Continental Nut Co.

National Labor Relations Board - Board Decisions

Mar 13, 1972

195 N.L.R.B. 841 (N.L.R.B. 1972)

CONTINENTAL NUT CO. 841
Continental Nut Company and Warehousemen's
Union Local 17, International Longshoremen's and
Warehousemen 's Union. Case 20-CA-5833
March 13, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
mond -harvest which begins in August it starts hiring and
recalling seasonal workers, the bulk of whom are laid off in
mid-December with the shipment of the last of the nuts for
the Christmas trade. At the peak of its season, mid-September
through mid-December, it employs between 225 and 250
workers, 60 to 70 percent of whom are classified as "sorters."
In a normal year, by the first of March all seasonal employees
have been laid off. The entire operation is directed by Re-
spondent's president, Gerard W. Stiefvater. Respondent's di-
rect out-of-state purchases and direct out-of-state sales each
exceed $50,000 annually.
On February 10, 1971, Trial Examiner George H.
O'Brien issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief, and the Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 1'0(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the com-
plaint be dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE H. O'BRIEN, Trial Examiner: On 10 dates be-
tween September 15, 1970, and October 16, 1970, a hearing
was held in the above-entitled matter in Oroville, California.
The complaint, issued April 30, 1970 is based on a charge
filed November 10, 1969, and an amended charge filed
December, 3, 1969, by Warehousemen's Union Local 17, In-
ternational Longshoremen's and Warehousemen's Union and
alleges violations of Sections 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act by Continental Nut Company,
herein called Respondent. Upon the entire record' in this
proceeding, including my observation of the witnesses and
after' due consideration of the posthearing briefs, I make the
following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is a California corporation with a plant in
Chico, California, engaged in the processing and sale of al-
monds, English walnuts, black walnuts, Brazil nuts, filberts,
and pecans. It has a normal complement of between 100 and
125 employees who work throughout the year. With the al-
' The posthearing motions to correct the stenographic transcript are
granted.
II THE LABOR ORGANIZATION INVOLVED
Warehousemen's Union Local 17, International Long-
shoremen's and Warehousemen's Union, herein called the
Union, is a labor organization within the meaning of Section
2(5) of the National Labor Relations Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges in substance:
1. Since May.11, 1969 (the Section 10(b) date), Respondent
has refused, by its entire course of conduct, to bargain in good
faith with the Union.
2. On July 1, 1969, Respondent granted unilateral wage
increases to employees without giving the union an adequate
opportunity to bargain concerning these raises.
3. In late August, 1969, Respondent in a series of meetings
with employees attempted' to persuade them to reject the
Union as their bargaining agent.
4. In the same meetings Respondent told employees that
Respondent's contract proposal of August 19, 1969, would be
put into effect whether or not the union accepted it.
5. On September t5, 1969; Respondent unilaterally placed
in effect its contract proposal of August 19, 1969, without
bargaining with the union concerning the changes in condi-
tions of employment thereby effected.
6. From March through November 1969 Respondent ada-
mantly insisted that any agreement `contain provisions re-
stricting eligibility for vacation and for health and welfare
benefits to a minority of the employees in the certified bar-
gaining unit.
7. From March through November 1969 Respondent ada-
mantly insisted upon provisions substantially reserving to
Respondent exclusive and unilateral control over terms and
conditions of employment.
8. The strike which began September 16, 1969, was caused
and prolonged by the above-described acts of the Respond-
ent.
9. Since November 15, 1969, Respondent has refused to
reinstate approximately 117 strikers who applied for rein-
statement when the strike was called off on that date.
Respondent in its answer denied the commission of any
unfair labor practice.
B. The Certification of the Union .as Exclusive
,Collective-Bargaining Agent of Respondent's Employees in a
Production and Maintenance Unit
On August 17, 1966, the Union filed a petition seeking to
represent certain employees of Respondent. On September
12, 1966, the Union and the Respondent entered into an
Agreement for Consent Election under the provisions of Sec-
tion 102.62 of the Board's Rules which provide,
. The method of conducting such consent election
shall be consistent with the method followed by the re-
gional director in conducting elections pursuant to sec-
tions 102.69 and 102.70 except that the rulings and
195 NLRB No. 158
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determinations by the regional director of the results
thereof shall be final, and the regional director shall issue
to the parties a certification of the results of the election,
including certification of representatives where appro-
priate, with the same force and effect as if issued by the
Board....
The Union received a majority of the votes cast at the
election on October 28, 1966, in a unit described as:
All production and maintenance employees of the Em-
ployer at its processing plant in Chico, California, in-
cluding warehousemen, but excluding office clerical em-
ployees, salesmen, guards and supervisors as defined in
the Act.
On November 4, 1966, Respondent filed objections to con-
duct affecting the results of the election which alleged that the
Union had promised a number of employees that it would
waive their initiation fees if it were selected as their bargain-
ing representative. The Regional Director investigated the
objections and found that the Union had told employees that
the initiation fees for all employees would be reduced if the
Union won the election. He further found that at two separate
preelection meetings the Union, in response to inquiries, told
employees that in the past the Union had reduced initiation
fees when a large group of employees had joined the Union
at the same time. The Regional Director concluded that the
promises were not objectionable because the employees un-
derstood that any reduction in the initiation fee would apply
to all employees as a group and would not be contingent on
how individual employees voted. On December 1, 1966, the
Regional Director overruled the objections and certified the
Union as the bargaining representative of the employees in
the appropriate unit.
By letter dated December 19, 1966, the Union requested
Respondent to meet with it for the purpose of negotiating a
collective-bargaining agreement. By letter dated December
28, 1966, Respondent refused the request.
On May 10, 1967, in a proceeding entitled Continental Nut
Company and Warehousemen's Union Local 17 I.L. W. U.,
Case 20-CA-4360 (164 NLRB 508) the Board held that
Respondent's refusal to bargain violated Section 8( a)(1) and
(5) of the Act and ordered that Respondent bargain with the
Union upon request. In its Decision and Order the Board
found:
Respondent contends that the Regional Director
erred in his findings and conclusions. However, as noted,
Respondent agreed to be bound by the Regional Direc-
tor's findings and conclusions. Therefore, we do not pass
upon the merits of his decision. In order for the Em-
ployer to prevail here, it must be alleged and proved that
the Regional Director's determinations were arbitrary or
capricious. In this case, Respondent' s allegations and
evidence in support thereof fall far short of such proof.
Accordingly there are no issues of fact or law which
require a hearing.
On May 22, 1968, in National Labor Relations Board v.
Continental Nut Company, 395 F.2d 830, the United States
Court of Appeals for the Ninth Circuit granted full enforce-
ment to the Board's order. The Court's decree was filed and
entered on July 25, 1968. Certiorari was denied by the United
States Supreme Court on December 16, 1968, (393 U.S.
1000).
C. Collective Bargaining Preceding the Strike Called by the
Union September 16, 1969
1. Initial correspondence
On January 6, 1969, Frank E. Thompson, the Union's
secretary-treasurer, wrote to Stiefvater requesting a meeting
"to discuss the consumation of a labor agreement." On Janu-
ary 13, 1969, Respondent's counsel, Wesley J. Fastiff, replied
that Respondent intended to comply fully with the Board's
order and requested, "Would you please contact me so that
we may arrange for a time and place for our first bargaining
meeting." Shortly thereafter the Union's attorney, Norman
Leonard, telephoned Fastiff and they agreed that the first
bargaining meeting would be held on February 18, 1969, in
Leonard's office in San Francisco. On the morning of Febru-
ary 18 Leonard telephoned, cancelled the meeting, and told
Fastiff that he would "get in touch with him in a few days and
try to set another date." Friday of that week having arrived
with no word from Leonard, Fastiff wrote to him, "I look
forward to hearing from you regarding a date that will be
convenient for the Union." On February 24 Leonard replied
that the Union would be agreeable to a meeting on March 7
at 10 a . m. in Sacramento and suggested that Fastiff communi-
cate directly with Thompson as to the place of meeting.
Thompson and Fastiff agreed that they would meet at the
Union's office in Broderick, a suburb of Sacramento, at 2 p.m.
on March 7.
2. The negotiators
At the seven bargaining meetings which preceded the
strike Respondent was represented by Wesley J. Fastiff and
John H. Kaiser. The Union was represented by Frank
Thompson, Oscar Jordan, Stanley Murgia, Walter Hine, Bev-
erly Boggs, and Fern Logan. Fastiff is a member of the law
firm which has represented Respondent since at least 1964.
He was the principal spokesman for Respondent and was,
with Kaiser, vested by Respondent with authority to con-
clude a binding agreement with the Union. Kaiser was Re-
spondent's plant manager, responsible directly to Stiefvater.
Thompson, the Union's secretary-treasurer, has been with
the Union since 1934 or 1935 and was its principal spokes-
man. Jordan has been an organizer for the Union since 1958.
Murgia was first employed by Respondent for warehouse
work in 1958. At the time of the negotiations he was a year-
round employee in the maintenance department and his rate
of pay was exceeded only by the rate of one other nonsupervi-
sory employee. Murgia was chairman of the employee com-
mittee. Hein was a year-round employee of Respondent, op-
erated automatic shelling machines, and was one of the
higher paid employees. Boggs was first hired in 1963 for the
seasonal work of running the electric sorting machine for
almonds and English walnuts. She was recalled for each suc-
ceeding season. Logan was also a seasonal worker, first em-
ployed in 1951 and recalled each autumn thereafter. Her job
was almond sorter which, with the job of English walnut
sorter, was the lowest paid in the plant.
Testimony describing the first seven meetings was received
from Jordan and from Fastiff. Thompson, although a specta-
tor on the first day of the hearing, September 15, 1970, did
not testify. Although Murgia and Boggs testified for the Gen-
eral Counsel, neither was questioned about any aspect of any
of the bargaining sessions which they attended. Kaiser left
Respondent's employ in September 1969 and was not called
as a witness. Neither Hein nor Logan was called as a witness.
The following recitation is based on the composite recollec-
tions of Jordan and Fastiff. Where their testimony is in con-
flict I have credited Fastifi's recollection as the more reliable.
His memory had been refreshed by the examination of con-
CONTINENTAL NUT CO. 843
temporary notes and his was a primary responsibility. Jordan
did not actively take part in the negotiations and'he took no
notes. His first attempt to reconstruct these negotiations was
when he gave a statement to the Board investigator several
months after the events therein described.
3. First negotiating meeting
At 2 p.m. on Friday , March 7, 1969, the committees met
at the union office in Broderick , California . After introduc-
tions, Thompson inquired whether Fastiff represented any
other food processing companies and Fastiff replied that he
did. Thompson presented a 16-page draft contract containing
25 sections . Fastiff requested an explanation of the Union's
proposal and Thompson replied by reading off the section
headings , as follows: Section I RECOGNITION,, Section II
COVERAGE; Section III UNION SECURITY,- Section IV
SENIORITY; Job Openings, Job Placement, Transfer, Recall,
and LayoffOvertime Work Section V DISCHARGE,- Section
VI STEWARDS; Section VII BUSINESSAGENT; Section
VIII OVERTIME; Section IX HOLIDAYS,- Section X
MINIMUMS; Section XI MEAL PERIOD,- Section XII
BULLETIN BOARDS,- Section XIII UNION OFFICIALS'
SENIORITY„- Section XIV NO STRIKES OR LOCKOUTS,
Section XV WAGES, HOURS AND VACATIONS ,- Section
XVI SICK LEAVE; Section XVII HEALTH AND WEL-
FARE COVERAGE,- Section XVIII FUNERAL LEAVE,,
Section , XIX GRIEVANCE AND ARBITRATION PROCE-
DURES; Section XX JURY DUTY- Section XXI LEAVES
OF ABSENCE; Section XXII ITEMS FURNISHED BY
THE COMPANY, Section XXIII WORK BY SUPER-
VISORS,- Section XXIV PENSIONS,,- and Section XXV DU-
RATION OF AGREEMENT
Fastiff noted that the Union 's proposal did not contain a
wage schedule or an expiration date. Thompson promised to
have a wage proposal at the next meeting and stated that the
Union had not made up its mind as to the term of the con-
tract . Fastiff said that the Company would prefer a 3-year
contract . Thompson then asked why an employee, May
Gibbs, had been terminated . Kaiser gave a full explanation.
Thompson asked that Kaiser put this explanation in , a letter
to Gibbs. Thompson agreed to do so. ' Fastiff announced that
he would study the Union's proposal , would prepare a coun-
terproposal , and would then call Thompson to set a date for
the next meeting. No one asked that a firm date be set for the
next meeting, nor was Fastifl's calendar mentioned.
4. Second negotiation meeting
The same persons met in the union office on Tuesday, April
15, at 2 p.m., the union , committee being augmented, on this
occasion only, by its vice president , Lupe Martinez, and its
recording secretary , Wayne King. Fastiff asked for the
Union's wage proposal . Thompson replied that he did not
have it ready and promised to have it at the next meeting.
Fastiff distributed copies of Respondent's counterproposal,
which was then reviewed by Thompson. His comments on
each section as related to the Union's proposal were as fol-
lows:
Section I, RECOGNITION. This was copied from the
union proposal and accepted by Thompson.
Section II, COVERAGE. This was a refinement of the
Union's redefinition of the bargaining unit and was accepted
by Thompson.
Section III, (a) "Employment Practices ." This was copied
from the Union 's proposal and accepted by Thompson. (b)
"Notification of payroll changes." Thompson noted the ab-
sence of any union-security language. The Union had
proposed a 30-day union shop clause with checkoff of dues
and initiation fees and a clause blanketing subcontractor's
employees under the contract when doing bargaining unit
work on the Respondent's premises. The union proposal also
contained a clause obligating the Respondent to notify the
Union promptly in writing of the names of all new hires with
their home addresses, and the names of all layoffs, recalls, and
terminations. Respondent's proposal incorporated the
Union's language on notification of payroll changes with the
additional words: "and the Union shall reimburse the Com-
pany for all expenses incurred in this regard." Thompson
rejected subparagraph (b).
Section IV, SENIORITY. Respondent proposed: Seniority
shall be considered by the Company. However, efficiency of
operations shall be the determining factor with regard to any
issue of seniority. Furthermore, where efficiency of operations
is not affected, ability and competence as determined by the
Company shall control in all seniority matters. The applica-
tion of seniority shall further be governed by the Manage-
ment Rights clause set forth below. Seniority shall not apply
to any employee until he or she shall have been employed for
a period of sixty (60) consecutive days.
Thompson rejected this proposal as inadequate.
Section IV-A, MANAGEMENT RIGHTS. Respondent
proposed:
The management of the Company and the direction of
the work force shall be vested exclusively with the Com-
pany, except as otherwise specifically provided in this
Agreement; these rights of management shall include,
but shall not be limited to, the right to hire, promote,
demote, transfer, lay off, recall, suspend, discharge or
otherwise discipline employees; the right to assign work,
to determine and plan the method of its performance,
and to.set production schedules; the right to introduce
new and improved methods, equipment or, facilities and
to change existing methods, equipment and facilities; the
right to establish and maintain rules for employee's con-
duct efficiency and safety; the right to determine work
days and hours of work; the right to subcontract out
work; the right to determine the location of Company
facilities, the work to be done at each, assignment of
work within each, and the number of employees in a
department or in the work force.
Thompson rejected the entire clause on the general ground
that it negated the grievance procedure set forth later in
Respondent's proposal and on the specific ground that it
incorporated the right to subcontract without prior consulta-
tion with the Union.
Section VI, DISCHARGE. This section was left blank in
Respondent's proposal. Fastiff stated that he would have lan-
guage at a later meeting. The union proposal had restricted
the right to discharge to 8 specific grounds and had given the
discharged employee a right to appeal directly to an "Adjust-
ment Board."
Section VII, STEWARDS. The Union's section on stew-
ards was copied with the' following sentence added: "It is
understood by the parties that the steward shall be responsi-
ble for the enforcement of all aspects of this agreement."
Thompson rejected the proposed addition.
Section VIII, BUSINESSAGENT This section was copied
from the Union's proposal with a minor 'qualification.
Thompson's comment was: "I agree that the business agent
section is acceptable, but I reserve the right to reject it at a
later time."
Section IX, HOLIDAYS Respondent proposed New
Year's Day, Good Friday, Memorial Day, Fourth of July,
Thanksgiving Day and Christmas Day and required, inter
alia, that an employee must have worked 30 working days
immediately preceding the holiday to be eligible for holiday
pay, and must also work the last scheduled work day before
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the first scheduled day after the holiday. Thompson rejected
this proposal as inadequate, unfair, and unduly restrictive.
The Union had proposed nine holidays, including Labor Day.
Section X, MINIMUMS. Respondent proposed a guaran-
tee of 2 hours' pay for any employee called to work. The
Union had proposed 8 hours' guarantee with special provi-
sions for casual employees and extra warehousemen. Thomp-
son stated that 2 hours' pay was inadequate.
Section XI, MEAL PERIODS. Respondent proposed a
guaranteed meal period after 6 hours. Thompson stated that
no person should be required to work 6 hours without a meal.
Section XII, BULLETIN BOARDS. Respondent copied
the Union's proposal with one minor change in language.
Thompson said that the Respondent's proposal was accepta-
ble.
Section XIII, NO STRIKES, NO LOCKOUTS. Respond-
ent's proposal made it a violation of the Agreement for any
employee to refuse to cross any picket line and prescribed
severe penalties against the employee and against the Union
for any violation of this prohibition. Thompson stated that-
employees should be permitted to honor the legitimate picket
line authorized by another union without being held to have
violated their own pledge not to strike. He specifically ob-
jected to the punitive provisions of the section and to the
provision denying access to the grievance procedure for al-
leged violations.
Section XIV, WAGES, HOURS AND VACATIONS. (a)
Job classifications and wage rates. Thompson commented
that the proposal contained no wage schedule. (b) Hours. The
Respondent proposed a 7-day workweek with overtime pay
only after 40 hours. Thompson stated that the workweek
should be Monday through Friday, with all work on Satur-
day and Sunday to be at overtime rates.
Section XV, HEALTH AND WELFARE COVERAGE.
Respondent's proposal copied the Union's language on "life
insurance." and recited: "The Company shall continue in
effect the existing hospital and medical plans." Thompson
noted that benefits and required qualifications are not de-
scribed. Fastiff said he would look into the matter and he
asked Thompson to supply him with the Union's health and
welfare brochure if it had one.
Section XVI, GRIEVANCE AND ARBITRATION
PROCEDURES. Respondent proposed a three-step griev-
ance procedure ending in binding arbitration which differed
in language but not in substance from the Union's proposal.
Jordan asked if the Union's business agent could have two
employees in addition to the aggrieved employee with him at
grievance meetings and Kaiser replied that this could be ar-
ranged. Thompson had no objection to the section as
proposed by Respondent.
After going through Respondent's proposal in detail,
Thompson announced that the Union would continue to
stand on its original proposal until such time as Respondent
proposed something in closer conformity thereto.
Fastiff then described Respondent's practice of granting
individual wage increases and periodic general increases to
keep Respondent competitive with TRI-CO Almond Com-
pany of Chico, California, whose employees were represented
by the Teamsters Union. Thompson said he had no objection
to the practice and inquired whether Respondent had any-
thing in mind immediately. Fastiff replied that the general
wage increase would go into effect on July 1, but that the
Respondent wanted to put some individual increases into
effect immediately.' Kaiser described the specific increases
that he intended to effect. Thompson said that was O.K. with
him and Hein said, "In any wage increase, please don't forget
me."
Although Jordan testified on rebuttal:
Q. (By Mr. Salniker) Was there any discussion of a
general wage increase on April 15?
A. No, there wasn't,
I accord full credit to the testimony of Fastiff, particularly in
view of the fact that the union proposal contains the clause:
The Company may pay employees in excess of the wage
rates in Exhibit A provided written notice is given to the
Union. ,
5. Third negotiating meeting
On Wednesday, April 23, at 1 p.m., the same persons, with
the exception of Mrs. Boggs, met at the Studio Inn in Chico.
Emily Cody attended in Boggs' place. Fastiff again asked for
a wage proposal, and Thompson replied that he would get it
"when I am good and ready." Kaiser gave Thompson a copy
of Respondent's health plan. Fastiff then indicated, some
changes in Respondent's proposal. He listed seven reasons
which would cause a break in seniority, one of which was
"Failure to report for work at a specified time." Thompson
objected that this was too vague. He wanted a specified num-
ber of hours or days. Fastiff replied that "specified time"
meant a reasonable time and that "two calendar days" as in
the Union's proposal would work to the disadvantage of the
employee. Fastiff next indicated: "The company shall be the
sole judge as to the qualifications of any employees to perform,
work required by it." When Thompson protested, Fastiff an-
swered that during the rapid expansion at the beginning of
the processing season the supervisor needed the right to'
choose an employee to fill a specific spot based on his opinion
of the individual's qualification.
Fastiff inquired whether the Union wanted departmental
or plantwide seniority. The union committee started to argue
among themselves and Fastiff suggested that they settle their
private argument before the next bargaining session. Thomp-
son said he wanted separate seniority lists, one for men and
one for women. Fastiff answered that such a classification
would be illegal. Thompson 'replied that he had it in his
warehouse contracts and he wanted it in this one.
Fastiff agreed to delete the clause making the union stew-
ard responsible for the enforcement of the contract and
agreed to a 60-day probationary period as proposed by the
Union. There was further discussion of, showup time, man-
agement rights, holidays, picket lines, and union security
with no further agreement. Fastiff testified without contradic-
tion that during discussion of the management rights caluse:
I asked him, "why don't you take your proposal and go
caucus by yourself for awhile and see what you'think is
acceptable, see what you think may be acceptable, and
come back with a' counterproposal, that may embody
most of your proposals, perhaps some changes that may
be acceptable to the company?" '
And Mr. Thompson said, no, he would not do that.
He didn't need a caucus. He knew exactly what he
wanted, and the Union's only proposal would be their
original proposal.
And I said, "Well, you know, that's not going to be
good faith bargaining. We can't reach an agreement if
the Union is not willing-to make concessions." I stated
that the company was willing to make concessions, but
we expected the union to make concessions.
Mr. Thompson stated that his method of bargaining
was for the company to make concessions and for the
Union to reject company proposals.
I said, "you can't be serious? You have made your
original proposal. You haven't given us a wage proposal,
although you promised to give one. Would you please
CONTINENTAL NUT CO. 845
get together with the committee and give us a second
union proposal?"
And Mr . Thompson stated , no, he would not. He
would only stand on the original proposal.
During a break in the meeting Thompson took Fastiff aside
and said , "Let me call you for the scheduling of the next
meeting . Don't set a time at this meeting ." Fastiff agreed. As
the meeting was breaking up about 6 p.m. one of the em-
ployees asked when the next meeting would be. Fastiff re-
plied , "I don 't know , let Mr . Thompson and I get together."
When pressed with "Why can 't we schedule one now?" Fas-
tiff answered , "I don't have my calendar with me . I would like
to be able to check with my office first ." Thompson added,
"That 's fine . We will be in touch."
6. The "Off the Record" meeting
On Monday, May 5 , 1969, Thompson and Fastiff met with
Louis Goldblatt in Goldblatt 's office in San Francisco. Gold-
blatt is and has been since 1943 secretary -treasurer of the
Union 's parent International and has participated in hun-
dreds of negotiations . Thompson had called Fastiff a few days
after the April 23 negotiations in Chico and said that he
would like to have a private and "off the record" meeting.
Fastiff agreed to meet on condition that he be free to make
a complete report to his client. Thompson agreed.
After the introduction , and after Thompson told Goldblatt
that he was having trouble with Respondent concerning
negotiations , Goldblatt said to Fastiff:
Look, we know how to handle companies that give us a
hard time ... You can tell that company that we know
how to handle people like them , that we are just going
to bide our time and go through the motions now. We
know the processing season starts in September and
when you get geared up and into the processing season,
we are going to strike the plant . And not only that, we
control the docks on the entire West Coast of the United
States and we know the company exports a lot of its
products and ships those products by boat, and we will
picket any product that appears on the docks and tie up
any dock that attempts to handle any products from the
Continental Nut Company.
Fastiff answered that he hoped it would not come to that,
that there was still time to negotiate . The Company had made
concessions and was prepared to make more, but negotiations
should be a two-way street and there should be some conces-
sions made by the Union . Fastiff said that Mr. Stiefvater,
whom he described as the "owner" of the Company, was
philosophically opposed to requiring anyone to pay money
for the privilege of working for the Company, and asked,
"Would you be willing as a compromise to have a mainte-
nance of membership provision?" Goldblatt replied, "No,
absolutely no. We are not going to put that in any of our
contracts ." Fastiff persisted , "Would you like for me to write
one up and submit it?" Goldblatt answered, "No, don ' t waste
your time . Don't bother us with a maintenance membership
provision ... we know how to handle companies like Conti-
nental Nut." Goldblatt concluded with a threat in vulgar
terms to teach the Respondent a lesson "when it comes to the
processing season."
The meeting, which had lasted about three quarters of an
hour , concluded with Fastifl's statement that he would at-
tempt to continue negotiating and hoped that there would be
no strike.
7. Fourth negotiating meeting
The original committees , with only Mrs. Logan absent,
met at the union office in Broderick on May 27 , 1969, at 11
a.m. Fastiff asked if the Union had a wage proposal and
Thompson replied that it did not . Fastiff asked if the Union
had anything different to offer and Thompson replied that the
Union stood on its original proposal. Fastiff asked if the
Union had decided whether it wanted plantwide or depart-
mental seniority . Thompson answered that they wanted de-
partmental seniority , and Fastiff replied : "Fine, the Company
accepts that . That's as least one area of agreement." Thomp-
son continued : "I want three departments for men and four
or five departments for women ." Fastiff reminded Thompson
that such a classification would be illegal and the subject was
dropped.
Fastiff described the different types of union -security
clauses and asked if the Union would be interested in any-
thing other than a 30-day union shop . Thompson answered,
"I am not going to budge from my original proposal." There
followed a discussion of "call in time, " "management rights"
and "subcontracting" with no change in the position of either
party . On the discharge clause , Fastiff offered the Union its
choice of two concluding "catchall" phrases, either , "other
cause" or "other just cause." Thompson said "absolutely no,"
he would not have either phrase in the contract.
After a luncheon break of 1 hour Thompson acceded to
Fastiff's demand that he make a wage proposal by reading
aloud the rates in a Dry Fruit Processing agreement between
a different I.L.W.U. local and employers in Santa Clara and
San Benito Counties . Thompson was unable to relate any of
those rates to employees in Respondent's operation. Fastiff
suggested that they use the TRI-CO contract with Teamsters
as a wage guide. Thompson replied that he was not interested
in Chico wage rates or Chico conditions . He planned to raid
TRI-CO and knock the Teamsters out of there and to use his
contract with Respondent to organize the Duche Nut Com-
pany.
The afternoon was devoted to further discussion of union
security , pensions, medical plans, subcontracting , manage-
ment rights, picket lines , and meal periods , with each party
holding fast to its original position and no agreement on
anything . Fastiff said he would prepare a second complete
contract proposal, mail it to the Union , and meet again after
the Union had a chance to study it . There was no voiced
dissent. The meeting adjourned about 5 p.m.
8. Fifth negotiating meeting , Respondent 's second contract
draft , the general wage increase
On June 12 , 1969 Fastiff mailed to Thompson several co-
pies of a complete contract draft . The management-rights
clause was strengthened by adding the right to sell all or part
of the plant or equipment and the right to limit or curtail
production . Maintenance employees were specifically ex-
cluded from the guarantee of 2 hours ' minimum pay for any
employee called to work . A new and detailed clause, entitled
"DISCHARGES" recited , inter alia:
The Company shall have the right to discharge any em-
ployee for insubordination , violation of the Company's
house rules (which shall be conspicuously posted at the
plant), drunkenness , incompetence or other cause.
The proposal contained a radically revised seniority clause,
as follows:
Section IV SENIORITY The Company and the Union
recognize the principal of seniority . In this regard, the
Company shall establish seniority on a departmental ba-
sis in the following departments:
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Almonds
2. English
3: Inshell
4. Special Processing
5. Sampling
6. Heavy Duty
Layoff and recall, because of work requirements, in the
above-named departments shall be on a seniority basis.
For example, the last man hired shall be the first man
laid off, and in rehiring the last man laid off shall be the
first man rehired. However, this procedure shall not be
followed where the layoff or recall involves an employee
who is not the best qualified to do the available work.
The Company shall be the sole judge as to the qualifica-
tions of any employees to perform work required by it.
This provision shall not prevent the reference of any
disputes `concerning seniority to the grievance machin-
ery set forth in this agreement.
The Union recognizes that the Company may operate its
business in a manner which it believes to be the most
efficient for its operations. In this regard, seniority shall
not interfere with the right of the Company to operate
its business in an efficient manner.
Seniority shall be broken by any of the following:
1. Voluntary quit
2. Discharge for cause
3. Failure to report for work at a specified time (unless
excused by the Company)
4. By refusing employment when offered
Description 1969
Maintenance 2.72--3.45
Shellermen 2.72--3.20
Lift Driver 2.62--3.20
General Labor 2.62--2.67
Hiring Rate 2.52
Eye Operators 2.38
Sorters 2.27
Hiring Sorters 2.19
5. Failure to report for work after a leave of absence
6. Failure to work 700 hours in a calendar year
7. Twelve consecutive months without employment
with the Company for any reason.,
The clause making the steward responsible for enforcement
of the contract was omitted. A clause obligating Respondent
merely to notify the Union of the names of new hires without
cost to the Union was substituted for the clause requiring
Respondent to supply much more detailed information at the
Union's expense. The amount of life insurance to be furnished
by Respondent was increased from $1,000 to $2,000: Over-
time pay after 8 hours in any 1 day was added to the offer to
pay overtime only after 40 hours in any I week. One holiday,
Labor Day, was added, making a total of seven. New clauses
were added covering sick leave, funeral leave, vacations,- and
wages. The wage proposal was:
All wage rates in effect as of June 30, 1969, are to be
increased twenty-one percent (21%) over the term of
this agreement, as set, forth in Exhibit "A" attached
hereto. This increase is to be made in three (3) payments
at one-year intervals.
Clauses relating to "Recognition," "Coverage," "Business
Agent," "Meal Period," "Bulletin Boards," "Grievance and
Arbitration," and "No Strikes, No Lockouts" were copied
from Respondent's initial contract proposal.
At the beginning of the fifth meeting, Monday, June 30 in
Broderick, Jordan stated that he had not received "Exhibit
A" to Respondent's proposal of,June 12, and Fastiff dis-
tributed copies of the following:
1970 1971
2.89--3 . 68 3.06--3.91
2.89-3.41 3.06--3.63
2.79-3.41 3.06--3.63
2.79--2. 84 2.96--3.01
2.69 2.86
2.53 2.68
2.44 2.59
2.34 2.49
Respondent's second proposal was then reviewed in detail.
Thompson rejected the seniority clause on, the specific
grounds (1) that the words "sole judge", nullified the griev-
ance procedure, (2) that loss of seniority for failure to report
by a "specified time" was too indefinite, and (3) that the
requirement that an employee work 700 hours to acquire-
seniority was too restrictive. When Thompson objected to the
inclusion of the right to subcontract in the management
rights clause, Fastiff replied that this was in the TRI-CO
contract. Thompson answered, "if Mr. Fastiff were suggest-
ing the TRI-CO contract in its entirety, that Mr. Fastiff had
a deal right now, that we would accept it." (The TRI-CO
contract made union membership a condition of employment
after 30 days.) The suggestion was rejected by Fastiff.
Thompson rejected the clause on "hours and overtime" on
the ground that all work on Saturday and Sunday should be
at overtime rates. Thompson agreed to the seven holidays
proposed by Respondent but rejected the clause on the
ground that eligibility was restricted to employees scheduled
to work before and after the holiday within a 5-day spread.
Thompson rejected the section on minimums, stating that all
employees, including maintenance men should receive a
minimum of 4 hours "call in pay." Thompson repeated his
objections to Respondent's picket line clause with specific
reference to its penalty provisions. At the conclusion of this
review, accepting the testimony of Fastiff, there occurred the
following colloquy:
Mr. Thompson stated, "I reject everything that you
have put on the table."
I said, "Every thing we have already reached an agree-
ment on? There's a number of items, and even though
there may be minor objections on those items, we have
reached an agreement on them."
He said, "I reject everything. I am going to stand on
my original proposal."
CONTINENTAL NUT CO. 847
He said, "I will go one further. I propose that we -have
two contracts, one for seasonal employees and one for
regular employees."
And I said, "This is the first time you have ever raised
that."
I said, "Do you have a proposal in that regard?"
Mr. Thompson said, "No, I don't have any proposal.
I just thought of it."
I said, "Are you serious?"
He said, "Yes, I propose two separate contracts."
He said, "You can have your choice of two separate
contracts or my original proposal."
I said, "What about the company's proposal?"
He said, I don't want to look at it. I reject it all. I don't
find anything worthwhile in it."
And I said, "What about some union concessions?"
Mr. Thompson answered, as he had answered in the
past, "It is up to the company to concede and the union
to reject."
*
I said, "What about the company's wage proposal?
You haven't even discussed that."
And he said, "Well, the wage proposal isn't bad but
we want more improvements on the wage proposal."
I said, "Would you like to caucus? Why don't we
break up for a minute and you discuss the company's
proposal? ... and see if there is some type of area where
agreement can be reached."
He said, "I don't want to caucus ... I have rejected
that proposal before and I am rejecting it now. As far as
I am concerned, That's the end of that proposal, and the
only thing on the table, as far as I am concerned, is the
union's original proposal."
Again, I said, "you realize you are bringing us to an
absolute impasse at this point?"
He said, "I realize what I am doing. I reject your
proposal. That's all. That is the only thing I have to say
to you, and we are only willing to have the union's
original proposal."
Fastiff then announced that the Company intended to put
into effect a general increase on the following day. Fastiff
testified:
Mr. Thompson said that he did not want the company
to put the wage increase into effect.
I said, "But you have already told us that we could put
it into effect and, furthermore, you have brought these
negotiations to an absolute impasse to date. We have the
legal right to do it."
Mr. Thompson said, "Don't tell me what legal rights
you have. I don't want you to put that into effect."
And I answered that it was the company's intention
to put the wage increase into effect for two reasons: One,
to keep the company competitive in the Chico area with
regard to the labor market; and two, that we have the
legal right to put it into effect because of the absolute
stalemate and impasse in the negotiations.
Fastiff asked Thompson if he would be willing to have
another meeting. Thompson replied in the affirmative but
stated that he was leaving on his vacation on July 4 and would
be in the mountains where he could not be reached. Fastiff
said he would be on vacation from July 12 to July 26. It was
agreed that Fastiff and Jordan would confer by telephone
prior to the 12th to set a date for the next meeting.
On July 1, 1969, Fastiff wrote to Thompson:
In accordance with our discussion during yesterday's
collective bargaining negotiations, I wish to inform you
on behalf of the company that it intends to put into effect
a wage increase for its employees. The purpose of such
an increase is, as we noted yesterday, to keep the com-
pany in a competetive position with regard to the availa-
ble labor market in the Chico, California, area.
The wage increase is not intended to interfere with
your union's ability to negotiate on behalf of the com-
pany's employees, nor is it intended to preclude you
from negotiating further concerning additional wage in-
creases.
Under date of July 2, 1969, Thompson replied:
. our local union is not in agreement with the position
of your company in granting wage increases during the
course of negotiations for a contract.... We are also
opposed to the stated increase ... as being grossly inade-
quate and out of line with the true state of wages in the
Industry as a whole ... we are requesting immediate and
continued negotiations beginning with the week of July
7th....
Under date of July 3, 1969 Fastiff wrote to Thompson:
. As you are aware, our major competitor in the area,
the TRI-CO NUT COMPANY, will put a wage increase
into effect on July 1 and it is necessary for the Continen-
tal Nut Company to similarly adjust its wages, if it is to
have employees available for work.... The company
would be pleased to meet with you to discuss additional
wage increases, or any matter on negotiations that you
wish to discuss. During our last meeting you informed
me that you would be on vacation during the week of
July 7 and I also informed you that I would be going
back to the East Coast for two weeks beginning July 12,
1969.
On the same date, Thursday, July 3, 1969, Respondent
notified its employees:
Continental Nut Company during the past month has
been bargaining in good faith with the union and has
offered the union a very excellent contract, complete
with wage increases and benefits which the union nego-
tiating group has not accepted to date.
Since it has been a custom of your company to review
all wages July 1 of each year, in order to keep your wage
scale on a par with wages for equal type of work in the
area, we are following the same procedure and giving an
increase effective July 1, 1969.
Similar notices had been distributed by Respondent on
June 30, 1966, June 30, 1967, and June 30, 1968.
On July 9, 1969, Fastiff and Jordan in a telephone conver-
sation agreed to meet on Tuesday, July 29. When Fastiff
returned from his vacation he telephoned the plant and
learned that Kaiser was on vacation. He then telephoned
Jordan, advised him of Kaiser's absence, and stated that he
was still willing to have the meeting but would be agreeable
to a postponement if that was what the Union wanted. Jordan
replied that he would prefer to await Kaiser's return, and
they agreed that the next meeting would be held on August
13. In the same conversation Fastiff asked Jordan if a mainte-
nance of membership provision would be acceptable to the
Union and Jordan replied that he did not know.
9. Sixth negotiating meeting
On Wednesday, August 13, 1969, the committees, with
Murgia absent, met at the Studio Inn, a motel in Chico at 1
p.m. Fastiff dictated minor language changes in Respondent's
second contract proposal, and also, under the health and
welfare clause, offered to place in effect a dental plan. Thomp-
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
son said, "It was about time the company did something."
Fastiff then explained for the benefit of the entire union com-
mittee the different types of union-security clause, i.e. 30-day
union shop, maintenance of membership, and agency shop.
Fastiff then stated that he wished to officially and formally
put on the table a proposal for a maintenance of membership
clause that Respondent would like to have in the contract and
offered to write one out so it could be considered and dis-
cussed. Thompson rejected the offer with the words, "No,
absolutely not." Jordan said the Union would not consider a
maintenance of membership provision in the contract. Mrs.
Logan said, "Don't waste our time with this maintenance of
membership. We want the union shop provision and we won't
consider anything else." There was further discussion of holi-
day eligibility, call-in pay, subcontracting, and Saturday and
Sunday overtime with no agreement. At the conclusion of the
meeting Fastiff announced that he would prepare a last and
final offer and was willing to meet and negotiate until they
either reached a final agreement or a definite impasse. The
next meeting was set for Tuesday, August 19, 1969, at the
union office in Broderick.
10. Seventh negotiating meeting, Respondent's third
contract proposal, Respondent's offer of improvements in
its health insurance program
On Tuesday, August 19, 1969, the full committees met at
the union office in Broderick. Fastiff presented Respondent's
third contract proposal. This incorporated the changes in
language` dictated by Fastiff at the sixth meeting and omitted
from the seniority clause the following language:
The Union recognizes that the Company may operate its
business in a manner which it believes to be the most
efficient,for its operations. In this regard; seniority shall
not interfere with the right of the Company to operate
its business in an efficient manner.
The section on wages recited merely:
All wage rates are as set forth in Exhibit "A" attached
hereto.
The wage scale differed from that set forth in the schedule
presented on June 30 only by increasing the 1969 sorter's rate
by 2 cents per hour. In other respects Respondent's second
and third contract drafts were identical.
Thompson repeated his specific objections to Respondent's
proposal. He noted the absence of any union-security lan-
guage. Fastiff repeated his offer to include a maintenance of
membership clause and Thompson again rejected the offer.
After discussion of these specific objections Fastiff asked if
the Union had any counterproposals. Thompson replied that
the Union stood on its March 7 proposal. Fastiff then an-
nounced that Respondent did not intend to make any more
proposals unless he could get some type of agreement or some
concession from the Union. Failing that, this was Respond-
ent's last and final offer. Thompson announced that he would
take the Respondent's proposal to the union membership but
would not recommend approval. There was no mention of
any further meeting for negotiations.
Under date of August 22, 1969, Kaiser wrote to Jordan:
We are making two adjustments in our health insurance
program and they are as follows:
1. We will increase the hospital extras for employees
from $240.00 to $1,000.00.
2. We will increase the major medical maximum to
$20,000.00 lifetime with $1,000.00 automatic restate-
ment.
Please make these changes in the contract. The dental
plan will be $100.00 with an 80%-20% basis up to
$1,000.00-maximum with orthodontal coverage on a
50-50 basis.
If you need additional information, please let me know.
D. Stiefvater's Meetings with Employees
During the last week in August 1969, bargaining unit em-
ployees were called to Respondent's conference room in
groups of 8 to 10. There were 17 to 20 separate meetings.
Stiefvater and Kaiser attended all meetings and William At-
tinger was present at some. At the beginning of each meeting
Stiefvater announced that Kaiser was leaving the Company
and that Mr. Attinger would be acting plant manager. Stief-
vater then read two prepared speeches, as follow:
SPEECH BY G.W.S. TO CONTINENTAL NUT EM-
PLOYEES WITH REGARD TO WAREHOUSE
UNION LOCAL NO. 17
I have asked you to meet with me for a few moments
so that I can explain to you the company's position and
feelings concerning the proposed union contract for
some of our employees.
I am sure that most of you are aware that the company
has been meeting with representatives of Ware-
houseman's Union Local 17 for approximately 6 months
in an attempt to work out a mutually acceptable collec-
tive-bargaining agreement. Throughout these negotia-
tions the company has taken the lead to provide propos-
als and to make suggestions for a contract.
The company's proposals, we believe, have been rea-
sonable from the start and we have attempted to put
forth in writing what we believe are substantial benefits
for our employees.
So that you are fully familiar with the company's
proposals I have prepared for distribution to you this
fact sheet concerning the benefits the company has off-
ered and which we are ready to put into effect immedi-
ately. The company proposal, in summary, provides for
the following:
1. Seniority
A seniority system whereby an employee's length of
service will be recognized as one of the criteria consid-
ered with regard to layoff, recall, promotion, transfer,
and assignment of work.
2. Overtime:
The payment of overtime for all hours worked in ex-
cess of eight hours in a work day and 40 hours in a work
week.
3. Union Visits.-
The company has proposed that the union have easy
access to the employees in the plant and may visit the
plant in order to consult and meet with employees in a
reasonable manner and at reasonable times.
4. Holidays:
We have proposed seven paid holidays. Those holi-
days include the following: New Year's Day, Good Fri-
day, Memorial Day, Fourth of July, Labor Day,
Thanksgiving Day and Christmas Day.
Holidays occurring on a Sunday would be observed on
the following Monday and holidays occurring on a
Saturday will be observed either on the Saturday or on
Friday. The company has also provided that if a holiday
falls during an employee's vacation period, such em-
ployee will receive an extra day's pay or an extra day of
vacation.
5. Minimum Pay: -
We have agreed to provide a minimum number of
hours of work for employees who are called in. An em-
ployee who is called to work shall receive at least two
hour's pay whether or not he or she is asked to perform
services. Similarly an employee who is called in and is
put to work will be guaranteed a minimum of four hour's
CONTINENTAL NUT CO.
pay whether or not he or she is asked to work for the full
four hour period.
6. No-Strike-No-Lockout.-
The company's contract also includes a no strike and
no lockout provision which means that during the term
of the contract, you can rely on having an uninterrupted
opportunity to perform work for the company without
the interruption of strikes or lockouts.
7. Life Insurance:
The company will continue $2,000 of life insurance for
all eligible employees, and will continue in effect it's
hospital and medical program. Also, the company is
very pleased to announce that it will put into effect a
dental program for those employees covered under the
hospital and medical plan.
8. Grievance and Arbitration:
The company's contract proposal provides for a griev-
ance and arbitration procedure so that if anyone feels he
is not treated fairly or feels that he has a grievance, that
complaint or grievance may be processed in an orderly
manner to a speedy resolution.
9. Sick Leave:
We have also proposed a sick leave plan where em-
ployees will be entitled to five days of sick leave with pay
per year.
10. Funeral Leave:
The company has a funeral leave proposal. This
means that if an employee has a death in his immediate
family, he shall, upon request, be granted time off with
pay up to three days to make the necessary funeral ar-
rangements concerning a family death. This leave is
available for death of a father, mother, sister or brother
and also includes mother-in-law and father-in-law.
11. Vacations:
The company has expanded and improved its vacation
program by providing for one week's vacation after one
year, two weeks after five years, and three weeks after 15
years with only a 1200 hours of qualification in order to
be entitled to a stated amount of the stated vacation
period.
12. Wages:
We are also attaching to the summary, a wage
schedule which, we believe, is the best in the nut industry
in the Chico area. Ask your friends and compare.
I ask you to study very closely this summary of the
company's contract proposals. I believe that our propos-
als are very reasonable and very beneficial to every em-
ployee. We have never been a company that attempted
to deprive our employees of the good wages and benefits
and we believe that our current proposal demonstrates
that this is still one of the best places to work in the
Chico area.
This company has provided many of you good em-
ployment opportunities for many years. Many of us have
been here for quite a while and know that as the com-
pany has grown we have attempted to increase and pro-
vide better wages, and working conditions for you. This
has not been brought on by the union or because of the
union but because it is our philosophy to do the best we
can for all of you, without regard to what your feeling
is concerning whether or not you want to have a union.
We hope that we may put these benefits into effect as
soon as possible.
If you have any questions, please let us know and I
will do my best to answer them as soon as possible.
I thank you very much for coming to this meeting and
giving me the opportunity to explain the company's
proposals.
849
ANSWER TO QUESTION WITH REGARD TO UNION MEMBERSHIP
It has come to my attention that certain employees
would like to know whether or not they have to join the
union, or if they have joined whether it is possible to
resign from the union.
I have referred this question to our attorneys and they
have informed me of the law of your rights.
First of all, before discussing the law, I would like to
tell you a little bit about my personal philosophy. It is
my belief that every employee should have the right to
work whether or not he wishes to belong to a union.
What I mean by this, is that if you want to belong to a
union that is your business but if you do not want to
belong to a union that also is your business and either
way should have no bearing whatsoever regarding your
ability to take a job and to hold a job. I do not believe
that a company has the right to deny employment to an
employee because the employee wants a union and simi-
larly I believe that a union should not have the right to
deny employment to an employee simply because that
employee does not want to join the union. This is my
philosophy and I think it is a fair and honest one. Every
employee should have the right to work and provide for
his family without regard to whether or not he belongs
to a particular religion or whether or not he wants to join
or does not want to join a union.
I have instructed the company representatives to in-
form the union that as far as the company is concerned
all employees are welcome to work here and their ability
to do their job shall be the only requirement for employ-
ment. The company's philosophy as set forth in contract
proposals to the union provides that employees need not
and I state again , need not join the union at any time.
This is a personal matter, up to each individual em-
ployee.
It has come to our attention that many employees
have been misinformed concerning the question of
whether or not they had to join the union. The answer
is clear: You do not have to join the union in order to
work for Continental Nut, however, if you want to join
the union, that is up to you. You do not have to join the
union at any time as far as the company is concerned.
It has also come to our attention that a number of
employees have been led to believe that they had to join
the union and now those same employees would like to
know if they can resign from the union. The company
does not wish to influence you in any way, however, in
order to answer the question which certain employees
have asked us concerning how do you get out of the
union once you have joined-our attorneys have in-
formed us that this may be accomplished by sending a
letter to the union telling it that you are resigning your
membership. Your resignation as far as we understand
would immediately become effective and you need not
pay any fees, dues or other assessments or payments to
the union. This is a voluntary matter and the company
takes no position one way or other. If you want to be a
union member you can be one, however, if you want to
leave the union you have every right in this democratic
society of ours to resign.
In summary, I would like to state again that my
philosophy is that in the United States of America no
employee should be denied employment because he
wants to join a union or he does not want to join a union.
That is a personal matter and employment rights should
depend on the desire of the employee to put in a day's
work and nothing else. We will do everything we can to
insure that you have the right to work here without
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regard to your personal preferences concerning union
membership.
If you have any questions concerning your rights or
the law as it applies to you, please let me know and I will
try to get the answer for you as soon as possible.
Kaiser then read the following prepared speech:
HOSPITALIZATION PLAN
You will hear much said concerning hospital plans,
but you must understand the basic philosophy underly-
ing each program before passing judgment.
The union wants the cost covered, such as each doctor
call in minor things, while Continental Nut Company
wants to protect our employees against the catastrophy
and as such our program is geared that way. For exam-
ple, Continental Nut Company has a $20,000 maximum
payment under major medical while the union has only
$10,000. Continental Nut Company gives each and ev-
ery employee and dependent one year to accumulate
$100 for the deductible after which the plan pays 80%
while the employee pays 20%. This is contrasted to the
union that allows the employee only 90 days to accumu-
late the $100 and requires each dependent to accumulate
$200 in 90 days before the union plan will pay the 80%.
As you can see this certainly is a broader base for Conti-
nental employees.
The company has $300 to cover supplemental acci-
dents such as a child or an employee falling out of a tree,
while the union has nothing to cover this segment.
The union plan has some coverage that they feel is an
asset, such as $2,000 for polio, yet one must remember
that there were only 8 cases of polio reported in the U.S.
during 1968. Continental Nut Company would cover
this if this happened under its major medical which
would pay 80%.
Continental Nut Company under its plan offers $2,-
000 worth of life insurance while the union plan offers
$1,000.
Much might be said concerning the daily hospital rate
which the union has a rate of $30 a day while Continen-
tal's rate is $16. It must be remembered that anything
over $16.00 per day is covered by the major medical
which pays 80%. In addition, the average hospital stay
in the U.S. is 5 days. For a private room, the union
allows a semi -private while the Continental plan allows
a high semi-private rate.
The Continental plan is good and better than most
plans in the industry today. The union might point out
certain specific areas but overall our plan is better for our
employees since we feel that our employees want protec-
tion against catastrophy.
We have recently offered the union a dental plan. This
plan would be on the basis of $100 deductible and would
be combined with the medical deductible. This plan after
the $100 would pay 80% and would include or-
thodontia. The present union plan does not cover or-
thodontia and pays only 73% of any bill up to a max-
imum that is allowed on their schedule. For example, if
you go to a dentist and want to have your teeth cleaned,
the union plan will pay 73% of the $9.00 allowance for
cleaning of teeth. Under the Continental plan, after you
have reached $100 our plan would pay 80% of any bill
you get. The Continental plan would allow employees to
specify gold if they so desire while the union plan is
directed toward amalgamated silver fillings. In the or-
thodontia area the Continental plan will pay 50% of any
expenditures up to a maximum of $1,000 a year while the
union plan covers none of this.
Because of the above, we feel that again Continental
Nut Company has offered its employees a far superior
plan to anything the union has been able to come up
with.
On the conference table and available to employees at these
meetings was a stack of mimeographed copies of a letter from
Fastiff to Stiefvater dated August 22, 1969, and reciting:
In answer to your request, I will attempt to summa-
rize the matters we discussed in our recent telephone
conversation.
1. Generally a member of a union can withdraw from
union membership by merely telling the union that he no
longer wants to belong. A certified mail letter, return
receipt requested, in which the employee tells the union
he is voluntarily withdrawing from the union, is gener-
ally all that is required.
2. If an employee has a husband, wife, or other relative
who belongs to a union, that union cannot lawfully take
any action against the husband, wife or other family
member in the event the employee does not join a union
or withdraws from a union.
3. Where a union and a company are negotiating a
contract and the union has a vote on the company's
contract proposals, the law requires that the other em-
ployees who would be covered by the union contract but
who do not belong to the union must be allowed to vote
the same as the union employees. In our opinion it would
be a violation of the'National Labor Relations Act if the
union did not allow such non-union employees to vote
while at the same time allowing union employees to vote.
If you have any questions concerning the above opin-
ions, please do not hesitate to call.
At these meetings Stiefvater did not confine himself to the
printed text, and discussion was encouraged. At a meeting
attended by employees Boggs and Lockhard and at the meet-
ings attended by employees Stasenski , Peters, Robinson, and
Spencer, Stiefvater stated positively that the benefits offered
to the Union would be put into effect whether or not the
Union decided to accept Respondent's contract offer.
E. Union Meetings Preceding the Strike
On Friday, August 29, 1969 the Union distributed the
following bulletin:
To all Production Workers of Continental Nut Com-
pany Chico, California
We urge your attendance at a meeting of all
Production Workers which will be held at 1010 Broad-
way in Chico (Telephone Workers' Meeting Place) on
Thursday, September 4, 1969 at 7:30 P.M.
A full report on the Company's offer will be made at
this meeting and a decision to accept or reject the offer
will have to be made by the employees. Other decisions
will also be on the agenda, so it is important that every-
body attends this meeting.
At the opening of the meeting on September 4, with about
130 employees in attendance, Thompson listed the
"inadequacies" in Respondent's contract offer as follows:
1. No union security language.
2. The discharge clause permitted Respondent to cir-
cumvent the grievance clause.
3. Restrictions in the seniority clause denied rights to
many employees.
4. The management rights clause gave the company the
right to punish employees for respecting a legitimate
picket line:
5. No automatic overtime for Saturday and Sunday
work.
CONTINENTAL NUT CO. 851
6. No minimum call in time for maintenance workers.
7. Qualifications for health and welfare eligibility were so
restrictive that very few employees could qualify.
Thompson concluded with the statement that "the con-
tract was not offering much to the Continental Nut em-
ployees and therefore recommended nonacceptance," and,
"he wanted a vote of acceptance or rejection of the contract
and he also wanted to take a strike vote."
Murgia announced that the union had checked with the
National Labor Relations Board and that "only the union
members will be able to vote."
The strike vote was taken on the following secret ballot:
STRIKE BALLOT
ARE YOU IN FAVOR OF EMPOWERING YOUR
UNION'S NEGOTIATION COMMITTEE TO
TAKE STRIKE ACTION IF A SATISFACTORY
AGREEMENT CANNOT BE REACHED?
YES NO
The results were YES 76, NO 24. A vote was then taken by
show of hands on "whether we want Continental Nut's con-
tract." The union minutes show that 14 persons favored ac-
ceptance and the "vast majority" were opposed.
Respondent was not officially advised of the Union's ac-
tion, nor did the union request any further negotiation meet-
ing.
Under date of September 9, 1969, Fastiff wrote to Thomp-
son:
We recently discussed the fact that the plant manager
at the Continental Nut Company has resigned and a new
plant manager will arrive soon. The company intends to
afford the new plant manager an opportunity to review
the entire collective bargaining situation and is inter-
ested in his views concerning a contract. Therefore, as an
impasse has been reached, I think it would be advanta-
geous to both parties to allow the new plant manager to
review the status of collective bargaining and to present
his ideas to the company. I do not know the exact date
of the new plant manager's arrival. However, as soon as
I am informed of that date I will contact you so that we
can meet at an early date in an attempt to resolve this
matter.
In the interim if you have any questions please contact me.
Thompson did not reply.
Under date of September 12, 1969, Fastiff wrote to Thomp-
son:
As an impasse has been reached in the collective bar-
gaining negotiations between the company and the
union, I wish to inform you on behalf of the company
that it intends to put into effect, where applicable, its last
contract offer.
The company is, of course, eager to resolve our
present impasse and although we believe it would be
advantageous to have the new plant manager attend any
future meeting, the company is willing to meet before
that time if you believe that such a meeting would be of
value.
If you have any questions or would like to discuss
these matters further, please contact me.
Thompson did not reply.
On Monday, September 15, the Union membership met at
the Communication Workers hall in Chico. Thompson read
to the meeting Fastifl's letters of September 9 and September
12 and
stated that up to this point he hadn't been able to make
any arrangements to have any meetings with the com-
pany, and a conciliation service, and therefore he felt
that the company would not wish to meet at this particu-
lar time, because of at least one reason being that they
changed management at the plant.
Murgia recommended an immediate strike on the ground
that the nut harvest had just started, and was seconded by
Hine and Boggs. The membership decided by show of hands
to strike Respondent the following morning, Tuesday, Sep-
tember 16, 1969.
F. Developments During the Strike in Chronological Order
Tuesday, September 16
Strikers massed at Respondent's entrance. About 40 of the
approximately 200 employees who had worked on Monday
went through the picket line. There were two new hires.
Respondent sent an individual letter to each absent employee
announcing that if he or she did not return to work by Thurs-
day, September 18, at 8 a.m. Respondent would hire a re-
placement for him or her.
Wednesday, September 17
There were eight new hires. Respondent issued a bulletin
announcing: "This is to inform you that all wages and condi-
tions of the contract offered will be effective as of September
15, 1969."
Thursday, September 18
There were nine new hires. On this approximate date, Stief-
vater inquired of employee Mary Robinson on the picket line,
"Do you know why you people are out here?" Robinson
answered, "Yes, we are out here for a union shop." Stiefvater
replied, "You will walk out here until Hell freezes over." The
local newspaper carried a story quoting Murgia as saying that
the Union was willing to negotiate.
Friday, September 19
Stiefvater wrote and hand delivered to Murgia on the
picket line a two-page letter concluding with the sentence,
"The scheduling of a meeting, as you can well understand
from the contents of this letter, rests squarely on the shoul-
ders of the Union." There were seven new hires.
Saturday, September 20
One new employee was hired. At or about 8:30 a.m.
Murgia telephoned Stiefvater and said as far as he knew the
Union was ready to bargain, and Stiefvater asked him to get
the Union committee together. Stiefvater telephoned Fastiff
and asked him to call Murgia. Fastiff called the Union office
and, receiving no answer, telephoned Murgia and asked him
to get word to Thompson that Fastiff wished to speak to him.
Thompson telephoned Fastiff and they agreed to have a meet-
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing on Monday, September 24, in Chico. On the same date,
September 20, Thompson mailed a letter to Fastiff requesting
an immediate meeting.
Monday, September 22
There were seven new hires. (One employee had been hired
on the 21st). The Union picketed a load of Respondent's nuts
at the yard of the trucking company Valley Copperstate Sys-
tems, which had taken the nuts through the primary picket
line. The negotiating committees met at the Studio Inn. The
Union was represented by its full committee. Respondent was
represented by Stiefvater, Attinger, and Lieber, an attorney
associated with Fastiff. Lieber missed his plane and being
compelled to drive from Oakland was more than 3 hours late.
At the opening of this meeting, (the 8th) Lieber suggested
they review the parts of Respondent's August 19 proposal on
which agreement had been reached. Thompson threw the
document at Lieber, stating, "I don't want any part of your
contract." Thompson then proceeded to read aloud, word for
word, the Union's proposal of March 7, 1969. There was only
one interruption. On the subject of union security, Stiefvater
interjected that he did not think that anyone should have to
pay to work for Respondent. The reading was concluded
about 4:30 and the parties agreed to continue their meeting
at 10 a.m. the next morning.
On the same day, September 22, Fastiff filed at the Board
office in San Francisco a "Motion to Revoke Certification" on
the ground that the Union by denying to nonunion employees
in the bargaining unit the right to vote on Respondent's
contract proposal, and denying the right to vote on whether
there should be a strike, had violated its statutory obligation
to represent, without discrimination, all employees in the
bargaining unit. (c.f. Hughes Tool Company, 147 NLRB
1573, 1577).
Tuesday, September 23
One new employee was hired. Union pickets followed a
truckload of Respondent's nuts to Oakland. The meeting for
negotiations convened at 10 a.m. The Union was represented
by its same committee. Respondent was represented by At-
tinger and Lieber. The Union and the Respondent's proposals
were compared. The matters discussed were union security,
Saturday and Sunday overtime, holidays, meal periods, and
the picket line clause. Lieber said he would take a look at
Sunday overtime but would make no promises. Thompson
said that the Union wanted a union shop, but if Respondent
put some other form of union security on the table, the union
would look at it. Lieber replied, "All right, I will see if any-
thing can be done." Negotiations were recessed to Thursday,
September 25.
Wednesday, September 24
There were no new hires. Fastiff filed a charge at the Board
office in San Francisco alleging that the Union was engaging
in a secondary boycott in violation of Section 8(b)(4)(i) and
(ii)(B) of the Act.
Thursday, September 25
There were seven new hires. The bargaining committees
met at 1 p.m. Respondent was represented by Stiefvater,
Attinger, and Fastiff. The Union was represented by Jordan
and the employee committee. Before the meeting started Fas-
tiff told Jordan that he also represented Valley Copperstate
Systems. Valley had picked up six trailerloads of nuts with
supervisors driving. The nuts were consigned for export from
San Francisco and the trailers were immobilized by the
Union's pickets at Valley's terminal in Oakland. Fastiff as-
sured Jordan that if the Union would permit Valley to unload
the trailers it would do no more business with Respondent.
Jordan replied that he was without authority and was unable
to reach Thompson. In formal negotiations, Fastiff offered to
substitute the words, "other just cause" for the words "other
cause" in the discharge clause of the contract, and Jordan
indicated agreement. Stiefvater offered to reduce the qualify-
ing period for health plan eligibility from 1,200 hours to 1,000
hours. Fastiff said he was still willing to propose a mainte-
nance of membership clause and Jordan said, "We are not
interested in a maintenance of membership provision." Fastiff
said that Respondent would agree to the vacation plan of the
TRI-CO contract if the Union preferred that to Respondent's
proposed plan. Stiefvater said he would take the matter of
Sunday overtime under advisement. Other matters discussed
were holidays and call-in time. Fastiff announced that he had
been in touch with Tom Nicolopulos, a conciliator in the
Department of Labor of the State of California, and if the
Union had no objection he would set up a meeting in the
Conciliator's office in San Francisco. Boggs said she liked the
idea. Jordan told Fastiff he should call Thompson if he
wanted the date confirmed.
Friday, September 26
Five new employees were hired. A mimeographed letter
signed by Stiefvater was distributed to all employees , reciting
in part:
We have continued to meet with the union in an attempt
to resolve all issues concerning a contract ... one area of
controversy is the issue of union shop ... we have noth-
ing against a union nor do we have any objection to our
employees joining a union if they so desire. However, we
feel we have a similar responsibility to our employees
who do not wish to join a union .... Certainly the com-
pany will not interfere or try to coerce any of its em-
ployees concerning his religious convictions or his union
convictions . We would hope that your negotiating com-
mittee and the union would take a similar position and
allow each and everyone of our employees to decide for
himself whether or not he wishes to be part of the union.
Tuesday, September 30
Conciliator Nicolopulos telephoned Fastiff and told him
that the Union refused to meet in San Francisco . After check-
ing with Stiefvater, Fastiff reported to Nicolopulos that Stief-
vater's schedule required him to be in San Francisco the
remainder of that week , and if the Union still refused to meet
there, Respondent would meet on any date, time , or place on
or after October 6.
Thirty-two new employees were hired between and includ-
ing the dates , September 27 and October 5.
Monday, October 6
Three new employees were hired . Nicolopulos wrote to
Thompson and Fastiff confirming telephonic agreements to
meet for negotiations at the El Rancho Motel in West Sac-
ramento on October 10 at 2 p.m.
On or about the same date Stiefvater and Murgia had a
private meeting at Sandy's Coffee Shop in Chico. Stiefvater's
purpose in requesting the meeting was to see if there was some
way to get the negotiations moving, his excuse was the fact
that he was considering establishing a supervisory position
for which Murgia was qualified and the fact that Murgia had
in the past inquired about possibilities of promotion . Stief-
vater told Murgia that he was greatly concerned over the
impasse that had been reached and was anxious to settle the
strike and did not think that the employees needed, a third
CONTINENTAL NUT CO
party to speak for them. Murgia replied that in his opinion
the employees did need a third party to speak for them.
Stiefvater asked Murgia if he would be interested in the posi-
tion of supervisor in special processing and Murgia replied in
the negative. The discussion went no further.
Wednesday, October 8
Six new employees were hired on October 7, and five new
employees were hired on October 8. On October 8 Respond-
ent distributed a bulletin listing eight improvements in work-
ing conditions with the following introductory paragraph:
As you know, Continental Nut Company submitted a
contract proposal to the Union which included a number
of fringe benefit improvements. Also, Continental Nut
told all employees that if the Union rejected this
proposal-the Company would proceed to give these
new benefits to all its work force. Therefore, to avoid any
further delays the following benefit changes have now
been adopted:
Friday, October 10
Seven new employees were hired October 9, and three new
employees were hired October 10. On October 10 Respondent
distributed to its employees a bulletin entitled "REVI-
SIONS-GROUP INSURANCE PLAN" describing in detail
the proposals made to and rejected by the Union.
At 2 p.m. the negotiators met with Nicolopulos. Respond-
ent was represented by Stiefvater and Fastiff. A law clerk in
Fastiff's office, Robert Manifold, was present as an observer.
The Union was represented by Thompson, Jordan, and the
employee committee. Fastiff announced that at the last meet-
ing agreement had been reached on "just cause for discharge"
and on the "sole judge" language in Respondent's seniority
clause. Thompson in a vituperative personal attack on Fastiff
announced that he was not at the last meeting and that any
agreement made in his absence was "out the window," that
he was not going to consider the Respondent's proposal and
he would only consider the Union's first proposal. Nicolopu-
los declared a recess. After the recess Fastiff brought the
discussion back to the meaning of "just cause" and Nicolopu-
los confirmed Fastif's assertion that this language appeared
in a number of contracts. Thompson said, "It is not going to
appear in mine." Fastiff asked if Thompson had a counter-
proposal. Thompson replied, "Yes, I have got my original
proposal. You can take that." Fastiff suggested that Respond-
ent add, in the seniority clause, a sentence to the effect that
"we would not utilize the seniority provisions with regard to
the employer being the sole judge of qualification to in any
way undermine seniority, and any employee that felt that the
principle of seniority had been undermined could use the
grievance procedure." Thompson rejected the suggestion and
in a loud tone stated that he knew what he was doing and he
wanted Fastiff and Stiefvater to know that he was going to
break Respondent and he would make Stiefvater and Fastiff
beg to sign the Union's contract. Fastiff again offered a
maintenance of membership clause and Thompson said he
would not even discuss it. Fastiff described the advantages of
the Respondent's existing medical plan over the plan
proposed by the Union. When the meeting concluded about
6 p.m. there was no agreement on anything.
Friday, October 17
Between October 10 and October 17 Respondent hired 29
new employees. On October 17 the negotiators held their 12th
formal meeting at the El Rancho Motel in West Sacramento
under the auspices of Conciliator Nicolopulos. The Union
was represented by Goldblatt, Thompson, Murgia, and
853
Boggs, with Goldblatt as spokesman. Respondent was repre-
sented by Fastiff and Stiefvater, with Manifold present as an
observer. The basis of discussion was Respondent's contract
proposal of August 19. The relative merits of the Respond-
ent's welfare plan and the Union's welfare plan were dis-
cussed with no agreement. The parties did agree that to be
eligible for enrollment under either plan an employee would
be required to work a total of 1,000 hours in a 12-month
period. An employee after qualifying would be able to con-
tinue under the plan by paying his own premiums during
periods of layoff. Goldblatt stated that it had been reported
to him that Respondent had offered orally to include a clause
on "agency shop," and asked why there was none in Re-
spondent's proposal. Fastiff replied that no such offer had
been made. Goldblatt then proposed an agency shop clause
by the terms of which an employee could either join and pay
dues to the Union or he could pay the equivalent of union
dues to the charity of his choice. The employee electing the
second alternative would be granted by the Union the right
to vote on any strike or any contract. Fastiff and Stiefvater
retired briefly to consider this proposal, after which Fastiff
declined, stating that Stiefvater believed that no one should
have to pay money for the privilege of working for Respond-
ent. As to the concession of the right to vote on contract and
strike, Fastiff stated that it was his opinion as a lawyer that
all unit employees had that right, independent of any con-
tract. The phrases, "other cause" and "other just cause,"
were again discussed with no agreement. Fastiff again ex-
plained that the words "sole judge" were necessary because
of the great and rapid expansion of employee numbers during
the processing season.
During a recess, Goldblatt privately told Fastiff:
We have got the company tied up in Chico. We have got
the company tied up at the docks whenever they are
trying to ship anything ... and if you think the pressure
was high before I came on, just wait until you see what
happens now, and you had better tell the company that.
The meeting concluded with an agreement to meet at the
conciliator's office in San Francisco on October 24.
Saturday, October 18
There were no new hires. Stiefvater and Murgia met again
at Sandy's Coffee Shop in Chico.
Stiefvater explained his "philosophy" that people had the
right to make their own choice to belong to a union or not
belong to a union, and that the company should not obligate
any employee to pay any fund, union or charitable, or pay any
money to work at Continental Nut Company. Murgia ex-
plained his philosophy that all employees were obtaining the
benefits of union representation, and that each should pay his
share of the costs of administration. Murgia was opposed to
"free loaders." Neither could convince the other, but they did
agree that they were "pretty well impressed with Mr. Gold-
blatt."
Monday, October 20
On October 19 and 20, Respondent hired three new em-
ployees. On October 20 a hearing was held in the United
States District Court in Sacramento on the Regional Direc-
tor's petition for an injunction under Section 10(1) of the Act.
Wednesday, October 22
On October 21 and October 22 there were five new hires.
On October 22, 1969, the United States District Judge for the
Eastern District of California issued findings of fact and con-
clusions of law finding and concluding:
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that there is reasonable cause to believe that Warehouse
Union Local No. 17, International Longshoremen's and
Warehousemen's Union has engaged in and is engaging
in acts and conduct in violation of Section 8(b)(4)(i)(ii),
subparagraph (B) of [the National Labor Relations Act].
and on the same date issued a temporary injunction, pending
a final decision of the Board, prohibiting the further picketing
of Valley Copperstate Systems, or Howard Terminal Com-
pany, and broadly enjoining the Union from similar actions
against other employers with the object of forcing them to
cease doing business with Continental Nut Company.
Friday, October 24
There were three new hires. Negotiations in the California
State Building in San Francisco were conducted by Nicolopu-
los, with the union committee headed by Goldblatt in one
room and Fastiff, Stiefvater, and Lieber in another. Fastiff
presented to Nicolopulos, for consideration by the Union,
Respondent's fourth contract proposal. This differed from
the proposal of August 19 in the following particulars:
Four changes were made in the language of the seniority
clause. (1) The following sentence was added:
The employee obtains seniority when he or she works for
the company for a period of ninety (90) days in twelve
(12) consecutive months.
(2) The words, "as determined by the Company" were sub-
stituted for the words, "sole judge," (3) The following words
were added:
Similarly, the Company may transfer or assign em-
ployees between departments on a temporary basis as
needed without regard to seniority.
and (4) the following clause, which was part of the June 12
proposal, was omitted from the October 24 draft:
This provision shall not prevent the reference of any
disputes concerning seniority to the grievance machin-
ery set forth in this agreement.
Two changes were made in the discharge clause. (1) "dis-
honesty" was added as a specific ground for discharge and (2)
the words "and the union" were appended to the sentence
stating that any claim of unjust discharge is waived by the
employee if not filed in writing within 2 days.
One change was made in the holiday clause. The words,
"All employees who have been employed ninety (90) days or
more, i.e. seniority employees" were substituted for the
words, "All eligible employees."
The union negotiators received Respondent's fourth con-
tract proposal from Nicolopulos sometime between 2:30 and
3 p.m. At 6 p.m. Nicolopulos reported to Fastiff that the
Union wanted the word "just" added before the word
"cause" in the discharge clause, and Fastiff agreed. Fastiff
also agreed to write in the word "relatively" before the word
"equal" in the seniority clause. Fastiff refused to change Re-
spondent's definition of "temporary employee." Fastiff prom-
ised to have a firm offer of maintenance of membership at the
next meeting. Respondent's vacation proposal was 1 week
after 1 year, 2 weeks after 5 years and 3 weeks after 15 years
with 1,200 hours to qualify. Nicolopulos reported that the
Union wanted the portion of the TRI-CO contract which
granted 1 week after 1 year, 2 weeks after 4 years, 3 weeks
after 12 years and 4 weeks after 20 years. Fastiff replied that
Respondent would agree to TRI-CO schedule if the Union
would agree to the TRI-CO eligibility requirement which was
1,600 hours. On reporting time, Fastiff stated that Respond-
ent was willing to substitute the words "48 hours" for the
words, "specified time." At 6:15 Nicolopulos took these re-
sponses to the Union together with Fastifl's offer to meet all
of the following week. At 6:30 Nicolopulos returned with the
Union's rejection of Fastif 's offer to meet the following week
and a demand that the meeting continue that night and re-
sume the following morning. When Fastiff explained why
that was impossible, Nicolopulos said he would try to arrange
for a further meeting, and Respondent's representatives left
the building.
Monday, October 27
Between October 25 and 27 there were 13 new hires. Fastiff
wrote to Nicolopulos offering to resume negotiations on ei-
ther October 29 or October 30.
Wednesday , October 29
Four new employees were hired October 28 and 29. Re-
spondent mailed to strikers the following letter:
Dear Employee:
As you know, your group insurance premiums are
paid by the Company for any month in which you work
80 hours. On the other hand , if you do not work 80
hours, this premium is to be paid by you if you wish to
keep your insurance in effect.
In the month of October you will not have worked 80
hours, therefore this premium is due and should be paid
by November 1, 1969.
Thursday , October 30
Four new employees were hired. The negotiators gathered
in two separate rooms at the El Rancho Motel in West Sac-
ramento. Respondent , through Nicolopulos , at or about
10:30 a.m . submitted the following written proposals to the
Union:
SECTION IV-SENIORITY.
The Company is agreeable to inserting the word "rela-
tively" before the word "equal" in the second sentence
of the second paragraph of that section.
SECTION VI-HOURS AND OVERTIME.-
The Company proposes to insert the following sen-
tence after the first sentence of paragraph (a): "The work
week shall consist of the seven (7) day period commenc-
ing 12:01 a.m. on Sunday and ending 12:00 midnight on
Saturday."
SECTION VII-DISCHARGES.-
The Company is willing to add the word "just" prior
to "cause" in the first sentence. The Company submits
for the Union's consideration the following proposal as
an alternative to the second paragraph : "Any employee
who shall have worked for the Company less than ninety
(90) days in twelve (12) consecutive months for five (5)
consecutive calendar years shall be deemed a temporary
employee and may be discharged or laid -off by the Com-
pany for any cause in its opinion sufficient , without re-
dress to the provisions in this sections hereinabove set
forth."
SECTION XI-MINIMUMS.-
The Company is willing to add the following language
to the last sentence of the last paragraph : "necessary for
the continued efficient operation of the plant." (2 hrs.)
SECTIONXV-HEALTHAND WELFARE COVER-
AGE.-
The Company submits the following as a clarification
of paragraph (c): "These plans shall be available for
employees who have worked one-thousand ( 1000) hours
in an anniversary year."
SECTION XIX-VACATIONS:
The Company submits the following as an alternative
proposal to the first paragraph of this section : "Eligible
employees will be granted vacations, with pay, , in accord-
ance with the following schedule:
CONTINENTAL NUT CO. 855
Years' Service Vacation
Under contract Allowed
1 to 4 1 week w/pay
5 to 9 2 weeks w/pay
10 to 19 3 weeks w/pay
20 and over 4 weeks w/pay
In order to qualify for a vacation the employee must be
a regular employee whose name appears on the seniority
list of regular employees and shall have worked a mini-
mum of sixteen-hundred (1600) hours under this con-
tract within a twelve (12) months' period , starting Janu-
ary 1 and ending December 31.
An employee whose service is broken by quitting or dis-
charge, forfeits all previously accumulated years of service."
SECTION XXII-DURATION OF AGREEMENT:
The Company proposes that the agreement be effec-
tive upon the date on which it is signed by the parties
until March 31, 1973 (see proposed new Appendix A).
The Company proposes the following new section:
UNION SECURITY.-
All employees covered by this Agreement who are
members of the Union thirty -one (31 ) days following the
beginning of their employment , or thirty-one (31) days
following the effective date of this Agreement , whichever
is later, and all employees who subsequently voluntarily
join and become members of the Union, shall thereafter
maintain their membership in good standing in the
Union as a condition of employment. However, any em-
ployee who is a member of the Union may resign from
Union membership during January or July of any year
without losing employment with the Employer or jeop-
ardizing his employment status or rights under this con-
tract in any way.
At or about 11:40 a .m. Goldblatt and Murgia entered the
room occupied by Stiefvater and Lieber . Goldblatt objected
to the vacation proposal , pointing out that it was divisive in
that it was robbing Peter to pay Paul. Stiefvater replied that
the proposal had been made because Nicolopulos had said the
Union wanted it . Respondent preferred its original proposal,
but the Union could have its choice . Goldblatt asked whether
an employee who qualified for health and welfare by working
1,000 hours would have to requalify in any following year.
Stiefvater answered that he
-
would not have to requalify.
Goldblatt asked if a laid -off employee could continue to carry
the insurance by paying , for it himself. Stiefvater replied that
the employee could carry it himself for 6 months and offered
to write this provision into the contract . Goldblatt said a
contract for 3% years was too long, and should at least have
a wage reopener or cost-of-living clause in it. Stiefvater re-
plied that he had to know what his fixed costs would be.
'Goldblatt pointed out the inconsistency between that state-
ment and earlier statements by Fastiff that Respondent had
to meet the wage rates of the TRI-CO contract. Stiefvater saw
no inconsistency . Murgia asked why the Respondent could
not pay show up time to maintenance men. Stiefvater ex-
plained that maintenance men were only called in during
their off hours for serious breakdowns which necessarily re-
quired more than 2 hours work, and that the maintenance
engineer handled minor repair problems.
At or about 4:45 p.m. Goldblatt returned to Respondent's
room accompanied by Nicolopulos. Goldblatt proposed an
agency shop, and when that was rejected proposed a union
shop with a grandfather clause, i.e., no present employee
would be required to join the Union, but all employees hired
after the contract was signed would have to join the Union
within 30 days of hire. This was also rejected by Stiefvater.
At or about 6 p.m. Stiefvater and Lieber were invited by
Nicolopulos to the room occupied by the union committee.
Goldblatt accused Respondent of dishonesty in changing its
welfare and vacation proposals. Boggs and Hine said that
Respondent was not paying wages comparable to TRI-CO
and that Respondent was cheating them. Murgia complained
about not getting call-in pay. The meeting ended at 7 p.m.
Friday, October 31
There were no new hires. Goldblatt and Murgia met with
Stiefvater and Lieber from 10:30 or 11 a.m. to 5 or 5:30 p.m.
at the El Rancho Motel. Goldblatt accepted Respondent's
discharge clause with the addition of the word "just" before
the word "cause" and accepted Respondent's seniority clause
with the addition of the word "relatively" before the word
equal. There was no other agreement.
Tuesday, November 4
There were 11 new hires between November 1 and Novem-
ber 4. The negotiators met in separate rooms at the Safari
Motel in Chico. This meeting was also under the auspices of
the California Conciliation service. Goldblatt, Murgia,
Lieber, and Stiefvater had one brief conference. Goldblatt
asked if Respondent had anything new to offer and Stiefvater
replied in the negative. Leiber did hand to Goldblatt a hand-
written note stating that an employee recalled from layoff
would have 48 hours to report.
Goldblatt announced that trying to negotiate a contract
was utterly futile because every time the parties came close
to resolving an issue, for example"the seniority clause and the
discharge clause, new issues were injected by the Respondent,
for example, the length of the contract, and that things on
which the Union thought it had agreement, such as health
and welfare and Sunday overtime, suddenly disappeared.
Goldblatt told Stiefvater that he was prepared to recommend
to the committee that they call off the strike and asked for
Stiefvater's position on putting the strikers back to work.
Stiefvater replied that if the strike was called off he would call
the strikers back to work as needed. Goldblatt said, "I don't
think the committee will accept that.
Monday, November 10
Between November 5 and November 10 Respondent hired
19 new employees. On November 10 the Union filed the
charge giving rise to the instant proceeding.
Friday, November 14
Between November 11 and November 14 Respondent
hired 15 new employees. On November 14 Nicolopulos
placed the negotiators in two separate rooms at the El Ran-
cho Motel in Sacramento . Nicolopulos asked Stiefvater if
there was any change in Respondent's position. Stiefvater
replied in the negative. Shortly thereafter Goldblatt entered
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the room occupied by Stiefvater and Lieber and announced
that the union committee was going to recommend that the
strike be called off and everybody return to work. Stiefvater
said that strikers would be reinstated to available jobs. In-
ferior replacements would be discharged and replaced by
strikers and all other strikers would be offered any vacant
position before any new employee was hired. Stiefvater asked
that the Union supply him with a list of names of strikers
desiring reinstatement and Goldblatt agreed to do so. It was
agreed that any further meeting would be at the call of the
conciliator. There has been no further meeting for negotia-
tions.
Saturday, November 15
There were 8 new hires. At a meeting of union members
there was a vote by show of hands to call off the strike and
to report for work' on Monday morning, November 17.
Thompson prepared and mailed to Respondent the following
letter:
This letter constitutes an unconditional application
for reinstatement on behalf of each and every one of the
employees who have been and now are on strike at your
plant.
Each of these employees will present himself or herself
for continuous employment Monday morning, Novem-
ber 17th, and hereby offers unconditionally to return to
work in precisely the same status and condition as that
which each of them had on the day the strike began.
Each of said employees hereby unconditionally keeps
open without any limitation of time or any other limita-
tion whatsoever this unconditional application for rein-
statement and offer to return to work.
Attached hereto is a list of the names of the employees
involved.
Appended thereto was a list of 126 names.
G. Post Strike Developments
On Monday, November 17 there were 239 employees
working in bargaining unit positions. Seventy-seven of these
had been employed by Respondent prior to September 15,
1969. One hundred sixty-two of these had been hired for the
first time while the strike was in progress. (There were 44
terminations in the course of the strike). Only six strikers
were rehired in 1969 because the Respondent was in mid-
November at the peak of its seasonal employment. In June of
1970 Respondent offered employment to every person on the
Union's list for whom it had a current address and who had
not previously accepted or rejected an offer of employment.
Fifty-five strikers accepted the offer and were rehired. Only
after the Union's list was exhausted did the Respondent, re-
commence hiring persons previously strangers to the employ-
ment relationship.
On January 15, 1970, the Regional Director issued an or-
der denying Respondent's motion to revoke the Union's cer-
tification.
On June 18, 1970, Respondent's plant manager wrote to
Thompson advising him that wage increases would be in-
stituted on July 1 in accordance with past practice and with
Respondent's contract offer.
H. Concluding Findings
1. The July 1969 wage increases
At the second meeting, April 23, Thompson indicated that
the Union would have no objection to a general wage increase
to be effective July 1, 1969. At the fourth meeting, May 27,
Thompson proposed a wage scale based on a contract in the
Santa Clara Valley. Fastiff rejected the proposal and sug-
gested a scale based on the TRI-CO contract with Teamsters
in Chico. The second contract draft submitted by Fastiff on
June 12 contained no wage scale . On June 30 Fastiff offered
to the Union, for the first time, a detailed wage schedule. His
excuse for not including it with the contract proposal of June
12 was that it was not then ready. After Thompson rejected
Fastiff's proposal in its totality Fastiff commented that wages
had not been discussed and near the close of the meeting
announced that the wage scale first proposed? to the Union on
June 30 would be immediately placed in effect. Fastif's stated
reasons were: (1) to keep Respondent competitive in the
Chico area, and (2) because Thompson had brought negotia-
tions -to an impasse. Fastiff's letter to Thompson dated July
1 made no mention of impasse and specifically asserted a
willingness to bargain about further increases . Before the
June 30 meeting -adjourned it was agreed that Jordan and
Fastiff would set a time and place for future meetings.
Respondent's counsel in his brief to me argues: (1) The
increases were instituted in accordance with clear and long-
standing past practice, which Respondent was under a legal
duty to continue. (2) The increases were necessary to attract
skilled employees in view of the July 1 increase at TRI-CO.
(3) The increases were implemented after a bargaining im-
passe created by the Union and were the same increases
which had been prior thereto offered to and rejected by the
Union.
The General Counsel replies: (1) There was no clear and
longstanding past practice. The amount and timing of the
increases had been a matter of discretion and were a manda-
tory subject of bargaining.Respondent's unilateral action was
a per se violation of Section 8(a)(5) under the decision of the
United States Supreme Court in N.L.R.B. v. Katz, 369 U.S.
736, and the Board's decision in Insulating Fabricators Inc.,
Southern Division, 144 NLRB 1325 enfd. (C.A. 4), 338 F.2d
1002. (2) Speculative economic detriment to the Respondent
does not relieve it of the duty to bargain in good faith with
the Union concerning any change in the wages of its em-
ployees. (3) Respondent's wage proposal was first-made to the
Union on the afternoon of June 30, with no, opportunity for
the Union to consider, much less bargain about the amount
of the raise, the progression within rate ranges, or the timing
of the raise, and "Any suggestion by the Respondent that
there existed an -impasse before the July 1 raise is patently
absurd."
There can be no doubt on this record that Thompson did
say, near the end of the meeting-on June 30, "I reject every-
thing that you have put on the table' ... I reject your
proposal, that's all. That is the only thing I'have to say to you,
and we are only willing to have the' Unign' s, original
proposal." Jordan, although he heard the foregoing tes-
timony of Fastiff, and although he testified on rebuttal as to
a different and immaterial matter, did not specifically deny
that the foregoing statements were made by Thompson. As
above noted, no employee member of the Union's bargaining
committee testified with regard to any bargaining' m eeting,
and Thompson was not called as a witness.
I specifically find that Thompson, by repudiating all prior
agreements and reverting to the Union's initial proposal in its
entirety, created a legal impasse. Under these circumstances
Respondent was free to institute unilateral changes in work-
ing conditions so long as they were not "substantially differ-
ent from nor greater than, any which the employer has
proposed during its negotiations .." N.L.R.B. v. Cromp-
ton-Highland Mills, 337 U.S. 217, 226 (1949). By granting
wage -increases on July 3, 1969, effective- July 1, 1969, Re-
spondent did not violate Section 8(a)(1), (3), or (5) of the Act.
1
CONTINENTAL NUT CO. 857
2. Stiefvater's meetings with employees
I have found that Stiefvater, at some of these meetings,
stated positively that the benefits offered to the Union would
be placed into effect whether or not the Union decided to
accept Respondent's contract offer. This finding is based on
the mutually corroborative testimony of employee witnesses
and on the following:
Q. (By Mr. Teagle) At these meetings, did you say
anything to the employees about when, if ever, the
benefits described in that speech may take effect?
A. (By Mr. Stiefvater) In the speech itself, I believe
there was a comment as to when these items would
become effective. It stated we were ready to put them
into effect immediately, and we hoped that we could put
these benefits into effect as soon as possible.
Also, there was a comment made that this would be
possible when an impasse had been reached between the
union and the company, or at the time that a union
contract was signed between the company and the union.
I have credited Stiefvater's denials of the testimony of in-
dividual employee witnesses relating to: getting rid of the
union, the lack of necessity for a union grievance committee,
the promise of a holiday on Labor Day, (September 1, 1969),
and never going union shop. Murgia was present at the meet-
ing where, according to Stasenski, Stiefvater stated that he
would never go union shop, yet Murgia was not asked about
the meeting. On the same subject matter:
Q. (By Mr. Salniker) What happened at the meeting
and who said what?
A. (By Mrs. ,Boggs) ... We brought up the subject of
a union shop; [Mr. Stiefvater] said it was everybody's
right to belong to the union or not to belong to the union
Q. Do you recall anything else he said about a union
shop? .
A. He said it was his right not to have a union shop,
and that he would never, go union.
Q. Never go union, or never go union shop?
A. Never go union shop.
The foregoing illustrates Boggs' succeptibihty to sugges-
tion and is a factor in my rejection of her testimony, only
partially corroborated by Lockhard, that Stiefvater said that
there was no need for a grievance committee.
There was nothing unlawful in the content of Fastiff's letter
dated August 22, 1969, nor in Respondent's action in making
copies of the letter available to any employee who sought
advice on how to get out of the Union. An employer does not
intrude upon protected rights where it furnishes minimal
assistance to employees who have independently decided to
withdraw their support and approach the employer for help.
N.L.R.B. v. Brookside Industries Inc., 308 F.2d 224, 226
(C.A. 4, 1962); Cumberland Shoe Company, 160 NLRB
1256, 1257. The statements read by Stiefvater and by Kaiser
and the remarks of Stiefvater at the meetings with employees
did not violate any prohibition of Section 8(a)(1) and were
protected by Section 8(c) of the Act. No statement in any of
these meetings constitutes evidence of violation of Section
8(a)(1), (3), or (5) of the Act.
3. Respondent's insistence upon contract terms regulating
management rights, seniority, and eligibility for certain
benefits
The rule is stated by the Board in Procter & Gamble Mfg.
Co., 160 NLRB 334 at page 338 as follows:
It is well established that an employer's insistence upon
management rights-limited arbitration provisions,
which are mandatory subjects of collective bargaining,
does not itself violate Section 8(a)(5), N.L.R.B. v. Ameri-
can National Insurance Company, 343 U.S. 395, 409.
Yet it is equally well settled that such proposals may be
taken into account in assessing an employer's motivation
in negotiations, East Texas Steel Castings, Inc., 154
NLRB 1080. Thus rigid adherence to proposals, which
are predictably unacceptable to the employee representa-
tive, may be considered in proper circumstances as evi-
dencing a predetermination not to reach agreement, or
a desire to produce a stalemate as a means of frustrating
bargaining and undermining the statutory representa-
tive.
However, this is not such a case. The Union had offered to
accept all the terms of the TRI-CO contract, including the
identical management rights clause proposed by Respondent
and including a clause denying many benefits to employees
without seniority, with seniority being attained only after
1,600 hours of employment within a contract year. This is one
of the many indications that the deadlock in negotiations was
caused almost in its entirety by the Union's insistence that
any contract must include a clause making union member-
ship a condition of employment after 30` days. Other indicia
of Respondent's lack of bad faith are its willingness to discuss
and explain and modify the language of its seniority clause,
and the outright rejection by the Union of any clause relating
to management rights.
Neither did the qualifying periods for certain benefits
proposed by Respondent constitute evidence of bad faith.
These were required by the seasonal nature of Respondent's
operation, were fully explained to the Union, and successive
concessions were made by Respondent in the number of qual-
ifying hours. The Union's offer to accept the TRI-CO con-
tract with its union shop clause and even greater restrictions
on employee benefits is convincing evidence that Respond-
ent's position on eligibility for holidays, health and welfare
coverage, and vacations was not a factor in the failure of the
negotiators to reach agreement.
I find that Respondent did not, by insistence on contract
clauses governing management rights, seniority, and eligibil-
ity for certain benefits violate either Section 8(a)(1) or (5) of
the Act.
4. Changes in wages and working conditions announced
by Respondent on September 17, October 8,
and October 10, 1969
The complaint was amended at the opening of the hearing
September ` 15, 1970, to allege a unilateral wage change on
August 19, and unilateral changes in health and welfare cov-
erage on October 8 and 10, 1969. There is no evidence of any
change in wage rates on or about August 19. The 2 cent
increase for sorters proposed to the Union on August 19 was
not implemented until September 17.
A bargaining impasse was recreated on August 29 when
the union membership rejected in total Respondent's contract
offer of August 19 as amended by Kaiser's letter of August
22, and was reaffirmed by Thompson's statements and actions
at the meetings of September 22 and October 10, 1969.
I find that the adjustments made by Respondent in wages
and working conditions on or about September 17, October
8, and October 10, 1969, complied with the requirements of
N.L.R.B. v. Crompton-Highland Mills (supra) and did not
violate Section 8(a)(1) or (5) of the Act.
5. Respondent's entire course of conduct
The General Counsel in his brief to me states by way of
summary of his detailed and well documented exposition:
It is not easy to summarize a case of this kind, but a short
overview is necessary here. Respondent's course of con-
duct included delaying the commencement of negotia-
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions , unilaterally instituting its entire economic and
non-economic package , insisting upon terms giving it
control over most of the working conditions, failing to
make a proposal in writing on union security and then
making a written union security offer that was less than
what it had offered orally and lastly, offering in a final
written proposal items which retracted previous agree-
ments , diminished previous offers and purposely ir-
ritated and divided the Union.
There was no one factor that was paramount or relied
on solely by General Counsel. It was Respondent's total
conduct that was in question. In the course of this agree-
ment a number of cases have been cited. Among these,
two stand out because the entire circumstances parallel
this case.... Alba Waldensian, Inc., 167 NLRB 695,
enfd. 404 F.2d 1370 ... [and] Chevron Oil Company,
etc., 182 NLRB No. 64.... It is submitted that Re-
spondent matched, even exceeded, the course of conduct
engaged in by the employers in those cases. The bargain-
ing table conduct of Respondent from start to finish was
meant to undermine the status of the Union as the collec-
tive bargaining agent . Respondent's conduct away from
the table was blatently intended to convince its em-
ployees that Respondent was in control of the terms and
conditions of employment regardless of anything the
Union could do. Taken all together, it is submitted that
Respondent's entire course of conduct establishes that it
failed to meet its obligation imposed by Section 8(a)(5)
of the Act to bargain in good faith with the Union.
Some of the items in the General Counsel's summary have
been decided adversely to him in this decision. I also find that
exhaustion of legal remedies by Respondent prior to the first
bargaining session was not, in the circumstance of this case,
an unfair labor practice and that the blame for delays in
negotiations must be shared equally by the Respondent and
by the Union.
There remains to be considered the conduct of the Union
in the entire course of negotiations. The Union's position,
prior to the appearance of Goldblatt as chief negotiator was,
as aptly stated by Thompson: "It is up to the Company to
concede and the Union to reject." By repeatedly repudiating
prior agreements on specific items , and insisting that Re-
spondent sign the Union's contract as originally proposed,
the Union was guilty of the "Boulwareism" condemned by
the Board in General Electric Company, 150 NLRB 598,
enfd. 418 F.2d 736 (C.A. 2); cert. den. 397 U.S. 965, rehearing
denied 397 U.S. 1059.
The Union's refusal to bargain in good faith to and through
October 10, 1969 removed the possibility of negotiation and
precluded the existence of a situation in which Respondent's
good faith could be tested. Since it cannot be tested it cannot
be found, Times Publishing Company, 72 NLRB 676, 683.
From and after October 17, 1969, when Goldblatt under-
took to speak for the Union there was good faith bargaining
by both sides. By then the strike had been lost and Respond-
ent's position could have been expected to harden, yet Re-
spondent, prior to the final good-faith impasse, November 14,
1969, made further and substantial concessions.
I find that Respondent did not by its entire course of con-
duct from and after May 11, 1969, refuse to bargain in good
faith with the Union.
6. The strike
I find that the strike which began on September 16, 1969,
was neither caused nor prolonged by any unfair labor practice
of the Respondent.
7. Reinstatement of strikers
I find that Respondent has not, since November 15, 1969,
refused to reemploy any striker to any available position, and
that Respondent has offered employment to strikers before
filling any available position with a stranger to the employ-
ment relationship.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has not on this record engaged in unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) and Section 8(a)(1), (3), or (5) of the Act.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:'
ORDER
The complaint is dismissed in its entirety.
' In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.