Idaho Fresh Pak-Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 676 (N.L.R.B. 1974)

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Idaho Fresh Pak-Inc . and Teamsters, Chauffeurs,
Warehousemen & Helpers Union No . 983, affiliated
with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America,
Independent . Case 19-CA-6941
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having considered the posthear-
Ing briefs, I make the following:
FINDINGS OF FACT
December 16, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On July 3, 1974, Administrative Law Judge Jerrold
H. Shapiro issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and a
supporting 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-
thonty in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt his
recommended Order.
ORDER'
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent, Idaho Fresh Pak-Inc., Lewisville, Idaho,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
In the absence of exceptions thereto , we adopt , pro forma, the Adminis-
trative Law Judge's finding that Respondent did not violate Sec 8 (a)(5) of
the Act by its failure to reply to the Union ' s January 23, 1974, letter request-
ing a meeting
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. The hear-
ing in this case, held on June 4, 1974, is based upon unfair
labor practice charges filed by the above-named labor organi-
zation on March 1, 1974, and a complaint issued on April 30,
1974, on behalf of the General Counsel of the National Labor
Relations Board, herein called the Board, by the Regional
Director of the Board, Region 19, alleging that Idaho Fresh
Pak-Inc., herein called Respondent, has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and (1)
of the National Labor Relations Act, herein called the Act.
Respondent filed an answer denying the commission of the
alleged unfair labor practices.
I THE BUSINESS OF RESPONDENT
Idaho Fresh Pak- Inc., an Idaho corporation with facilities
in Lewisville, Idaho, is engaged in the processing of potatoes.
During the calendar year 1973, Respondent purchased goods
and/or services from outside the State of Idaho valued at
more than $50,000 and made sales of potatoes valued at more
than $50,000 to customers located outside the State of Idaho.
The Respondent admits it is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen & Helpers Union
No. 983, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, In-
dependent, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III THE ISSUES AS POSED BY THE PLEADINGS
On February 20, 1973, the Union, after it had received a
majority of the votes cast in a Board-conducted representa-
tion election, was certified as the exclusive bargaining repre-
sentative of an appropriate unit of Respondent's employees.
Thereafter, over a period of several months, representatives
of the Union and Respondent unsuccessfully attempted to
negotiate a collective-bargaining agreement.
The gravamen of the Genera'. Counsel's complaint is that
Respondent unlawfully refused to bargain with the Union.
Specifically, it is alleged that Respondent violated the Act by
engaging in the following conduct: (1) since January 23, 1974,
it has refused to meet and bargain with the Union; (2) since
the end of the certification year (February 20, 1974), it has
refused to recognize the Union's status as the employees'
exclusive bargaining representative; and (3) on March 10,
1974, it unilaterally changed employees' terms and conditions
of employment without first bargaining over such changes
with the Union.
In defending against the alleged refusal to meet with the
Union and recognize its representative status, Respondent in
its answer to the complaint affirmatively alleged that since
the parties last negotiation meeting, held on December 20,
1973, the Union had not requested further negotiations, and,
regarding the alleged unilateral changes, Respondent did not
deny that such changes were made but affirmatively alleged
that Respondent was not under any legal obligation to bar-
gain with the Union over the changes.
IV THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
On February 20, 1973, the Union was certified by the
Board as the exclusive bargaining representative of the ap-
proximately 310 employees employed by Respondent in a
215 NLRB No. 115
IDAHO FRESH PAK -INC 677
bargaining unit composed of its production, packing, and
maintenance employees including truckdrivers, warehouse-
men, and laboratory employees. The representatives of Re-
spondent and the Union met on 11 occasions between March
22 and December 20, 1973, in an unsuccessful effort to
negotiate a collective-bargaining agreement. There is no con-
tention that Respondent did not bargain in good faith. The
Union's principle negotiator was its Secretary-Treasurer Al-
vin Hill. Respondent was represented by Tom Hazzard, the
executive secretary of the Idaho Employers Council, Inc., an
organization that represents employers
The negotiators at the conclusion of the ninth
meeting-the meeting of October 9, 1973-were at odds over
wages, union security, pension plan, paid holidays, overtime
pay, and the appropriate labor grade for the "quality control"
classification. Previously, the parties had called upon a Fed-
eral mediator for assistance but the mediator was unable to
narrow the areas of dispute.
Shortly after the October 9 bargaining session, the Union
on October 16 called a strike in support of its bargaining
position which was supported by about 158 of Respondent's
employees The strike did not break the bargaining deadlock.
No progress was made at the next negotiation meeting held
on November 8, 1973. The parties did not move from their
respective positions. At the conclusion of this meeting, the
Union's negotiator, Hill, was so frustrated over the lack of
progress that he informed Respondent's negotiators that the
Union would no longer initiate the negotiation meetings, and
that although the Union wanted to continue to hold negotia-
tion meetings , that further meetings would have to be ar-
ranged by either Respondent or through the Federal media-
tor. The parties next met on December 20, 1973, without any
success in narrowing the disputed issues. In other words, it
is clear that at the conclusion of the bargaining meeting held
on December 20 negotiations for an agreement had reached
a genuine impasse.' They had reached the stage where fur-
ther meetings would have been fruitless.
The next communication between Respondent and the
Union was the Union's written acceptance of the Respon-
dent's "last and final offer " On January 23, 1974, the
Union's representative, Hill, by letter, notified Respondent's
representative, Hazzard, that:
[The Union] does hereby accept the Company's last
proposal for a complete and final agreement as of Octo-
ber 9, 1973, on all issues that were agreed upon up to the
conclusion of that meeting. I suggest that we get together
as soon as possible to draft up and sign the contract.
Contact me as soon as possible to set a date for this
meeting.
When Respondent did not respond to this letter , Union Rep-
resentative Hill, on behalf of the Union, on March 1, 1974,
filed the charge in the instant case alleging that Respondent
had violated the Act because, "on or about January 23, 1974,
the Union noticed (sic) [the Respondent] that they were in
agreement on all issues for an agreement Thereafter , in spite
' The fact that the Union shortly after the negotiation meeting of October
9, but before the meeting of November 8, apparently modified its wage
demands does not in my view detract from the conclusion that by December
20 the parties had reached a genuine impasse
of repeated requests [the Respondent] has refused to reduce
in writing and sign an agreement." On April 25, an agent of
the Board's Regional Director for Region 19 notified Re-
spondent and the Union, by letter, that an investigation of the
charge revealed that Respondent had effectively withdrawn
its final offer made on October 9 prior to the Union's accept-
ance on January 23,1974, and for that reason Respondent was
not, as alleged in the charge, obliged to enter into an agree-
ment embodying the terms of the offer, but that Respondent
for the reasons set forth in the instant complaint had, in other
respects, refused to bargain with the Union in violation of the
Act.
In the midst of these events, a bargaining unit employee,
Gene Christiansen, on March 20; 1974, filed a decertification
petition with the Board, pursuant to Section 9(c)(1)(A) of the
Act, asserting on the face of the petition that the Union was
no longer the representative of the employees in the appropri-
ate unit and that the petition was supported by "30 percent
or more of the employees in the unit." Counsel for the Gen-
eral Counsel during the instant proceeding stipulated that the
petition was in fact supported by a valid showing of interest,
30 percent of the unit employees. There is no evidence of the
actual number of employees who signed the petition, particu-
larly whether a majority had signed, nor does the record
establish that it would have been reasonable for Respondent
to believe that a majority of its employees had signed the
petition. The Board's Regional Director for Region 19 dis-
missed the decertification petition on April 30, 1974, simul-
taneous with the issuance of the complaint in this case. It does
not appear that an appeal to the Board was taken from the
Regional Director's dismissal.
The pertinent events leading up to the filing on March 20,
1974, of the decertification petition are as follows. Early in
February 1974, the Respondent's office manager, Roland
Hamilton, was informed by employee Christiansen that he
had started a petition to have another election because "he
felt" that a majority of the employees did not want the Union
to represent them. Christiansen asked Hamilton for his ad-
vice, whereupon Hamilton advised him to write directly to
the Board for advice on such a matter. On February 18,
Christiansen wrote a letter to the Board's Regional Director
for Region 19 stating, in substance, that he believed that most
of the employees no longer wanted the Union to represent
them and asked if it was possible to have another election. On
February 22, the Regional Director's assistant, by letter, ex-
plained the circumstances under which an election to decer-
tify the Union could be held, and enclosed a set of decertifica-
tion petition forms for Christiansen 's use . On March 20, as
described above, Christiansen filed a decertification petition
with the Board.
Prior to the filing of the petition and after it learned that
Christiansen intended to file such a petition, the Respondent
made substantial changes affecting its employees' conditions
of employment. On March 10, 1974, Respondent in effect
notified all of the employees employed in the certified bar-
gaining unit that effective immediately there would be certain
changes in the employees' terms and conditions of employ-
ment. The hourly rates of pay for all of the unit employees
were increased substantially;' paid holidays were increased
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from 3 to 4 a year ; new employees during their first 30 days
were paid 20 cents an hour less than the posted hourly rates
as contrasted to the existing policy of paying them 15 cents
an hour less ; the job classification "quality control" was
moved from labor grade 2 to 1, a lower paying labor grade;
the job classification "waste plant operator" was eliminated.
And, three new job classifications-"quality control lead,"
"packaging lead," and "peel & trim lead"-were created.
Respondent announced the aforesaid changes to the unit em-
ployees and actually implemented them on March 10, 1974,
without notifying the Union or giving the Union an oppor-
tunity to bargain over the changes . I further find that none
of the aforesaid changes had been included within the Re-
spondent 's bargaining proposals made to the Union.'
Following the issuance of the complaint in this case, Re-
spondent on May 8 , 1974, filed its answer in which it defended
its alleged refusal to meet with the Union and to recognize the
Union 's majority status, on the ground that since the last
negotiation meeting held on December 20, 1973 , the Union
had not requested that Respondent meet for the purposes of
collective bargaining . Upon receipt of the answer , the Union
on May 9 immediately wrote Respondent and asked for a
negotiation meeting . Specifically, Union Representative Hill
wrote Respondent 's negotiator , Hazzard , and asked for the
resumption of bargaining to negotiate an agreement and sug-
gested that negotiation meetings be held on certain dates. On
May 10 , Hazzard , on behalf of Respondent , by letter, replied
and refused to meet with the representatives of the Union for
the purpose of collective bargaining , explaining , "it would not
be appropriate for us to engage in bargaining prior to the
resolution of the complaint [referring to the complaint which
had been issued in this case ' on April 30] by the Board,
therefore, we will not be available for collective bargaining at
this time."
B. Concluding Findings
I
The contention of the General Counsel that Respondent
violated the Act by its refusal to answer the Union 's letter of
January 23 , 1974, and meet and bargain , in my opinion, is not
supported by a preponderance of the evidence. Union Repre-
sentative Hill's letter of January 23 did not request that Re-
spondent engage in bargaining .' The letter asked Respond-
ent to do only one thing, to enter into a collective -bargaining
2 The hourly rate for the job classifications within labor grades I and 2
were increased by 40 cents , labor grade 3 by 25 cents , labor grade 4 by 44
cents, labor grade 5 by 42 cents , labor grade 6 by 70 cents , labor grade 7's
minimum rate was increased by 35 cents and its maximum rate by 95 cents
3 The record establishes that the Respondent's last bargaining offer had
been made to the Union at the negotiation meetings held on October 9 and
on December 20 The content of this offer insofar as it relates to wage rates,
paid holidays , job classifications , and labor grades is set out in Resp Exh
2 A comparison of the changes put into effect on March 10 , 1974 (Resp
Exh 3 ), with Respondent 's last bargaining proposal (Resp Exh 2), indicates
substantial differences
4 Union Representative Hill admitted that from the last negotiation meet-
ing held on December 20 until his letter of May 9, in which he requested
a resumption of bargaining , that the Union had not made any request to
Respondent " for further bargaining " He testified that in his letter of Janu-
ary 23, " I was asking that we would accept the agreement as negotiated
October 9 , 1973, the last and final offer'
agreement embodying the terms contained in Respondent's
so-called final proposal made on October 9, 1973 . Respond-
ent was not legally obliged , however , to do what the Union
requested . I have considered that the Union 's letter of Janu-
ary 23, in effect , made substantial bargaining concessions
which , as I find below , broke the bargaining impasse. Per-
haps, under the circumstances , it would have been better
practice for Respondent to have arranged to meet with the
Union's negotiators , as requested , and tell them that it did not
feel it was obliged to enter into the agreement proposed by the
Union, explain the reason for its refusal , and offer to engage
in further bargaining , rather than just ignore the Union's
letter . On the other hand , it is undisputed that Respondent
previously had engaged in good -faith bargaining and had
bargained to a genuine impasse . There is not the slightest
indication that at any time during these negotiations Re-
spondent was derelict in its statutory duty to exercise reason-
able diligence and promptitude in arranging bargaining meet-
ings. For the foregoing reasons, I find that Respondent did
not fail to comply with the statutory requirement of good-
faith bargaining by failing to answer the letter of January 23
or by its failure to meet with the Union as requested by this
letter.
11
The General Counsel's contention that , by instituting
changes in the employees conditions of employment on
March 10 , 1974, without bargaining with the Union, Re-
spondent violated Section 8(a)(5) and (1) of the Act, in my
opinion , is meritorious.
Respondent , as described above, on March 10 , without
affording the Union an opportunity to bargain, announced
and implemented significant changes in the employees' work-
ing conditions including a substantial improvement in their
hourly rates of pay and an additional paid holiday . Although
a bargaining impasse had been reached on December 20,
1973, the impasse no longer existed when Respondent made
the aforesaid unilateral changes. The entire bargaining at-
mosphere had changed on January 23, 1974, when the Union,
in effect , notified Respondent that it was withdrawing its
disputed proposals and was accepting Respondent 's final
proposal . This conduct, in my view, broke the bargaining
stalemate , changed the circumstances of the bargaining at-
mosphere , and renewed Respondent 's duty to bargain.'
There is no evidence that it would have been futile for Re-
spondent to place the unilateral changes it instituted on the
bargaining table and afford the Union an opportunity to bar-
gain over these matters. To the contrary , it is likely that the
substantial economic benefits granted by Respondent, if
proposed to the Union, would have gone a long way toward
bringing the parties together to an agreement , especially since
the Union had recently expressed a willingness to compro-
mise as evidenced by its letter of January 23.
Respondent called no witness to explain or justify its fail-
ure to notify or bargain with the Union over the changes it
instituted on March 10 nor did it otherwise present any evi-
5 During the course of the hearing , Respondent conceded that Union
Representative Hill's letter of January 23 constituted a substantial change
in the Union 's previous bargaining position
IDAHO FRESH PAK-INC
dence explaining this failure. I can only speculate as to what
motivated Respondent's conduct in this respect. Obviously,
Respondent could not have relied on the filing of the decer-
tification petition to justify its failure to bargain with the
Union on March 10. The petition was not filed until 10 days
later , Nor can Respondent successfully urge that it had a
reasonably based doubt of the Union's majority status and
because of this was under no obligation to bargain with the
Union on March 10 6 For, it is undisputed that the sole evi-
dence that Respondent had of employees' disaffection for the
Union at the time it made the unilateral changes was, (1) the
statement of one employee (Christiansen) that he "felt" a
majority of the employees no longer wanted the Union to
represent them and that he was "starting" a petition to decer-
tify the Union, and (2) of the 158 employees who had initially
honored or participated in the strike of October 16, 1973, all
but 78 had returned to work by the latter part of January
1974.7 The statement by one employee in a unit of over 300
that he "felt" a majority of the employees no longer wanted
the Union to represent them, is certainly not sufficient either
by itself or in conjunction with other matters to afford the
Respondent with a rational basis for doubting the Union's
majority status. And, regarding the unsuccessful strike, "it
has been held time and again, [however] that an employee's
return to work during a strike does not provide a reasonable
basis for presuming that he has repudiated the Union as his
bargaining representative." Allied Industrial Workers,
AFL-CIO Local Union No. 289 [Cavalier Corporation] v.
N.L.R.B., 476 F.2d 868, 881 (C.A.D.C., 1973), and cases
cited therein.
Based on the foregoing, I find that on March 10, 1974, by
increasing the employees' hourly rates of pay, increasing the
number of paid holidays, lowering the hourly rate of pay of
new hires during their first 30 days, discontinuing one job
classification, instituting three new job classifications, and
moving another job classification to a lower paying labor
grade, all without giving the Union an opportunity to bar-
gain , Respondent violated Section 8(a)(5) and (1) of the Act.
See N.L.R.B. v. Benne Katz etc., d/b/a Williamsburg Steel
Products Co., 369 U.S. 736 (1961). This is true even assuming
that negotiations were at an impasse on March 10. For, as
described earlier, the record establishes that the changes in-
stituted on March 10 had not been previously proposed to the
Union, nor were they consistent with previous offers rejected
by the Union or reasonably comprehended within Respon-
dent's preimpasse proposals. Under these circumstances,
even assuming a continuing impasse, Respondent by its con-
duct on March 10 of instituting unilateral changes in the
employees' terms and conditions of employment violated Sec-
tion 8(a)(5) and (1) of the Act. N.L.R.B. v. Bennie Katz,
supra, 369 U.S. at 745, N.L.R.B. v. Crompton-Highland
Mills, 337 U.S. 217, 225 (1949); and NL.R.B. v. Intracoastal
Terminal Inc., et al., 286 F.2d 954 (C.A 5, 1961).
6 In this connection, the law is settled that to justify the withdrawal of
recognition from an incumbent certified union after expiration of the certifi-
cation year, an employer must have objective grounds affording a rational
basis for doubting the Union's majority status Terrell Machine Co v
NL.R B, 427 F 2d 1088 (C A 4, 1970)
7 Based on the undisputed testimony of Office Manager Holland
q i
679
Finally, I am of the opinion that by refusing to meet and
resume collective-bargaining negotiations, as requested by
the Union, Respondent on May 10, 1974, violated its statu-
tory duty to meet at reasonable times and bargain with the
Union
Well-settled rules come into play when an employer, like
Respondent, refuses to bargain and in effect withdraws recog-
nition from a labor organization, like the Union, which is the
employees' certified bargaining representative. Upon the ex-
piration of the Union's original certification year, February
20, 1974, there was a presumption of the Union's representa-
tive status. Respondent was obligated to continue bargaining
with the Union, upon request, unless Respondent affirma-
tively demonstrated either (1) that the Union no longer en-
joyed majority support at the time of the refusal to bargain;
or (2) that the cessation of bargaining was predicated upon
a reasonably grounded, good-faith doubt of such majority.
See Terrell Machine Company v. N.L R.B., 427 F.2d 1088
(C.A 4, 1970)
On May 10, 1974, when Respondent notified the Union of
its refusal to resume collective-bargaining negotiations, the
only evidence which had come to its attention pertaining to
the Union's majority status was as follows- (1) one employee,
Gene Christiansen, had told Respondent's office manager
that he believed a majority of the employees no longer wanted
the Union to represent them and that he intended to petition
the Board to conduct an election to decertify the Union as the
employees' exclusive bargaining representative, (2) on March
20, 1974, employee Christiansen in fact did file with the
Board a petition to decertify the Union; and (3) over a
majority of Respondent's employees had withdrawn their
support from the strike called by the Union in support of its
bargaining demands. For the reasons previously expressed,
the opinion of one employee as to the union sentiments of his
300 fellow employees and the fact that employees did not
honor the Union's picket line or support the strike do not
either separately or together support a reasonably grounded
belief that the Union had lost its status as the employees'
majority representative. Nor did the decertification petition,
in the circumstances of this case, provide a defense for Re-
spondent's refusal to meet and bargain with the Union. For,
although it is the Board's view that an employer, once it
learns that its employees have filed a decertification petition
with the required 30-percent showing of interest, may prop-
erly decline to bargain further with the bargaining representa-
tive pending the disposition of the decertification request
(Telautograph Corp., 199 NLRB 892 (1972)), no such right
exists, whereas in the instant case, the employees' decertifica-
tion activity took place in the context of Respondent's unfair
labor practices See Cantor Bros., Inc., 203 NLRB 774, at
footnote 4 (1973), where the Board noted that a decertifica-
tion petition could not raise a "question concerning represen-
tation" unless it was "filed in a context free of employer
unfair labor practices " Here, as described previously, on
March 10 shortly before the filing of the decertification peti-
tion and in violation of its obligation to bargain with the
Union, Respondent made significant changes in its em-
ployees' terms and conditions of employment including a
grant of substantial benefits of employment which affected
680 1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
every bargaining unit employee. Such conduct has the natural
tendency to undercut the Union and to diminish employee
support for the Union, and, there is the distinct probability
that employee Christiansen was able to secure sufficient sig-
natures to file the decertification petition because of Respon-
dent's unfair labor practices.
I have considered that employee Christiansen conceived of
the idea of filing a decertification petition with the Board
before Respondent granted the improved employment bene-
fits. But, more significant is the fact that Christiansen re-
ceived the petition forms on or about February 25 yet the
petition was not filed until about March 20, 10 days after
Respondent granted the improved benefits. It is undisputed
that when it granted these benefits to the employees Respond-
ent knew that Christiansen intended to solicit a sufficient
number of employees to sign a petition to decertify the Union
which he would then file with the Board. In sum, the circum-
stances indicate, not only that the improved benefits given the
employees by Respondent would have the natural effect of
undermining the Union and helping Christiansen in his ef-
forts to decertify the Union, but that Respondent must have
known that its conduct would have this effect.
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
1. Idaho Fresh Pak-Inc., the Respondent, is an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Teamsters, Chauffeurs, Warehousemen & Helpers
Union No. 983, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Independent, the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production, packing, and maintenance employees
employed by Respondent at its vegetable processing plant in
Lewisville, Idaho, including truckdrivers, warehousemen,
and laboratory employees, excluding office clerical em-
ployees, technicians, guards, professional employees, and
supervisors as defined in the Act, constitute a unit appropri-
ate for purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since February 20, 1973, the above-named Union has
been, and is now, the exclusive representative of all employees
in the aforesaid bargaining unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. On March 10, 1974, Respondent violated Section 8(a)(5)
and (1) of the Act when, without notifying, consulting, or
bargaining with the Union, it announced and instituted
changes in the bargaining unit employees' terms and condi-
tions of employment, as follows: Raised hourly rates of pay;
increased the number of paid holidays; added three new job
classifications; eliminated one job classification; moved one
job classification to a lower paying labor grade; and decreased
the hourly rate of pay for employees during their first 30 days
of employment.
6. Since May 10, 1974, by refusing to meet with the Union
for the purpose of negotiating a collective-bargaining agree-
ment covering the bargaining unit employees, Respondent
has violated Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
8. Respondent has not otherwise violated the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I find it necessary to order Respondent
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the purposes of the Act.
Having found that Respondent violated Section 8(a)(5) and
(1) by unilaterally changing employees' terms and conditions
of employment, I shall recommend the restoration of the
status quo ante which will prevent Respondent from gaining
advantage by its unfair labor practices and will place the
injured parties as nearly as possible in the same position as
if the law had been obeyed. In this regard, I shall recommend
that Respondent reimburse the employees for any loss of
earnings incurred because of the unilateral changes, and, if
the Union requests, to rescind all or some of the unilateral
changes.' However, nothing herein shall be construed as re-
quiring Respondent to revoke any increases in wages or paid
holidays or other benefits it has heretofore granted. (See Sta-
ter's Johnsonville Meats Inc., 174 NLRB 693 (1969).)
Having also found that Respondent has refused to meet
and bargain with the Union in violation of Section 8(a)(5) and
(1) of the Act, I shall recommend that it be ordered to cease
and desist therefrom and, upon request, bargain collectively
in good faith with the Union as the exclusive representative
of all employees in the appropriate unit, and, in the event that
an understanding is reached, embody such understanding in
a signed agreement. I have not extended the Union's certifica-
tion year inasmuch as the record does not establish that
Respondent violated the Act during the certification year. See
Orion Corporation, 210 NLRB 633 (1974).
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:
ORDERS
Respondent, Idaho Fresh Pak-Inc., Lewisville, Idaho, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Making unilateral changes in employees' wages, rates
of pay, job classifications, holiday pay, or other terms and
conditions of employment, or in any similar or related man-
ner refuse to bargain collectively with Teamsters, Chauffeurs,
Warehousemen & Helpers Union No. 983, affiliated with
8 Respondent's backpay liability arising out of the unlawful unilateral
changes which may have caused employees to suffer a loss of wages shall
continue until, at the request of the Union, Respondent restores the status
quo This liability shall terminate, within 7 days after this Decision, upon
the failure within that time of the Union to request a restoration of the status
quo Of course, the Union may elect to request that some, but not all, of the
changed conditions be reinstated
9 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
IDAHO FRESH PAK-INC 681
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, Independent, as the exclu-
sive representative of its employees in the following bargain-
ing unit: All production, packing, and maintenance
employees employed at its vegetable processing plant in Lew-
isville, Idaho, including truckdrivers, warehousemen, and
laboratory employees, excluding office clerical employees,
technicians, guards, professional employees, and supervisors
as defined in the Act.
(b) Refusing to bargain collectively concerning rates of
pay, wages, hours of employment, and other conditions of
employment with the above-named Union as the exclusive
representative of its employees in the above-described unit.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act
(a) Upon request, bargain collectively with the above-
named Union as the exclusive representative of all its em-
ployees in the above-described unit concerning rates of pay,
wages, hours of employment and other conditions of employ-
ment, and embody any agreement reached in a signed con-
tract.
(b) Upon the request of the above-named Union, take the
following actions Pay employees during their first 240 hours
of employment 15 cents an hour less than the regular hourly
rate rather than 20 cents an hour less; place employees classi-
fied as "quality control" employees in labor grade 2, reinstate
the job classification "waste plant operator" in labor grade 5;
discontinue the job classifications "quality control lead,"
"packaging lead," and "peel & trim lead."
(c) Make the employees whole for any loss of earnings they
may have suffered by reason of its unilateral change of em-
ployees' job classifications, labor grades, and rates of pay
instituted on March 10, 1974, with interest at 6 percent per
annum.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security records, time cards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its place of business in Lewisville, Idaho, copies
of the attached notice marked "Appendix."10 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 19, after being duly signed by Respondent's representa-
tive, shall be posted by 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 Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
10 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board "
(f) Notify the Regional Director for Region 19, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed insofar
as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT make unilateral changes in your wages,
rates of pay, job classifications, holiday pay, or other
terms and conditions of employment, or in any similar
or related way refuse to bargain collectively with Team-
sters, Chauffeurs, Warehousemen & Helpers Union No.
983 as the exclusive representative of our employees in
the following bargaining unit All production, packing,
and maintenance employees employed at our vegetable
processing plant in Lewisville, Idaho, including truck-
drivers, warehousemen, and laboratory employees, ex-
cluding office clerical employees, technicians, guards,
professional employees, and supervisors as defined in the
Act.
WE WILL NOT refuse to bargain collectively concerning
rates of pay, wages, hours of employment, and other
terms and conditions of employment with the above-
named Union as the exclusive representative of our em-
ployees in the above-described unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights guaranteed in Section 7 of the National La-
bor Relations Act, as amended.
WE WILL, upon request, bargain collectively with the
above-named Union as the exclusive representative of all
our employees in the above-described unit , concerning
rates of pay, wages, hours of employment, and other
terms and conditions of employment, and embody any
agreement reached in a signed contract.
WE WILL, upon the request of the above-named
Union: During your first 240 hours of employment pay
you 15 cents an hour less than the regular hourly rate of
pay rather than 20 cents an hour less, place those of you
classified as "quality control" employees in labor grade
2; reinstate the job classification "waste plant operator"
in labor grade 5; and discontinue the job classifications
"quality control lead," "packaging lead," and "peel &
trim lead."
WE WILL make employees whole for any loss of earn-
ings they may have suffered by reason of our unilateral
changes of employee job classifications, labor grades,
and rates of pay instituted on March 10, 1974, with
interest at 6 percent per annum.
IDAHO FRESH PAK-INC