Sunset Coffee and Macadamia Nut Co-Op Of Kona

National Labor Relations Board - Board Decisions

Aug 20, 1976

225 N.L.R.B. 1021 (N.L.R.B. 1976)

SUNSET COFFEE AND MACADAMIA NUT CO-OP OF KONA
Sunset Coffee and Macadamia Nut Co-Op of Kona
and ILWU Local 142. Case 37-CA-1194
August 20, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On May 4, 1976, Administrative Law Judge Rus-
sell L. Stevens issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed ex-
ceptions and a supporting brief, and Respondent
filed cross-exceptions and a supporting brief. Both
parties filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs,
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order 2 except as modified
herein.'
The Administrative Law Judge found that in viola-
tion of Section 8(a)(1) of the Act Respondent im-
pliedly promised its employees a postelection wage
increase when Bailado, its manager of operations,
told them at a preelection campaign meeting that he
would have "good news" for them after the election.
We agree with that finding. Like the Administrative
Law Judge we construe "good news," in the context
of its usage here, as Bailado's veiled way of telling
the employees that they would receive a wage in-
crease (or at the least improved benefits) once the
election was over.
However, in finding this violation Members Fan-
ning and Penello do not adopt that portion of the
Administrative Law Judge's finding that this promise
was conditioned on the employees rejecting the
Union at the polls 4 While they acknowledge that this
promise was reasonably calculated to have that ef-
fect, they do not believe that the words "good news"
alone provide a sufficient basis for inferring and
finding, as the Administrative Law Judge did and
their colleague does below, that the Respondent spe-
cifically conditioned the promised wage increase on
the Union's losing the election. In any event, they
view the bare promise of a postelection wage in-
crease, as conveyed by those words, enough to estab-
lish the violation here. N.L.R.B. v. Exchange Parts
Company, 375 U.S. 405 (1964).
ORDER
1021
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 as modified
below and hereby orders that the Respondent, Sun-
set Coffee and Macadamia Nut Co-Op of Kona,
Kona, Hawaii, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified:
Add the following as paragraph 1(d):
"(d) In any like or related manner interfering
with, restraining, or coercing employees in the exer-
cise of their rights under Section 7 of the Act."
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 The Administrative Law Judge found that a bargaining order was inap-
propriate in this case because of the absence of any evidence concerning the
Union's majority status As part of its exceptions to the Administrative Law
Judge's Decision, the Charging Party moved to reopen the record for the
purpose of receiving evidence , allegedly unavailable at the time of the hear-
ing, concerning the Union's majority status However , the Charging Party
does not explain why this evidence , both documentary and oral , which was
in its sole possession for several months prior to the hearing, was unavail-
able at the hearing Further , neither the Charging Party nor the General
Counsel requested a postponement or extension of the hearing for the pur-
pose of obtaining and introducing such evidence into the record In these
circumstances , we deny the Charging Party 's motion
J In the section of his Decision entitled "The Remedy ," the Administra-
tive Law Judge indicated that he would include in his recommended Order
a provision requiring Respondent to cease and desist from interfering with,
coercing, or restraining its employees in any like or related manner Howev-
er, the Administrative Law Judge inadvertently omitted such a provision
from the text of his recommended Order and we shall conform the Order
accordingly
Chairman Murphy adopts the findings of the Administrative Law Judge
in toto In her view , it is unrealistic to find that Bailado's promise of a
postelection wage increase was not intended to be understood by the em-
ployees as being conditioned on their rejection of the Union as their bar-
gaining representative , since the promise was made as part of Respondent's
campaign to convince them to vote against the Union In this connection,
the Chairman notes that Respondent subsequently kept its promise by
granting the employees a wage increase after the Union had lost the election
and while the latter's objections to the conduct of the election were pending
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
matter was heard at Kona, Hawaii , on April 6, 1976. The
complaint,' issued February 13, 1976, is based upon a
charge filed December 5, 1975, and an amended charge
filed April 5, 1976, by ILWU Local 142, hereinafter re-
ferred to as the Union. The complaint alleges that Sunset
As amended at hearing, to add an 8(a )( I) allegation as par VI(d)
225 NLRB No. 146
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coffee and Macadamia Nut Co-Op of Kona, hereinafter
referred to as Respondent, violated Section 8(a)(1) of the
National Labor Relations Act, hereinafter referred to as
the Act. Pursuant to a petition filed in Case 37-RC-2147,
involving the same parties, the Regional Director of Re-
gion 20 ordered a hearing on objections to an election held
on November 5, 1975, inasmuch as substantial and materi-
al questions of fact were presented by the objections. On
February 13, 1976, said Regional Director issued an order
in which he consolidated Cases 37-CA-1194 and 37-RC-
2147. Said two cases were heard at Kona, Hawaii, as afore-
said.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. General Counsel and Re-
spondent were given leave to file briefs, but both parties
waived submission thereof. Upon the entire record, and
from my observation of the witnesses and their demeanor,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Well, he just mostly brought to our attention that the
company we are working for is a small outfit and with
the union coming in, if the demands were more than
what the-paywise was more than-the company
could afford financially, then the only alternative
would be to close it down.
They come from individual farmers, and it would
come to the point , like I said , the company is not able
to finance, then the farmers have the privilege of sell-
ing their product to someone else, they are not obligat-
ed to sell it to us, so if that is going to happen , then we
won't have any work.
Masao Oga attended the meeting and testified that the
group of employees was told by Bailado "that if our boys
join the union we might get layoff because later on the
farmers might drop their farm." 4
Bailado did not testify about the above-described meet-
ing, but he generally denied making any statement or
doing anything that interfered with, restrained, or coerced
the employees.
Respondent is, and at all times material herein has been,
an Hawaii corporation engaged in the business of pro-
cessing and wholesaling macadamia nuts and coffee, with
its principal facility located at Kona, Hawaii.
During the past year, in the course and conduct of its
business operations, Respondent sold and shipped prod-
ucts valued in excess of $50,000 directly to customers locat-
ed outside the State of Hawaii
I find that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
ILWU Local 142 is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged Threat
Paragraph VI(a) of the complaint alleges that, on or
about October 31, 1975,2 Respondent by Sotero Bailado
threatened employees that Respondent would reduce
working hours if its employees designated or selected the
Union as their collective-bargaining representative in a
forthcoming election.
Edna Kitagawachi testified that, about 2 weeks before
the election, Bailado 3 met with about 10 of Respondent's
employees during a coffeebreak. Kitagawachi said Bailado
told the employees that, if the Union won the election,
individual farmers would work for Respondent; therefore,
"you folks going to get no job here."
Felisa Balmores generally corroborated Kitagawachi's
testimony, but she was more articulate Balmores testified:
Discussion
Testimony concerning this allegation was quite limited
and made less than easy to analyze because of language
and communication difficulties . However, it is clear, based
upon testimony by Kitagawachi, Balmores, and Oga, that
Bailado threatened them , albeit in a veiled manner, with
the likelihood or possibility of reduced hours, layoffs, and
plant closure if the Union won the election. Kitagawachi,
Balmores, and Oga are credited
Whether or not the statements made by Bailado consti-
tuted actual threats is immaterial. The statements at least
carried an implied threat , and in view of Bailado 's position
of authority, and the obvious language problems in-
volved,6 they were inherently coercive. This allegation of
the complaint is proved
The record includes some testimony, mostly by Bailado,
relative to the work hours of truckdrivers, and the necessity
of drivers taking tests required by the state government.
Testimony concerning work hours is sketchy and ambigu-
ous and inadequate to show coercion or restraint. Testimo-
ny concerning the driving examination shows that the sub-
ject was treated separately from union matters and was
nothing more than a reminder of governmental regulations.
It is found that the record concerning these two subjects
does not support a violation of the Act.
B Alleged Promise of Wage Increase
Paragraph VI(b) of the complaint alleges that, on or
about October 31, Bailado promised employees that Re-
spondent would increase wages if employees rejected the
Union in the then forthcoming election.
4 Oga later explained this statement as meaning the farmers may quit
2 All dates hereinafter are within 1975 unless stated to be otherwise farming
3 Bailado is Respondent's manager of operations and hereby is found to Impact Die Casting Corporation, 199 NLRB 268 (1972)
University of the Pacific, 206 NLRB 606 (1973)be a supervisor within the meaning of the Act
6
SUNSET COFFEE AND MACADAMIA NUT CO-OP OF KONA 1023
Kitagawachi testified that Batlado stated during the
meeting about 2 weeks before the election "we were going
to get good news after the election."
Balmores testified about the same subject discussed at
the meeting:
. .. he said that he has good news for us ladies, but he
cannot tell us what the good news was because on
account of the election was forthcoming. So at that
time none of us had the idea what the good news was,
and Mr. Bailado said he cannot tell us what the good
news is.
Q. Did he use the term good news?
A. Yes.
Q. And you say you had no idea what the good
news was?
A. No, because I asked him what the good news
was, and he said he can't tell us what it was, so I had
no idea what he meant
Q. Did he explain to you why he couldn't tell you?
A. Because of the election that was forthcoming,
that is the reason why he couldn't tell us what it was.
Bailado testified:
I did use the term good news, but I did not intend it,
or imply it, to say that I was going to give them a raise.
s
What I told them, if I recall correctly, was this, I'm
restricted by law and by regulations to make any
promises or accusations by Board action. I have some
good news, but I cannot tell them what it is, when it is
going to happen, etc., etc.
Discussion
Bailado did not tell the employees that he would give
them a raise if they rejected the Union. However, his words
conveyed that meaning, or a similar one, as clearly as
though he had been explicit.
1. The meeting at which the statement was made was
held to discuss the Union and the then pending election.
Any positive statement made at that time inevitably would
be related to union activity. "Good news after the election"
reasonably could not be interpreted as anything other than
an inducement, made by the employees' supervisor.
2. The best news that an employee can hear, generally
speaking, is that he is going to get a raise. There is nothing
in the record to indicate that employees asked for anything
at the time of the meeting. It would be unrealistic to con-
clude that the employees would interpret Bailado's state-
ment as meaning anything other than that they would get a
raise after the election.
Under such circumstances 7 Bailado clearly was imply-
ing that a benefit 8 would be the reward for a vote favor-
able to Respondent. The proof supports the alleged viola-
tion of the Act
7 Steel-Fab, Inc, 212 NLRB 363 (1974)
8 Tommy's Spanish Foods, Inc, 187 NLRB 235 (1970), Booth inc & Balcar
Aluminum Foundry, a Division of Booth, Inc, 190 NLRB 675 (1971)
C. Alleged Solicitation of Grievances
Paragraph VI(c) of the complaint alleges that, on or
about October 31, Bailado solicited employee grievances in
order to induce employees to vote against the Union.
The only evidence relative to this allegation originates
with Bailado, who testified:
Q. "I invited employees to see me, talk to me about
their gripes and problems." When did you relay that
to your employees?
A. On November 3rd, sir. We really had a good
discussion. I invited questions and I told them I would
want to treat me as not as their boss but as their fellow
employee, and that they should feel free to come to see
me any time.
Q With any of their gripes or grievances?
A. Right.
A portion of Respondent's Exhibit 1, referred to by Baila-
do, reads as follows:
In all of my statements I did not intimidate, coerce
and improperly induced any of our employees. I urged
everyone of them to vote, this was their privelege [sic]
and right. I did tell all employees that even without
union representation we who are given the responsibil-
ity by the board of directors of our cooperative have
been trying to correct our past inequities and will en-
deavor to make improvements for the benefit of all
employees. I invited employees to see me, talk to me
about their "gripes" and problems. I promised to lis-
ten to them but again, I did not make any promises,
commitments, or threatened them.
This exhibit stands alone, and was not explained or testi-
fied to by Bailado. No employee testified relative to the
statements. The statements refer to a meeting of November
3 In view of these facts, and the ambiguous nature of the
statements in the exhibit, Respondent's Exhibit I is found
inadequate to show a violation of Section 8(a)(1).
Solicitation of grievances is not, per se, a violation of the
Act In this instance there was no promise shown, actual or
implied, that grievances would be remedied. This allega-
tion of the complaint is not supported by proof.'
D. Alleged Raises
Paragraph VI(d) of the complaint, as amended at the
hearing, states that, in or about November, Respondent
granted its employees a wage increase retroactive to Octo-
ber, while a question covering representation was pending.
Bailado acknowledged that a raise was given to employ-
ees in November, retroactive to October 1, and that when
the raise was given Respondent did not know the results of
the election. The defense to the allegation is the contention
that the raise was recommended by Bailado and approved
by the board of directors "way before the election"; that
the raise was to bring the employees' pay into line with
employees doing comparable work for other companies,
and that the raise was unrelated to union activity-
9 Uarco Incorporated, 216 NLRB I (1974), Peerless of America, Incorporat-
ed, 198 NLRB 982 (1972)
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The election was held November 5. The Union lost, 19
to 4, and on November 10 the Union filed timely objec-
tions to the election . Shortly thereafter 10 Respondent
granted a raise to all its employees during the pendency of
objections to the elections and prior to resolution thereof.
These facts, together with the implied promise of a raise
after the election , discussed above , establish , prima facie, a
violation of Section 8(a)(1) of the Act.
The defenses interposed by Respondent do not over-
come the prima facie case established by General Counsel.
The best evidence of a raise decided upon by the board of
directors prior to union activity , alleged by Bailado, would
be testimony by members of the board . Those members
were present at the hearing herein , but none of them was
called to testify. It is inferred , therefore , that they would
not corroborate Bailado. Further, Bailado alleged that
what was given was a comparability raise , yet no evidence
was adduced in support of that allegation . Finally, the con-
clusion is inescapable that the raise was given pursuant to
the implied promise thereof expressed during a campaign
meeting conducted by Bailado a few weeks prior to the
election , and that it constituted a reward for voting against
the Union.
This allegation is supported by the evidence."
Objections to the Election
1. Objection I states:
Approximately three days before the election Manag-
er Bailado summoned the employees to a meeting at
the employer ' s factory premises , on company time,
and told the employees that if they voted "No Union"
he would give them all a 50 ' per hour wage increase
after the election.
There is no evidence to support this allegation.
2. Objection 4 states: 12
Manager Bailado also said at the meeting that if the
union won the election , because Sunset Coffee was a
small operation , the company would have to close up
and all the employees would be without jobs.
Although there is no evidence to support the allegation
that there was a threat 3 days before the election to close
the plant if the Union won the election , it was found,
above , that there was such an implied threat about 2 weeks
prior to the election . Balmores credibly testified that, dur-
ing the meeting 3 days prior to the election, Bailado repeat-
ed the statements he made 2 weeks previously . Bailado did
not deny this testimony . It is found , therefore , that this
objection is valid.
3. Objection 6 states:
By the foregoing and other conduct the employer inti-
midated , coerced and improperly induced the employ-
ees in the exercise of their rights under the Act and
10 The raise was given in November, but the date was not determined at
the hearing
11 United Packing Company of Iowa, Inc, 187 NLRB 878 (1971), Ambox,
made it impossible for them to freely exercise a free
choice of representatives.
In view of the findings herein , it is found that the conclu-
sions stated in this objection are supported by the evi-
dence.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERECE
The Respondent 's activities set forth in section III
above, occurring in connection with the operations of Re-
spondent described in section I above, have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
General Counsel at hearing requested a bargaining or-
der, on the basis of what he considered a "most flagrant,
unfair labor practice ," i.e., the postelection wage increase.
However, there is nothing in the record to show that the
Union ever represented a majority of employees at
Respondent's place of business . Under such circumstances,
a bargaining order is not appropriate.13
As discussed above, certain of Respondent 's conduct,
occurring during the critical preelection period , precluded
employees from exercising their freedom of choice in se-
lecting or rejecting the Union, and constitutes substantial
interference with the election.14 I shall, therefore , recom-
mend that the election of November 5, 1975, in Case 37-
RC-2147, be set aside and that the case be remanded to the
Regional Director for Region 20 for the purpose of con-
ducting a new election at such time as he believes the cir-
cumstances permit the free choice of a bargaining repre-
sentative
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act, I shall
recommend that Respondent be ordered to cease and de-
sist therefrom , and from any like or related manner infring-
ing upon its employees ' Section 7 rights, and to take certain
affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact and the
record in this proceeding , I make the following:
CONCLUSIONS OF LAW
1. Sunset Coffee and Macadamia Nut Co-Op of Kona,
Respondent herein , is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. ILWU Local 142 is a labor organization within the
meaning of Section 2(5) of the Act.
3. By the following acts Respondent interfered with, re-
strained , and coerced its employees in the exercise of their
rights guaranteed them by Section 7 of the Act, in violation
of Section 8(a)(1) of the Act.
Incorporated, 146 NLRB 1520 (1964) 13 The Contract Knitter, Inc, 220 NLRB 558 (1975)
12 Objections 2, 3, and 5 were withdrawn by the Union 14 VCA Sterling, Inc, 209 NLRB 127 (1974)
SUNSET COFFEE AND MACADAMIA NUT CO-OP OF KONA 1025
(a) Threatening its employees that possibly their work-
ing hours would be reduced and the plant would be closed
if the Union were selected as their bargaining representa-
tive.
(b) Promising to increase wages if employees resisted
the Union in an election.
(c) Granting a wage increase while a question of repre-
sentation is pending.
4. Respondent did not, through alleged conduct, violate
Section 8(a)(1) of the Act by soliciting employee griev-
ances.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
IT IS FURTHER RECOMMENDED that paragraph VI(c) of the
complaint be dismissed.
IT IS FURTHER RECOMMENDED that the election conducted
on November 5, 1975, in Case 37-RC-2147 be set aside
and that said case be remanded to the Regional Director
for Region 20 to conduct a new election at such time as he
believes the circumstances permit the free choice of a bar-
gaining representative
15 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
10248 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
16 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
ORDERt5
The Respondent, Sunset Coffee and Macadamia Nut
Co-Op of Kona, Kona, Hawaii, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from-
(a) Threatening its employees that possibly their work-
ing hours would be reduced and the plant would be closed
if the Union were selected as their bargaining representa-
tive.
(b) Promising to increase wages if employees resist the
Union in an election
(c) Granting a wage increase while a question of repre-
sentation is pending.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Post at its Kona, Hawaii, facility copies of the at-
tached notice marked "Appendix." 16 Copies of the notice,
on forms provided by the Regional Director for Region 20,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to en-
sure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, in order to discourage membership in
or activities on behalf of ILWU Local 142, or any
other labor organization, threaten our employees that
possibly their working hours will be reduced and the
plant will be closed if said Union is selected as their
bargaining representative; promise to increase wages
if employees resist said Union in an election; and
grant a wage increase while a question of representa-
tion is pending.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights to self-organization, to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain
from any or all such activities.
SUNSET COFFEE AND MACADAMIA NUT CO-OP OF
KONA