Farmers Co-Operative Gin Association

National Labor Relations Board - Board Decisions

Nov 21, 1967

168 N.L.R.B. 367 (N.L.R.B. 1967)

FARMERS CO-OPERATIVE GIN ASSOCIATION 367
Farmers Co-Operative Gin Association and Dallas
General Drivers , Warehousemen and Helpers,
Local Union 745, affiliated with International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Cases
16-CA-2738 and 16-CA-2834
November 21, 1967
DECISION AND ORDER
STATEMENT OF THE CASES
On April 3, 1967, Farmers Co-Operative Gin
Association, herein called the Respondent, and
counsel for the General Counsel of the National
Labor Relations Board, herein called the Board, en-
tered into a Settlement Stipulation, subject to ap-
proval of the Board, providing for the entry of a
consent order by the Board, and a consent decree
by any appropriate United States Court of Appeals.
The parties waived all further and other procedure
before the Board to which they may be entitled
under the National Labor Relations Act, as
amended, and the Rules and Regulations of the
Board, and the Respondent waived its right to con-
test the entry of a consent decree or to receive
further notice of the application therefor.
The Charging Party, Dallas General Drivers,
Warehousemen and Helpers, Local Union 745, af-
filiated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, has refused to join in the settlement agree-
ment and has filed with the Board a statement of ob-
jections together with a memorandum in support
thereof. Essentially, these objections are the same
as those raised by the Charging Party's counsel at
the various stages of this proceeding, including a
conference with Regional Office personnel held on
April 12, 1967, to discuss settlement. Following the
conference, the Regional Director, on April 13,
1967, wrote counsel for the Charging Party a letter
enclosing a copy of the stipulation for approval and
advising him that he had 5 days to submit any objec-
tions to the agreement.' By letter dated'April 19,
1967, the Charging Party stated its objections and
in his reply of May 10, 1967, the Regional Director
dealt with each of the' objections, gave his reasons
for approving the stipulation, and advised the
Charging Party he was recommending approval by
the General Counsel. Thereafter, the Charging
Party renewed its objections to the General Coun-
sel. On July 21, 1967, the General Counsel in-
formed the Charging Party, by letter, that he had
approved the settlement agreement, and was
recommending its approval to the Board, and ad-
vised the Charging Party that pursuant to Section
101.9(c) of the Board's Statements of Procedure it
could submit objections to the Board.2
In brief, the Charging Party asserts that: (1) the
settlement agreement does not provide for rein-
statement and backpay for Luther Robinson and
Pat Rhodes; (2) the backpay amounts have been ar-
bitrarily reduced; (3) the Charging Party is entitled
to a court decree in Cases 16-CA-2487 and
16-CA-2553 in which a Board Decision and Order
is now before the Court of Appeals for the District
of Columbia on review; (4) since no hearing will be
held, the Charging Party is denied the opportunity
to present evidence justifying additional make-
whole remedies.
In reviewing these objections, which the Charg-
ing Party believes clearly justify rejection of the set-
tlement agreement, there are certain principles and
policies that guide the Board in resolving its posi-
tion in this difficult area.The Board has long had the
policy of encourgaging settlements which effectuate
the purposes of the Act. The Wallace Corporation
v. N.L.R.B., 323 U.S. 248, 253-254. In considering
settlements, the Board must weigh such factors as
the risks involved in protracted litigation which may
be lost in whole or in part, the early restoration of
industrial harmony by making concessions, and the
conservation of the Board's resources. Moreover,
the Board must evaluate the legal and factual merits
disclosed by the administrative investigation to
determine whether the allegations of violations in
the complaint can be so clearly proved that no
remedy, less than the maximum, can be accepted.
in arriving at this decision, the discretion of the
Board is recognized as broad. Textile Workers
Union ofAmerica v. N.L.R.B., supra.
With the above considerations before us, we shall
now examine the specific objections mentioned
above. As to the first, the administrative investiga-
tion conducted by the Regional Office showed that
Rhodes was a supervisor at the time of the July
1966 strike and was not reinstated at the conclusion
thereof. The Charging Party's appeal to the General
Counsel from the Regional Director's refusal to
proceed on that portion of the charge related to
Rhodes was denied by the General Counsel on July
19, 1967. Under the provisions Section 3(d) of the
Act, the action of the General Counsel is not
reviewable. With respect to Robinson, the Regional
Office's investigation disclosed that his threat to an
assistant foreman made on April 1, 1966, was so
serious as to warrant the Respondent's refusal to
On April 14, 1967, a supervisory examiner for the Region, who at-
tended the conference with Charging Party's counsel, sent a letter explain-
ing the Region's position with respect to the objections voiced by the
Charging Party
' We believe the meticulous procedure followed prior to submission of
the matter to the Board and our own findings made hereinafter have met
all the requirements of due process and opportunity to be heard to which
the Charging Party is entitled Textile Workers- Union of America,
AFL-CIO [Roselle Shoe Corp ] v N L R B , 294 F 2d 738 (C A D C ,
1961), enfd after remand 3 15 F 2d 41, Local 282, International Brother-
hood of Teamsters [White Ready-Mix Concrete] v N L R B , 339 F 2d
795 (C A 2, 1964), Leeds & Northrup Company v N L R B , 357 F 2d
527 (C A 3, 1966)
168 NLRB No. 64
368 DECISIONS OF NATIONAL
reinstate him.3 As to the second objection, given the
risks of litigation in the present case and the certain-
ty of delay in payment to the discriminatees if a
hearing were held, the amount 'proposed in settle-
ment appears to be reasonable in all the circum-
stances. Turning to the matter of a court decree, the
instant stipulation provides for the entry of a con-
sent decree in any appropriate circuit to which
Respondent waives its right to notice or presenta-
tion of any defense. To the extent that the Charging
Party is referring to compliance with the Board's
Decision and Order in Case 16-CA-2487 and
16-CA-2553, this proceeding is now before the
Court of Appeals for the District of Columbia Cir-
cuit after argument, and the Board has no jurisdic-
tion over the matter. In either case, therefore, the
Charging Party will obtain a court decree remedy-
ing the unfair labor practice found. Concerning the
fourth objection, the stipulation provides a full
remedy with respect to all aspects of the 8(a)(5)
violations alleged in the complaint and amended
complaint to which the Charging Party is entitled
under current Board law. See Monroe Auto Equip-
ment Company, Hartwell Division, 164 NLRB
1051.
Indeed, it seems to us that the affirmative provi-
sions of the stipulation requiring the Respondent to
furnish certain wage and job data and to bargain
with the Union with respect to wages, hours, and
conditions of employment are substantial and effec-
tive remedies which, coupled with the issuance of
a court decree, should fully achieve the goal the
Charging Party seeks.
For the foregoing reasons and in light of the prin-
ciples stated above, the investigative reports and
the recommendations of the General Counsel and
the Regional Director, we conclude that the Charg-
ing Party's objections are lacking in merit and con-
stitute no basis for rejecting the settlement agree-
ment. We further find that the provisions of the
stipulation adequately remedy the violations alleged
in the complaint and the amended complaint and
that it will effectuate the purposes of the Act to
adopt the terms of the agreement.
The aforesaid Settlement Stipulation is hereby
approved and made a part of the record herein, and
the proceeding is hereby transferred to and con-
tinued before the Board for the entry of a decision
and order pursuant to the provisions of the said Set-
tlement Stipulation.
Upon the basis of the aforesaid Settlement Stipu-
lation and the entire record in these cases, the
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Farmers Co-Operative Gin As-
sociation, a Texas corporation, maintains its prin-
LABOR RELATIONS BOARD
cipal offices and plants at Sulphur Springs, Texas,
herein called the plants, where it is engaged in the
custom mixing, grinding, and blending of feeds and
the sale of fertilizer supplies.
In the course and conduct of its business opera-
tions at its Sulphur Springs, Texas, plants during
the past 12 months, the Respondent purchased sup-
plies, goods, and materials valued in excess of
$50,000, which were transported to said plants
directly from States of the United States other than
the State of Texas, and, during said period, it sold
and shipped to points located outside the State of
Texas products valued in excess of $50,000.
The Respondent admits, and we find, that it is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Dallas General Drivers, Warehousemen and
Helpers, Local Union 745, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE APPROPRIATE UNIT
All production and maintenance employees and
truck drivers located at the Employer's Sulphur
Springs, Texas, operation, excluding office clerical
employees, supervisors, guards, and watchmen as
defined in the Act, constitute an appropriate unit for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
ORDER
Upon the basis of the above findings of fact, the
Settlement Stipulation, and the entire record in the
cases, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that Re-
spondent, Farmers Co-Operative Gin Association,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Dallas
General Drivers, Warehousemen and Helpers,
Local Union 745, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive
bargaining representative of its employees in the
following certified bargaining unit:
All production and maintenance employees
and truck drivers located at the Employer's
Sulphur Springs, Texas, operation, excluding
office clerical employees, supervisors, guards,
and watchmen as defined in the Act.
(b) Unilaterally changing the wages, hours of
Cf Bernhard Conrad Embroidery Company, 156 NLRB 1056, 1058
FARMERS CO-OPERATIVE GIN ASSOCIATION 369
work, rates of pay, and vacation benefits of its em-
ployees in the certified bargaining unit.
(c) Unilaterally promulgating and effectuating
work rules applicable to its employees in the cer-
tified bargaining unit.
(d) Refusing to furnish the Union, upon request,
data with respect to the names, job classifications,
wage rates, hours of work, and work rules applica-
ble to its employees in the certified bargaining unit.
(e) Discouraging membership in the Dallas
General Drivers, Warehousemen and Helpers,
Local Union 745, affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or in any
other labor organization, by refusing immediate
reinstatement to those of its employees who were
on strike on and after July 18, 1966, and who were
thereafter denied immediate reinstatement upon
their unconditional application for return to work,
or in any other manner discriminating with regard
to the hire or tenure of employment of said em-
ployees or any other term or condition of that em-
ployment.
(f) Interrogating its employees with respect to
their union membership and concerted activities.
(g) In any other manner interfering with,
restraining, or coercing their employees in the exer-
cise of their right to self-organization, to form labor
organizations, or to join or assist Dallas General
Drivers, Warehousemen and Helpers, Local Union
745, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, or any other labor organization, to
bargain collectively through representatives of their
own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from
any and all such activities.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
National Labor Relations Act, as amended:
(a) Upon request, bargain collectively in good
faith with the Union, Dallas General Drivers, Ware-
housemen and Helpers, Local Union 745, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of all
production and maintenance employees and truck
drivers located at the Employer's Sulphur Springs,
Texas, operation, excluding office clerical em-
ployees, supervisors, guards, and watchmen as
defined in the Act, for the purposes of collective
bargaining with respect to rates of pay, wages, hours
of employment, or other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Rescind in plant work rules unilaterally
promulgated and instituted in September 1966.
(c) Furnish the Union, upon request, data with
respect to the names, job classifications, wage
rates, hours of work, and work rules applicable to
its employees in the certified bargaining unit.
(d) Reinstate, as of October 17, 1966, to their
former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and
privileges, all those employees who were on strike
on and after July 18, 1966, and who have not been
reinstated to their former or substantially equivalent
positions without prejudice to their seniority or
other rights and privileges, and notify said em-
ployees, if presently serving in the Armed Forces
of the United States, of their right to full reinstate-
ment upon application in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended, after dis-
charge from the Armed Forces.
(e) Make whole the employees specified in para-
graph 2(d) above for any loss of pay they may have
suffered by reason of Respondent's failure, if any,
to reinstate them in the manner provided in para-
graph 2(d) above, by payment to each of them of a
sum of money equal to that which he normally
would have earned as wages during the period from
5 days after the date on which he applied uncon-
ditionally for reinstatement to the date of Respond-
ent's offer of reinstatement, less his net earnings,
if any, during said period; such pay loss to be com-
puted with interest at the rate of 6 percent per
annum.
(f) Post at its Sulphur Springs, Texas, plants
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 16, after being duly
signed by Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(g) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all records, social security payment
records, timecards, personnel cards and reports,
and all other records necessary to analyze the
amounts of backpay which may be or become due
and the rights of employment under the terms of
this Order.
(h) Notify the Regional Director for Region 16,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
' In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order "
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, based upon a stipulation
providing for a consent decree of an appropriate cir-
cuit of the United States court of Appeals, and in
order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify
our employees that:
WE WILL bargain collectively in good faith
with the Union, Dallas General Drivers,
Warehousemen and Helpers, Local Union 745,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargain-
ing representative of all employees in the ap-
propriate unit for the purposes of collective
bargaining with respect to rates of pay, wages,
hours of employment, or other terms and con-
ditions of employment, and, if an understand-
ing is reached, embody such understanding in
a signed agreement. The appropriate bargain-
ing unit is:
All production and maintenance em-
ployees and truck drivers located at the
Employer's Sulphur Springs, Texas,
operation, excluding office clerical em-
ployees, supervisors, guards, and
watchmen as defined in the Act.
WE WILL NOT unilaterally change the wages,
hours of work, rates of pay, vacation benefits
and work rules applicable to our employees in
the certified bargaining unit without first con-
sulting and bargaining with Dallas General
Drivers, Warehousemen and Helpers, Local
Union 745, affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive bargaining representative of our em-
ployees.
WE WILL rescind the plant work rules
promulgated and instituted in September 1966.
WE WILL furnish the Union, upon request,
data with respect to the names, job classifica-
tions, wage rates, hours of work, and work
rules applicable to employees in the ap-
propriate bargaining unit.
WE WILL immediately reinstate to their
former or substantially equivalent positions,
without prejudice to their seniority or other
rights and privileges, all our employees who
were on strike on and after July 18, 1966, who
have not been reinstated to their former or sub-
stantially equivalent positions without preju-
dice to their seniority or other rights and
privileges, and notify said employees, if
presently serving in the Armed Forces of the
United States, of their right to full reinstate-
ment upon application in accordance with the
Selective Service Act and the Universal Milita-
ry Training and Service Act, as amended, after
discharge from the Armed Forces.
WE WILL make each such employee whole
for any loss of pay suffered by him as a result
of our failure to reinstate him within 5 days
after his unconditional application for rein-
statement.
WE WILL NOT discourage membership in the
Dallas General Drivers, Warehousemen and
Helpers, Local Union 745, affiliated with In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
or any other labor organization, by discrimina-
torily refusing reinstatement or in any other
manner discriminating in regard to the hire or
tenure of employment or other terms or condi-
tions of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the right to self-organization, to
form, join, or assist the above-named Union, or
any other labor organization, to bargain collec-
tively through representatives of their own
choosing, and to engage in other concerted ac-
tivities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain
from engaging in any or all such activities.
Dated By
FARMERS CO-OPERATIVE
GIN ASSOCIATION
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Room 8A24, Federal Office Building, 819
Taylor street, Fort Worth, Texas 76102, Telephone
334-2941.