisetd] effective control over the working conditions of
[the maintenance electricians] and [was] fully competent to
bargain with (IBEW] in accordance with the provisions of
the Act." Herbert Harvey, Inc., 171 NLRB 238, 239 (1968),
enfd. 424 F.2d 770 (D.C. Cir. 1969).
In the instant case, as set forth above, there are a num-
ber of factors tending to negate the existence of a joint-
employer relationship between Respondent and Control
with respect to the maintenance electricians. Yet, even ac-
cepting as accurate Respondent's contention that Brown
had been a supervisor, the fact remains that for substantial
and significant portions of their workdays both Robinson
and, particularly, Mull had worked without Brown being
present at the Kingsburg facility. In Syufy Enterprises, a
Limited Partnership, 220 NLRB 738 (1975), the Board con-
cluded that the absence of supervision by a contractor pro-
viding janitorial services and the performance of superviso-
ry functions directly by the owner were sufficient to
establish a joint employer relationship. "The actual exer-
cise of control by Respondent over matters governing the
terms and conditions of employment of the janitors is a
separate indication of coemployership. It is one which we
deem crucial in the present case in view of the limited
terms of the service contract .... " Id. at 740.
Of course, Respondent's officials did not hover over the
maintenance electricians, directing each turn of their
screwdrivers and each connection that they made. How-
ever, contrary to Respondent's argument, this is hardly
what the Board has meant by control of the "means used
to achieve [the] end .... " Cabot Corporation, supra, 223
NLRB at 1389. Here, Respondent's officials assigned work
directly to Robinson and Mull. Although the latter may
have been assigned other work by Brown, the assignments
of Respondent's officials took precedence. Indeed, when-
ever there were conflicting assignments made to the main-
tenance electricians, such that all of them could not be
completed as required by Respondent's officials, it had
been Respondent who had made the determination as to
which took precedence.
The determination regarding the basic workweek that
the maintenance electricians would work originated with
Respondent by virtue of its preparation of production
schedules. Whenever production had been scheduled for
weekends, the three maintenance electricians had been ex-
pected to and had reported for work to the Kingsburg fa-
cility. It had also been Respondent which had determined
whether particular work had been of sufficient import to
warrant performance of unscheduled overtime work by
Brown, Robinson, and Mull. On those occasions when
there had been too much work for the three regularly as-
signed maintenance electricians to perform, it had been
Respondent who had made the determination as to wheth-
er additional maintenance electricians should be dis-
patched to complete it. Moreover, it had been Respon-
dent's officials, not those of Control, who had called the
maintenance electricians at their homes when there had
been extra work to be performed. Consequently, while the
wage rates of the maintenance electricians had been the
product of Control's collective-bargaining agreement with
IBEW, it had been Respondent who had determined the
number of overtime hours and the number of additional
maintenance electricians that would be dispatched, thereby
exercising a degree of control over its costs under its con-
tract with Control. See The Greyhound Corporation (South-
ern Greyhound Lines Division) and Floors, Inc. of Florida,
153 NLRB 1488, 1491, fn. 8 (1965).
In sum, it had been Control who had possessed the pow-
er to hire, fire, discipline, classify and promote the mainte-
nance electricians dispatched to Kingsburg, and their wage
rates had originated with Control. However, it had been
Respondent who had controlled their performance while at
its Kingsburg facility by originating their basic workweek
schedule, telling them what work needed to be done, in-
structing them as to the work to be done directly on a
regular basis and without contacting supervisors at Con-
trol, determining which of competing assignments had pri-
ority, deciding when they would perform overtime work,
and determining when additional maintenance electricians
would be dispatched to Kingsburg. Through this control
over the day-to-day work performance of the maintenance
electricians, Respondent exercised authority over signifi-
cant aspects of their employment relation, see Floyd Epper-
son and United Dairy Farmers, Inc., 202 NLRB 23 (1973),
enfd., 491 F.2d 1390 (6th Cir. 1974), particularly where, as
here, those three employees had been hired by Control at
Respondent's request; their duties had been an integral
part of Respondent's production process; they had been
treated differently from employees of other contractors to
the extent that they had been issued their own identifica-
tion cards rather than having to obtain visitor passes as did
employees of other contractors; they had observed Re-
spondent's plant rules; it had not been contemplated that
Control would occupy the status of an independent con-
tractor at the time that the contract between it and Re-
spondent had been negotiated; and the contract between
Control and Respondent had not, so far as the record dis-
closes, been contemplated to be of short duration at the
time of its negotiation. Only Respondent could have bar-
gained effectively with IBEW regarding the indicia of em-
ployment over which it had possessed control. In those
circumstances, and based upon the record in its entirety, I
find that Respondent and Control had been joint em-
ployers during the time that Brown, Robinson, and Mull
worked at Kingsburg from August 1976 until October 26,
1977.
C. The Termination of Control's Contract and
Commencement of Performance of the Maintenance
Electrical Work by Respondent's Emplovees
The pertinent events leading to and following the depar-
ture of Brown, Robinson, and Mull from the Kingsburg
351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facility are undisputed and are relatively straightforward.
For approximately I year prior to October, Respondent
had given consideration, from time to time, to terminating
Control's contract. This was primarily based upon the con-
sideration that, while maintenance electricians and me-
chanics worked on the same equipment, employees in nei-
ther group would perform the duties of the other, thereby
giving rise to a situation which Respondent considered to
be inflexible and inefficient.
Although Respondent negotiated a new collective-bar-
gaining agreement with Machinists in August and Septem-
ber, there had been no discussion during those negotiations
concerning any additions to the historic bargaining unit for
which Machinists had been the representative. However, in
early October, Respondent approached Machinists regard-
ing their willingness to represent maintenance electricians
hired by Respondent to replace those being furnished by
Control. In addition, in early October, Respondent hired
two electricians, Leonard Ingro and Doug Bronaugh, and
began familiarizing them with the facility and its opera-
tions. This did not go unnoticed, for based upon a call
about their presence from Brown to Hardy, who had in
turn contacted Bedgood about the matter, Barnes had been
contacted by Bedgood in early October. Barnes described
their conversation as follows:
Glen asked me if the work that was being done by
these three gentlemen was adequate, and I told him it
certainly was, they are professional electricians. He
said he had been contacted, in his words, by the busi-
ness agent of the IBEW, stating that he had a rumor
that we were going to replace the electricians with ma-
chinists. I said that this was not true.
Barnes conceded that at the time of this conversation, he
had known of the "good probability or possibility" of the
termination of Control's contract, but that "we had no in-
tel..ion of re,.;acing electricians with machinists . . . only
with electricians."
That "good probability or possibility" quickly became
reality, for on October 24 Sullivan authored a letter to Ma-
chinists, agreeing, effective immediately, to add an electri-
cian classification to their collective-bargaining agreement,
to subdivide that classification into three categories, and to
make all other provisions of their collective-bargaining
agreement applicable to the electricians, with provision for
separate seniority. As Machinists dues records disclose,
neither Ingro nor Bronaugh had been a member of Ma-
chinists,'5 nor is there any evidence that they had designat-
ed Machinists as their bargaining representative by Octo-
ber 24.
Respondent adduced no specific evidence concerning
the precise date upon which it had intended to terminate
Control's contract. What was adduced was a conversation
of Thursday, October 27, between Brown and Robinson on
the one hand and Barnes and Ozbirn on the other. When
the two maintenance electricians ascertained during this
conversation that Control's contract was to be terminated,
) These records show that both employees paid initiation fees to Machin-
ists on November 23.
they departed the facility, even though Robinson acknowl-
edged that they had been told that they could work at least
through Friday. Brown telephoned Mull and told him not
to report for work that evening.
Following the departure of Brown, Robinson, and Mull,
Respondent hired three additional electricians over the
course of the succeeding 2 to 3 weeks, thereby bringing its
complement of electricians to five in number. While they
then commenced performing most of the work that Brown,
Robinson, and Mull had been performing, under Respon-
dent's maintenance reorganization they also perform some
work that had been classified traditionally as mechanics'
work. Concomitantly, the mechanics have been performing
some of the work performed formerly only by maintenance
electricians. Additionally, each supervisor in the mainte-
nance department has been assigned responsibility for
maintenance work in a particular area of the Kingsburg
facility, with a permanent corps of combined classifica-
tions from that department, including electricians, working
under him and performing the maintenance work in that
area.
Based upon this sequence of events, the General Counsel
alleges that Respondent's conduct violated Section 8(a)(1),
(2), and (5) of the Act. A determination of the correctness
of this position necessitates resolution of several subsidiary
questions.
An initial question presented is whether the bargaining
unit pleaded in the complaint, a unit of maintenance elec-
tricians employed by Control and Respondent at Kings-
burg, is appropriate. Whatever the merit in other circum-
stances of the General Counsel's argument regarding the
appropriateness of such a bargaining unit, Control, as
found above, has been a party to a collective-bargaining
agreement with IBEW. Cf. Ref-Chem Company and El Paso
Products Co., Individually and as Co-Employers, 169 NLRB
376 (1968), enforcement denied 418 F.2d (5th Cir 1969).
Brown, Robinson, and Mull were encompassed by the bar-
gaining unit in that agreement, which is broader in scope
than simply the Kingsburg facility. Accordingly, the unit
pleaded in the complaint is deficient in that it fails to con-
form to the contractual unit, which is the unit that is "un-
questionably appropriate because . . . [it was] the unit in
which [IBEW] was afforded recognition." Ref-Chem Com-
pany, 169 NLRB at 380. In these circumstances, the fact
that a unit confined to the Kingsburg facility might also
have been appropriate is not dispositive, for the question is
not one that is being determined de novo. See National Gyp-
sum Company, 220 NLRB 551, 555 (1975), and cases cited
herein.
Nevertheless, Respondent was, as found above, a joint
employer for that portion of the overall bargaining unit
which had been assigned to work at its Kingsburg facility.
Only Respondent, as also found above, had been capable
of bargaining effectively concerning those facets of
Brown's, Robinson's, and Mull's employment relationship
which had given rise to its joint-employer status. Moreover,
a unit confined to the three maintenance electricians who
had been working at Kingsburg would appear to have been
appropriate, based upon the separate nature of the func-
tions which they had performed and the separate commu-
nity of interest which they had possessed, had not a larger
352
SUN-MAID GROWERS OF CALIFORNIA
unit been created by virtue of IBEW's collective-bargain-
ing relationship. In these circumstances. no policy of the
Act would appear to be offended by imposing a bargaining
obligation upon Respondent and Control, jointly, for that
portion of the overall unit for which they occupied joint-
employer status. Therefore, I find that the appropriate bar-
gaining unit is the contractual one, but that Respondent
shared a bargaining obligation with respect to so much of
that unit for which it occupied joint-employer status.
The second question presented pertains to IBEW's rep-
resentative status. Clearly, in the overall unit, IBEW was
the presumptive representative of a majority of the employ-
ees in that unit by virtue of the existing collective-bargain-
ing agreement.S Moreover, within that portion of the unit
employed at Kingsburg, pursuant to Respondent's agree-
ment with Control, IBEW was clearly the majority repre-
sentative, since Brown, Robinson, and Mull were members
of IBEW. Accordingly, I find that at all times material
IBEW had been the majority representative of the mainte-
nance electricians, both in the bargaining unit and in that
portion of the unit assigned to the Kingsburg facility.
The third issue involves the extent of Respondent's bar-
gaining obligation owed IBEW. As a joint employer, Re-
spondent had an obligation to recognize IBEW as the rep-
resentative of that segment of the overall bargaining unit
employed at the Kingsburg facility. Accordingly, Respon-
dent's termination of Control's maintenance electricians
"without consultation with [IBEW] would constitute a
breach of its duty to bargain." Ref-Chem Company, 169
NLRB at 380.
Fourth, Respondent argues that notwithstanding any
general bargaining duty which it might have owed as a
joint employer, IBEW had failed to demand bargaining of
it regarding the terminations even though it had been on
notice since, at least, early October of the possibility that
Brown, Robinson, and Mull would be terminated. It is, of
course, accurate that "there can be no breach of the statu-
tory [bargaining] duty by the employer . . . without some
indication given to him by [the representative] of [its] desire
or willingness to bargain." N.L.R.B. v. Columbian Enamel-
ing and Stamping Company, Inc., 306 U.S. 292, 297 (1939).
The difficulty. however, with Respondent's situation is that
it cannot be said with any degree of certainty that IBEW's
failure to attempt to bargain with Respondent concerning
the termination of the maintenance electricians at Kings-
burg was the product of other than Respondent's own con-
duct.
As set forth above, when IBEW first learned of the ru-
mored terminations, it had contacted Bedgood who, in
turn, had contacted Barnes. The latter's own account of
their subsequent conversation, as quoted above, makes
clear that Barnes deliberately had misled Bedgood. Thus.
Barncr had tailored his answer so that it conformed only to
Bedgiood's specific question, although it must have been
clear to him from Bedgood's concern regarding Respon-
dent's satisfaction with the work of "these three gentle-
,, See \t, ,,li (ipkiptu ( -nipaln i uprn ia. and cases cited therein I here x
no evidence hiha IRF\BE collecitie -hl rirninig agreemeitnl. , l hith ( ontmIA
was ;i part',. hd heen one obtained uinder Set 5ifl if the Acl See Ret ( hint
(onmpan N 1. R B. 41X8 F2d a ill
men" that Bedgood had been attempting to ascertain if
Control would be allowed to continue to dispatch mainte-
nance electricians to Kingsburg. Not until the eve of the
changeover did Respondent see fit to disclose to the main-
tenance electncians the decision that had been made and
partially implemented by the hiring of Ingro and Bronaugh
- and at that, this disclosure came only after Brown and
Robinson had pressed for a specific answer to their ques-
tion concerning their future employment at Kingsburg.
An employer who intends to change the nature of its
operations in a manner that will affect employees in the
bargaining unit owes a duty to disclose that fact fully to the
bargaining representative of those employees. See, The
Lange Compnary, A Division of Garcia Corporation, 222
NLRB 558, 563. 567 (1976), and cases cited therein. That
duty is not satisfied where the employer conceals its inten-
tions nor where it acts in a manner that is misleading. See.
e.g., Republic Engraving and Designing Compaun. A Division
of Nutter, Inc., and Swift Graphics, A Division of ('ongdon &
Crome, 236 NLRB 1150 (1978). Here, Barnes' comment to
Bedgood led the latter to misrepresent the situation to the
IBEW. While it was not Respondent, itself, who had di-
rectly communicated that misleading information to
IBEW, as a joint employer, it was "responsible for the con-
duct of [Bedgood] ... " Ref-Chem Company. 169 NI RB
at 380. Particularly is this so where, as here, Respondent
had originated the misleading information that was ulti-
mately communicated to IBEW.
It is of course accurate that once it did learn that the
termination of Brown, Robinson, and Mull was definite
IBEW did not take every step that it might have taken to
attempt to meet with Respondent concerning the matter.
Yet, Hardy' did make efforts to contact Respondent, and
within a week of learning of the terminations of these three
employees IBEW filed the charge in the instant matter.
Since Respondent had already begun implementing the
change by October 27, and since it has evidenced no inten-
tion of bargaining with IBEW about the matter, it can
hardly be persuasively maintained that visits to itsflant or
letters by Hard)' demanding bargaining would have se-
cured negotiations concerning the terminations. Indeed,
the belated disclosure of Respondent's intentions belie any
assertion that IBEW somehow failed in its obligation to
demand bargaining in a timely fashion. "Notice, to he ef-
fective, must be given sufficiently in advance of actual im-
plementation of a decision to allow reasonable scope for
bargaining." International Ladies' Garment Workers Union,
AFL-CIO [McLoughlin Mfg. Corp., et al.] v. N.L.R.B., 463,
F.2d 907. 919 (D.C. Cir. 1972). It may well be that IBEW
would have failed to make a proper demand for bargaining
had it known earlier of Respondent's decision or had it not
been misled by Barnes' carefully tailored answer to
Bedgood's inquiry. However, that cannot be known with
any degree of certainty and Respondent has only itself to
thank for this state of affairs. Cf. The City Hospital of East
Liverpool. Ohio. 234 Nl.RB 58 (1978).
The fifth question pertains to Respondent's apparent
contention that since IBEW failed previously to make
known to Respondent that it considered Respondent to he
a joint employer of the Kingsburg maintenance electricians,
and to owe a bargaining obligation on that account, it
353
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
somehow waived its nght to bargain with Respondent as a
joint employer. In support of this assertion, Respondent
points to Alaska Roughnecks and Drillers Association v.
N.L.R.B., 555 F.2d 732 (C.A. 9, 1977). That case, however,
involved a prior proximate Board determination, through
representation proceedings, that the employees involved
were employees of the contractor. Mobil Oil Corporation,
which occupied a parallel position in that case to the one
which Respondent occupies here, had not been named as
an employer and had not participated in the representation
proceedings. Based upon that fact, the court pointed out
that "([the Board's regulations provide that the petition for
certification shall contain the employer's name and that the
employer shall be notified of the hearing," and held that
"[blecause Mobil was neither named as an employer nor
given an opportunity to object as permitted by 29 C.F.R.
§102.63, it was entitled to rely on the certification result
that Santa Fe was the employer, not Santa Fe and Mobil."
555 F.2d at 736.
In the instant case, there has been no representation pro-
ceeding and IBEW's representation of the maintenance
electricians has not been the product of a Board certifica-
tion. Unlike Mobil, therefore, Respondent is not entitled to
rely upon a prior Board proceeding to establish that it can-
not be held the joint employer of the Kingsburg mainte-
nance electricians. Respondent was aware that the employ-
ees of EMS and, later, of Control had been represented by
IBEW. Accordingly, it was or should have been aware of
the potential for it to be bound to bargain with IBEW,
concerning the maintenance electricians working in its fa-
cility, if it retained sufficient control over their terms and
conditions of employment. Notwithstanding that fact, Re-
spondent entered into its contract, with Control, retaining
sufficient incidents of employment, as found above, to con-
stitute it a joint employer. Nor did it make explicit in that
contract that Control was to be an independent contractor.
Accordingly, Respondent is now in a difficult position to
argue that it should not have been bound to the normal
joint-employer bargaining obligation.
Nor can it be said that IBEW somehow relieved Respon-
dent of that obligation. To so find would require a subsid-
iary finding that IBEW had waived the employees' statu-
tory right to representation vis-a-vis Respondent. The
waiver of such a significant statutory right should not be
inferred lightly and Respondent points to no affirmative
conduct, nor is there any, that would constitute such a
waiver. True, IBEW did not at any time prior to October
contact Respondent to bargain or to process a grievance
directly with it. Yet, there is no evidence of any event or
need for IBEW to have done so prior to October. "The fact
that no . . . grievances were filed could well mean that the
relationship . . . [was] harmonious, or that the employees
had simply failed to avail themselves of [IBEW's] assis-
tance." Pioneer Inn Associates, d/b/a Pioneer Inn and Pio-
neer Inn Casino, 228 NLRB 1263, 1264 (1977). Indeed,
once IBEW did learn that action was to be taken against
Brown, Robinson. and Mull that would deprive them of
further employment at Kingsburg, it immediately did make
efforts to contact Respondent concerning the matter.
Moreover, where joint bargaining entities, be they em-
ployers or unions, exist, the Board has treated them as a
single dejure entity, such that the conduct and knowledge
of one is imputed to the other. See, e.g., Ref-Chem Compa-
ny, supra; Pharmaseal Laboratories, 199 NLRB 324, 325
(1972). Consequently, it was not necessary for IBEW to
contact both Respondent and Control on each occasion
that it wished to bargain concerning the maintenance elec-
tricians assigned to Kingsburg. In these circumstances,
IBEW's failure to contact Respondent prior to October
does not serve to constitute a waiver of the employees'
right to representation vis-a-vis Respondent.
Therefore, by terminating the work of the maintenance
electricians represented by IBEW at its Kingsburg facility
without prior notification to IBEW and without affording
it an opportunity to bargain concerning the termination of
this work and its effects upon Brown, Robinson, and Mull,
Respondent violated Section 8(aX5) and (1) of the Act.
Moreover, by then recognizing Machinists as the represen-
tative of the employees newly hired to perform that work,
by treating that work as an accretion to the bargaining unit
historically represented by Machinists, and by applying
Machinists collective-bargaining agreement, including its
union-security clause to these employees, Respondent vio-
lated Section 8 (aX2) and (1) of the Act. That its course of
action may have been more economical to Respondent or
allowed it greater flexibility in conducting its operations is
no defense to its unlawful conduct. These objectives might
have been accomplished had it observed its bargaining
duty to IBEW and, in any event, they do not serve to ex-
cuse Respondent from observing its statutory bargaining
obligation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above, occurring
in connection with the operations of Respondent 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, and have led, to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. Sun-Maid Growers of California is an employer with-
in the meaning of Section 2(2) of the Act, engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act, and at all times
material herein has been a joint employer with Control
Electric, Inc., of maintenance electricials dispatched by
Control Electrics, Inc., to work at the Kingsburg, Califor-
nia, facility of Sun-Maid Growers of California.
2. International Brotherhood of Electrical Workers, Lo-
cal Union No. 100, and International Association of Ma-
chinists and District Lodge No. 87 of the International As-
sociation of Machinists are each labor organizations within
the meaning of Section 2(5) of the Act.
3. A unit appropriate for collective bargaining is all em-
ployees performing manual electrical work as described in
the collective-bargaining agreement between International
354
SUN-MAID GROWERS OF CALIFORNIA
Brotherhood of Electncal Workers, Local Union No. 100,
and East Central California Chapter, National Electrical
Contractors Association, Inc.
4. At all times material, International Brotherhood of
Electrical Workers, Local Union No. 100, has been the
exclusive collective-bargaining representative of the em-
ployees in the above-described unit, and between August
1976 and October 27, 1977, was the exclusive collective-
bargaining representative of those maintenance electricians
in the above-described unit who had been dispatched by
Control Electric, Inc., to work at the Kingsburg, Califor-
nia, facility of Sun-Maid Growers of California, within the
meaning of Section 9(a) of the Act.
5. By terminating the maintenance electricians in the
above-described bargaining unit who had been dispatched
by Control Electric, Inc., to the Kingsburg, California, fa-
cility of Sun-Maid Growers of California, without afford-
ing prior notification and sufficient opportunity to bargain
about that decision and its effects upon Brown, Robinson,
and Mull to International Brotherhood of Electrical Work-
ers, Local Union No. 100, Sun-Maid Growers of California
violated Section 8 (a)(5) and (I) of the Act.
6. By unilaterally terminating employees included in the
bargaining unit described in Conclusion of Law 3, above,
and by assigning the work which they had been performing
to newly hired employees for whom it recognized another
labor organization as their collective-bargaining represen-
tative, by treating the work as an accretion to the preexist-
ing bargaining unit for which that labor organization had
been the historic representative, and by applying the ex-
isting collective-bargaining agreement with that labor orga-
nization, including the union-security clause, to the newly
hired employees performing the work formerly performed
by the terminated employees, Sun-Maid Growers of Cali-
fornia violated Section 8(a)(2) and (1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Sun-Maid Growers of California has
engaged in certain unfair labor practices, I shall recom-
mend that it be ordered to cease and desist therefrom and
that it take certain affirmative action to effectuate the poli-
cies of the Act.
With respect to the latter, Sun-Maid Growers of Califor-
nia shall be ordered to offer reinstatement to Jack Brown,17
James E. Mull, and Les A. Robinson, to their former positions
of employment or, if those positions no longer exist, to
17 For purposes of analysis in sec. Ill. B. above, I have assumed that
Brown had been a supervisor while working at Kingsburg. If he had, in fact,
occupied that status, it is unlikely thai the Board could order his reinstate-
ment with backpay. See J. D. Lunsford Plumbing, Heating and Air Condi-
tioning, Inc., and Lunsford Brothers Mechanical. Inc.. 237 NLRB No. 17
(1978). However, while evidence was adduced regarding Brown's communi-
cations with Respondent and with Robinson and Mull, no evidence was
elicited concerning his communications with Control, particularly Bedgood.
Yet, the record does disclose that on such matters as the caliber of work
substantially equivalent positions of employment without
prejudice to their seniority or other rights and privileges,
dismissing, if necessary, anyone who may have been hired
or assigned to perform the work that they had been perform-
ing prior toOctober 27, 1977. Since this work is presently being
performed by employees of Sun-Maid Growers of California
at the same location as Brown, Robinson, and Mull had
performed it, and inasmuch as the post-October 27, 1977,
changes did not, so far as the record discloses, involve any
change in capital structure nor reinvestment of funds, restora-
tion of the status quo would not appear to involve any undue
economic hardship. Cf. Great Chinese American Sewing
Company; Esprit de Corp., 227 NLRB 1670 (1977). More-
over, to assure that the status quo is restored to the fullest
degree possible, Sun-Maid Growers of Califormia shall be
ordered to effect these offers of reinstatement by first offer-
ing to reestablish its verbal contract with Control Electric,
Inc., so that the joint-employer relationship that existed
prior to October 27, 1977, can be restored. However. if
Control Electric, Inc., is unwilling to reestablish that con-
tract, Sun-Maid Growers of California shall offer reinstate-
ment as its own employees to Brown, Robinson, and Mull.
In addition, Sun-Maid Growers of California will be re-
quired to make Brown. Robinson, and Mull whole for any
loss of earnings they may have suffered by reason of their
unlawful terminations, and to make whole those employees
who performed the maintenance electrical work after Octo-
ber 27, 1977, for initiation fees and dues paid pursuant to
the Machinists collective-bargaining agreement. Backpay
is to be computed on a quarterly basis. making deductions
for interim earnings, and with interest to be paid on the
amounts owing and to be computed in the manner pre-
scribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977). See, generally. Isis Plumbing & Heating Co., 138
NLRB 716 (1962). enforcement denied on different
grounds 322 F.2d 913 (9th Cir. 1963).
Sun-Maid Growers of California shall also be ordered to
withdraw recognition of International Association of Ma-
chinists and District Lodge No. 87 of the International As-
sociation of Machinists as the representative of the mainte-
nance electricians employed at the Kingsburg California,
facility, and to recognize and bargain with International
Brotherhood of Electrical Workers, Local Union No. 100,
as their bargaining representative.
Upon the foregoing findings of fact, and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
performance of temporary maintenance electrincians dispatched to Kings-
burg and vacation requests by Robinson and Mull. Brown did speak with
Bedgood before taking any final action. indeed, with respect to vacation
requests. it appears that it had been Bedgood who had made the final deci-
sion whether to grant these requests based upon whether Respondent had
any objection to their being granted. In these circumstances, the record is
insufficient to establish that Brown exercised independent judgment suffi-
cient to satisfy the requirement of Sec. 2(1 1) of the Act. See. e.g., American
Lumber Sales. Inc. 229 NLRB 414, 419 (1977); Westlake United Corpora-
nlon. 236 NL RB 1114 (1978).
355
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER '1
The Respondent, Sun-Maid Growers of California,
Kingsburg, California, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
International Brotherhood of Electrical Workers. Local
Union No. 100, as the exclusive bargaining representative
of the maintenance electricians employed at Sun-Maid
Growers of California's Kingsburg, California, facility,
who are included in the appropriate bargaining unit of all
employees performing manual electrical work as described
in the collective-bargaining agreement between Interna-
tional Brotherhood of Electrical Workers, Local Union
No. 100, and East Central California Chapter, National
Electrical Constructors Association, Inc.
(b) Terminating maintenance electricians in the above-
described unit without affording prior notification and suf-
ficient opportunity to bargain about the decision and its
effect upon unit employees to International Brotherhood
of Electrical Workers, Local Union No. 100.
(c) Continuing to recognize International Association of
Machinists and District Lodge No. 87 of the International
Association of Machinists as the representative of employ-
ees performing maintenance electrical work included in the
above-described bargaining unit and continuing to apply
the terms and conditions of Sun-Maid Growers of
California's collective-bargaining agreement with Interna-
tional Association of Machinists to employees performing
that work, unless and until International Association of
Machinists and District Lodge No. 87 of the International
Association of Machinists has been duly certified by the
National Labor Relations Board as the exclusive bargain-
ing representative of those employees.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Jack Brown, James E. Mull, and Les A. Robin-
son immediate and full reinstatement to their former posi-
tions of employment in the manner set forth in the section
of this Decision entitled "The Remedy," dismissing, if nec-
essary, anyone who may have been hired or assigned to
perform the work that they had been performing prior to
October 27, 1977, or, if their former positions no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges, and
make them whole for any loss of pay they may have suf-
fered as a result of the unfair labor practices committed, in
the manner set forth in the section of this Decision entitled
"The Remedy."
(b) Make whole employees, in the manner described in
the section of this Decision entitled "The Remedy." for
initiation fees and dues paid as a result of the unlawful
application of the collective-bargaining agreement with In-
ternational Association of Machinists and District Lodge
No. 87 of the International Association of Machinists to
employees performing maintenance electrical work at Sun-
Maid Growers of California's Kingsburg, California, facil-
ity who are included in the above-described bargaining
unit.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, Limecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(d) Upon request, recognize and bargain collectively
with International Brotherhood of Electrical Workers, Lo-
cal Union No. 100, as the collective-bargaining representa-
tive of the employees in the above-described bargaining
unit employed at the Kingsburg, California, facility of Sun-
Maid Growers of California.
(e) Post at its Kingsburg, California, facility copies of
the attached notice marked "Appendix." 19 Copies of the
notice, on forms provided by the Regional Director for
Region 32, after being duly signed by Sun-Maid Growers
of California's authorized representative, shall be posted
by Sun-Maid Growers of California immediately upon re-
ceipt thereof and be maintained by it for 60 consecutive
dlays thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Sun-Maid Growers of Cali-
fornia to ensure that said notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director for Region 32, in writ-
ing, within 20 days from the date of this Order, what steps
Sun-Maid Growers of California has taken to comply here-
with.
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
L4 In the event that this Order is enforced by a judgmrent of a United
States (Court of Appeals, the words i,. the notice reading, "Posted by Order
of the National Iabhor Relations Board" shall read "Posted Pursuant to a
Judgment of the U nited Slates ('ourt of Appeals E nforcing an Order of the
National Iabor Relations Board"
APPENDIX
NoiICE ro EMPLOYEES
POSTED BY ORDER OF THE
NATIONA. LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended, gives all
employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activities except to
the extent that the employees' bargaining represen-
tative and employer have a collective-bargaining
356
SUN-MAID GROWERS OF CALIFORNIA
agreement which imposes a lawful requirement that
employees become union members.
WE WILL NOT refuse to recognize and bargain collec-
tively with International Brotherhood of Electrical
Workers, Local Union No. 100, as the exclusive bar-
gaining representative of the maintenance electricians
employed at our Kingsburg, California, facility who
are included in the appropriate bargaining unit of all
employees performing manual electrical work as de-
scribed in the collective-bargaining agreement be-
tween International Brotherhood of Electrical Work-
ers, Local Union No. 100, and East Central California
Chapter, National Electrical Contractors Association,
Inc.
WE WILL NOT terminate maintenance electricians in
the above-described bargaining unit without affording
prior notification and a sufficient opportunity to bar-
gain about the decision and its effects upon unit em-
ployees to International Brotherhood of Electrical
Workers, Local Union No. 100.
WE WILL NOT continue to recognize International As-
sociation of Machinists and District Lodge No. 87 of
the International Association of Machinists as the rep-
resentative of employees in the above-described bar-
gaining unit performing maintenance work at our
Kingsburg, California, facility, and WE WILL NOT con-
tinue to apply the terms and conditions of our collec-
tive-bargaining agreement with International Associa-
tion of Machinists and District Lodge No. 87 of the
International Association of Machinists to those em-
ployees unless and until International Association of
Machinists and District Lodge No. 87 of the Interna-
tional Association of Machinists has been duly certi-
fied by the National Labor Relations Board as the
exclusive bargaining representative of those employ-
ees.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in any of your rights set forth
above which are guaranteed by the National Labor
Relations Act.
WE WILL offer Jack Brown, James E. Mull, and Les
A. Robinson immediate and full reinstatement to the
positions of employment which they occupied on Oc-
tober 27, 1977, either jointly with Control Electric,
Inc., it being willing, or, if not, as our own employees,
dismissing, if necessary, anyone who may have been
hired or assigned to perform the work which they had
been performing prior to October 27, 1977, or, if their
former positions no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or other rights and privileges, and WE WILL make
them whole for any loss of pay they may have suffered
as a result of our unlawful conduct.
WE WILL make whole employees for initiation fees
and dues paid as a result of the unlawful application
of our collective-bargaining agreement with Interna-
tional Association of Machinists and District Lodge
No. 87 of the International Association of Machinists
to employees performing maintenance electrical work
at our Kingsburg, California facility, where those em-
ployees should have been included in the above-de-
scribed bargaining unit represented by International
Brotherhood of Electrical Workers, Local Union No.
100.
WE WILL. upon request, recognize and bargain col-
lectively with International Brotherhood of Electrical
Woriers. Local Union No. 100, as the collective-bar-
gaining representative of employees in the above-de-
scribed bargaining unit who are employed at our
Kingsburg, California, facility.
SUN-MAID GROWERS OF CALIFORNIA
357