Stockton District Kidney Bean Growers, Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1967

165 N.L.R.B. 223 (N.L.R.B. 1967)

STOCKTON DISTRICT KIDNEY BEAN GROWERS
Stockton District Kidney Bean Growers, Inc.
and Packers and Farm Production Workers
Local No. 604 , Amalgamated Meat Cutters
& Butcher Workmen of North America,
AFL-CIO. Case 20-CA-4100.
June 8, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On March 3, 1967, Trial Examiner Martin S.
Bennett issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a brief in support thereof;
the General Counsel filed a brief in support of the
Trial Examiner's Decision; and the Charging Party
filed an answer to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the briefs,
and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Stockton
District Kidney Bean Growers, Inc., Linden,
California, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
' The Trial Examiner's Decision contains minor inadvertent
errors which do not affect our ultimate findings We hereby
correct the third paragraph in the "Analysis and Conclusions"
portion of the Trial Examiner's Decision by deleting the word
"March" in two instances and inserting the word "May" instead
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Trial Examiner : This matter was
heard at Stockton , California , on December 20, 1966. The
223
complaint' alleges that Respondent, Stockton District
Kidney Bean Growers, Inc., had engaged in unfair labor
practices within the meaning of Section 8(a)(5) and,
derivatively, Section 8(a)(1) of the Act. Briefs have been
submitted by all parties.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Stockton District Kidney Bean Growers , Inc., is a
California corporation engaged in the processing and
distribution of beans at Linden, California . It sells goods
and services valued in excess of $50,000 per annum
directly to customers located outside the State of
California . I find that the operations of Respondent affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Packers and Farm Production Workers Local No 604,
Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction, The Issue
The Union and Respondent were signatory to a
collective-bargaining agreement for the period from
March 2, 1965, through May 31, 1966. The General
Counsel contends that during negotiations for a
succeeding contract, Respondent rejected the Union's
request for information in support of Respondent's claim
of inability to pay increased wages and benefits and that
this information was relevant and necessary to collective
bargaining. Respondent admits that it refused the Union's
request to open its books; concedes that financial and
wage data must be disclosed when an employer pleads
inability to pay; but, in effect, denies that it pleaded
inability to pay during these negotiations. Respondent
contends rather that it merely pleaded its unwillingness to
pay during the negotiations.
B. Refusal to Bargain
1. Majority representation in the appropriate unit
The complaint alleges, Respondent admits, and I find
that all production and maintenance employees of
Respondent at its plant at Linden, California, excluding
office clerical and professional employees, guards, and
supervisors, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act.
The complaint further alleges, Respondent admits, and
I find that since March 2, 1965, and at all material times
thereafter, the Union has been and now is the
representative of the employees in the above-described
' Issued August 30 and based upon a charge filed June 2. 1966,
by Packers and Farm Production Workers Local No 604,
Amalagmated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, herein called the Union
165 NLRB No. 32
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate unit within the meaning of Section 9(a) of the
Act.
2. Sequence of events
The course of negotiations for a new contract is set forth
below. While there are some conflicts, a resolution is not
necessary for the evidence is ultimately considered in the
light most favorable to Respondent; in that posture, a
preponderance of the evidence supports the position of the
General Counsel.
The first negotiating meeting was held on April 13, with
Manager Jack Lyons of Respondent; Executive Vice
President Roderick Barklow of San Joaquin Employers
Council, to which Respondent belongs for the purposes of
collective bargaining; and Ynez Aguilar, president of the
Union, participating. At this meeting, according to Aguilar,
the Union asked for a number of improvements in working
conditions, these including a union-shop clause; improved
vacation and health and welfare benefits; and wage
increases. Barklow stated that there was no money
available for any wage increases because Respondent was
receiving $13.75 per sack for beans as contrasted with
$14.75 in the previous year. As I read the testimony of the
witnesses for Respondent, this drop in prices was first
raised at a meeting held on May 25.
At the next meeting on April 27, according to Aguilar,
Respondent proposed a change in the wages of lift drivers.
It would seem that the drivers, under this proposal, would
have made less money because a new classification of
head lift driver at $1.90 per hour rather than $1.80 per hour
was set up, but concomitant therewith Respondent
proposed to reduce the wage rate of the lift driver to $1.50
per hour for the first 60 days and thereafter to $1.60, as
contrasted with the old rate of $1.80 after the first 60 days.
Contrary to Lyons, Aguilar contended that Lyons was
present at this meeting.
The next meeting was held on May 16 with Aguilar,
Lyons, and Barklow present. Aguilar presented the
Union's request for overtime for hours over 40 per week;
paid holidays; health and welfare benefits; a union shop;
and a checkoff of dues. According to Lyons, there was
much talk but no agreement reached on this date. Barklow
testified that Respondent then submitted its proposal for
the lift drivers, described above.
The parties next met on May 25. According to Aguilar,
Respondent rejected the Union's proposal for a union
shop. Respondent announced that it could not offer a wage
increase because the price of beans in 1966 had dropped to
$13.75 per sack, as contrasted with the 1965 price of
$14.75 per sack. Lyons testified that he announced at this
meeting that "We were in no mood for an increase in
operating expenses" because of the drop in prices and "we
did not see where it would be reasonable to increase our
operating costs ..." As Barklow put it, "We would not be
willing to make a general wage increase nor would we be
willing to agree to fringe costs which the Union had
proposed. And that meeting broke up...." Respondent
offered only the new forklift scale and a minor change in
seniority rules.
The parties last met on May 31 under the auspices of a
California State conciliator who caucused separately with
them. Also present for the Union, and leading the
discussion, was General Organizer Harold Benninger. The
Union renewed its original proposals and, according to
Lyons and Barklow, Lyons again stated that the farmers
were in no "mood" to increase operating costs due to the
drop in the price of beans. Later in the meeting, according
to Benninger, he asked for an immediate 5-cent raise, the
effect of which would have been minor because of the
customary summer shutdown, and another in September;
this was refused by Barklow.
Benninger and Aguilar testified that, at this meeting,
Benninger asked Barklow if Respondent was pleading
"inability to pay" and Barklow replied in the affirmative.
The latter, in turn, testified that he was well aware that
this was a meaningful term which might subject his client
to a Board order to bargain, that he deliberately refrained
from its use, and that he answered the question in the
negative. For reasons which appear below, I consider it
unnecessary to resolve this conflict.
Benninger and Barklow do agree that Benninger asked
to inspect the company "books," following Respondent's
refusal to make the requested increases, and that Barklow
refused. I find that the Union was thereby seeking data in
support of Respondent's position which was not available
to the Union.
3. Analysis and conclusions
Respondent has directed attention in its brief to an
administrative decision by the General Counsel of the
Board in 1959 wherein a plea of unwillingness to pay was
treated as not constituting an unfair labor practice. NLRB
General Counsel Administrative Ruling, No. F-1070. But,
if I read and interpret current Board decisions correctly,
the Board looks to the meat of the situation rather than to
magic words in evaluating bargaining negotiations.
In pure logic, I am unable to distinguish between a
situation where an employer contends that it is unable to
pay wage or fringe increases and one where it contends, as
is the case here, that it is in "no mood" to pay increased
benefits because of a claimed drop in prices, presumably
with a resulting increase in operating costs and lack of
funds. I am at a loss to appreciate any substantial
distinction between the two terms; on either posture, the
employer is equally unwilling to justify its position.
Turning to the admitted testimony of Barklow and
Lyons, Lyons stated on March 31, as he had on March 25,
that the farmers who owned Respondent were in "no
mood" to approve increases in operating costs because the
price of beans had dropped $1 a sack for the current crop.
Assuming this to be so, viz, that the price of beans had
dropped from $14.75 to $13.75 per sack, one is
immediately struck with the fact that this ignores another
factor; obviously, the number of sacks sold in 1966, as
contrasted with the number of sacks sold in 1965, is a
cogent factor for consideration and evaluation because
this would affect gross receipts and presumably the level
of profits as well as available funds.
In essence, then, I am unable to distinguish the
language used by Respondent here from a plea of inability
to pay. A declaration of "no mood" to pay wage increases,
predicated on a drop in receipts, is therefore more than a
naked unwillingness to pay and is tantamount to a plea of
inability to pay. Respondent then proceeded to refuse to
document its position, thus precluding the Union from
presenting evidence that Respondent could afford the
increase. See International Telephone and Telegraph
Corp., 159 NLRB 145 (1966).
The Board had approved language that "if granting
economic benefits would, according to the Respondent,
have the effect of reducing its competitiveness, it follows
that the Respondent was asserting its financial inability to
grant economic benefits." Wheeling Pacifiic Company, 151
NLRB 1192, 1225 (1965). See Peerless Distributing Co.,
STOCKTON DISTRICT KIDNEY BEAN GROWERS
144 NLRB 1510; Cincinnati Cordage and Paper Company,
141 NLRB 72; Tennessee Chair Company, Inc., 126 NLRB
1357; Celotex Corp., 146 NLRB 48; and West Side Transfer
Co., 162 NLRB 699.
As stated by the Court of Appeals for the Ninth Circuit
in N.L.R.B. v. Western Wirebound Box Co., 356 F.2d 88:
the principle announced in Truitt [N.L.R.B. v.
Truitt Manufacturing Co., 351 U.S. 149] is not
confined to cases where the employer 's claim is that
he is unable to pay the wages demanded by the union.
That sort of claim , rather , was held to be covered by
the stated broad principles that good -faith bargaining
necessarily requires that claims made by either
bargainer should be honest claims, and that if an
argument is important enough to present during
bargaining sessions , it is important enough to require
substantiation.
We see no reason why, under the same rationale, an
employer who insistently asserts that competitive
disadvantage precludes him from acquiescing in a
union wage demand, does not have a like duty to come
forward, on request, with some substantiation. In both
cases, the give-and-take of collective bargaining is
hampered and rendered ineffectual when an
employer mechanically repeats his claim but makes
no effort to produce substantiating data . In one case
as well as the other this sort of conduct runs counter
to section 204(a)(1) of the Act, 61 Stat . 154 (1947), 29
U.S.C. § 174( a)(1)(1964 ), which admonishes both
employers and employees to "exert every reasonable
effort to make and maintain agreements concerning
rates of pay, hours , and working conditions."
It is true that in Taylor Foundry Company, 141
NLRB 765, 767, enforced per curiam , N.L.R.B. V.
Taylor, 5 Cir., 338 F. 2d 1003, and Metlox Mfg. Co.,
153 NLRB 1388 , the view is expressed that the
principle announced in Truitt applies only where the
employer claims inability to pay. However, the Board
has a right to change its view as long as its new
position is not erroneous . As previously indicated, we
are of the opinion that the Board did not err here in
giving a broader scope in the Truitt rule. [Emphasis
supplied.]
I find, on the fact of the testimony presented by the
witnesses for Respondent , that Respondent , in effect,
pleaded inability to pay or made a plea of equal scope at
the bargaining sessions held on May 25 and 31, 1966. I
further find that on May 31, it refused to document its
position in support of this claim and that it has thereby
refused to bargain in good faith within the meaning of
Section 8(a)(5) and , derivatively , Section 8(a)(1) of the Act.
See N.L.R.B. v. Celotex Corp., 364 F.2d 552 (C.A. 5).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate , and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
225
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Packers and Farm Production Workers Local
No. 604 , Amalgamated Meat Cutters & Butcher Workmen
of North America , AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
2. Stockton District Kidney Bean Growers , Inc., is an
employer within the meaning of Section 2(2) of the Act.
3. All production and maintenance employees of
Respondent at its Linden , California , plant , excluding
office clerical and professional employees , guards, and
supervisors , constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act.
4. Packers and Farm Production Workers Local
No. 604, Amalgamated Meat Cutters & Butcher Workmen
of North America , AFL-CIO, at all times material herein
has been and now is the exclusive representative of the
employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By refusing on May 31, 1966 , to bargain collectively
with the Union as the exclusive representative of its
employees in the aforesaid appropriate unit , Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( a)(5) and , derivatively,
Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, it is recommended that Respondent,
Stockton District Kidney Bean Growers , Inc., Linden,
California, its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Packers and
Production Workers Local No. 604, Amalgamated Meat
Cutters & Butcher Workmen of North America,
AFL-CIO , as the exclusive representative of its
production and maintenance employees, by refusing, upon
request , to furnish said Union with such record
information and other probative material as will
substantiate its claim of reduced receipts and inability to
pay increased wages and benefits and will enable said
Union to discharge its function as the statutory
representative of these employees.
(b) In any like or related manner interfering with the
efforts of said Union to bargain collectively on behalf of the
employees of Respondent.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, furnish said Union with such record
information and other probative material as will
substantiate Respondent's claim of reduced receipts and
inability to pay increased wages and benefits and will
enable said Union to discharge its function as the statutory
representative of these employees.
(b) Post at its plant at Linden , California , copies of the
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attached notice marked "Appendix."2 Copies of said
notice, to be furnished by the Regional Director for Region
20, after being duly signed by Respondent's
representative, 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.
(c) Notify the Regional Director for Region 20, in
writing, within 10 days from the date of this
Recommended Order, what steps have been taken to
comply herewith.3
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse to bargain with Packers and
Farm Production Workers Local No. 604,
Amalgamated Meat Cutters & Butcher Workmen of
North America, AFL-CIO, as the representative of
our employees in the unit described below. The
bargaining unit is:
e In the event that this Recommended Order is adopted by the
Board, the words " a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
All production and maintenance employees,
excluding office clerical and professional
employees , guards, and supervisors.
WE WILL, upon request, furnish the above-named
labor organization with such record information and
other probative material as will substantiate our claim
of reduced receipts and inability to pay increased
wages and benefits.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees in
the exercise of the rights guaranteed by Section 7 of
the Act, except to the extent permitted under Section
8(a)(3) of the Act.
STOCKTON DISTRICT
KIDNEY BEAN
GROWERS, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, 450 Golden Gate
Avenue, Box 36047, San Francisco, California 94102,
Telephone 556-3197.
be substituted for the words "a Decision and Order "
' In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify said
Regional Director , in writing , within 10 days from the date of this
Order , what steps Respondent has taken to comply herewith "