Sun World, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1984

271 N.L.R.B. 49 (N.L.R.B. 1984)

SUN WORLD, INC.
Sun World, Inc. and Fresh Fruit & Vegetable Work-
ers Local P-78-B, United Food and Commer-
cial Workers International Union, AFL-CIO &
CLC. Cases 21-CA-19904, 21-CA-20052, and
21-CA-20110
29 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 23 February 1982 Administrative Law Judge
Russell L. Stevens issued the attached decision.
The Respondent filed exceptions and a supporting
brief, the General Counsel filed cross-exceptions
and a supporting brief, and the Respondent filed an
answer to the General Counsel's cross-exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.'
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by failing and re-
fusing to bargain in good faith with the Union over
any and all mandatory subjects of bargaining af-
fecting the unit, including the terms and conditions
for a collective-bargaining agreement to replace the
one which expired 18 January 1981.
The judge also found that the 60-day provision
for preliminary notice as provided for in article
XIX of the 1978-1981 contract between the parties
was met by the Union; that there was no reasona-
ble basis on which to conclude that the Union
wanted, as of the date of its notice of termination
on 11 November 1980, to continue working under
the 1978-1981 contract; that the Union's notice of
termination letter ended with a request for bargain-
ing; that although the contract contained a provi-
sion requiring that the 60-day notice was to be fol-
lowed with a 30-day notice containing a list of pro-
posed changes, the Union's failure to provide a 30-
day notice accompanied by a list of proposed
changes did not constitute a reversal of the Union's
stated desire to terminate the contract; that on
timely notice, the Union was free to insist on a
total, rather than a partial, change of the contract;
and that the record is inadequate to show that the
The General Counsel excepts to the failure of the administrative law
judge's proposed Order to provide for bilingual notices to employees, in
Spanish and English, in view of the number of the Respondent's employ-
ees who are primarily Spanish-speaking. We agree with the General
Counsel and shall order that notices be posted in Spanish as well as in
English. Hasa Chemical. Inc., 235 NLRB 903 (1978).
271 NLRB No. 8
Respondent's conduct constituted a waiver of 30-
day notice of a list of proposed changes as provid-
ed for in the contract, since regardless of the Re-
spondent's actions relative to negotiating, it is clear
that, under the provisions of the contract, the
Union could and did terminate the contract effec-
tive 18 January 1981.
The Respondent contends that the Union's notice
of termination did not satisfy the requirements of
article XIX, inasmuch as the Union failed to fur-
nish the Respondent with a list of desired changes
within 30 days of the 60-day notice; and that until
article XIX of the contract was changed neither
party could unilaterally terminate the contract.
The General Counsel contends that the judge
erred in rejecting the waiver argument, inasmuch
as the Respondent's two RM petitions, which were
filed after the window period, and its long period
of silence regarding the defect in the notice of
union desire to terminate the contract, constituted a
waiver; that article XIX is susceptible to a reasona-
ble interpretation which would still require submis-
sion of proposed new contract terms where one
party, as the Union did, gives notice of its intention
to terminate the agreement; and that the Respond-
ent's conduct, subsequent to the notice of termina-
tion, precludes it from relying on a defense that the
Union failed to provide the Respondent with the
proposed changes in the agreement pursuant to ar-
ticle XIX. We find merit in the General Counsel's
exception. 2
In its RM petitions-one filed on 8 January
during the insulated period, and the other on 19
January, the day after the contract's expiration
date-the Respondent necessarily represented that
its agreement with the Union was going to expire
or, as of 18 January, had expired. We note the Re-
spondent's reliance on the filing of these represen-
tation petitions as its sole basis for refusing to bar-
gain with the Union. Thus we find, in agreement
with the General Counsel, that the Respondent
itself conceded that the contract was expiring as of
18 January and would pose no bar to the Respond-
ent's RM petition of 19 January. 3
a Member Hunter does not agree that the Respondent waived its right
to assert as a defense the theory that the collective-bargaining agreement
renewed itself because of the Union's failure to provide the Respondent
with a 30-day notice of proposed changes in the agreement. There is no
contention that the Respondent expressly waived its right to assert that
theory as a defense. In Member Hunter's view, a party is free to assen
any arguably valid defense irrespective of inconsistency with its other
legal theories and irrespective of passage of time, so long as the defense is
asserted within procedurally required time limits. However, Member
Hunter agrees with the judge that the defense of contract renewal, which
the Respondent urges to justify its refusal to bargain with the Union,
lacks merit for the reasons stated by the judge.
s See Hasett Maintenance Corp., 260 NLRB 1211 fn. 3 (1982), where
"both parties acted as though the request for modification was effective,
and as though the contract had not been renewed." The Board adopted
the judge's waiver finding.
49
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Obviously the petition would have been barred
had the contract automatically renewed. However,
the defect was not asserted by the Respondent until
the strike ended in March.
Other evidence we rely on in finding the 8(a)(5)
violation is the Respondent's outright encourage-
ment of employee dissatisfaction by Terry Barber,
as found by the judge. Barber did not testify. His
suggestion to employee Juarez occurred in Novem-
ber. 4 Then in December, when the full crew was
working, Barber directed Juarez to bring him a pe-
tition before 19 January and to deny that anyone
helped her should she be questioned. There is also
the call of State Conciliator Hart to Smith on 8
January to arrange a negotiating meeting. Hart was
told by Smith that he was available to meet on 12
and 14 January, yet the Union despite prompt fol-
lowup by persistent calls to Smith's office was
unable to confirm a meeting date. Finally, the Re-
spondent in March 1981 granted a wage increase
which was not called for by the contract.
In view of the foregoing facts, we find, contrary
to the judge, that the Respondent's conduct subse-
quent to the Union's 60-day notice pursuant to the
contract constituted a waiver of the Respondent's
defense that the Union failed to follow specific
contract provisions in order to forestall the renewal
of the 1978-1981 agreement.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Sun World, Inc., Thermal, California, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(f).
"(f) Post at its Thermal, California place of busi-
ness copies of the attached notice in English and
Spanish marked "Appendix." Copies of said notices
on forms provided by the Regional Director for
Region 21, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any
other material."
2. Add the attached notice in Spanish marked
"Appendice" to the decision of the administrative
law judge (omitted from publication).
4 Barber's suggestion was, according to Juarez: "We the workers of
Sun World no longer wish to be represented by a Union." ALJD sec.
III, B.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge. This
case was tried in Indio, California, on November 17, 18,
19, and 20, 1981.' The charge in Case 21-CA-19904 was
filed by Fresh Fruit & Vegetable Workers Local P-78-
B, United Food and Commercial Workers International
Union, AFL-CIO & CLC (Union) on January 19. The
charge in Case 21-CA-20052 was filed by the Union on
March 6. The charge in Case 21-CA-20110 was filed by
the Union on March 23. On April 30 the Regional Direc-
tor for Region 21, National Labor Relations Board
(Board) consolidated the three cases and issued a consoli-
dated complaints alleging that Sun World, Inc. (Re-
spondent) violated Section 8(a)(5), (3), and (1) of the Na-
tional Labor Relations Act (Act).
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.
On the entire record3 of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Delaware corporation engaged in the
harvesting, packing, and marketing of vegetables and
other crops at its facility located in Thermal, California.
In the normal course and conduct of its business oper-
ations, Respondent annually sells and ships goods and
products valued in excess of $50,000 directly to custom-
ers located outside the State of California.
I find that Respondent is, and at all times material
herein has been, an employer engaged in commerce and
in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Fresh Fruit & Vegetable Workers Local P-78-B,
United Food and Commercial Workers International
Union, AFL-CIO & CLC is, and at all times material
herein has been, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background4
Prior to May 1978, the facility now owned and operat-
ed by Respondent was owned and operated by Maggio-
All dates hereinafter are within 1981, unless otherwise stated.
2 The complaint was amended at trial, to make minor corrections.
3 The General Counsel's motion to correct transcript, filed with his
brief, was not opposed and is granted.
I This background summary is based on stipulations of counsel, and on
credited testimony and evidence that is not in dispute.
50
SUN WORLD, INC.
Tostado, Inc. Approximately in May 1978 Respondent
purchased the facility, retained most, if not all, of
Maggio-Tostado's employees, and since that date has op-
erated the facility.5
Subsequent to an election on March 30, 1977, the
Board, on June 8, 1977, certified the Union as the exclu-
sive collective-bargaining representative of employees of
Maggio-Tostado, Inc. in the following unit:
All employees, including receivers, graders, pack-
ers, loaders, maintenance employees, truck drivers
and all other employees employed by Respondent
in receiving, grading, packing and loading carrots
and miscellaneous vegetables at its packing house
located at 87-400 Avenue 56, Thermal, California;
excluding office clerical employees, professional
employees, guards and supervisors as defined in the
Act.
On January 19, 1978, Maggio-Tostado, Inc. and the
Union entered into a collective-bargaining agreement,
which was assumed by Respondent when it purchased
the facility described above. The agreement includes,
inter alia, the following provisions:
ARTICLE X
NO STRIKE, NO LOCKOUT
1. The Union agrees that during the life of this
Agreement, there will be no strikes, slowdowns, or
other interruptions of work.
2. The Company agrees that there will be no
lockout during the life of this Agreement.
3. The parties agree that each may use the provi-
sions of Article V and/or may seek relief from a
breach of this Article by the other party directly
from a court of competent jurisdiction without pro-
ceeding through the Grievance and Arbitration pro-
cedure of Article V.
ARTICLE XIX
TERM OF AGREEMENT
This Agreement shall be in full force and effect
from January 19, 1978 until January 18, 1981, and
from year to year thereafter unless either the Com-
pany or the Union desires changes in the Agree-
ment at its expiration date or subsequent annual an-
niversary dates. In such event, written notice shall
be given by the party proposing the changes to the
other party to this Agreement sixty (60) days prior
to such expiration date and the party desiring
changes shall within thirty (30) days from the date
a The fact that Respondent is the successor of Maggio-Tostado, Inc. is
not in dispute.
6 Pursuant to request of the General Counsel, notice is taken of the
fact that although the Union still was affiliated with the Amalgamated
Meat Cutters & Butcher Workmen of North America, AFL-CIO (Meat
Cutters) at the time Respondent recognized the Union, the affiliation
changed when the Meat Cutters merged with the Retail Clerks Interna-
tional Union, AFL-CIO & CLC to form the United Food and Commer-
cial Workers International Union, AFL-CIO & CLC.
of such notice supply the other party with a list of
the desired changes.
On November 11, 1980, the Union sent the following
letter to Respondent:
Gentlemen:
Pursuant to Section 8(d)(3) of the Labor Manage-
ment Relations Act of 1947 and Article XIX of the
collective bargaining agreement between your com-
pany and this Union, we hereby give notice of ter-
mination.
Please advise us when you can be available to
meet to commence bargaining.7
Mark Nickerson, Respondent's general manager, re-
ceived the letter and referred the matter to David Smith,
Respondent's attorney. Smith did not answer the letter. s
As discussed in detail infra, representatives of the
Union attempted without success on several occasions
after the date of the Union's letter, to get in touch with
Smith or some other representative of Respondent.
On January 8 Smith's law firm filed with the Board an
RM petition signed by a majority of Respondent's em-
ployees, which stated above the signatures: "We the
workers of Sun World would no longer wish to be rep-
resented by a union we wish to have new elections."
The petition was returned by the Board to Smith with-
out being docketed, because it was untimely.
A second RM petition was filed by Smith's law firm
on January 19,9 and was docketed as Case 21-RM-2076.
The petition later was dismissed by the Board.
On January 19 Smith and his assistant, Hall, met with
Breshears and Ralph Perez, a business agent for the
Union, in Smith's office. Employee members of the
Union's negotiating team also were present, as were
Nickerson and Carlos Teran, one of Respondent's man-
agers. Smith informed the union representatives that he
was not going to bargain with them (this is discussed in
detail infra), and Breshears told Smith the Union had a
petition signed by employees who supported the Union.
Three employee meetings were held in January, at-
tended by more than half of Respondent's employees.
Adelaida Romero, a member of the Union's executive
board, conducted the meetings. The first meeting of the
three at which a strike was discussed was held January
28. Perez and Rod Medlin of the Union also were in at-
tendance. The employees discussed the possibility of a
strike, but a strike vote was not taken. The third meeting
was held January 30. Romero told the employees Re-
spondent refused to negotiate, and a strike vote was
? Jerry Breshears, former secretary-treasurer of the Union, who signed
the letter, died prior to trial. The letter is not in dispute. Counsel stipulat-
ed that the Union's letter was received by Respondent, Smith, and the
California State Conciliation Service. The fact is not in dispute, and it is
found, that the Union satisfied the notice requirements of the Act See
Lindy's Food Center, 232 NLRB 1001, 1005 (1977).
" The fact that the Union gave no proposed list of changes to Re-
spondent pursuant to art. XIX of the contract, quoted above, is not in
dispute. Further, the fact is not in dispute that Respondent received no
written correspondence from the Union, other than the letter of Novem-
ber 11, 1980.
9 The bargaining agreement expired January 18.
51
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taken; 68 employees voted to strike and 24 voted not to
strike.
A strike commenced February 2, on a Monday. The
strike was not successful, and on March 3 the Union's at-
torney sent to Smith an unconditional telegram offer by
all the strikers to end the strike and to return to work on
March 4. The telegram listed the strikers, but said the
names of strikers were not limited to the list. On March
4 Romero and Breshears went to the plant with 50 or 60
employees, and made an offer on behalf of striking em-
ployees for the employees to return to work. The two
union representatives spoke with Charles and Terry
Barber, two of Respondent's supervisors.' ° Charles
Barber asked Romero to leave, and said he would call
the police if she did not leave. Romero then asked three
employees, Teresa Juarez, San Juana Hernandez, and
Emiglia Castro, to replace her, which they did. Terry
Barber told the employees there were no openings avail-
able, and asked for addresses and telephone numbers of
employees desiring to return to work, for possible use if
openings later occurred.
None of the employees who offered to return to work
were reinstated by Respondent.
On March 8 Respondent, without notification to or
bargaining with the Union, unilaterally gave nonstriking
employees wage increases retroactive to February 2,
1981.
On March 17 Respondent discharged the striking em-
ployees, by the following form letter:
NOTICE OF TERMINATION OF
EMPLOYMENT
TO:
YOU ARE HEREBY NOTIFIED THAT
YOUR EMPLOYMENT WITH SUN WORLD,
INC. IS TERMINATED, EFFECTIVE IMME-
DIATELY.
The termination is based upon your participation in
the strike against the Company and interruption of
work in violation of ARTICLE X of the contract
between the Company and the Fresh Fruit and
Vegetable Workers, Local P-78-B. ARTICLE X of
the contract between the Company and the Union
provides in part that there will be no strike or other
interruptions of work during the term of the contract.
The term of the contract is from January 19, 1978
to January 18, 1981, and from year to year thereafter.
Both the Company and the Union had the right
under the contract to request that changes be made
in the terms of the contract before January 18, 1981.
The Union did not request that any changes be made
in the contract, but instead on November 11, 1980,
notified the Company that the contract was to be
terminated on January 18, 1981. The Union had no
right under the terms of the contract to terminate it
and also did not give proper notice to the Company
of any proposed changes in the contract.
'0 The supervisory status of the two Barbers is not in dispute.
SUN WORLD, INC. - THERMAL
By:
General Manager
Contentions of the Parties
The General Counsel contends that the contract of
1978-1981 did not renew itself after the Union's notice to
Respondent given on November 11, and that Respondent
refused to bargain because of the employee petition on
January 18. The General Counsel contends that the peti-
tion was the inspiration of, or was aided and encouraged
by, Respondent. The General Counsel further contends
that the strike was an unfair labor practice strike, and
that Respondent's actions in refusing to reinstate, and in
later discharging, the strikers were unfair labor practices.
Finally, the General Counsel contends that Respondent
violated the Act by giving wage increases without first
notifying, or bargaining with, the Union.
Respondent contends that it refused to bargain with
the Union because the Union failed to comply with a
contractual condition precedent, i.e., that no notice of
proposed changes in the expiring contract was given to
Respondent, and therefore the 1978-1981 contract re-
mained effective. Respondent further contends that the
employee petition of January 18 was a valid one, which
provided Respondent with reasonable and objective basis
to doubt that the Union still represented the employees.
Respondent concludes that the strike was in violation of
the contract, and that the strikers properly were replaced
on a permanent basis and later discharged.
A. The Issue of Contract Expiration
It is apparent that the 60-day provision for preliminary
notice of desire to terminate the contract was met by the
Union. There is no reasonable basis on which to con-
clude that the Union wanted, as of November 11, 1980,
to continue working under the 1978-1981 agreement.
The letter ended with a request for bargaining. Howev-
er, the 60-day notice is to be followed, according to the
provision, with a 30-day notice (here, by December I1)
containing a list of proposed changes. That list never
was given to Respondent by the Union, orally or in writ-
ing.
The questions then arise as to whether failure to pro-
vide the list constituted a reversal of the Union's stated
desire to terminate the contract, and whether Respond-
ent expressly or impliedly waived receipt of the list and
acceded to the Union's termination of the contract.
Gloria Rodriguez testified that she attempted on five
or six occasions in January, at Breshears' request, to
reach Hall, Smith, or Teran by telephone in order to ar-
range a bargaining session, but she was not successful.
She further testified that meetings were arranged for Jan-
uary 14 and 16 but that Smith was unable to, or did not,
come to those meetings. Leonardo Islas, a union business
agent, testified that he went to Respondent's facility at
Breshears' request in December, on a date he did not re-
member, to find out why Smith did not return Breshear's
telephone calls. He said he talked with Teran, who told
him Smith "was out of town at the time."
52
SUN WORLD, INC.
Smith testified: On January 8, he received a telephone
call from a man who said he was with the State Media-
tion and Conciliation Service, and who said he was call-
ing to arrange a meeting to negotiate a new contract be-
tween Respondent and the Union. Smith suggested Janu-
ary 12 or 14, but he heard nothing further until Bre-
shears called him on January 14 about attending the
meeting that afternoon. Smith said he knew of no meet-
ing, and had other business to attend to that afternoon.
They then agreed to meet on January 16, but Smith was
ill that day and could not meet. Breshears refused to
cancel the meeting and Smith called Nickerson and
Teran to meet union representatives in his office at 2
p.m. on January 16. The meeting was held in Smith's
office, with Smith not present. The first time Smith met
with anyone from the Union was on January 19. During
that meeting Smith told the Union that Respondent
would not bargain, and the only reason he gave was the
RM petition filed with the Board.1"
Smith later testifed somewhat differently, and stated
that, during a telephone conversation on January 14, he
told Breshears, "You'd better check your November the
11th, 1980 notice to the Company against the term of
agreement provision in the contract. I don't think your
notice is good." Breshears asked what Smith meant, and
Smith replied, "Your letter was a termination letter.
Under our agreement, it's a modification or a change of
contract." Breshears said he would check it. During the
meeting of January 19:
When I met with Mr. Breshears, I told him the
same thing about the petition that we had. I again
told him of the term of agreement provision in the
contract, that I didn't-I stated to him that I did
not feel that their notice of termination, which was
dated November the 11th of 1980 was sufficient to
cause a termination of the contract. It called for re-
newal and modification; that we never received any
changes from them and we had this petition. That,
based on those two factors, we would not bargain
with them on the 19th.
Hall testified: He attended the meeting of January 19,
and he overheard Breshears talking with Smith about the
Union's 60-day notice and "he [Breshears] was indicating
to you that your [Smith's] statement that the notice was
defective was merely a red herring."
Discussion
There is no dispute concerning the Union's representa-
tive status prior to January 18, 1981. Further, there is no
dispute concerning Respondent's refusal to bargain with
the Union after expiration of the contract on January 18,
1981. The dispute is whether or not Respondent owed a
duty to bargain with the Union on and after January 19,
1981. This discussion relates to Respondent's initial con-
tention, i.e., that the union failed to give it proper con-
i The testimony is conflicting; some reflects that the petition was filed
January 18, and some reflects that it was filed January 19. In either
event, the contract was alive by its terms until January 18. thus this con-
flict need not be resolved. The basic issue is whether or not the contract
was terminated by January 18.
tractual notice of a desire to bargain upon expiration of
the contract January 18, 1981, and therefore the contract
renewed itself by its terms.
Smith and Nickerson testified concerning Respondent's
reason for wanting the contract's no-strike provision, and
Smith testified concerning why he wanted article XIX to
read as it did, but that testimony largely is irrelevant.
There was no testimony concerning the actual wording
of article XIX of the agreement, or concerning discus-
sion about the wording during negotiations. The article
must be taken at its face value.
Respondent contends that the Union cannot terminate
the contract but, rather, only can seek to get it changed.
That contention patently is unsupportable. The law does
not permit a contract without end, and Respondent's
contention could result in such a situation. Under such a
contract, the Union only could change some of its provi-
sions or forever be bound, unless the contract was termi-
nated by mutual consent.
Further, it is apparent that termination is a "change in
the agreement" within the meaning of the contract.
Having once agreed to a 3-year term, the Union was free
at the end of that time to insist on a total, rather than
partial, charge of provisions provided it gave timely
notice of its intent, which it did.
So far as the 30-day list of changes is concerned, such
a list was not necessary, in view of the total change de-
sired by the Union. Failure to submit the list reinforced
the Union's position that it was not interested in partial
change of the contract.
The General Counsel argues that Respondent's con-
duct constituted a waiver of the contractual provision,
article XIX, but the record is inadequate to show such a
waiver. It may well be that Rodriguez and Islas testified
in such manner that Respondent seemed indifferent to
negotiations, but Islas' testimony was ambiguous and in-
conclusive, and Rodriguez' testimony on this point was
contrary to that of Smith who was as convincing as Ro-
driguez. Resolution of the conflict in testimony between
Smith (partially supported by Hall and Nickerson) and
Rodriquez is not necessary, since regardless of Respond-
ent's actions relative to negotiating it is clear that, under
the provisions of the contract, the Union could, and did,
terminate that contract effective January 18, 1981.
Respondent argues that several cases, discussed in its
brief, support its contention that an improper notice ne-
gates a duty to bargain. However, the cases cited by Re-
spondent concern the matter of untimely notice, and are
inapposite. An untimely notice is prejudicial, since it cre-
ates the possibility of a party taking or receiving action
adverse to its former contractual interests, after the time
for notice has expired. The courts and the Board tradi-
tionally respect contractual provisions relative to times
for notices, absent unusual circumstances. This case is on
a different footing. The Union's notice was timely. The
30-day provision does not require a list of proposed
changes if the entire contract is terminated, since it can
be inferred that failure to submit the list means that the
Union wanted all the provisions changed. Obviously, the
53
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union wanted to bargain for a totally new contract,
since it clearly said so in its letter of 60-day notice. 1 2
The General Counsel argues that Respondent brought
up the defense of improper notice as an afterthought, and
that Respondent earlier had avoided bargaining. The
record creates those suspicions but, even if such were the
facts, they would not affect any finding or conclusion
herein. A good defense is not negated by the time of its
assertion, and Respondent acknowledges its refusal to
bargain.
B. The RM Petition
The facts that 108 employees, which were a majority
of the unit, signed the petition and that the petition was
filed with, and denied by, the Board, are not in dispute.
The principal question is whether or not the petition
could provide legal basis for Respondent's refusal to bar-
gain with the Union.
A petition of employees, properly prepared and filed,
may be evidence of a desire of the employees no longer
to be represented by a union. However, a petition that is
suggested, initiated, or encouraged by an employer is not
acceptable evidence of such an employee desire, and
may constitute a violation of the Act. The complaint
does not allege that Respondent violated the Act by sug-
gesting, initiating, or encouraging the petition, and the
General Counsel stated at trial that no such violation was
alleged, or a finding thereof sought. However, such con-
duct, if it occurred, may be used to show that Respond-
ent did not have a good-faith doubt, based on reasonable
and objective considerations, that the employees no
longer desired to be represented by the Union.' 3
Juarez testified that she talked with Terry Barber in
November 1980:
I-Terry Barber came to where I was and there
was this discussion that he had with another em-
ployee of Sun World. I asked him what it was all
about. He said that it was those people that thought
they were being protected by the Union. And I
asked him if there was a way that they could get
the Union out. He said that the people had to do it,
not them. The employers couldn't do it, but the
people could do it if they really did not desire to
have the Union in there.
Then he said-why didn't I and some other girls
that were going to stay there working longer start a
petition? I told them that I didn't believe the people
would want to do something like that. He said,
"You never know. Why don't you just try it. Talk
to some people and see if they decide to help you."
That was the first conversation.
Juarez said she talked with Terry Barber again in No-
vember about the petition, and Barber said not to start it
then, since only a small number of employees then were
working. She testified that, in December after the full
crew was working, Terry Barber said, "If we were
12 Cf. Mason City Builders Supply Co., 193 NLRB 177 (1971).
13 NLRB v. Cornell of California, 577 F.2d 513 (9th Cir. 1978); Ware-
house Market, 216 NLRB 216 (1975).
going to do it, to get started now that all the people
were there." She said Barber told her:
Q. Who suggested to you how you could start
the petition?
A. Terry Barber.
Q. Do you recall what he told you?
A. The exact words how I could do it?
Q. Yes.
A. "Why don't you say, 'We the workers of Sun
World no longer wish to be represented by a
Union."' I said "Is that all?" He said, "You could
put whatever else you want." I put, "We wish to
have new elections."
Juarez said she then prepared and circulated the petition,
with the help of fellow employees. She further testified
that Terry Barber assured her, "After I handed in this
petition, there would be an immediate election" and that
Barber told her on several occasions in December 1980
and January 1981 that "he needed this petition in before
January 19, to hand it in to him before that time." On
cross-examination, Juarez testified that, on one occasion,
Terry Barber told her to deny that anyone helped her
with the petition if she were questioned about it, and
that, thereafter, she did make such a denial when she
was questioned. She also testified that Terry Barber told
her the names of some employees who wanted to sign
the petition.
Terry Barber did not testify.
Olivia Garcia, one of the unit employees, testified that
she talked about the petition with Terry Barber in No-
vember 1980. She said Barber initiated the conversation,
and:
He asked me if we had any problems with the
Union and if we wanted to get rid of it, to get in
contact with the other woman and get some signa-
tures.
Juarez and Garcia were credible witnesses, and their
versions of the incidents they related are accepted as ac-
curate. No conflicting accounts need be resolved, since
Terry Barber did not testify. Based on the testimony of
Juarez and Garcia it is clear, and it is found, that Re-
spondent actively participated in, and encouraged, the
employee petition filed by Smith. As a legal matter, Re-
spondent cannot rely on that petition as evidence that
Respondent's employees no longer desired to be repre-
sented by the Union.
Much trial time was devoted to a matter incidental to
the employee petition. At the meeting in Smith's office
on January 19, the Union advised Smith that it held a
"counter petition" signed by more employees than signed
the petition filed by Smith.' 4 Breshears suggested at the
meeting that, rather than having an election as Respond-
ent wanted, the two petitions be compared, and signa-
tures verified, to determine whether or not a majority of
employees wanted the Union to represent them. Bre-
shears argued that, if there already were a contract in ex-
4 GC. Exh. 13.
54
SUN WORLD, INC.
istence, as contended by Smith, an election was not nec-
essary. 5 Smith and Hall argued that an election could
be held, because the contract term was for 3 years. This
subject is irrelevant to any issue since it is clear, as dis-
cussed above, that Respondent refused to bargain with
the Union, partially because of the matter of allegedly
defective notice and partially because of the employee
petition.
C. The Nature of the Strike
It is found, above, that Respondent refused to bargain
with the Union in violation of the Act. The employees
went out on strike solely because of Respondent's refusal
to bargain. Respondent contends that the strike was in
violation of the contractual provision quoted above, but
does not argue the proposition that, if Respondent un-
lawfully refused to bargain for a new contract, the strike
was anything other than an unfair labor practice strike.
It is clear, and found, that Respondent's employees en-
gaged in an unfair labor practice strike, as alleged in the
complaint.
D. Respondent's Unilateral Wage Increase
The fact of a unilateral wage increase given by Re-
spondent, retroactive to February 2, 1981, and paid on
March 8, 1981, is not in dispute. At the time of the in-
crease the Union represented Respondent's employees,
and wages constitute a mandatory subject of bargaining.
Respondent did not bargain, or offer to bargain, with the
Union concerning the increase. Based on those facts, Re-
spondent violated Section 8(aX5) and (1) of the Act.
E. Respondent's Refusal to Reinstate, and its
Discharge of Employees
The facts that Respondent refused to reinstate the
striking employees on their unconditional offer to return
to work on March 4, and that Respondent subsequently
discharged at least 48 striking employees on March 11,
are discussed above, and are not in dispute. Nor is there
dispute about the fact of record showing that, between
March 9 and April 9, Respondent hired at least 42 em-
ployees to replace discharged strikers.
Respondent offered at trial only one reason for its dis-
charge of the striking employees, and that reason, not in
dispute, was that they were discharged because they en-
gaged in a strike.16 As shown above, the strike was
caused by Respondent's unfair labor practices.
Respondent's refusal to reinstate striking employees,
and its later discharge of those employees because of
their engagement in an unfair labor practice strike, vio-
lated Section 8(a)(5) and (1) of the Act, as alleged.
F. Respondent's Refusal to Pay the Retroactive Wage
Increase to Employees Engaged in the Unfair Labor
Practice Strike
Maria Zamorez began working for Respondent as a
grader in December 1980, for the 1980-1981 harvesting
'a This statement is from the testimony of Perez, and is credited. Hall
testified to the same effect.
t6 See G.C. Exh. 10, quoted supra.
season. When the strike commenced, Zamorez was on
sick leave. She returned to work on February 16, and
worked until the middle of the day on February 23,
when she joined the strike.
Prior to February 23, Zamorez' wage rate had been
$3.80 per hour. Although she was not advised in advance
that she would be receiving a wage increase, Zamorez
was paid at a rate of $4.40 per hour in her check for the
4 hours worked on February 23.
After March 8, when the retroactive portion of the
wage increase was paid, as described above, Zamorez
was informed by relatives who had started working for
Respondent on February 3 that Respondent was paying
the 60-cent-per-hour wage increase retroactive to Febru-
ary 2. Because Zamorez had not received such a check,
she went in March with Juarez and Hernandez to Re-
spondent's facility to find out whether Respondent was
holding a check for her retroactive pay.
Zamorez spoke at the facility with Terry Barber, in
the presence of Juarez and Hernandez. Zamorez asked
Barber if there was a check for her retroactive pay.
Barber responded that he did not know, and he went
inside the plant to find out. When Barber returned, he
told Zamorez there was no check for her. Zamorez
asked why not, and said she was eligible for the retroac-
tive pay which had been paid to everyone else. Barber
replied that he did not know, but that, if they did not
leave, he would have them arrested. The employees left,
and Zamorez never has received a check for her retroac-
tive pay.
Respondent offered at trial no reason for refusing to
pay Zamorez retroactive wages. Because of her status as
a strike participant, and because of Respondent's unfair
treatment of all strikers, as discussed above, there is a
clear and strong inference, which hereby is drawn, that
Zamorez was not paid retroactive wages because of her
strike participation. Such discrimination is a violation of
Section 8(a)(3) and (1) of the Act, as alleged.
CONCLUSIONS OF LAW
1. Sun World, Inc. is, and at all times material herein
has been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Fresh Fruit & Vegetable Workers Local P-78-B,
United Food and Commercial Workers International
Union, AFL-CIO & CLC is, and at all times material
herein has been, a labor organization within the meaning
of the Act.
3. The Union is, and at all times material herein has
been, the exclusive representative of Respondent's em-
ployees in the following appropriate unit:
All employees, including receivers, graders, pack-
ers, loaders, maintenance employees, truck drivers
and all other employees employed by Respondent
in receiving, grading, packing and loading carrots
and miscellaneous vegetables at its packing house
located at 87-400 Avenue 56, Thermal, California;
excluding office clerical employees, professional
employees, guards and supervisors as defined in the
Act.
55
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Respondent violated Section 8(aX5) and (1) of the
Act by failing and refusing to recognize the Union as the
exclusive collective-bargaining agent of the employees in
the above-described unit, and failing and refusing to bar-
gain in good faith with the Union over any and all man-
datory subjects of bargaining affecting the unit, including
the terms and conditions for a collective-bargaining
agreement to replace the one which expired January 18,
1981; and unilaterally granting to nonstriking employees
wage increases retroactive to February 2, 1981, without
notifying or bargaining with the Union.
5. Respondent violated Section 8(aX3) and (1) of the
Act by failing and refusing to reinstate employees en-
gaged in an unfair labor practice strike against Respond-
ent on their unconditional offer to return to work, said
strikers being those listed in General Counsel's Exhibit
15 and any employees similarly situated; discharging said
unfair labor practice strikers; and refusing to pay Maria
Zamorez and other of Respondent's employees similarly
situated the retroactive wage increase described above,
for work performed on and after February 2, 1981.
THE REMEDY
Having found that Respondent violated Section
8(a)(5), (3), and (1) of the Act, it is recommended that
Respondent be ordered to cease and desist therefrom,
and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edl7
ORDER
The Respondent, Sun World, Inc., Thermal, Califor-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Violating Section 8(aX5) and (1) of the Act by fail-
ing and refusing to recognize the Union as the exclusive
collective-bargaining agent of the employees in the ap-
propriate unit, and failing and refusing to bargain in
good faith with the Union over any and all mandatory
subjects of bargaining affecting the unit, including the
terms and conditions for a collective-bargaining agree-
ment to replace the one which expired January 18, 1981;
and unilaterally granting to nonstriking employees wage
increases retroactive to February 2, 1981, without notify-
ing or bargaining with the Union, provided, that nothing
herein shall be construed to require Respondent to re-
scind any wage increases given unilaterally in violation
of the Act.
(b) Violating Section 8(a)(3) and (1) of the Act by fail-
ing and refusing to reinstate employees engaged in an
unfair labor practice strike against Respondent, on their
unconditional offer to return to work, said strikers being
those listed in General Counsel's Exhibit 15, and any em-
ployees similarly situated; discharging said unfair labor
" If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
practice strikers; and refusing to pay Maria Zamorez and
other of Respondent's employees similarly situated the
retroactive wage increase described above for work per-
formed on and after February 2, 1981.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Immediately recognize the Union and, on request,
bargain collectively in good faith with it over any and
all mandatory subjects of bargaining.
(b) Offer immediate and full reinstatement to the indi-
viduals listed in General Counsel's Exhibit 15, and others
similarly situated, to their former jobs or, if those jobs no
longer exist, to substantially equivalent jobs, without loss
of seniority or other rights and privileges, discharging if
necessary any replacements for these employees, and
make said discharged employees whole for any loss of
earnings they may have suffered, by payment to each of
them the moneys which each of them would have earned
during the period from March 4, 1981, to the date of Re-
spondent's offer of reinstatement, less the employee's net
earnings during that period, with interest to be computed
in the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as set forth in Isis Plumb-
ing Co., 138 NLRB 716 (1962), and Florida Steel Corp.,
231 NLRB 651 (1977).
(c) If Respondent has not reinstated all individuals
listed in General Counsel's Exhibit 15, and others similar-
ly situated, because of the seasonal nature of its business,
when Respondent resumes operation of its business, all
individuals listed in General Counsel's Exhibit 15, and
others similarly situated, who have not been rehired,
shall be hired to fill their former jobs or, if those jobs no
longer exist, to substantially equivalent jobs, without loss
of seniority or other rights and privileges, in preference
to all other persons.
(d) Make Maria Zamorez, and all others similarly situ-
ated, whole for the retroactive portion of wage increases
which Respondent failed and refused to pay them, with
interest as described above.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, and social security payments records, time-
cards, personnel records and reports and all other
records necessary to analyze the amount of backpay due
under the terms of the Order.
(f) Post at its Thermal, California facility copies of the
attached notice marked "Appendix.""' Copies of the
notice, on forms provided by the Regional Director for
Region 21, after being signed by the Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
'$ If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
56
SUN WORLD, INC.
sonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
57