Riverside Produce Co.

National Labor Relations Board - Board Decisions

May 29, 1979

242 N.L.R.B. 615 (N.L.R.B. 1979)

RIVERSIDE PRODUCE COMPANY
Victor Miceli and Sam Miceli d/b/a Riverside Pro-
duce Company and General Truck Drivers, Ware-
housemen & Helpers Union, Local 467, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case 21-
CA- 15776
May 29, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On February 22, 1978, Administrative Law Judge
James T. Rasbury issued the attached Decision in the
above-entitled proceeding finding that Victor Miceli
and Sam Miceli d/b/a Riverside Produce Company
(herein Respondent) had violated Section 8(a)(5) and
(1) of the National Labor Relations Act, as amended,
by failing to adhere to its then current collective-bar-
gaining agreement with the Union and by refusing,
upon request, to bargain with the Union in good faith
in an effort to reach a new agreement. Thereafter,
Respondent and the General Counsel filed exceptions
and supporting briefs.
By Order dated August 3, 1978. the National La-
bor Relations Board remanded this proceeding to the
Administrative Law Judge for the purpose of receiv-
ing evidence on Respondent's alleged objective con-
siderations for doubting the Union's majority status
at the time of the alleged refusal to bargain. On De-
cember 19, 1978, the Administrative Law Judge is-
sued his Supplemental Decision, also attached hereto,
containing new findings of fact, conclusions of law,
and a recommended Order. Thereafter, Respondent
and the General Counsel filed exceptions to the Ad-
ministrative Law Judge's Supplemental Decision and
briefs in support thereof, and Respondent filed an an-
swering 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 entire record and the
attached Decision and Supplemental Decision in light
of all the exceptions and briefs and has decided to
affirm the rulings, findings.' and conclusions2 of the
I The General Counsel and Respondent excepted to certain credibility
findings made by the Administrative law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with respect
to credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Drv Wall Producis,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 The Administrative Law Judge concluded. inter alia. that Respondent
separately violated Sec. 8(a}(5) and (I) of the Act by unilaterally changing
previously established terms and conditions of employment. by failing and
refusing to furnish employee information to the U'nion, and hby refusing to
Administrative Law Judge and to adopt his recom-
mended Order, as set forth in the said Supplemental
Decision and as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as set forth in
his Supplemental Decision and as modified below,
and hereby orders that the Respondent, Victor Miceli
and Sam Miceli d/b/a Riverside Produce Company,
Riverside, California, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, as so modified:
I. Substitute the following for paragraph 2(a):
"(a) Make contributions to the pension and health
welfare trust funds on behalf of the employees who
were in the appropriate unit, thereby restoring any
losses or expense they have suffered as a result of
Respondent's failure to comply with terms of the trust
funds and Union contract which expired on July 4.
1977."
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
process grievances or union complaints up to and including the expiration
date of Respondent's contract with the Union. Respondent excepts to these
conclusions on the ground. inter aulia. that the complaint did not specifically
allege these violations Although the complaint did not specifically allege the
foregoing violations found by the Administrative Law Judge, the allegations
were generally encompassed in the complaint, the issues were fully litigated
at the hearing. and the record fully supports his conclusions. Accordingly, we
adopt the Administrative Law Judge's finding of these violations. See Gerald
G. Gogin d/hla Gogin Trucking, 229 NlRB 529 1977).
'The Administrative Law Judge found that Respondent violated the Act
by refusing to furnish certain data concerning unit employees as requested
by the Union and by refusing to process gnevances or union complaints. ie
declined, however. to provide an affirmative remedy for these violations in
view of the fact that, at the time of his Supplemental Decision, a year and a
half had passed since the expiration of Respondent's contract with the
Union. We do not agree that the mere passage of time relieves Respondent
of its obligation to affirmatively remedy these violations. Nevertheless, with
regard to the processing of grievances and complaints we find that an affir-
mative remedial provision is unwarranted herein, but we do so only because
it is clear that the matters complained of in the grievances will he remedied
by our affirmative "make whole" provision herein. However, with respect to
Respondent's refusal to provide the requested employee data, Inasmuch as
the specific purpose of the Union's request is not clear from the record. we
shall require Respondent. upon request, to furnish such data to the Union.
Additionally, with regard to the Administrative Law Judge's "make whole"
provision of his recommended Order. we note that because the provisions of
employee benefit fund agreements are variable and complex. the Board does
not provide at the adjudicatory stage of a proceeding for the addition of
interest at a fixed rate on unlawfully withheld fund payments. We leave to
the compliance stage of this proceeding the question of whether Respondent
must pay any additional amounts into the pension and health and welfare
trust funds in order to satisfy our "make whole" remedy. These additional
amounts may be determined, depending upon the circumstances of each
case, by reference toi provisions in the documents governing the funds and, if
there are no governing provisions, by evidence of any loss directly attnbut-
able to the unlawful withholding action, which might include the loss of
return on investment of the portion of funds withheld, additional administra-
tive costs. etc . but not collateral losses Inland Cities, Inc , 241 N .RB No. 56
(19791 We shall modify the recommended Order accordingly.
242 NLRB No. 96
615
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"(b) Upon request, furnish to the Union the em-
ployee data requested by the Union on or about June
9, 1977."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid and protection
To refrain from any and all such activities
except to the extent that the employees' bar-
gaining representative and employer may have
a collective-bargaining agreement which im-
poses a lawful requirement that employees be-
come union members.
In recognition of these rights, we hereby notify our
employees that:
WE WILL NOT refuse to abide by all the terms
and conditions of the contract between us and
General Truck Drivers, Warehousemen & Help-
ers Union, Local 467, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, specifically the payments to
the pension and health and welfare trust funds
up to the expiration date of the union contract,
July 4, 1977.
WE WILL NOT refuse to provide the Union with
necessary and requested employee data or refuse
to process employee complaints or grievances in
a manner consistent with the then effective labor
management agreement up to its expiration date,
July 4, 1977.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
In the exercise of rights guaranteed them by the
National Labor Relations Act.
WE WILL make payment to the pension and
health and welfare funds on behalf of the em-
ployees who were in the appropriate unit to re-
store the amount of the contributions due to the
trust funds pursuant to the union contract up to
the contract expiration date, July 4, 1977.
WE WILL, upon request, furnish to the Union
the employee data requested by the Union on or
about June 9, 1977.
VICTOR MICELI AND SAM MICELI D/B/A
RIVERSIDE PRODUCE COMPANY
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was first heard before me in Riverside, California, on Octo-
ber 20 and 21, 1977, pursuant to a complaint and notice of
hearing issued on July 13, 1977, by the Regional Director of
the National Labor Relations Board for Region 21. The
complaint alleged violations of Section 8(a)( ) and (a)(5) of
the National Labor Relations Act, as amended (herein the
Act). The charge giving rise to the complaint and notice of
hearing was filed by the General Truck Drivers, Ware-
housemen & Helpers Union, Local 467, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (herein Union, or Loci 467) on June 2,
1977.
On February 22, 1978, I rendered a Decision on the is-
sues raised by the pleadings and the evidence received on
October 20 and 21. 1977. In that Decision, I reached the
conclusion that Respondent herein was a successor em-
ployer and because of its course of conduct in making some
payments to the pension and health and welfare trust funds
as set forth in the union contract, it had adopted the prede-
cessor employer's labor management agreement. The
predecessor's agreement was not due to expire until July 4,
1977, thus when Respondent herein failed to make the re-
quired trust fund payments for the months of May, June,
and July, 1977, and when it failed to provide the Union
with requested employee information and/or respond to its
grievances and requests for negotiations on a new contract,
I found Respondent guilty of violating Section 8(a)(5) and
(1) of the Act. In my earlier Decision, I directed Respon-
dent to reimburse the Union's pension trust and health and
welfare trust for any financial losses suffered by reason of
Respondent's failure to comply with the terms of the trust
funds and union contract up to its expiration date of July 4,
1977. with appropriate interest thereon. Respondent was
also ordered to recognize and upon request bargain collec-
tively with the Union and if an understanding was reached
to embody such understanding in a signed agreement.
During the first hearing, Respondent sought to offer evi-
dence through Victor Miceli of Respondent's asserted good
faith doubt, based on objective considerations, of the
Union's majority status. This evidence was excluded be-
cause, as I set forth in a footnote of my prior Decision, I
was of the opinion that Respondent was seeking to litigate
the propriety of an RM petition in the context of an unfair
labor practice case. However, an offer of proof was made
and appears in the record at page 267.
On August 3, 1978, the Board ordered that the record in
this proceeding be reopened and that a further hearing be
held to receive evidence on Respondent's asserted good
faith doubt, based on objective considerations, of the
616
RIVERSIDE PRODUCE COMPANY
Union's majority status as of the time of the alleged refusal
to bargain.
A hearing was held in Los Angeles, California, on Sep-
tember 27, 1978, at which all parties were represented by
counsel and given a full opportunity to present evidence as
directed by the Board in its Order.
Upon the entire record in this case and based upon my
observations of the witnesses and the briefs of the parties, I
hereby make the following:
SUPPLEMENTAL FINDINGS OF FACT
I. THE ADDITIONAL EVIDENCE
Victor Miceli testified that in late February or early
March 1977, he had a conversation with Jack Johnson, a
driver-salesman, in which Johnson informed him "that he
was unhappy with the Union, because he had made a num-
ber of contacts to the Union concerning specific problems
that he had, and that they never afforded him the courtesy
of returning his call. And he stated to me that he was dissat-
isfied with the Union and that he didn't think the Union
was doing him any good."
During the same time, Miceli testified that he had a con-
versation with Eddie Stanwick, a driver-salesman, who ad-
vised him that he had formerly been employed by a "union
house" and "if Riverside Produce went union, that he
would no longer work for the Riverside Produce; he would
go some place else." Stanwick further told him, "any place
that he [Stanwick] had worked where they had a union,
they became uncompetitive and unable to meet the compe-
tition and that the prospects of the business being a success
were not good."
About the same time, Miceli testified that John Romo, a
driver-salesman, told him that he (Romo) was opposed to
the Union because he had worked at a produce company
where he had a grievance and the Union had failed to sup-
port him. According to Miceli, Romo "did not want to be-
come or would not become a part of the Union."
According to Miceli, during the same time, he had a con-
versation with Tony Douglas, a driver-salesman, who told
him, "That he was not for the Union. He was against the
Union. And that he would not join, I believe is what he
said; he would not join the Union."
Miceli further testified that sometime in April 1977, John
Romo quit and was replaced by employee Pat de Francisco
during the first part of June 1977. According to Miceli.
shortly after de Francisco became an employee, he told
Miceli, "he didn't want to join any goddamn union" and
asked what he could do to prevent it. According to Miceli,
he suggested that he (de Francisco) contact the National
Labor Relations Board and ask them what he should do.'
Ne;'her the Charging Party's counsel nor the counsel for
the General Counsel called additional witnesses, but were
content to cross-examine Victor Miceli. The cross-examina-
tion established that while Miceli was able to recall with
great clarity and precision the antiunion comments of the
employees as heretofore set forth, he was not able to recall
The testimony of Miceli concerning what he was told by his employees
regarding the Union is almost identical to the offer of proof that appears in
the record of the first hearing.
in any instance what conversation may have preceeded the
antiunion remarks or why the employees elected to volun-
teer, without solicitation, their antiunion remarks
Analysis and Conclusions
Respondent's objective considerations of its good faith
doubt of the Union's majority status would seem to be three
pronged. First, his conversation with four of the probable
six employees in the bargaining unit:' second, the fact that
payments to the trust funds had only been made on behalf
of two employees-Johnson and Martinez: third, that lie
(Victor Miceli) had never received any communication
from the Union that there existed a union contract.
There exists no objective basis on which it might be said
that the testimony of Victor Miceli regarding the antiunion
comments of four of Repondent's employees was anything
but truthful. Neither the General Counsel nor Respondent
subpenaed any of the employees and their version of what
might have been said in the critical conversations has not
been heard. However, I remain suspect as to the total can-
dor of Victor Miceli's testimony for the following reasons.
Victor Miceli contended that he had no knowledge of the
Union until Respondent received the Union's form letter
dated April 5, 1977, which requested the opening of the
contract for negotiations. However, in August 1976, shortly
after Victor and Sam Miceli acquired the business, Sam
Miceli and Bill Bousman, an employee, had a difference of
opinion in which the Union was brought into the conversa-
tion. In November 1976, Molina, the Union's business
agent, called on Respondent and met and talked with Sam
Miceli. In February 1977, Molina again called at the prem-
ises of Respondent and visited with Sam Miceli. At that
time, there was a discussion between Molina and Sam
Miceli regarding one of the employees with whom Sam
Miceli contended he was having problems and later an ex-
change of correspondence regarding the matter. It is incon-
ceivabie that this knowledge of the Union on the part of
Sam Miceli was not imparted to this brother Victor.' In
addition, as was pointed out in the earlier Decision, Victor
Miceli had a conversation with Jack Johnson, in February,
concerning whether or not a particular day was to be re-
garded as a holiday and the matter was resolved by refer-
ring to an unsigned copy of a union contract which Johnson
provided Victor Miceli. Perhaps the strongest and most
convincing evidence of Victor Miceli's knowledge of the
Union's presence and bargaining role stem from the fact
that he (Victor Miceli) signed the August and December
1976 pension payments to the trust funds.
As to Respondent's claim that there were only two
named employees out of the six employees in the bargain-
ing unit that appeared on the monthly trust fund reports,
: As indicated In the first Decision, Miceli listed Stanwick, Johnson, Mar-
tinez. and Romo as regular employees in April 1977. Teno Sanchez, one if
the former owners, who was employed by Respondent to make the ear'.
morning drive to the Los Angeles market to purchase and return to Riverside
with the newly acquired produce, and Tony Douglas, a part-time employee,
would probably cor,.prise the entire unit.
3 Moreover, it makes no difference legally, because Victor and Sam Miceli
were partners and knowledge on the part of one responsible supervisor and
agent of Respondent would be sufficient to regard Respondent as having
knowledge.
6i 7
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this situation stemmed from Respondent's own misconduct.
The usual procedure is for the employer to delete or add
names of new employees as the situation demands and as
provided for on the forms accompanying payment. In this
instance, Respondent had failed to add the names of the
new employees as they were hired. Omissions by an em-
ployer are generally only picked up at the time of an audit
by the trust fund representatives. It was Respondent that
was at fault and it would hardly seem right or equitable to
allow Respondent to benefit from its own misconduct.
There is no basis for Respondent to claim that it had
never been apprised of the role of the Union in representing
Respondent's employees in view of the undenied testimony
of Robert Molina, a union business agent, that he called on
Sam Miceli in November 1976 and again in February 1977.
Moreover, as was pointed out in the prior Decision in this
matter, Sam Miceli and Molina discussed on the occasion
of the November visit by Molina the nonunion status of the
H & L Produce Company, a competitor of Respondent, at
which time Sam Miceli responded, "we don't mind being in
the Union as long as our competition is too." This knowl-
edge of the Union's representational status and the continu-
ous payments of the pension and welfare trust monies from
August 1976 through March 1977, even though the pay-
ments did not include all of the employees for whom pay-
ments should have been made, are clearly convincing of
Respondent's adoption of the union contract.
I find, as I did in the prior Decision, that from August 4,
1976, until July 4, 1977, the Union was the exclusive bar-
gaining representative of all employees in an appropriate
bargaining unit within the meaning of Section 9(a) of the
Act and Respondent's unilateral action in changing those
wages, hours, and working conditions without negotiating
with the exclusive bargaining representative was a violation
of Section 8(a)(5) and (I) of the Act. Moreover, Respon-
dent's failure to provide the Union with requested em-
ployee information and the refusal to follow the grievance
procedure set forth in the then effective contract was fur-
ther violative of Section 8(a)(5) and (1) of the Act.
Suspicious as I am of Victor Miceli's testimony regarding
the conversations with a majority of the employees in the
then existing bargaining unit, which conversations form the
basis of his objective considerations creating his good faith
doubt as to the Union's majority status, nevertheless these
suspicions are based on inferences only and it is entirely
possible that a majority of the employees are no longer
desirous of being represented by the Union.
The Regional Office operates under the supervision of the
General Counsel of the National Labor Relations Board
and has an investigative responsibility to the public, to the
employers and the employees to see that the purposes and
directives as set forth in the Act are fully adhered to. The
offer Jf proof set out in the record of the first hearing out-
lined in brief form the names and comments of each of the
employees whom Victor Miceli claimed voluntarily re-
ported their disenchantment with the Union. In preparation
fbr the supplemental hearing it would have been relatively
easy to have interviewed each of those employees and ob-
tained their versions of the incidents. If their versions of the
incidents were different from that indicated in the offer of
proof, each of them could easily have been subpenaed to
testify at the second hearing. Because of the General Coun-
sel's failure to come forward with this readily accessible
testimony, it tends to lend credence to Victor Miceli's ver-
sion of the conversations. Accepting Miceli's version of the
four employees disenchantment with the Union and the
time of these conversations-late February or early March
1977-this was at a time prior to the discontinuance of the
pension and welfare trust fund payments and thus the em-
ployees' attitudes toward the Union were not created be-
cause of Respondent's unfair labor practices and Respon-
dent will not be benefiting from its own misconduct.'
Based on all the evidence and the logical inferences to be
drawn therefrom, I find that Respondent had a good faith
doubt, based on objective considerations, of the Union's
majority on or about April 27, 1977, when the RM petition
was filed.
CONCLUSIONS OF LAW
I. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. General Truck Drivers, Warehousemen & Helpers
Union, Local 467, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. All employees of Respondent at its Riverside, Califor-
nia, location, excluding clericals, office workers, janitors,
and supervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Respondent was, and is, a legal successor to the prior
owner and, because of a course of conduct it adopted the
predecessor's union contract and is obligated to adhere to
the terms of said contract until the contract's expiration
date which was July 4, 1977.
5. By failing and refusing, since on or about April 1977,
to recognize and bargain with the Union as the exclusive
representative of the employees in the appropriate bargain-
ing unit until the contract's termination date, Respondent
engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
6. By unilaterally changing previously established terms
and conditions of employment for unit employees after hav-
ing adopted the predecessor's contract and becoming
bound thereby, and by failing to adhere to the obligations
as set forth in the labor management agreement, Respon-
dent engaged in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
7. By failing and refusing to furnish employee informa-
tion to the Union, and by refusing to process grievances or
union complaints up to and including the expiration date of
the union contract (July 4, 1977), Respondent violated Sec-
tion 8(a)(5) and (1) of the Act.
8. Since on or about April 1977, Respondent has had
reason to believe, based on objective considerations, that
the Union no longer represented a majority of the employ-
ees involved in an appropriate bargaining unit.
'Cf. C d C Plywood Corporation and Veneers, Inc., 163 NLRB 1022
(1967).
618
RIVERSIDE PRODUCE COMPANY
THE REMEI)Y
Having found that Respondent has committed certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom, and that it take the affirma-
tive action provided for in the recommended Order below.
which I find necessary to effectuate the policies of the Act.5
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:
ORDER6
The Respondent, Victor Miceli and Sam Miceli d/b/a
Riverside Produce Company, its agents, successors, and as-
signs shall:
I. Cease and desist from:
(a) Refusing to abide by all the terms and conditions of
the contract between the Union and Respondent, specifi-
cally the payments to the pension and health and welfare
trust funds up to the expiration date of the Union contract,
July 4, 1977.
(b) Refusing to provide the Union with necessary and
requested employee data and refusing to process union
grievances or complaints in a manner consistent with the
then effective labor management agreement up to its expi-
ration date, July 4, 1977.
In view of the fact that a year and a half has passed since the union
contract expired, I shall not direct Respondent to furnish the employee data
requested or to take any corrective action because of its failure to process
employee grievances arising after Respondent's good faith doubt of the
Union's majority status.
6 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.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of rights
guaranteed them by the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make the Union's pension and health and welfare
trust funds whole for any financial losses the, may have
suffered by reason of Respondent's failure to comply with
terms of the trust funds and union contract which expired
on July 4, 1977, with interest thereon at the rate and in the
manner provided by the Board in Florida Steel Corporation,
231 NLRB 651 (1977).7
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying. all pay-
roll records, social security payment records, timecards.
personnel records, and all other records relevant or neces-
sary to facilitate the determination of the amounts due the
trust funds under the terms of this Order.
(c) Post at its place of business in Riverside, California,
the notice attached hereto as "Appendix."' Copies of said
notice, on forms provided by the Regional Director for Re-
gion 21. after being signed by Respondent's representative,
shall be posted by it 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 to ensure that said notices are not altered. defaced,
or covered by any other material.
(d) Notify the Regional Director, in writing. within 20
days from the date of the date of this Order, what steps
Respondent has taken to comply herewith.
'See, generally, Isis Plumbing & Heatring Co., 138 NI.RB 716 (1962.
8 In the event that this Order is enfiorced by a Judgment ofla 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."
619