Wade & Paxton

National Labor Relations Board - Board Decisions

Oct 5, 1951

96 N.L.R.B. 650 (N.L.R.B. 1951)

650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Certification of Representatives
IT IS HEREBY CERTIFIED that the Seamprufe Employees' Association
(of Easton ), has been designated and selected by a majority of em-
ployees of Seamprufe, Inc., in the unit hereinabove found appropriate
as the representative for the purposes of collective bargaining, and
that pursuant to Section 9 (a) of the Act, the said organization is the
exclusive bargaining agent of all such employees for the purposes of
collective bargaining with respect to rates of pay , wages , hours of em-
ployment , and other conditions of employment.
HERBERT L. WADE, JERRY PAXTON AND G. F. MCGEE, CO-PARTNERS,
D/B/A WADE & PAXTON and CITRUS, CANNERY WORKERS AND FOOD
PROCESSORS, LOCAL UNION 24473, AFL. Case No. 39-CA-166.
October 5, 1951
Decision and Order
On June 5, 1951, Trial Examiner J. J. Fitzpatrick issued his In-
termediate Report in the above-entitled proceeding, finding that
the 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 copy of the In-
termediate Report attached hereto. Thereafter the Respondent filed
exceptions to the Intermediate Report.'
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are affirmed. The Board has considered the Interme-
diate Report,3 the Respondent's exceptions, and the entire record in
the case and adopts the findings, conclusions, and the recommenda-
tions of the Trial Examiner with the following additions and mod-
ification.
We agree with the Trial Examiner's finding that the Respondent
refused to bargain in good faith with the Union on and after Novem-
ber 9, 1950, in violation of Section 8 (a) (5) and 8 (a) (1) of the Act.
1 The Respondent has requested oral argument before the Board. In our opinion the
record, the briefs submitted to the Trial Examiner , and the Respondent 's exceptions fully
present the issues and the positions of the parties . Accordingly , this request is denied.
Y Pursuant to the provisions. of Section 3 (b) of the Act , the Board has delegated its
powers in connection with this case to a three-member panel [ Chairman Herzog and Mem-
bers Houston and Reynolds].
8 The Intermediate Report erroneously states that during the Respondent 's operating
season, from November 1949 until July 1950, Respondent 's sales were $ 58,000. This
figure is corrected to read $52 , 000 to conform, to the record evidence . This minor and
apparent typographical error does not affect the Trial Examiner 's ultimate conclusions
or our concurrence therein.
96 NLRB No. 93.
WADE & ,PAXTON 651
Where, as here, the Union requested the Respondent to bargain less
than 3 months after the Union had been certified by the Board as the
exclusive bargaining representative of the employees, no circum-
stance appears to alter the Respondent's statutory obligation under
Section 8 (a) (5). In the interest of industrial stability, the Board
has long held that, absent unusual circumstances, the majority status
of a certified union is presumed to continue for a period of 1 year after
the date of certification.4 Congress, in adopting the 1947 amend-
ments to the Act, carefully considered and ratified this established
rule.5 The rule was given statutory sanction in 1947 when Congress
amended Section 9 (c) (3) of the Act to read, "No election shall be
directed in any bargaining unit or any subdivision within which, in
the preceding twelve-month period, a valid election shall have been
held." 6 Once employees have designated their bargaining represent-
ative in accordance with the Act, recognition of that representative
during the certification year is not a matter which an employer may
or may not grant when and as he chooses.
We have carefully considered the Respondent's contention that it
was under no duty to bargain with the certified representative of its
employees during a period when the employees were not actually
working. Although Respondent states in its exceptions that at the
time the plant closed the previous season all employees were dis-
charged, we do not understand the Respondent's view to be that
the employee relationship, as defined in Section 2 (3) of the Act, was
thereby terminated for all purposes. That very question, involving
the continuing employment status of workers during a seasonal lay-
off, was squarely presented to the Court of Appeals for the Ninth
Circuit in North Whittier Heights Citrus Association v. N. L. R. B.7
The Court, sustaining the Board's position, held that during a sus-
pension of plant operations due to the seasonal nature of the busi-
ness, employees must be considered as merely laid off and not dis-
4N. L. R. B. v. Whittier Mills Co., 111 F. 2d 474 (C. A. 5) ; Celanese Corporation of
America, 95 NLRB 664.
5 The Board had reiterated the rule in its annual report to the President and the Con-
gress for the year immediately preceding the amendments to the Act and for the year
before that as well. N. L. R. B, Twelfth Annual Report ( Gov't Printing Off., 1948 ), p. 13 ;
N. L. R. B ., Eleventh Annual Report ( 1947 ), p. 17.
See H. R. Rep . No. 245, 80th Cong., 1st Sess , 39 (1947) ; Sen. Rep. No . 105, 80th Cong.,
1st Sess, 25 ( 1947 ) ; H. Conf. Rep . No. 410, 80th Cong., 1st Sess ., 49 (1947).
6 Indeed, Respondent does not question the validity of this rule , as it states in its excep-
tions to the Intermediate Report, "The respondent stands ready , willing and able to nego-
tiate at any time with any of its employees or any group or organization certified to nego-
tiate for it ; .. . ' And in its brief, submitted to the Trial Examiner , the statement ap-
pears - "Respondents recognize the Union as the certified bargaining agent for its em-
ployees whether they be the same employees who had previously worked in this plant or
other employees."
7 109 F. 2d 76 , certiorari denied 310 U . S. 632. Cited with approval in Fishgold v. Sulli-
van Corp., 328 U. S. 275, footnote 11 at 287 , where the Supreme Court said, "Temporary
suspension of an employee 's work commonly does not affect the continuance of his-status."
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
charged. In holding that they retain their status as employees, the
Court emphasized : "The relation of employer and employee does not
always depend upon continuity of actual every day work." The
record here shows that all the employees are from Raymondville, the
location of the Respondent's shed, and that most, or 75 percent of
them, return year after year to work for the Respondent. The Re-
spondent's temporary cessation of work operations cannot be consid-
ered, therefore, as accomplishing a termination of the employer-em-
ployee relationship.
Respondent's contention that the Act imposes no obligation to bar-
gain when no one is working was made clear to the Union in the letter
of November 29, 1950, from Respondent's counsel to the Union secre-
retary, C. C. Turner, stating that "it has been and is now their position
that until such time as there are some employees at the plant for you
and your union to bargain for, that there is no necessity for negotia-
tions." This position apparently rests on the premise expressed in
the Respondent's brief filed with the Trial Examiner, "It would cer-
tainly have been a waste of time to have spent bargaining sessions
discussing the terms of a contract covering an empty plant," and that
Respondent had no duty to bargain until the plant was operating or
until it knew that operations would be resumed. But, as the Trial
Examiner found, at the time of the Respondent's prior refusal to bar-
gain on November 9, 1950, there was little indication that plant opera-
tions would be curtailed. Although G. F. McGee, the Respondent's
copartner, testified that a drought had affected the crops, it was not
until the second severe freeze in January 1951 that it appeared cer-
tain that operations would be suspended shortly for the season. The
employees reasonably could have expected to return to work'when
the plant reopened, and had a right to bargain with the Respondent
concerning the reopening of the plant, the terms and conditions
thereof, and other related matters a
Respondent's refusal to bargain, if sanctioned in these circum-
stances, would completely nullify the employees' franchise. In a
seasonal business like that of the Respondent, as in other enterprises,
collective bargaining negotiations may continue several days and even
weeks. On Respondent's theory, although negotiations may commence
during the operating season of the Respondent's shed, as it is not un-
8 American Radiator Company, 7 NLRB 1127, 1151.
The Respondent contends that the Trial Examiner ' s finding that there were employment
conditions which the employees wanted to settle prior to the operating season is not sup-
ported by the record . This contention lacks merit . E. C. DeBaca , the union representa-
tive, testified without contradiction that the Union's members desired that a contract be
negotiated prior to resumption of seasonal operations. The terms of the proposed con-
tract, introduced in evidence , adequately support the Trial Examiner's finding that "there
were questions involving preference of employment and seniority as well as wages and
other conditions of employment that were vital to the employees and that they wanted
settled before the season opened."
WADE & PAXTON 653
likely that operations might be suspended temporarily-again be-
cause of seasonal factors-before a contract agreement is reached, the
Respondent would again be free to renew its contention that it is not
required to bargain because the Union's request is unseasonable.
This diversion, if repeated from season to season, would serve to
deprive employees of their right to self-organization and to bargain
collectively through representatives of their own choosing, as guar-
anteed by the Act.
The Board foresaw this difficulty in determining the appropriate
time for conducting elections in seasonal industries. In following its
usual practice in representation cases of directing an election in a
seasonal industry at or near the peak of the season, the Board recog-
nized that this procedure might often make it impossible to complete
a contract which would take effect before the end of the current operat-
ing season. In this connection the Board said:
We recognize the contract difficulties adverted to by the Inter-
venor. However, a contract negotiated during a year following
a Board certification is a bar to a rival petition, and such a con-
tract in a seasonal industry will determine employment condi-
tions for the year after the election. We think the fact of the
ineffectiveness of the contract for the current year is a lesser evil
than not permitting the seasonal employees any voice in the
selection of their bargaining representative.'
Significantly, at the time of the November 29, 1950, letter written
by the Respondent's counsel, the Respondent had already opened its
shed on the previous day and had known on November 27 that opera-
tions would be resumed on November 28. Neither Respondent nor
its counsel ever advised any of the union representatives that the
situation had changed and that the employees were then working.
Although the Respondent may not have communicated its intention
to resume operations to its counsel, in view of the final remarks in
the letter of November 29 to the union secretary, some effort to com-
municate with union representatives could reasonably have been re-
quired. The Respondent's letter, advising the Union that it would
not negotiate because it had no employees working, closed with these
remarks : "At the present time there is no certainty as to when the
plant will open. Consequently, it is impossible to give you a definite
date as to when we can begin negotiating." No effort was made by
Respondent after operations were resumed on November 28 to retract
the statement that it had no employees, or to correct the erroneous
impression it had communicated.
9 Libby, McNeal & Libby, 90 NLRB No. 89. not reported in bound volumes of Board deei-
sions. See , also, Arena-Norton Co .. 62 NLRB 1077.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner found, and we agree, that the Respondent's
requirement imposed on the union representatives at the November 9,
1950, meeting-that they be accompanied by a local committee-
further demonstrates the Respondent's failure to bargain in good
faith. As stated by the court in N. L. R. B. v. George P. Pilling &
Son Co.: 10 "Sec. 7 of the Act guarantees to the employees the right
to bargain collectively through a representative of their own choosing
and it is not for the employer to restrain or interfere with the exercise
of that right by insisting upon unwarranted conditions." This right
includes the right of the duly elected bargaining agent to select the
individuals who will act in its behalf in negotiations with the em-
ployer, free from control by the latter."
We will modify the recommended order of the Trial Examiner by
providing that the Respondent post the required notices for a 60-day
period when seasonal operations are in progress.12
Order
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board orders that the Respondent, Herbert L. Wade, Jerry
Paxton and G. F. McGee, Co-Partners, d/b/a Wade & Paxton, Ray-
mondville, Texas, its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Citrus, Cannery Work-
ers and Food Processors, Local Union 24473, AFL, as the exclusive
bargaining representative of all production and maintenance em-
ployees at the Respondent's packing shed at Raymondville, Texas,
including tomato crate makers and cabbage crate makers, but exclud-
ing purchasing agents, bookkeeper-weigher, office and clerical em-
ployees, guards, watchmen, tomato crate chief, shed foreman, and all
other supervisors as defined in the Act.
(b) Requiring that a committee of its employees accompany the
authorized representative of its employees in bargaining negotiations,
or in any other manner establishing conditions pertaining to such
representation.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the Union as the ex-
clusive representative of all of its employees in the aforesaid appro-
priate unit.
Io 119 F. 2d 32, 38 (C. A. 3).
11 See Lane Cotton Mills , 9 NLRB 952, 967-968, enforced 111 F. 2d 814 (C. A. 5) ; N. L.
if. B. v. Blanton Co., 16 NLRB 951, 964, enforced 121 F. 2d 564 (C. A. 8).
12 Southern Fruit D,strtibutors , Inc., 81 NLRB 259 ; Charbonneau Packing Corporation,
95 NLRB 1166.
WADE & PAXTON 655
(b) Post at its plant at Raymondville, Texas, copies of the notice
attached hereto and marked "Appendix A." 13 Copies of this notice,
to be furnished by the Regional Director for the Sixteenth Region,
shall, after being signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, while the plant is in
full operation. Said notices shall be posted in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Sixteenth Region in
writing within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with CITRUS, CAN-
NERY WORKERS AND FOOD PROCESSORS, LOCAL UNION 24473, AFL,
as the exclusive representative of all the employees in the follow-
ing appropriate bargaining unit : All production and mainte-
nance employees at the Raymondville packing shed, including
tomato crate makers and cabbage crate makers,, but excluding pur-
chasing agents, bookkeeper-weigher, office and clerical employees,
guards, watchmen, tomato crate chief, shed foreman, and all other
supervisors as defined in the Act.
WE WILL NOT require the representative of our employees to be
accompanied by a committee of our employees who are working
at the time, or in any other way interfere with the employees'
choice of a bargaining representative by establishing conditions
pertaining thereto.
HERBERT L. WADE, JERRY PAXTON
AND G. F. MCGEE, CO-PARTNERS,
D/B/A WADE & PAXTON,
Employer.
Dated --------------- By -------------------------------------
(Representative ) (Title)
is In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted before the words, "A Decision and Order ," the words,
"A Decree of the United States Court of Appals Enforcing."
656 DECISIONS OF NATIONAL LABOR RELATIONS,BOARD
This notice must remain posted from the date hereof, and for 60,
days while the plant is in full operation. It must not be altered, de-
faced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge filed on November 14, 1950, by Citrus, Cannery Workers and
Food Processors, Local Union 24473, AFL, herein called the Union, the General
Counsel for the National Labor Relations Board, through the Regional Director
for the Sixteenth Region (Fort Worth, Texas), issued a complaint dated Febru-
ary 9, 195551, against Herbert L. Wade, Jerry Paxton and G. F. McGee, Co-Partners,
d/b/a Wade & Paxton, herein called the Respondent, alleging that the Respond-
ent had engaged in unfair labor practices affecting commerce within the mean-
ing of Section 8 (a) (1) and 8 (a) (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 61 Stat. 136, herein called the Act. A copy of the
charge was duly served upon the Respondent, and copies of the complaint and
notice of hearing on the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleges in substance
that the Respondent on or about October 11, 1950, and at various times there-
after, refused to bargain with the Union as the authorized representative of its
employees in an appropriate unit. The Respondent's answer admits the nature
bf its business as described in the complaint, and that on May 18, 1950, a ma-
jority of its employees selected the Union as their representative, but denies
all allegations of unfair labor practices.
Pursuant to notice, a hearing was held on March 1, 1951, at Raymondville,
Texas, before J. J. Fitzpatrick, the undersigned duly designated Trial Examiner.
The General Counsel and the Respondent were represented by counsel, the Union
by a n AFL organizer. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded all parties.
At the conclusion of the taking of testimony the General Counsel and the Re-
spondent's attorney argued briefly on the record, and all parties were given an
opportunity to file briefs and/or proposed findings of fact and conclusions of law
subsequent to the close of the hearing. Briefs have been received from the General
Counsel and the Respondent.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent copartnership, Wade & Paxton, at all times material herein
has had its principal office and place of business in the city of Raymondville,
Texas, where it purchases, packs, sells, and distributes fresh vegetables. The
business is seasonal, operations beginning in November or December of each year
and continuing on through the following June. During the operating season
from November 1949 until July 1950, Respondent purchased vegetables from var-
ious growers located in and around Raymondville, of the approximate value of
$300,000. During the same period its sales were in excess of $300,000, of which
over 75 percent was 'shipped to points located outside the State of Texas. Because
of a drought, freeze, and poor crop conditions during the short operating season
from November 1950 to February 21, 195'1, the partnership's purchases from the
WADE & PAXTON 657
above sources were about $38,000, and its sales about $58,000 , of which 90 percent
was shipped to points outside Texas . I find from the above facts , and as conceded
by the Respondent , that it is engaged in commerce within the meaning of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Citrus, Cannery Workers and Food Processors, Local Union 24473, AFL, is a
labor organization admitting to membership employees of the Respondent 1
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit and representation by the Union of a majority therein
On July 24, 1950, following a Board-ordered election, which was won by the
Union, the Respondent's objections to the conduct of the election were overruled
and the Board certified the Onion as the- exclusive representative for collective
bargaining of all the Respondent 's production and maintenance employees at its
packing shed in Raymondville , including tomato crate makers and cabbage crate
makers, but excluding purchasing agents, bookkeeper-weigher, office and clerical
employees, guards, watchmen, tomato crate chief, shed foreman, and all other
supervisors as defined in the Act. I therefore find that by virtue of Section 9
(a) of the Act the Union at all times material herein has been and now is the
representative of the Respondent's employees for the purposes of collective bar-
gaining in the above appropriate unit.
B. Bargaining efforts
As heretofore found, the Respondent does not normally operate its packing
shed from about the end of June to November or December of each year. It is
a member of the Texas Citrus and Vegetable Growers and Shippers Association,
herein called the Association , which handles business matters for the Respondent
(and presumably its other members) including collective bargaining. On October
11, 1950, as the packing season approached, E. C. DeBaca, heretofore referred
to, on behalf of the Union wrote Scott Toothaker at McAllen, Texas, attorney
for the Association, requesting bargaining negotiations with the Respondent.
On October 13 Toothaker wrote Austin E. Anson, executive manager of the
Association at Harlingen, Texas,' enclosing a copy of DeBaca's letter and re-
questing that Anson advise when it would be "convenient for you to meet with
DeBaca and the writer [and] I will be glad to advise him," sending a copy of
his letter to DeBaca. Not hearing anything further about the request, the Union
on October 30 through its secretary, C. C. Turner, wrote C. F. McGee, one of the
partners, calling attention to the October 11 request and concluding,
'In its brief , the Respondent Points out that the record lacks proof that the Union
involved herein is a labor organization within the meaning of the Act. E. C . DeBaca,
a representative of the American Federation of Labor assigned to the Rio Grande Valley
in Texas, testified that, on behalf of the Union , he represented employees of the various
companies who were members of the Texas Citrus and Vegetable Growers and Shippers
Association, including the Respondent . The Board ' s Decision and Direction of Election
in Case No . 39-RC-155, dated April 27, 1950 , upon which the present proceeding is
grounded in part , was received in evidence herein without objection . In that decision the
Board specifically found that the Union herein involved was a labor organization . I there-
fore reject the Respondent 's contention in the above respect.
2 McAllen is about 65 miles , and Harlingen about 20 miles , from Raymondville , Texas,
where the Respondent ' s plant is located.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We wish to again notify you that we desire at this time to begin bargaining
negotiations with your company and further request that you make arrange-
ments to have a representative of your organization available for continued
negotiations so that we might complete a contract in the near future.
No answer was made to Turner 's communication , but on November 6 Toothaker
wrote DeBaca that arrangements had been made to meet at the Association's
offices in Harlingen Thursday afternoon , November 9, "for the purpose of
negotiating this contract."
At the appointed time and place DeBaca and Turner met with Toothaker,
McGee, and Anson. The meeting lasted only about 30 minutes . After some
discussion of the weather and the crop conditions generally , DeBaca distributed
copies of the Union 's proposed contract . Before there was an opportunity to
discuss or even read the proposal , the Respondent's representatives announced
(1) the Respondent 's shed was not in operation and there was a question whether
it would open during the season due to the drought and poor crops; ( 2) as the
Respondent had no employees , there was nothing to negotiate about; and (3)
when and if the shed started packing , the Respondent 's negotiators would, on
request, again meet with DeBaca and Turner to negotiate a contract , provided
the union representatives were also accompanied by a committee of the Re-
spondent 's employees . The meeting then closed without any arrangements for
a later meeting, after DeBaca had collected the copies of the proposal.
On November 22 following , Turner wrote Toothaker :
Re : Wade and Paxton negotiations
DEAR MR. TOOTHAKER :
We are indeed sorry that the Company took the view at our last meeting
in Harlingen , that they would not negotiate with 'us for the reason that
the plant is not now operating . We still feel as we did at the above men-
tioned meeting, that this fact is no bar to negotiating a contract . We request
that the Company meet with us in your office in McAllen next Tuesday, Novem-
ber 28th at 2:00 P. M.
If this time and place is satisfactory ,,please let me know.
On November 29 Toothaker replied :
In re : Wade & Paxton negotiations
DEAR MR . TURNER :
We acknowledge receipt of your letter of November 22nd , in regard to
the above matter, which letter was received by the writer while he was
absent from the office due to an eye infection.
It has not been the Company's position that they would not negotiate
for the reason that the plant is not now operating, but it has been and
is now their position that until such time as there are some employees at
the plant for you and your union to bargain for, that there is no necessity
for negotiations.
At the present time there is no certainty as to when the plant will open.
Consequently , it is impossible to give you a definite date as to when we
can begin negotiating.
Actually , the shed began operations on November 28 but with a reduced force
in order to handle cabbages and some turnips that began coming into the shed.
Due, probably , to a very severe freeze the latter part of January 1951 ,8 which
8 There was also a less serious freeze the previous December.
WADE & PAXTON 659
destroyed all growing crops, the shed closed on February 9. It remained closed
until the 19th and then reopened , but only for 3 days and then closed for the
season on February 21. No more than 20 production workers were at any time
employed by the Respondent during this short production season. Normally it
employs from 50 to 75 workers.
C. Conclusions as to the refusal to bargain allegation
The contention that the Respondent was not required to negotiate with its
employees in this seasonal business unless and until it actually had employees
on the job lacks merit in my judgment . In the off-season there were questions
involving preference of employment and seniority as well as wages and other
conditions of employment that were vital to the employees and that they wanted
settled before the season opened. We do not have here a situation where there
was no reasonable expectancy that the operations would ever be resumed,
under such circumstances the above contention would probably be well taken, but
here the Respondent normally opened for operations late each fall . In fact, as
the record shows, on November 29, 1950, the shed had already been opened
when Toothaker , answering the Union 's request of the Respondent stating that
negotiations be resumed , wrote that there was no certainty as to when the shed
would open.4
In a seasonal industry , or an operation where actual production is intermit-
tent, the fact that employees are not actually at work just does not justify the
employer 's refusal to bargain with the employees ' authorized representative.'
The Board has also held that a question concerning the representation of em-
ployees exists during the off season of a seasonal industry ' The Respondent's
announced refusal to negotiate unless the Union brought a committee of the
Respondent 's employees to the bargaining table also constituted a refusal to
bargain. The employees had made their official choice of a bargaining repre-
sentative , and it was not for the Respondent to interfere with that choice by
"establishing conditions pertaining thereto." ' I find therefore , contrary to the
contentions of the Respondent , that on November 9, 1950, and thereafter, the
Respondent failed and refused to bargain with the Union as the authorized
representative of its employees in an appropriate unit, thereby violating Section
8 (a) (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activity of the Respondent set forth in Section III, above , occurring in con-
nection with the operations of the Respondent described in Section I, above, have
a close, intimate , and substantial relation 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.
4 Manager McGee 's testimony that on November 9, 1950, he did not know whether the
shed would operate that season is not credited . True, at that time the drought had lim-
ited the amount of vegetables then available , but there were crops to be handled as was
clearly proven by the fact that the shed opened at about the normal time with a reduced
force. It was the two freezes that followed later, particularly the January freeze, which
was the worst experienced in that area in many years, that destroyed the replanted or
growing vegetables and forced the early closing in February.
5 J. W. Beasley, etc., 7 NLRB 1069. Cf. Piqua Munising Wood Products Company,
7 NLRB 782 ( enforced in 109 F. 2d 552 (C. A. 6) ).
6 Liggett and Myers Tobacco Company , 74 NLRB 443.
7 N L R B . v George P Pilling and Son Co , 119 F 2d 32 (C. A. 3).
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
It has been found that the Respondent, by refusing to negotiate with the Union
during a period when Respondent's employees were not actually working, and by
insisting that the union representatives be accompanied in future negotiations
by a committee of the Respondent's employees, has refused to bargain collec-
tively. In order to effectuate the policies of the Act, it will be recommended that
the Respondent be required, upon request, to bargain with the Union as the
exclusive representative of its employees in the unit found to be appropriate,
regardless of whether the Respondent's employees are actually working at the
time of the request. It will also be recommended that the Respondent cease and.
desist from in any other manner interfering with the efforts of the Union to bar-
gain collectively with it. Cf. N. L. R. B. v. Express Publishing Company, 321
U. S. 426.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. Citrus, Cannery Workers and Food Processors, Local Union 24473, AFL, is
a labor organization within the meaning of Section 2 (5) of the Act.
2. The above Union is now, and during all times material herein, has been the
exclusive representative, within the meaning of Section 9 (a) of the Act, of all
the employees of the Respondent in the unit heretofore found to be appropriate
within the meaning of Section 9 (b) of the Act.
3. By refusing on November 9, 1950, and thereafter to bargain collectively with
the above Union as the exclusive representative of all its employees in the afore-
said unit , the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (5) of the Act.
4. By said acts, Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, and
thereby engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
5. 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 omitted from publication in this volume.]
THE GREAT ATLANTIC & PACIFIC TEA COMPANY and RETAIL CLERKS
UNION, LOCAL No. 1604 OF SAVANNAI-I, GA., AFFILIATED WITH RETAIL
CLERKS INTERNATIONAL ASSOCIATION, AFL, PETITIONER. Case No.
10-RC-1494. October 5, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Paul L. Harper, hearing
96 NLRB No. 88.