Valley Date Gardens, Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1963

144 N.L.R.B. 1544 (N.L.R.B. 1963)

1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unacceptable.5 Indeed, even without reliance on the arbitrator's
award, we would find on the record in this proceeding that the contract
executed on July 3, 1962, covers, in an appropriate bargaining unit,
the employees herein petitioned for, among others, and accordingly
operates as a bar to the petition.
In view of the foregoing, we find it will effectuate the policies and
purposes of the Act to honor the arbitration award. We, accordingly,
find that the contract between the Employer and the Union covers
within an appropriate unit the employees named in the petition herein,
and that, since the petition is untimely with respect to such contract,
the contract is a bar to the petition.
[The Board dismissed the petition.]
5 while the Employer did not participate in the arbitration hearing, as already in-
dicated , we do not consider this to be fatal to the aibitration proceedings where, as here,
parties to a contract have agreed to the arbitration of disputes arising thereunder, the
arbitration process may not be frustrated by the refusal of either party to the arbitration
to appear at the arbitration hearing Moreover, the transciipt and exhibits of the instant
proceeding which were forwarded to the arbitrator by the Employer and were introduced
in evidence before the arbitrator after the hearing and which were considered by him prior
to making his award, adequately set forth the Employer's position
Valley Date Gardens , Inc. and United Packinghouse, Food and
Allied Workers , AFL-CIO. Case No. 21-CA-5277. November
14, 1963
DECISION AND ORDER
On July 29, 1963, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and, was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the Respondent's exceptions and brief, and the
entire record in this proceeding, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner.
144 NLRB No. 154.
VALLEY DATE GARDENS, INC . 1545
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.'
'The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that Respondent, its officers, agents, successors, and assigns, shall.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed and served April 1, 1963, the General Counsel of the
National Labor Relations Board caused a complaint and notice of hearing to be
issued and served upon Valley Date Gardens, Inc., designated as Respondent in
this report. The complaint was issued May 1, 1963; therein Respondent was
charged with unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, 61
Stat. 136, 73 Stat. 519. Thereafter, with an answer duly filed, Respondent conceded
certain factual allegations within the complaint, but denied the commission of any
unfair labor practice.
Pursuant to notice, a hearing with respect to the issues was held at Riverside,
California, on June 6, 1963, before Trial Examiner Maurice M. Miller. The Gen-
eral Counsel, Respondent, and Charging Party were represented by counsel. Each
party was afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertinent to the issues. At the outset, General
Counsel's motion to strike certain portions of Respondent's answer was granted.
When the testimonial presentation was complete, counsel for Respondent and the
Union presented brief oral statements of position. The General Counsel and
Respondent's counsel reported their desire to file briefs. These have been received
and duly considered.
FINDINGS OF FACT
Upon the entire testimonial record, documentary evidence received, and my
observation of the witnesses, I make the following findings of fact:
1. THE BUSINESS OF RESPONDENT
Respondent, which functions as a California corporation, maintains its principal
office and place of business on Highway 99, Indio, California. There, Respondent
is engaged in the processing and packing of dates. During its most recent calendar
or fiscal year, Respondent, in the course and conduct of its business operations,
processed, packed, sold, and shipped from its place of business in Indio, California,
dates valued in excess of $50,000, directly to out-of-State points. Upon the com-
plaint's jurisdictional allegations, which are conceded to be accurate, I find that
Respondent is now, and at all times material has been, an employer within the
meaning of Section 2(2) of the Act, engaged in commerce and business activities
which affect commerce within the meaning of Section 2(6) and (7) of the Act, as
amended With due regard for the jurisdictional standards which the Board pres-
ently applies (see Siemons Mailing Service, 122 NLRB 81, and related cases), I
find assertion of the Board's jurisdiction in this case warranted and necessary to
effectuate statutory objectives.
II. THE LABOR ORGANIZATION INVOLVED
United Packinghouse, Food and Allied Workers, AFL-CIO, designated as the-
Union in this report, is a labor organization within the meaning of Section 2(5)
of the Act, as amended, which admits Respondent's employees to membership.
III. THE UNFAIR LABOR PRACTICES
A. Issue
The sole issue presented by the present record derives from Respondent's con-
tention that the course of conduct chargeable to its negotiators-whether or not
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such conduct might merit characterization as some nominal refusal to bargain-was
justifiable , since union representatives had previously engaged in certain conduct
purportedly calculated to harass Respondent , and thus "undermine the effectiveness"
of the firm's negotiators . Relevant testimony and documentary evidence proffered
with respect to Respondent 's suspension of negotiations because of conduct charge-
able to the union spokesmen , stands without contradiction . Whether such conduct
justified Respondent's reaction will be considered in this report.
B. The appropriate unit
General Counsel contends , Respondent concedes , and I find , that all packingshed
employees at Respondent 's Indio, California , packingshed , exclusive of office clerical
employees , professional employees , watchmen, guards , and supervisors as defined
in the Act , constitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9(b) of the Act , as amended.
C. The Union's right to recognition
On November 8, 1962, a majority of Respondent 's employees within the unit
herein found appropriate for the purposes of collective bargaining -through a secret
ballot election conducted under the supervision of the Regional Director for the
Board's Twenty-first Region-designated and selected the Union as their representa-
tive for the purpose of collective bargaining with the respondent firm. On Novem-
ber 19, 1962, the designated Regional Director certified the Union as the exclusive
representative of Respondent 's employees within the described unit, for collective
bargaining purposes.
General Counsel contends , Respondent concedes , and I find, that at all times
since November 19, 1962, and continuing to date, the Union has been the representa-
tive, for the purposes of collective bargaining , of Respondent 's employees within
the unit previously described. By virtue of Section 9(a) of the Act, as amended,
therefore , the Union has been, and is now, entitled to recognition as the exclusive
representative of all Respondent 's employees within the described unit , for the
purposes of collective bargaining with respect to rates of pay , wages, hours of
employment, and other terms and conditions of employment.
D. Respondent 's refusal to bargain
1. Background
Sometime during 1952 or 1953, the Union won the right to represent Respondent's
employees. The parties subsequently signed a 1-year contract . Negotiations for
its renewal , however, finally led to a strike; Respondent refused to negotiate when
the strike terminated . Thereupon , a decertification petition was filed; the Union
lost the consequent election.
During the calendar year 1961, the Union renewed its organizational campaign.
While one campaign leaflet distribution was in progress , Respondent 's general
manager, Edward Smith , was seen flourishing a leaflet with an obscene gesture.
Later, when Respondent 's packingshed workers designated or selected the Union as
their bargaining representative-during the previously noted November 8, 1962,
representation election-General Manager Smith displayed reluctance to sign the
Board's election tally sheet ; eventually , the document was signed by Respondent's
counsel.
2. Negotiations begin
Credible testimony reveals that date harvest packing normally begins in August;
packingshed operations usually reach their peak in November , and decline in
volume thereafter , until sometime in February or March . With this seasonal pattern
(which seems to be conceded ) in mind, determination would be warranted that the
Union herein won certification substantially at the season 's peak. And credible
testimony , proffered by the Union's field representative and district director, reveals
that both of these union spokesmen thereafter declared their desire-verbally and
through correspondence-to begin negotiations for a contract promptly, so that
Respondent 's packingshed workers might derive some benefit from union represen-
tation during the season then current.
With this in mind, Roger Young, the Union's field representative, dispatched a
letter to Respondent's plant manager , dated November 19, which he designated as his
group 's official notice that prompt negotiations were "respectfully" demanded, for
a contract which would cover certain designated matters. November 27 was desig-
nated a practical date on which negotiations might begin.
VALLEY DATE GARDENS, INC. 1547
Respondent, however, made no reply. When Young discovered, subsequently,
during the course of a plant visit, that Smith was hospitalized with a back injury,
he dispatched a December 1 letter, directed to the attention of Smith's substitute,
renewing his request for a definite conference date. Receiving no reply, again,
Young telephoned Respondent's counsel, John Babbage, several times; their con-
versations finally culminated in Respondent's consent to a December 13 conference.'
Young first detailed this group's previously listed contract demands. Each of these
was discussed. Respondent's spokesmen promised to give them further consideration.
(Some indication was given that Smith may have wished to compare the Union's
demands with provisions of a contract which that organization had recently nego-
tiated with California Date Growers Association, another date processor and packer.)
The December 13 conference concluded with a consensual understanding that Re-
spondent's counsel would be prepared to present its counterproposals sometime dur-
ing December's last week; Babbage promised to communicate with Simonson, the
Union's district director, before then, to set a specific conference date.
Despite this commitment by Respondent's counsel, Field Representative Young
heard nothing from District Director Simonson with respect to any meeting sched-
uled before the year's close, for the purpose of further contract negotiations.
Early in January 1963 Local 769 of the Union held an executive board meeting
which Young attended; during the meeting reports were received on recent develop-
ments within the local's geographic jurisdiction. Among others, Lucretia Rodriguez,
member of the local's board, reported that Respondent's general manager-while
a guest at a baby shower held in her home-had declared he would never sign a
union contract, presumably for Respondent's workers. Young communicated this
report to District Director Simonson forthwith; the latter declared that he would
write Respondent promptly, complaining with respect to Smith's reported statement
and requesting the immediate resumption of contract negotiations.
(Much testimony was proffered and received with respect to the remarks which
Respondent's plant manager purportedly made while a guest at Rodriguez' baby
shower. Several witnesses testified that Smith did, really, make the remarks which
Rodriguez subsequently reported he made. Respondent countered with Smith's
denial; further, Respondent's counsel proffered testimony from Rodriguez' son-
contrary to his mother's report-calculated to sustain a conclusion that Smith's
remarks during the baby shower had not really revealed a fixed determination to
withhold his signature from a labor contract. With matters in their present posture,
however, no resolution of this testimonial conflict will be required. The record
reveals, without dispute, that: (1) Rodriguez did make a report to Local 769's execu-
tive board, regarding Smith's purported statement; (2) Field Representative Young
did subsequently seek verification of her report; and (3) his transmittal of that report
to District Director Simonson was bottomed upon his good-faith belief with respect
to its correctness. I so find.)
On January 8, 1963, Enos Reid, a partner in Babbage's law firm, telephoned Simon-
son to discuss a date for the resumption of contract negotiations. Thereafter,
Simonson dispatched a letter to Babbage, dated January 10, which read, materially,
as follows:
This is to confirm my telephone conversation with one of your assistants on
January 8, 1963, in which I related to him the importance of your setting a
date for negotiations in Indio on the Valley-Date plant.
I think it very important John that this be done immediately as this guy
Smith is sounding off that he will never sign a contract with the union.
I want to take this opportunity to convey to you that the union stands ready
at all times, whenever you set up a date for meeting, to negotiate in good faith
as we have done in the past, to try and reach an agreement. We do expect the
employers to negotiate with us in good faith also.
Please let me know as soon as possible of when you can meet in Indio for
Valley-Date negotiations.
Field Representative Young likewise dispatched a January 12 letter to Babbage
which recapitulated the state of contract negotiations, characterized the situation as
serious, cited Simonson's January 10 comment which suggested that Smith was "not
helping matters" by his purported declaration, insisted that Respondent would have
to make the next move, and reiterated the Union's desire to resume negotiations
promptly, and to provide for their continuance until a contract was reached.
On January 15, 1963, Respondent's counsel, Babbage, acknowledged Simonson's
January 10 letter. In pertinent part, his reply read as follows:
1 Babbage and Smith represented the respondent firm ; the Union was represented by
Field Representative Young, together with a workers' committee.
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ed Smith advised me very emphatically that he made no statement of the
nature which you attributed to him in your letter. I don't know what prompted
anyone to make such a report to you, but I think it was very ill advised. I
think the only thing to do is to get this thing straightened out right now, as it
is the sort of thing that creates a very bad atmosphere for negotiations. I think
that you should furnish Mr. Reid or me with whatever information you have on
this. I am sure from what Ed Smith tells me that you will find the allegations
unfounded and a retraction in order.
Babbage declared that Respondent had no desire to delay negotiations, but neverthe-
less did not wish to proceed under a cloud; Simonson was advised that Reid would
be available to meet on several suggested dates, but that the Union's charge against
Respondent's plant manager should be resolved in the meantime.
Further correspondence-primarily devoted to search for a consensus regarding the
best date for resumption of contract negotiations-followed. Ultimately, Respond-
ent's counsel, Enos Reid, declared that he could meet the Union's field representative
on February 6; Young was advised, however, not to overlook-
the necessity, as pointed out in Mr. Babbage's letter, of resolving the
situation created by certain remarks having been attributed to Mr. Smith with
reference to signing a contract.
With his reply, Young reassured Respondent's counsel that the matter of Smith's
statement, "shall not, or should not" delay negotiations
On February 6, union representatives met with Respondent's negotiators, pursuant
to prearrangement: General Manager Smith, Reid, and one of his law firm associates
appeared for the respondent firm, while Field Representative Young, together with
his workers' committee, served as the Union's spokesmen. Young's testimony with
respect to the discussion which developed, received without contradiction, reads as
follows:
As the meeting started at 10:15 in the morning, I asked the company if they
were prepared to give us answers to our demands that they had promised to do
at the first meeting in December. I started going through our demands, when
Mr. Enos Reid raised his hands [indicating] and said, "Look, we are not about
to talk about anything at this particular negotiation until you retract the state-
ment made by Mr. Simonson about Mr. Smith." I took the position that this
had nothing to do with negotiations, this union was here to bargain for itself,
the people that we represented at Valley Date, that we had been patient in trying
to set up meetings between the first and second meetings, and we thought it was
about time that the company gave us the answers to our demands Mr. Reid
took the position that he would not negotiate on any of the issues until we gave
a written retraction of the statement about Mr Smith I again told him that
this had nothing to do with negotiations and asked for a ten-minute recess so
I could make a phone call.
In making my phone call, the purpose was to bring Director Simonson up to
date on what had taken place. Of course, Director Simonson assured me that
I was taking the right position, telling me to go back into negotiations and act
like a union representative and don't get mad, and represent the people in
negotiations; that this had nothing to do with the letters or the alleged state-
ment by Mr. Smith. I therefore went back into negotiations, started going
through our demands again, and Mr. Reid again said, "Look, we are not talking
about anything until you retract that statement." I said, "Well, this union is
prepared to stay here all day and negotiate a contract," and I stated, "We are
not leaving the room until we get answers to our demands for a contract written
and signed." Mr. Reid said that it makes no difference who leaves the room
first, at which time they started packing their leatherbound briefcase I again
started through our demands and they started walktna out of the room. I asked
Mr. Reid, I said, "When would you like to meet again for the purpose of nego-
tiating a contract?" And he said, "Never, until we receive a written retraction
about the statement of Mr. Smith "
When questioned by the Trial Examiner, during direct examination, Young could
not recall Reid's making any statement indicative of Respondent's reason for con-
sidering the Union's retraction "important or necessary" before negotiations could
proceed.
With his recollection prompted, however, Young testified, during cross-examination,
that Reid had demanded substantiation of the Union's charge, regarding Smith's
purported statement, or retraction of the charge, alternatively; Young's riposte,
according to his testimony, had been that Smith's statement had no relevance to the
negotiations, and that the best way for Respondent to prove such a statement was
VALLEY DATE GARDENS, INC. 1549
never made would be to resume contract negotiations. The Union's representative
conceded his February 6 declaration that, should the,parties sign a contract, he would
destroy Simonson's January 10 letter. With respect to Reid's professed motivation
for his demand, Young's testimony in cross-examination reads as follows:
Q. Did Mr. Reid tell you that you were sandbagging? Did he use that
expression? .. .
A. I imagine-I can't say for sure. He might have.
Q. Didn't he say something to the effect that you are going to hold this letter
and this charge, and if you don't get a contract the way you like it, you are
going to come back and say that we were in bad faith from the beginning?
A. There was no statement made by me that if we don't get a contract the
way we like it, we would come back.
Q. Was there any comment made by Mr. Reid along the lines I have indicated?
A. Something to the effect that we might come back and get them later on,
something like that. That wasn't our intent.
With matters in this posture, the parties terminated their February 6 conference.
Representatives of the Union and Respondent have had no face-to-face meeting,
for the purpose of contract negotiation, since the date designated.
Considerable correspondence between Field Representative Young and Reid fol-
lowed; negotiations, however, were stalemated. Young continued to request a
settlement upon some date when contract negotiations might resume. Reid parried
these requests, declaring, inter alia, that:
We cannot understand why you continue to delay contract negotiations by
refusing to issue a retraction of the irresponsible accusations contained in the
letter of January 10, 1963, as written by Bud Simonson. As you know, we are
anxious to push forward with the negotiations until a contract is reached. We
are wondering if you are motivated with the same desire, or whether personal
pique clouds your thinking and makes you continue the dilatory tactics blocking
negotiation . . . If you persist in delaying contract negotiations, will you at
least detail for us your reasons and motivations for refusing the retraction.
Young denied any union desire to relay negotiations. This exchange of correspond-
ence, marked with growing acerbity, culminated in Reid's March 27 declaration that:
I am at a loss to understand why you choose to continually ignore our request
for the retraction of the irresponsible accusations against Mr. Smith. Surely,
by this time you must understand that your refusal to issue the retraction con-
stitutes a real stumbling block to our continued willingness to negotiate a con-
tract with your Union. As long as you persist in this attitude, I can only
conclude that you have no sincere desire to work out a contract. This amazes
me and, in fact, I am unable to understand why you treat the matter this lightly.
Finally, on April 1, District Director Simonson filed the Union's charge in this case.
Union counsel, Marshall Ross, so notified Reid; Respondent's counsel was told that:
(1) the Union considered the firm's demand for a retraction, regarding General
Manager Smith's purported statement, one with respect to which bargaining could
not be required; and (2) the Union's refusal to negotiate concerning such "non-i
mandatory" matters, under the statute, could not excuse Respondent's refusal to
bargain regarding mandatory subjects for negotiation. Ross, therefore, reiterated
the Union's right and Respondent's obligation to bargain together in good faith,
despite the Union's refusal to retract statements previously made concerning the
conduct of Respondent's plant manager.
His request that Respondent's counsel set a date when negotiations might resume-
which District Director Simonson followed with a similar request, telegraphed
directly to the respondent firm-elicited no reply, so far as the record shows. Com-
munication between the Union and Respondent's representatives presently stands
completely suspended.
3 Analysis and conclusions
With matters in this posture General Counsel contends that Respondent's course
of conduct, considered in its totality, reveals the firm's failure to bargain in good
faith consistently with statutory requirements.
General Counsel's brief lists three principal "components" bearing upon his
charge: (1) Respondent's program of delay with respect to the scheduling of bar-
gaining sessions; (2) Plant Manager Smith's purported statement that he would not
sign a contract with the Union; (3) Respondent's determination to susoend negotia-
tions prematurely, during the February 6 conference, with a declaration that the
firm's representatives would not continue negotiations unless union spokesmen
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proffered a retraction or substantiation of Simonson's prior "charge" that Smith
had made the statement noted. Each designated facet of Respondent's conduct
must, therefore, be considered.
Regarding the first "component" noted, General Counsel contends that, during
the 21/2-month period which followed the Union's certification, only one bargaining
session was held, due to "unreasonable delays" on Respondent's part. Considered
as a whole, however, General Counsel's presentation has failed to persuade me that
Respondent's course of conduct with respect to the scheduling of bargaining sessions
warrants any determination that the firm's representatives were consciously trying
to delay negotiations. Since General Counsel's complaint charges Respondent with
Section 8(a)(5) and (1) violations commencing on December 13, 1962, when the
firm's representatives met union spokesmen for their first bargaining session, Re-
spondent's prior failures to answer union communications which sought a consensus
regarding some mutually satisfactory conference date cannot, legitimately, be con-
sidered part of the firm's claimed "totality of conduct" presently characterized as
contrary to statutory requirements. With respect to the period between December
13 and February 6, some questions might, indeed, conceivably be raised as to whether
the firm's representatives deliberately delayed negotiations. Upon the present record,
however, such a conclusion would not appear to be warranted; Respondent's counsel
may have been in default in their promise to communicate with District Director
Simonson before the close of the calendar year, for the purpose of fixing a second
conference date, but the consequent delay in negotiations-beyond the holiday
season-cannot, legitimately, be characterized as persuasively reflective of their
determination to forestall good-faith negotiations.
Previously, within this report, reference has been made to my conclusion that
proper disposition of the questions now presented will not require a determination
whether Plant Manager Smith really made the statement, reportedly made by him,
that he would not sign the Union's contract. Though my determination of that
disputed matter, consistently with General Counsel's contention, could, conceivably,
contribute support to some final conclusion that Respondent' s course of conduct,
considered as a totality, failed to meet statutory standards, such support would be
merely collateral. Testimonial conflicts between a mother and son would have to
be resolved; without some basis for belief that my resolution of such conflicts would
make a crucial difference, with respect to this case's final disposition, no necessity
for the determination sought previously appears. For this reason, inter alia, no
conclusion with regard to the presence of this claimed "component" has been
reached.
Disposition of the present case, therefore, must necessarily rest upon some
determination with respect to General Counsel' s final contention that Respondent
refused to bargain, consistently with statutory requirements, when its counsel, during
their February 6 conference with union spokesmen and thereafter, refused to discuss
various "mandatory" subjects presented for negotiation. General Counsel would
have the Board conclude, specifically, that Respondent failed to meet statutory
standards because of its counsel's persistent demand that Simonson and Young take
certain steps with respect to a collateral matter, before the firm would fulfill its
statutory duty with regard to designated "mandatory" subjects. N.L.R.B. v. Wooster
Division of Borg-Warner Corp., 356 U.S. 342; N.L.R.B. v. Dalton Telephone Com-
pany, 187 F. 2d 811 (C.A. 5). Respondent's denial of any refusal to bargain-
predicated upon its contention that the Union's refusal to substantiate or retract
certain written charges, made against the firm's plant manager, justified its position-
presents the precise question for resolution.
Several decisions within recent years reflect this Board's general concurrence with
judicial determinations that respondent firms may properly refuse to recognize or
deal with particular union representatives whose conduct or statements reflect such
underlying hostility, directed against the firm, as to make collective bargaining a
futility. N.L.R.B. v. Kentucky Utilities Company, 182 F. 2d 810, 813-814 (C.A. 6);
compare N.L.R.B. v. International Ladies' Garment Workers' Union, AFL-CIO,
et al. (Slate Belt Apparel Contractors Assn.), 274 F. 2d 376, 379 (C.A. 3). The
decisional doctrine noted, however, has been given limited scope; Board declara-
tions with respect to its validity have routinely appeared as dicta in cases considered
factually distinguishable. Roscoe Skipper, Inc., 106 NLRB 1238, 1241-1242, enfd.
213 F. 2d 793, 794, footnote 3 (C.A. 5); Deeco, Inc., 127 NLRB 666, 667; New-
berry Equipment Company, Inc., 135 NLRB 747, 753-754; compare West Texas
Utilities Company, 108 NLRB 407, 412-413. Cases declarative of the general
principle, therefore, provide few clues with respect to the type of conduct reflecting
"underlying hostility" which would be considered sufficient to warrant a firm's
refusal to deal with particular union spokesmen . The doctrine , however, would
seem to be without direct relevance for present purposes; Respondent has made no
VALLEY DATE GARDENS, IN C. 1551
contention that Simonson's charge, which Young subsequently refused to substan-
tiate or retract, disqualified them, personally, as union negotiators.
Rather, counsel for Respondent does contend that the course of conduct charge-
able to union spokesmen constituted harassment for the purpose of undermining the
effectiveness of the firm's negotiators; confronted with such a course of conduct, so
the argument runs, Respondent's determination to suspend negotiations, pending
some substantiation or retraction of the Union's charge, should be considered justi-
fied. Within his brief, Respondent's counsel has stated the rationale behind this
contention as follows:
The Union's purpose in bringing up the alleged statement is clear. First,
it made a charge against the good faith of the Employer's primary negoti-
ator . . . At this point, the Union had made a record show that the
Employer's good faith in bargaining was in question from that moment on.
Then at the meeting, and in breach of its agreement, it refused to go into the
matter . . . . Now the Union has the Employer in a dilemma. If it pro-
ceeds without anything more it has acceded to the charge of bad faith. If it
demands that the matter be cleared up as agreed, the Union takes a position
that the statement had nothing to do with the negotiations . . . . As a result
of these tactics, the Employer was compelled to require the Union to live up
to its agreement to clear up the matter at the February 6th meeting. This was.
the meeting at which the company would submit is counter-proposals . .. .
The Union's attack on Mr. Smith at this stage was harassment for the purpose
of undermining his effectiveness just at the time he had to support the company's
counter-proposals. The Union's charge against Mr. Smith is tantamount to a
charge that the company was negotiating in bad faith . . To obviate this
Mr. Smith could have been removed from the negotiating team, but not without
serious consequences due to his position with the company and knowledge of the
working conditions. The company could not afford to remove Mr. Smith on
the basis of some unsubstantiated charges. But the Union, after agreeing to
clear up the matter, changed its position and told the company it could prove
that the still unsubstantiated charges were not true only by negotiating .. . .
In order to promote good faith bargaining, neither side should be permitted
to demand that the negotiations be conducted for the purpose of disproving
a collateral matter. If the Employer had accepted the Union's ultimatum it
would have been bargaining from a negative position. The Union's breach of
its agreement to clear up the matter was perfidious, designed to obtain an upper
hand. Its attitude was "You are already in bad faith, but we will let you out of
it if we negotiate a contract to our liking."
Substantially, therefore, Respondent contends that Simonson's charge, coupled with
Young's subsequent refusal to provide substantiation or retraction, constituted
"harassment" sufficiently gross to warrant the firm's determination to suspend
negotiations.
Contrary to Respondent's belief, such a contention-despite the skill with which
counsel's basic rationale therefor has been detailed-presents no novel problem;
rather, such a contention presents familiar questions, different merely in degree from
those presented in comparable cases.
Under certain unusual circumstances, unions may, by conduct contemporaneous
with negotiations, give an employer grounds for refusing to bargain so long as that
conduct continues. Phelps Dodge Copper Products Corporation, 101 NLRB 360,
368. This Board has so held, since the respondent firm's failure to bargain in
good faith cannot be determined where measurement of this critical standard is
precluded by failure on the part of the employees' bargaining representative to deal
fairly. See Superior Engraving Company v. N.L.R.B., 183 F. 2d 783 (C.A. 7);
Times Publishing Company, 72 NLRB 676, 682-683. Such determinations by the
Board, however, have been limited to cases wherein the course of conduct chal-
lenged as harassment reflected some gross abuse of the union's bargaining power,
not reconcilable with the statutory requirement of reasoned discussion within a
balanced bargaining relationship upon which negotiations in good faith must rest.
Phelps Dodge Copper Products Corporation, supra, (company's refusal to bargain
with union during slowdown justified); Textile Workers Union of America, CIO
(Personal Products Corporation), 108 NLRB 743 (union's refusal to bargain found,
based upon slowdowns, quickie walkouts, and partial strikes), reversed in part 227,
F. 2d 409 (C.A. D.C.); compare Bausch & Lomb Optical Company, 108 NLRB
1555 (company's refusal to bargain with union which maintained a competitive
business justified). Comparably, the Court of Appeals for the Fifth. Circuit has
found a respondent firm guiltless of contempt, with respect to a refusal-to-bargain
charge , based upon a record which, among other things, revealed-
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it was the conduct and attitude not of the respondents but of the
Union which , creating an obstructive and frustrating climate of opinion, made
the negotiations difficult, if not impossible and brought their ending on the
Union's statement that it was futile to go on. [N.L.R.B . v. Irving Lambert,
et al., d/b/a Sue-Ann Manufacturing Company, 250 F. 2d 801 (C.A. 5).]
Whether a particular course of conduct chargeable to union spokesmen , however,
constitutes a gross abuse of its bargaining powers, reasonably calculated to thwart
or impair the bargaining process, clearly presents a question of degree. By contrast
with the cases noted, this Board has found no frustration or impairment of the
bargaining process with respect to a union 's presumptive breach of some prior oral
understanding regarding the scope of its demands , or the composition of its bargain-
ing committee . American Vitrified Products Company, 127 NLRB 701, 702, foot-
note 1. Nor has it found "justification" with respect to a firm's refusal to bargain
bottomed upon union responsibility for a circular which severely criticized manage-
ment representatives for their prior refusal to grant recognition . Worcester Woolen
Mills Corporation , 74 NLRB 1071, enfd. 170 F. 2d 13 , 17-18 (C.A. 1).
Simonson's charge regarding Smith 's purported statement, dispassionately con-
sidered, cannot reasonably be found calculated to thwart or impair the collective-
bargaining process, particularly since it was made within a context which clearly
revealed the Union 's fervent desire to resume negotiations . With the record in
such a posture , Respondent's present contention based upon the Times Publishing
case, that Simonson's charge, coupled with Young 's subsequent refusal to discuss
the matter, removed the possibility of further negotiation , smacks of hyperbole.
Young's declared reluctance to substantiate or retract Simonson 's charge, during
the February 6 conference or thereafter , did not reflect a refusal to negotiate on
substantive matters; with respect to such matters, designated "mandatory subjects"
which would form the corpus of any negotiated contract , the Union was not refus-
ing, but was seeking , to bargain . Servette , Inc., 133 NLRB 132, 137, footnote 7.
Respondent 's contention , with respect to this aspect of the situation , that the Union
was, essentially , demanding negotiation on substantive matters merely because it
professed to believe such negotiation necessary to disprove a collateral matter-
namely, the correctness of Simonson 's charge-must be rejected as deficient in merit.
Counsel's further contention that Respondent 's conduct should be found justified
because the Union's position was calculatedly taken to put Respondent 's negotiators
at some tactical disadvantage likewise fails to persuade.
Well-recognized decisional doctrine teaches that respondent firms may not con-
dition their readiness to begin, continue , or resume contract negotiations upon some
union 's withdrawal of unfair labor practice charges previously filed. See, e.g.,
Kit Manufacturing Company, Inc., 142 NLRB 957; American Stores Packing Co.,
142 NLRB 711 ; Heider Manufacturing Company, 91 NLRB 1185 , 1190, and cases
therein cited . In this connection , further, the Board has held specifically that the
filing of statutory charges subsequently dismissed for want of evidence did not
demonstrate a union's bad faith in contract negotiations ( Vanette Hosiery Mills,
114 NLRB 1107, 1126 ); and that no purpose of harassment can be inferred from
a union 's filing of several unfair labor practice charges merely because of the
General Counsel 's refusal to issue complaints thereon (J. I. Case Company, 118
NLRB 520, 523 ). Likewise , the Board has found a firm guilty of refusal to bargain
in good faith when the record revealed , inter alia, that subsequent to the union's
filing of charges in the given case , management representatives stated that it would
be "difficult , if not impossible" for the parties to conclude a mutually satisfactory
agreement . Northeastern Indiana Broadcasting Co., Inc. (WKJG), 88 NLRB 1381,
1382. These would seem to be dispositive with respect to present questions.
Respondent can hardly claim , persuasively, that Simonson 's mere profession of
knowledge with respect to Plant Manager Smith's purported statement constituted
more serious "harassment" directed against the firm's negotiators than some formal
refusal-to-bargain charge would have been; counsel 's presumed contention, further,
that the district director 's brief reference to the plant manager's purported statement
"impaired" respondent firm's bargaining position more than formal charges would
have done likewise carries no conviction.
Young's refusal to proffer substantiation with respect to Simonson 's charge, dur-
ing the February 6 conference or thereafter , clearly provides no justification for
Respondent 's conduct True, the statutory obligation to bargain collectively in good
faith has been held to encompass a duty to furnish information, upon request, when-
ever such information may properly be considered relevant and necessary to assist
negotiators , both in presenting their proposals and negotiating with respect thereto
in- the most intelligent and efficacious manner . See Oregon Coast Operators Asso-
ciation et al., 113 NLRB 1338. 1344-1345; see also numerous cases therein cited.
The right of either party to demand information , however, relates merely to data
VALLEY DATE GARDENS, IN C. 1553
which may properly be considered relevant and necessary for the requesting party
intelligently to carry out its collective-bargaining obligations; no duty to provide
"substantiation" with respect to matters unrelated to substantive terms of the collec-
tive bargain can properly be considered part of the statutory requirement.
Documentary material proffered for the record reveals, clearly, that Respondent's
legal representatives, subsequent to the February 6 conference, dropped their demand
for some substantiation of Simonson's prior charge; they continued to demand, merely,
the charge's retraction. Such a demand may be compared legitimately with employer
demands that some union register under a State statute, so as to be amendable
to suit in State courts, or that it post an indemnity bond. Demands like these have
been held clearly beyond the scope of compulsory bargaining; well-settled doctrine
teaches that employers cannot legally make their willingness to negotiate dependent
upon compliance with such conditions. Respondent's demand for a retraction of
Simonson's charge, before contract negotiations could resume, was likewise no
mandatory subject for bargaining; the Union's failure to proffer such a retraction,
therefore, did not provide Respondent with valid grounds for the suspension of
negotiations.
With matters in their present posture, Respondent's refusal to continue negotiations
with the Union after February 6, 1963, pending a favorable response to its demand
for a retraction of Simonson's charge, reveals its refusal to bargain in good faith.
Cf. Cabinet Manufacturing Corporation, 140 NLRB 576. I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, since they occurred
in connection with its business operations described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the States,
and, absent correction, would tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that Respondent committed and continues to commit an
unfair labor practice, it will be recommended that the Board issue an order requir-
ing that it cease and desist therefrom and take certain affirmative action, including
the posting of appropriate notices, designed to effectuate the policies of the Act,
as amended.
Respondent's course of conduct, previously summarized, does not, in my view,
disclose a pervasive attitude of opposition to the purposes of the statute with
respect to the protection of employee rights in general. With matters in their
present posture, no broad order seems warranted. My recommendation, therefore,
will be that Respondent be ordered to cease and desist from any continued refusal
to bargain with the Union, and that it be further ordered to cease and desist from
interference with, restraint, or coercion of employees in any like or related manner.
In the light of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Valley Date Gardens, Inc., is an employer within the meaning of Section 2(2)
of the Act, engaged in commerce and business activities which affect commerce
within the meaning of Section 2(6) and (7) of the Act, as amended.
2. United Packinghouse, Food and Allied Workers, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act, as amended, which admits
employees of Valley Date Gardens, Inc., to membership.
3. All packingshed employees of Valley Date Gardens, Inc., employed at that
firm's Indio, California, packingshed, exclusive of office clerical employees, pro-
fessional employees, watchmen, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining, within the
meaning of Section 9(b) of the Act, as amended.
4. At all times material herein, subsequent to November 19, 1962, the Union
has been entitled to recognition as the exclusive representative of employees of
Valley Date Gardens, Inc, within the unit described above, pursuant to the pro-
visions of Section 9(a) of the Act, as amended, for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of work, and other terms and
conditions of employment.
5. By its refusal to negotiate with union representatives on February 6, 1963, and
by its subsequent refusals to meet with union representatives upon request, Respond-
ent refused to bargain with the Union in good faith; thereby, Respondent engaged
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and continues to engage in unfair labor practices affecting commerce, within the
meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act, as
amended.
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law, and upon the entire record in
the case, it is recommended that the Board , pursuant to Section 10(c) of the
National Labor Relations Act, as amended , order that Respondent , Valley Date
Gardens , Inc., its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Further refusals to bargain with United Packinghouse , Food and Allied
Workers, AFL-CIO, as the exclusive representative of all packingshed employees at
the firm 's Indio, California , packingshed , exclusive of office clerical employees, pro-
fessional employees , watchmen , guards, and supervisors as defined in the Act, as
amended.
(b) Interference with , restraint , or coercion of employees in any like or related
manner, in connection with their exercise of the right to self-organization, to form
labor organizations , to join or assist United Packinghouse , Food and Allied Workers,
AFL-CIO, or any other labor organization , to bargain collectively through repre-
sentatives of their own free choice , and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection , or to refrain
from any or all such activities , except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment , authorized in Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act, as amended:
(a) Upon request , bargain collectively in good faith with United Packinghouse,
Food and Allied Workers , AFL-CIO, as the exclusive representative of all the firm's
employees within the unit found appropriate herein for the purpose of collective
bargaining with respect to rates of pay, wages, hours of employment , and other terms
and conditions of employment , and if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its offices and places of business in Indio, California , copies of the
attached notice marked "Appendix " 2 Copies of the notice , to be furnished by the
Regional Director for the Twenty-first Region , as the Board's agent , shall be posted,
immediately upon their receipt , after being duly signed by a representative of the
respondent enterprise . When posted, they shall remain posted for 60 consecutive
days thereafter in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by Respondent
to insure that these notices are not altered , defaced, or covered by any other material.
(c) File with the Regional Director for the Twenty-first Region , as the Board's
agent , within 20 days from the date of service of this Intermediate Report and
Recommended Order, a written statement setting forth the manner and form in
which it has complied with this Recommended Order.3
2 Should the Board adopt this Recommended Order, the words "A Decision and Order"
shall be substituted for the words "The Recommended Order of a Trial Examiner" in the
notice. Further, should the Board's Order be enforced by a decree of a United States
Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an
Order" shall be substituted for the words "A Decision and Order" in said notice
3 Should the Board adopt this Recommended Order, this provision shall be modified to
read: "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and* in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL bargain, upon request, with United Packinghouse, Food and Allied
Workers, AFL-CIO, as the exclusive representative of all our employees within
the bargaining unit described as appropriate in the Trial Examiner's Inter-
mediate Report on the case, with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment, and embody in a signed
agreement any understanding reached.
NEW YORK TYPOGRAPHICAL UNION NUMBER SIX, ITU 1555
WE WILL NOT, through any course of conduct subject to proscription as a
refusal to bargain, interfere with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form labor organizations, to join
or assist United Packinghouse, Food and Allied Workers, AFL-CIO, or any
other labor organization, to bargain collectively through representatives of their
own free choice, and to engage in other concerted activity for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any
or all such activity, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act, as amended.
All our employees are free to become, remain, or refrain from becoming or
remaining, members of any labor organization, except to the extent that this right
may be affected by a lawful agreement requiring membership in a labor organization
as a condition of employment.
VALLEY DATE GARDENS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material.
Employees may communicate with the Board's Regional Office, Eastern Columbia
Building, 849 South Broadway, Los Angeles, California, Telephone No. Richmond
9-4711, Extension 1031, if they have any question concerning this notice or com-
pliance with its provisions.
New York Typographical Union Number Six , International
Typographical Union , AFL-CIO and Lawrence F. Cafero and
The New York Times Company ; and Publishers ' Association
of New York City , Parties in Interest . Case No. 2-CB-3604.
November 14, 1963
DECISION AND ORDER
On July 2, 1963, Trial Examiner Samuel Ross issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Intermediate Report.
Thereafter, the Respondent 'and the General Counsel filed exceptions
to.the Intermediate Report and supporting briefs,' and the Respond-
ent also filed a request for oral argument.2
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
1 The International Typographical Union filed a brief amicu8 curiae in opposition to the
conclusions and recommendations of the Trial Examiner.
2 As the record, including the exceptions and briefs, adequately sets forth the Issues and.
the positions of the parties, the request is hereby denied.
144 NLRB No. 146.
727-083-64-vol. 144-99