E. B. Manning & Son, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 1124 (N.L.R.B. 1986)

1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. B. Manning & Son, Inc. and Wholesale & Retail
Food Distribution , Teamsters Local 63 , Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America. Case 21-
CA-24493
30 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 11 July 1986 Administrative Law Judge
Roger B. Holmes issued the attached decision. The
General Counsel filed exceptions and a supporting
brief.
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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended
Order. I
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, E.B. Man-
ning & Son, Inc., Pico Rivera, California, its offi-
cers , agents, successors , and assigns , shall take the
action set forth in the Order.
' The General Counsel 's only exceptions urge modification of the rec-
ommended Order to include a provision for a visitatonal clause authoriz-
ing the Board , for compliance purposes , to obtain discovery from the Re-
spondent under the Federal Rules of Civil Procedure under the supervi-
sion of the United States Courts of Appeals enforcing this Order. Under
the circumstances of this case, we find it unnecessary to include such a
clause
Neil A. Warheit, Esq., for the General Counsel.
Norman E. Jones, Esq. (Jones, Jones & Jones), of San
Simeon, California, for the Respondent.
Joe Carrillo, of Los Angeles, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ROGER B . HOLMES, Administrative Law Judge. The
Charging Party, Wholesale & Retail Food Distribution,
Teamsters Local 63, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America,
filed the unfair labor practice charge in this case on 20
February 1986. I usually will refer to the Charging Party
in this decision as the Union.
The Regional Director for Region 21 of the National
Labor Relations Board, who was acting on behalf of the
General Counsel of the Board, issued the complaint in
this proceeding on 1 April 1986. The General Counsel
alleged that the Respondent , E. B. Manning & Son, Inc.,
had failed and refused to bargain collectively in good
faith with the Union and, thereby, had engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(5) of the Act. In summary, the General Counsel alleged
that since at least 20 August 1985 the Respondent has
failed and refused to reduce to writing and to sign an
agreed-upon contract with the Union, and has failed and
refused to provide the health and welfare benefits of the
agreed-on contract to employees in the bargaining unit.
The Respondent filed an answer to the General Coun-
sel's complaint and denied that it had engaged in the al-
leged unfair labor practices. I usually will refer to the
Respondent in this decision as the Company.
I heard the evidence in this case at the hearing that
was held 13 May 1986 at Los Angeles, California. The
time for filing posthearing briefs was set for 17 June
1986. I have read and considered the brief that was filed
by the General Counsel.
FINDINGS OF FACT
1. JURISDICTION
The Company is a California corporation, and it oper-
ates a facility located in Pico Rivera, California, where it
is engaged in the processing of meat products. During
the 12 months prior to the issuance of the General Coun-
sel's complaint, the Company had gross revenues in
excess of $500,000, and during the same period of time
the Company purchased and received goods and prod-
ucts valued in excess of $50,000 directly from suppliers
located outside the State of California. Based on the
pleadings and the evidence presented in this case, I find
that the Company has been at all times material herein
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
Based on the pleadings and the evidence presented in
this case, I find that the Union has been at all times ma-
terial herein a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Evidence
The following paragraphs quoted from the General
Counsel's complaint were admitted to be true in the Re-
spondent's answer:
5. All drivers and helpers employed by Respond-
ent at its facility located at 9531 East Beverly Bou-
levard, Pico Rivera, California; excluding office
clerical employees, non-working forepersons,
guards, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purpose of collec-
tive-bargaining within the meaning of Section 9(b)
of the Act.
6. (b) Since at least September 1, 1979, the Union
has been the representative for the purposes of col-
281 NLRB No. 152
E. B. MANNING & SON
lective-bargaining of a majority of the employees in
the above-described unit, and by virtue of Section
9(a) of the Act, has been , and is now, the exclusive
representative of all employees in said unit for the
purposes of collective-bargaining with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment.
7. (a) On or about July 3, 1985, the Union and
Respondent reached full and complete agreement
with respect to all terms and conditions of employ-
ment of the employees in the unit described in para-
graph 5 above, to be incorporated in a collective-
bargaining agreement between the Union and Re-
spondent.
(b) Since at least August 20, 1985, and at all times
thereafter, the Union has requested , and continues
to request, that Respondent reduce to writing, and
execute, a written contract embodying the agree-
ment described in paragraph 7(a) above.
Joe Carrillo is a business representative and division
coordinator of the Union.' Those titles are reflected on
Carrillo's business card. (C.P. Exh . 1.) He has been em-
ployed by the Union for approximately 10 years.
According to Carrillo, the Union has represented the
employees of the Company for 25 to 30 years. The Gen-
eral Counsel 's Exhibit 2 is a copy of a collective-bargain-
ing agreement between the Company and the Union that
initially was effective from 1 September 1979 through 31
December 1982. Thereafter, the agreement renewed itself
from year to year. Since 31 December 1982 the Compa-
ny has continued to make payments to the Teamsters &
Food Employers Security Trust Fund provided for in
that agreement.
Negotiations for a new collective-bargaining agree-
ment were held in May and June 1985 . There were two
meetings between the Company and the Union. The first
meeting took place in May 1985 at the Union's office.
Present were Norman E. Jones, who represented the
Company in this proceeding ; Ellsworth Hall, who is the
Union's business agent assigned to represent the unit em-
ployees in dealings with the Company; and Carrillo. The
General Counsel's Exhibit 3 is a copy of the Union's pro-
posals for a new contract with the Company, which the
Union gave to Jones at the first meeting.
The second meeting was held during the last week of
June 1985 at the Union's office. Present were Jones,
Hall, and Carrillo. The General Counsel 's Exhibit 4 is a
copy of the Company's final proposals for a new con-
tract, which Jones gave to Hall and Carrillo at the
second meeting . The Company requested that its final
proposals be voted on by the employees. That was
agreed to by the parties . It was also agreed at that meet-
ing that Jones would draft the contract if the employees
voted to accept the Company 's final proposals.
The General Counsel's Exhibit 5 is a copy of a bulletin
dated 28 June 1985 from the Union to the unit employees
I The transcript indicates that Carrillo's first name is Jose, but docu-
mentary evidence indicates that his first name is Joe . (See C.P Exh I
and G.C. Exh. 6.)
1125
regarding a meeting to be held 3 July 1985 to vote on a
contract.
The employees voted 3 July 1985 to accept the Com-
pany 's final proposals . Carrillo telephoned Jones and no-
tified him that the employees had voted to accept the
Company 's final proposals.2
B. The Events in August 1985
About a month and a half after the employees had
voted to accept the Company 's final proposals 3 July
1985, Carrillo had not received a draft of the contract
from Jones . Therefore, Carrillo attempted to contact
Jones by telephone . Carrillo was unable to reach Jones
on that occasion , so Carrillo left a message asking that
Jones contact him as soon as possible in order to deter-
mine the status of the agreement.
Carrillo did not receive a response from Jones to his
telephone call. Therefore, Carrillo telephoned for Jones
two more times . Carrillo was unable to reach Jones on
those occasions, so he left a message for Jones each time.
Carrillo did not receive a response to those additional
telephone messages.3
C. The Events in October 1985
On 29 October 1985 Jones mailed a cover letter and
two copies of a proposed contract to the Union. Re-
spondent 's Exhibit 3(a) is a copy of Jones' letter dated 29
October 1985 . Respondent 's Exhibit 3(b) is a copy of the
proposed contract that Jones enclosed with his letter.
The proposed contract was to be effective from 1 July
1985 to 30 June 1988. Respondent 's Exhibit 3(a) states:
October 29, 1985
Wholesale and Retail Food Distribution,
Teamsters Union Local #63
1616 West 9th Street , Room 205
Los Angeles , California 90015
Re: E. B . Manning and Son, Inc . Negotiations for a
New Agreement.
Attn : Robert E . Marciel , Sec.-Treasurer
Gentlemen:
Attached hereto are two (2) copies of the pro-
posed Agreement , per the Company's proposals that
were voted upon by the employees , for your study.
If the proposed Agreement is per your under-
standing, please sign and return one (1) copy and
we will have several copies made and send back to
you for your files.
Very truly yours,
Norman E. Jones
8 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Carrillo and documentary evidence Jones ac-
knowledged in his testimony at the hearing that he had received notice
from Carrillo that the Company's employees had ratified the Company's
proposals . I have considered Carrillo's testimony with regard to certain
matters pertaining to the contents of G C Exhs. 2 and 4 However, I
have relied on the documents themselves, rather than his recollection or
interpretation of their contents.
s The findings in the foregoing paragraphs are based on a portion of
the credited testimony of Carrillo.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cc: E. B . Manning & Son, Inc.
Encl: (2)
Jones personally typed his letter and personally put
the documents in an envelope addressed in the same
manner as indicated above . Jones said at the hearing that
his practice in contract negotiations was to address such
communications to the secretary -treasurer of a union.
Jones put postage on the envelope , and he personally
placed the envelope in a Postal Service box outside the
entrance to the building in which Jones ' Lynwood, Cali-
fornia office is located . Jones sent the envelope by regu-
lar mail about 29 October 1985. Jones said that he never
received either one of the copies of Respondent 's Exhibit
3(b) from the Union . Jones acknowledged at the hearing
that he did not contact the Union thereafter regarding
that matter.'
Carrillo never received copies of Respondent 's Exhib-
its 3(a) and 3(b) until the time of the hearing in this pro-
ceeding . Carrillo acknowledged at the hearing that he
could not state whether the Union 's secretary -treasurer,
Robert Marciel , received those documents from Jones.
Similarly , Carrillo said that he could not state whether
Ellsworth Hall, the Union 's business agent assigned to
deal with the Company , had ever received Respondent's
Exhibits 3(a) and 3(b). However , Carrillo said that Hall
consistently in the past had reported to Carrillo, as the
Union 's division coordinator, all matters of concern and
importance. 5
The Union's office procedure is for Marciel to receive
and to read all letters addressed to the Union or to the
Union's business agents . Carrillo said he had never
known of an instance in the past where Marciel had
failed to forward a document of such consequence as Re-
spondent 's Exhibit 3(b) to the person who had negotiated
the contract. In other situations Marciel is the one who
has given Carrillo the authority to sign a particular con-
tract. 6
"A letter properly addressed , stamped and mailed is
presumed to have been duly delivered to the addressee."
McCormick on Evidence, 3d Edition , Professor Edward
W. Cleary, General Editor , West Publishing Co. (1984)
at page 969 . See also An Introduction to the Law of Evi-
dence by Professor Graham C. Lilly, West Publishing
Co. (1978) at 52-53.
In these circumstances , I find that the testimony of
Jones created a rebuttable presumption that Respondent's
Exhibits 3(a) and 3(b) were delivered to the Union. Com-
munications Workers Local 11500 (American Telephone),
272 NLRB 850, 851 fn . 3 (1984). I further find that the
testimony of Carrillo alone did not rebut the presumption
that Respondent 's Exhibits 3(a) and (b) were delivered to
the Union, as distinguished from delivery to Carrillo per-
sonally . While I find that Respondent 's Exhibits 3(a) and
(b) were not received by Carrillo, he acknowledged that
* The foregoing findings are based on a credited portion of the testi-
mony of Jones and documentary evidence
5 The foregoing is based on a credited portion of the testimony of Car-
rillo Neither Marciel nor Hall appeared as a witness to give testimony in
this proceeding
6 The foregoing is based on a credited portion of the testimony of Car-
rillo
he could not state that those documents had not been re-
ceived by Marciel and Hall. Neither Marciel nor Hall
testified in this proceeding . The burden was on the Gen-
eral Counsel to rebut the presumption . See Rule 301 of
the Federal Rules of Evidence . I find that the presump-
tion has not been rebutted in these circumstances.
Jones acknowledged at the hearing that Respondent's
Exhibit 3(b) did not contain Plan G or a pension plan,
and that the Company was asking the Union to sign a
contract with something that had to be added later on.
Jones also acknowledged in his testimony that he made
no attempt to contact the Union after Jones had mailed
Respondent 's Exhibits 3(a) and 3(b).7
Respondent 's Exhibit 3(b) differed in several respects
from the terms which the Company and the Union had
agreed to as reflected in General Counsel 's Exhibit 4.
In General Counsel's Exhibit 4 with regard to article
XVI, Pension , the Company and the Union agreed to the
following:
Delete and replace with the following : "Every
year of the Agreement, the Company will pay into
an RIA [IRA] type of Plan the sum of $2,200.00 for
each Employee on their anniversary date with the
Company."
Respondent's Exhibit 3(b) with regard to article XVI
is different in that it adds an exception to the agreed-on
terms . It states:
1. Every year of this Agreement, the Employer
will pay into an IRA type of Plan the sum of
$2,200.00 for each Employee on their Anniversary
date with the Employer, except as follows:
2. If an employee shall leave the Company
and/or for the first year of this Agreement, said
amount of $2,200.00 shall be pro-rated at 1/12 for
each month of service with the Company.
In General Counsel 's Exhibit 4 with regard to article
XIX, the Company and the Union agreed to the follow-
ing:
Delete and replace with the following : During
the life of the Agreement , the Company will pay
the full costs of a Plan equal to the so-called "Plan
G" as of July 1, 1985 , for Medical and Hospital
Benefits , Dental Plan , Prescription Plan, and Vision
Care Plan.
Respondent 's Exhibit 3(b) with regard to article XIX
differs in that "at the option of the Company " was added
to the agreed-on terms and "similar to" Plan G was sub-
stituted for "equal to" Plan G as an option for the Com-
pany. It states:
1. During the life of this Agreement, at the
option of the Company , the Company will pay the
full costs of a Plan similar to the so -called "Plan
G," as of July 1, 1985 , for Medical and Hospital
r The foregoing is based on a credited portion of the testimony of
Jones
E. B. MANNING & SON
Benefits , Dental Plan , Prescription Plan, and Vision
Care Plan, or "Plan G" for the same coverage of its
employees.
In General Counsel 's Exhibit 4 with regard to article
VI, section 3, the Company and the Union agreed to the
following : "Delete any reference to the Employee's
Birthday."
Respondent's Exhibit 3(b), section 3, differs in that the
reference is retained instead of being deleted.
General Counsel 's Exhibit 4 indicates that the Compa-
ny and the Union agreed to certain changes in Appendix
A, which had been attached to General Counsel 's Exhib-
it 2. The changes pertain to inserting new wage rates for
the classifications of employees and a change in the defi-
nition of "a loader."
Respondent 's Exhibit 3(b) differed from that agree-
ment in that no Appendix A with the agreed-on changes
was submitted to the Union with Respondent 's Exhibit
3(b).
General Counsel 's Exhibit 4 indicates that the Compa-
ny and the Union also agreed to certain changes in the
"Addendum to Labor Agreement , dated July 1, 1980."
Respondent 's Exhibit 3(b) differed from that agree-
ment in that no Addendum with the agreed -on changes
was submitted to the Union with Respondent 's Exhibit
3(b).8
D. The Events in November 1985
On 25 November 1985 Carrillo sent a letter to Jones
by certified mail. General Counsel 's Exhibit 6 consists of
a copy of Carrillo's letter and a copy of the Postal Serv-
ice return receipt card . The text of General Counsel's
Exhibit 6 states:
Please be advised that it has been many months
(July 3 , 1985) since the Labor Agreement for E.B.
Manning & Son Inc. was ratified . My understanding
was that we would review the Health and Welfare
Program in lieu of the Food Employers H&W pro-
gram, which was deleted from the Labor Agree-
ment . I have tried to reach you numerous times and
left a message, with no answer to this date.
Please expedite your response as quickly as possible.
Carrillo did not receive a response from Jones to Car-
rillo's letter.9
E. The Events in Either December 1985 or January
1986
Either during the latter part of December 1985 or the
first part of January 1986 , Carrillo telephoned the Com-
pany and spoke with Alvin H. Johnson, who is the assist-
ant secretary-treasurer of the Company . Carrillo asked
about the contract and the whereabouts of Jones so that
they could get a contract and go forward on the new
health and welfare plan and a new pension plan. Carrillo
told Johnson that Carrillo was concerned about the con-
8 The findings in the foregoing paragraphs are based on documentary
evidence.
The foregoing findings are based on a credited portion of the testi-
mony of Carrillo and documentary evidence.
1127
tinuity of the coverage of the health and welfare plan for
the current employees of the Company . Johnson told
Carrillo that he could only answer and say that the
Company had not paid the cost increase of the health
and welfare plan that was in effect as of January 1986.
At the hearing Carrillo explained that he had been told
by the trust that the Company's employees were not
covered by the health and welfare plan because the
Company had refused to pay a cost increase for that
plan.10
At the hearing Johnson said that Carrillo had sent him
a copy of Plan G, but Johnson did not say when that
had occurred. Johnson said that he had not seen a copy
of Plan G prior to the time that he received it from Car-
rillo.ll
F. Other Events
General Counsel's Exhibits 7(a) through 7(k) are
copies of documents indicating payments made by the
Company to the Teamsters & Food Employers Security
Trust Fund for health and welfare coverage for unit em-
ployees during the period from June 1985 through 2
May 1986.12
According to Carrillo, the Teamsters & Food Employ-
ers Security Trust Plan is more expensive to the Compa-
ny than Plan G. Carrillo estimated that the Teamsters &
Food Employers Security Trust Plan was about $50 a
month per employee more costly than Plan G.13
Johnson said that the Company has not implemented
Plan G, or a plan equivalent to Plan G, and that the
Teamsters & Food Employers Security Trust Plan is the
only plan the Company had at the time of the hearing.
Johnson said that the Company had contacted an insur-
ance company or an agent about getting a plan similar to
Plan G. At the time of the hearing , he said that the
Company's board of directors was reviewing about 10
plans. At the time of the hearing , the Company 's board
of directors consisted of Emerson L. Manning, Vera
Louise Manning , Lloyd Manning, H. W. Harlan, and
Johnson. Those directors took over the Company after
the death in May 1984 of L. H. Manning, who had run
the Company . At the time of the hearing, Johnson had
received information from the Company 's accountants
with regard to establishing a plan similar to an IRA plan.
Johnson said the information probably would be dis-
cussed at the next meeting of the Company 's board of di-
rectors. 14
Jones acknowledged at the hearing that the Company
was continuing to observe the terms of its former con-
tract with the Union , except that the Company no longer
observed an employee 's birthday as a holiday. 1 s
10 The foregoing findings are based on a credited portion of the testi-
mony of Carrillo.
11 The foregoing is based on a credited portion of the testimony of
Johnson.
18 The foregoing findings are based on documentary evidence.
The foregoing is based on a credited portion of the testimony of
Carrillo.
14 The foregoing findings are based on a credited portion of the testi-
mony of Johnson.
13 The foregoing findings are based on a credited portion of the testi-
mony of Jones
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. Conclusions
It is helpful to look for guidance to the Supreme
Court's opinion in H. J. Heinz Co. v. NLRB, 311 U.S.
514, 562 (1941). The Court held:
The freedom of the employer to refuse to make an
agreement relates to its terms in matters of sub-
stance and not, once it is reached, to its expression
in a signed contract, the absence of which, as expe-
rience has shown, tends to frustrate the end sought
by the requirement for collective bargaining. A
business man who entered into negotiations with an-
other for an agreement having numerous provisions,
with the reservation that he would not reduce it to
writing or sign it, could hardly be thought to have
bargained in good faith. This is even more so in the
case of an employer who, by his refusal to honor,
with his signature, the agreement which he has
made with a labor organization, discredits the orga-
nization, impairs the bargaining process and tends to
frustrate the aim of the statute to secure industrial
peace through collective bargaining.
The Board held in Fashion Furniture Mfg., 279 NLRB
705 (1986), "It is well settled that once an agreement has
been reached it is incumbent upon the employer, as well
as the union, to execute it." The Board also held in that
case:
Having found that the Respondent unlawfully re-
fused to sign the agreed-upon contract discussed
above, we further find that the Respondent's subse-
quent failure to implement increases in wages and
health and welfare payments required under the
contract and its failure to withhold and remit dues
to the Union also required under the contract con-
stitute additional violations of Section 8(a)(5) and
( 1) and Section 8(d) of the Act.
Because the Company and the Union had reached a
full and complete agreement on all terms of a collective-
bargaining agreement covering the unit employees, I
conclude that the Company was obligated to sign a writ-
ten contract that contained those agreed-on terms, and
the Company was obligated to provide to the unit em-
ployees the health and welfare benefits of the agreed-on
contract. The Company had not met either one of those
obligations by the time of the hearing in this proceeding.
I conclude that the mailing of Respondent's Exhibit
3(b) to the Union about 29 October 1985 did not relieve
the Company of its obligations. As agreed to by the
Company and the Union, it was the Company's responsi-
bility to prepare a written document that contained the
terms that the parties had agreed to. Carrillo's letter
dated 25 November 1985 to Jones and Carrillo's tele-
phone conversation with Johnson in either December
1985 or January 1986 were indications to the Company
that the Union had not received the Company's draft of
a contract. Nevertheless, the Company made no attempt
to contact the Union with regard to the contract. In ad-
dition, Respondent's Exhibit 3(b) differed in certain re-
spects from the terms that the Company and the Union
previously had agreed on.
Under the foregoing circumstances, I further conclude
that the Company did not meet its obligation to bargain
in good faith with the Union because it has not signed a
written contract containing the agreed-on terms of a col-
lective-bargaining agreement, and because the Company
has not provided the health and welfare benefits of the
agreed-on contract to unit employees. Accordingly, I
conclude that the Company has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of
the Act as alleged in the General Counsel's complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. At all times material, the Union has been the exclu-
sive collective-bargaining representative of the employ-
ees of the Respondent in the appropriate bargaining unit
described below:
All drivers and helpers employed by Respondent
at its facility located at 9531 East Beverly Boule-
vard, Pico Rivera, California; excluding office cleri-
cal employees, non-working forepersons, guards,
and supervisors as defined in the Act.
4. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (5) of the
Act by failing and refusing to sign a written contract
containing the terms of a collective-bargaining agreement
agreed on between the Respondent and the Union, and
by failing and refusing to provide the health and welfare
benefits of the agreed-on contract to employees in the
bargaining unit.
5. The unfair labor practices described above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Because I have found that the Respondent has en-
gaged in certain unfair labor practices within the mean-
ing of Section 8(a)(1) and (5) of the Act, I shall recom-
mend to the Board that the Respondent be ordered to
cease and desist from engaging in such unfair labor prac-
tices and to take certain affirmative actions designed to
effectuate the policies of the Act.
Included in the remedial provisions that I recommend
to the Board is an order that the Respondent make
whole its unit employees for any losses they may have
suffered by reason of the Respondent's unfair labor prac-
tices in accordance with the Board's decisions in Kraft
Plumbing & Heating, 252 NLRB 891 (1980), enfd. 661
F.2d 940 (9th Cir. 1981); Ogle Protection Service, 183
NLRB 682 (1970), plus interest as prescribed in Florida
Steel Corp., 231 NLRB 651 (1977), and Merryweather Op-
tical Co., 240 NLRB 1213 (1979).
E. B. MANNING & SON 1129
The General Counsel has requested that a visitatorial
clause be included in the Order in this case . I conclude
that the General Counsel has not presented evidence in
this proceeding that established that such a visitatorial
clause was necessary under the circumstances of this
case. Accordingly, I deny the General Counsel 's request.
See Cherokee Heating & Air Conditioning Co., 280 NLRB
No. 44 (June 18 , 1986).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edts
ORDER
The Respondent, E. B. Manning & Son, Inc., Pico
Rivera, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to sign a written contract con-
taining the terms of a collective-bargaining agreement
agreed on between the Respondent and the Union and
failing and refusing to provide the health and welfare
benefits of the agreed-on contract to the employees in
the bargaining unit described previously.
(b) In any like or related manner interferifg with, re-
straining, or coercifg employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request by the Union, forthwith sign a written
contract with the Union that contains the terms verbally
agreed to by the Respondent and the Union on 3 July
1985 , and provide the health and welfare benefits of the
agreed-on contract to employees in the bargaining unit.
(b) Give retroactive effect to the terms and conditions
of employment of the agreed-on contract, and make
whole the employees in the bargaining unit for any losses
they may have suffered by reason of the Respondent's
unfair labor practices in the manner described in the
remedy section of this decision.
(c) Preserve and, on request , make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Pico Rivera, California facility copies of
the attached notice marked "Appendix ." 17 Copies of the
16 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.
II 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
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 the Respond-
ent immediately on receipt and maintained for 60 consec-
utive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced , or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to sign a written contract
containing the terms of a collective-bargaining agreement
agreed on between the Company and Wholesale & Retail
Food Distribution, Teamsters Local 63 , International
Brotherhood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America.
WE WILL NOT fail and refuse to provide the health and
welfare benefits of the agreed-on contract to our employ-
ees in the bargaining unit described below:
All drivers and helpers employed by Respondent
at its facility located at 9531 East Beverly Boule-
vard, Pico Rivera, California ; excluding office cleri-
cal employees, non-working forepersons, guards,
and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request by the Union, forthwith sign a
written contract with the Union that contains the terms
verbally agreed to by the Company and the Union 3 July
1985, and WE WILL provide the health and welfare bene-
fits of the agreed-on contract to our employees in the
bargaining unit described above.
WE WILL give retroactive effect to the terms and con-
ditions of employment of the agreed-on contract.
WE WILL make whole the employees in the bargaining
unit described above for any losses they may have suf-
fered by reason of the Company 's conduct, and WE WILL
do so in accordance with NLRB decisions.
E. B. MANNING & SON, INC.