Empire State Sugar Co., Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1967

166 N.L.R.B. 31 (N.L.R.B. 1967)

EMPIRE STATE SUGAR CO. 31
Empire State Sugar Company, Inc. and
International Union of Operating Engineers,
Local 71, 71A, AFL-CIO and American Federa-
tion of Grain Millers, AFL-CIO, and its Local 322
Party to the Contract. Case 3-CA-2987
members of the above-named labor organiza-
tion, except in accordance with an agreement
as authorized in Section 8(a)(3) of the National
Labor Relations Act, as amended.
June 28, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On March 8, 1967, Trial Examiner Benjamin B.
Lipton issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel, the Respondent,
and the Grain Millers filed exceptions to the Deci-
sion and briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board had delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Empire State Sugar Com-
pany, Inc., Auburn, New York, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
1. Substitute the following as paragraph 1(d):
"(d) Requiring as a condition of employment
that such powerhouse employees be members of
the above-named labor organization, except in ac-
cordance with an agreement as authorized in Sec-
tion 8(a)(3) of the National Labor Relations Act, as
amended."
2. Substitute the following for the third indented
paragraph of the notice attached to the Trial Ex-
aminer's Decision:
WE WILL NOT require as a condition of em-
ployment that such powerhouse employees be
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Trial Examiner: This proceed-
ing was heard on November 17, 1966,1 in Auburn, New
York, upon a complaint by the General Counsel,2 alleging
that Empire State Sugar Company, Inc., herein called
Respondent, violated Section 8(a)(2) and (1) of the Na-
tional Labor Relations Act. Respondent generally denied
commission of the alleged unfair labor practices.3 All
parties appeared at the hearing and were afforded full op-
portunity to present relevant evidence, to examine and
cross-examine witnesses, and to argue orally on the
record. Briefs received from the General Counsel and
Respondent have been carefully considered.
Upon the entire record in the case, and from my obser-
vation of the demeanor of the witnesses on the stand, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent operates a plant at Montezuma, New
York, where it is engaged in the processing, manufacture,
sale, and distribution of sugar and related products. Dur-
ing the year ending October 1, 1966, Respondent sold
and distributed manufactured products valued in excess
of $100,000, of which products valued in excess of
$50,000 constituted a direct outflow in interstate com-
merce. It is undenied, and I find, that Respondent is en-
gaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union of Operating Engineers, Local 71,
and 71 A, AFL-CIO, herein called the Operating En-
gineers, and American Federation of Grain Millers, and
its Local 332, herein collectively called the Grain Mil-
lers, are each labor organizations within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Issues and Contentions
1. Whether, as alleged by the General Counsel,
Respondent rendered unlawful assistance to the Grain
Millers - within the year after an inconclusive Board con
sent election-by engaging in the following conduct:
(a) After rejecting a current recognition claim of the
Operating Engineers in a unit of powerhouse operators
and an accompanying offer of new "approp 'ate .proof ' of
I All dates are in 1966, except as otherwise indicated.
2 The original charge was filed and served by the Operating Engineers
on July 7, and the complaint thereon was issued by the General Counsel
on October 3.
1 The Grain Millers verbally entered denials to the complaint substan-
tially identical to those filed by Respondent
166 NLRB No. 22
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority status -by granting the request of the Grain Mil-
lers for an impartial cross check of authorization cards to
substantiate a demand for recognition in a unit of produc-
tion and maintenance employees , including powerhouse
operators.
(b) By recognizing the Grain Millers following the re-
ported results of such card check.
(c) By engaging in contract negotiations with the
Grain Millers.
(d) By executing a contract with the Grain Millers.
(e) By including in the contract union-security provi-
sions.
2. 'Whether, as contended by Respondent and the
Grain Millers, the claimed unit of powerhouse operators
was or is inappropriate.
3. 'Whether, as contended by Respondent, the
Midwest Piping doctrine was inapplicable despite the
conflicting union claims as to the powerhouse employees.
B. The Competing Organizational Efforts
1. Prior inconclusive election
On October 5 and 11, 1965, petitions were filed
respectively by the Grain Millers and the Teamsters 4 for
an election in a production and maintenance unit; and on
November 1, 1965, the Operating Engineers petitioned
for a unit of powerhouse operators. On November 2,
1965, all parties executed a Stipulation for Certification
Upon Consent Election, in which it was agreed that a
self-determination election would be conducted in
separate voting groups of powerhouse operators and of
production and maintenance employees. A payroll list of
eligible voters, stipulated in advance, provided the names
of three powerhouse operators- Charles E. Tallman,
David V. Butler , and Theordore J. Huff. On November
16, 1965, in the elections conducted by the Board, none
of the participating unions received a majority vote; and
thereafter the Regional Director accordingly issued a
Certificate of Results of Election.
2. Renewed organizational campaigns and recognition
demands
By letter to Respondent dated April 26 the Operating
Engineers requested recognition as majority representa-
tive of the powerhouse operators and indicated that it was
"ready to produce appropriate proof' of such claim.5 On
May 3, Respondent replied by letter expressing doubt
4 Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local
Union 506.
5 At this time , the Operating Engineers had in its possession designation
cards signed, on April 24, by Tallman and Butler, Myron Kushnir, Wil-
liam DeLamarter, and Donald M. Young. In evidence is a payroll list as
of April 26 showing Tallman and Butler with the classification of "Power
House Operator"; Huff as "Power House Foreman", Kushnir as "Main-
tenance Man 'B'," and DeLamarter as "Maintenance Utility" -with the
notation that the latter two employees were "Assigned as 'Helpers' in
Power House." General Counsel contends that the list should also include
Young classified as "Water and Sanitary Treatment Operator." Respond-
ent contends that only three of the six employees aforementioned were
properly powerhouse employees on April 26; i.e , Huff, Tallman, and Bu-
tler (Under Respondent 's position, the Operating Engineers would still
have a card majority in a powerhouse unit.) The personnel file of Huff in-
dicates that on January 23 he was made "Power House Foreman" with a
raise in pay-"to fill new opening ." Kushnir's file shows that he was
"promoted" to powerhouse operator on August 15; and, as testified, he
was theretofore a "trainee" in the powerhouse. DeLamarter quit his em-
that the Operating Engineers "represent an informed
majority" in an appropriate unit, and stating in effect that
the question can best be resolved by a Board election. On
May 4 the Operating Engineers wrote Respondent that
it was precluded from obtaining a Board election (for 1
year after the preceding valid election held in November
1965);6 that it sought recognition on a voluntary basis;
and that it must assume that Respondent "is not willing
to recognize any Union claiming a majority of the em-
ployees in an appropriate unit, without conducting an
N.L.R.B. election."
On May 11 or 12 agents of the Grain Millers visited
the plant and presented Respondent with a verbal de-
mand for recognition in a plantwide unit, including'
powerhouse employees. Respondent initially refused, ex-
pressing doubt of majority status. The Grain Millers then
conveyed the threat that the employees "had gotten very
militant" and it was "experiencing some difficulties in
keeping the employees in the plant." Respondent's reac-
tion was that a walkout at this time would be "very detri
mental," as it was in the process of getting the plant
established as a new operation.7 The Grain Millers then
suggested a card count by a neutral person, which
Respondent agreed to take under consideration and reply
at a later date.
3. The Grain Millers' card check
Subsequently, on dates undisclosed, arrangements
were made for such a card count, which was conducted
by a Reverend Edward A. Shamon, a Roman Catholic
priest. Sometime in June Father Shamon issued a "Cer-
tificate," indicating majority representation by the Grain
Millers of employees in "the Production, Maintenance
and Power House Unit." Inter alia, the report recited
that the Grain Millers represents 100 percent of the three
(unnamed) employees classified in the "Power House
Department." Accompanying the exhibit of Father
Shamon's report, Respondent submitted into evidence six
authorization cards signed for the Grain Millers: May 13
Young (Water and Sanitation Treatment); on May 14
Huff (Power Plant); on May 15 Tallman and Kushnir
(Power House); on May 16 DeLamarter (Power House).
Thomas McNabb, president of Grain Millers Local 332,
testified that he personally approached these six em-
ployees and told them they were holding up recognition
by Respondent; that he had handed the blank cards to
Huff in the boilerhouse office; that thereafter the cards
were brought back to him by Huff; and that it took about
2 weeks to obtain the signatures.
ployment on June 26 Young's disputed status, further described infra,
would turn on whether his water treatment functions and work locations
sufficiently ally him in interest with the powerhouse operators As of the
hearing date, November 17, one other employee, Roy F Knapp, is also
shown as a powerhouse operator (or "Senior Power Technician"); he was
formally given this classification on October 16, after a period of training
in the powerhouse while holding the position of "Senior Maintenance
Technician" at the same top rate of pay.
Having noted the foregoing which was the subject of detailed litigation,
it should at this point be made clear that the issue involved is not that of a
refusal to bargain under Section 8(a)(5), requiring a determination of
whether the Operating Engineers actually represented a majority of
powerhouse unit employees on April 26. The relevant question is simply
whether the recognition claim of the Operating Engineers on April 26 was
not a bare assertion but one of substance sufficient to give rise to a real
question concerning representation within the context of the 8(a)(2) issue
herein.
6 Pursuant to Section 9(c) of the Act.
7 The Montezuma plant commenced operation in September 1965
EMPIRE STATE SUGAR CO.
4. Recognition and contract
By letter dated July 1 Respondent notified the Grain
Millers that it was granted recognition as sole
collective-bargaining agent on the basis of the certificate
of Father Shamon. On September 5, following a series of
negotiating sessions, a contract between Respondent and
the Grain• Millers was executed. Included in the contract
are union-shop and checkoff provisions.8 On September
16, 1966, the Operating Engineers filed with the Board a
new election petition-which is being held in abeyance
pending resolution of this complaint case.
C. Appropriate Unit
The principal arguments of Respondent and the Grain
Millers in opposition to the powerhouse unit rest upon an
asserted high degree of integration of all plant functions
including those of the powerhouse. As earlier noted, the
Montezuma plant is relatively new, having commenced
operations in September 1965. It is undisputed that the
plant is the first in the United States uniquely designed to
process both cane and beet sugar. According to the plans
the beet sugar campaign or season begins about October
1 and lasts 100 to 125 days. The cane sugar campaign
runs from about May 1 to mid-September. During the in-
terim periods or "intercampaign," the plant is "shut
down," and all personnel retained are assigned to main-
tenance duties under the direction of the master
mechanic. In addition, Respondent has a training pro-
gram during the intercampaign to acquaint the personnel
with the various operations in the plant.9 As of the hear-
ing date, Respondent's first beet campaign was under way
for about 3 weeks; theretofore its experience consisted of
a 3-month pilot operation in processing beet sugar; and
it had not yet begun any production of cane sugar. During
the beet campaign some 200 production and 75 main-
tenance personnel are employed; in the cane season, with
less machinery required, this employment is somewhat
seduced; and, in the intercampaign, the total complement
is about 150 employees.
Testimony relating to the technical aspects of the plant,
nature of the operations, and duties of various employees,
including the powerhouse operators, was given by the
master mechanic, Nick L. Shyne.10 He described in detail
(which need not be set forth herein) the equipment and
processes involved in the production of both beet and
cane sugar. Concerning the question of plant integration
his testimony revealed essentially a straight line or con-
tinuous operation- and he stated that a breakdown at any
point would cause a halt in the entire process.
Contained in a separate building, the machinery and
equipment of the power plant include the following: three
I In substance , the union-shop clause requires all present employee
members to maintain their membership in good standing , and all other em-
ployees to acquire membership on or after the 30th day following the
beginning of their employment or the effective day of the contract. The
checkoff clause provides for salary deduction of initiation fees and dues
upon voluntary signing of assignment cards by the employees.
° The' "main object" of the training program is to utilize as many of the
employees as possible because of the reduced complement, i e., to spread
the work, and also to provide "backup people" for the whole maintenance
crew. However, the purpose is not essentially to train them for the
seasonal work as they all have their assigned jobs to which they are
devoted during the campaigns
10 Prior to his employment with Respondent which began in May 1966,
Shyne worked in different capacities at another beet sugar refining com-
33
high pressure boilers; a low pressure automatic boiler (in-
tended for standby or off-season periods); two steam tur-
bines; a 5000 kilowatt generator; a steam power reducing
station; air compressors; breaker controls; various elec-
trical and water pumps; and an apparatus for water sof-
tening and treatment. The power produced, in the form of
steam and electricity, is utilized for plant processes as
well as for heating the premises.
The powerhouse employees are responsible for the
operation of the power plant equipment. Among other
things, they take readings and keep records on steam
pressure, temperature, conditions of the generator, and
also make adjustments and certain repairs. In the absence
of the water treatment man (Young), who works on the
day shift, the powerhouse operators perform, as necessa-
ry, the functions of testing water and maintaining the re-
lated equipment." During the campaign seasons the
powerhouse employees work exclusively in the power
plant building; in the intercampaign they may perform
painting or other maintenance work outside but in the
general vicinity of the powerhouse.
As previously noted Huff was employed as the power-
house foreman from January 23 until he resigned effec-
tive July 19. During most of this period no other source
of immediate supervision of the powerhouse operators is
contended or evidenced. Master Mechanic Shyne
testified that sometime following his hire in May, all
maintenance personnel, including the powerhouse em-
ployees, were placed under the immediate supervision of
four assistant master mechanics. Huff resigned when he
was notified of such change. In the approximate year of
the plant operation, it appears that, in the main and par-
ticularly before the summer "shutdown" in July, the
powerhouse employees have worked three shifts around
the clock, 7 days a week, while the other employees had
worked a single day shift, 5 days a week. During the
summer vacation period the powerhouse continued to be
maintained solely by the powerhouse operators dividing
their work on two 12-hour shifts.12 The testimony is un-
clear as to the shift arrangement in effect during the beet
campaign which began about 3 weeks prior to the hearing.
It would seem that the maintenance employees were
nominally assigned to four daily shifts under the supervi-
sion of an assistant master mechanic for each such shift,
but were actually working two 12-hour split shifts.
Huff, Butler, and Tallman were hired by Respondent
as powerhouse operators on the basis of their past ex-
perience and paid the top hourly rate of $3.20. It was
testified that the State of New York does not require
licensing of the powerhouse operators in that area and
that these employees do not possess such a license. In-
dicative of the qualifications required by Respondent, the
following notice was posted by Respondent on Sep-
tember 12:
pany for about 13 years Certain of his testimony was based upon his ex-
perience with such other company , the machinery and equipment of which
he indicated were "almost identical" to those of Respondent . A profes-
sional engineering staff, including a chief engineer, and a chief chemist, is
employed by Respondent. Portions of Shyne's testimony particularly per-
taining to shifts, schedules, and supervision , appear confused and to some
extent inconsistent
11 Young has his office in the powerhouse (which, although described
as "temporary," was still in effect at the time of the hearing) In connec-
tion with his duties , which include the sewage disposal plant , Young also
performs work at locations outside the powerhouse.
12 Beginning on July 5, 2-week vacations were taken consecutively by
Huff, Butler, Kushnir, and Tallman.
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
JOB OPENING NOTICE
JOB TITLE: Senior Power Technician
DEPARTMENT: Operating
WORK SCHEDULE: Rotating Shifts
RATE OF PAY: $3.50 per hour
PREREQUISITES:
Education : High School Graduate.
Additional technical training
in power generating areas
highly desirable.
Experience : Thoroughly experienced in
operation and maintenance of
high pressure boilers and turbo'.
generating equipment.
Physical Condition: - Excellent
BASIC RESPONSIBILITIES:
To operate the Company's Steam and Electrical
generating plant and associated facilities in an
approved and efficient manner. To perform main-
tenance and repair activities as needed. To keep
necessary records of power plant and associated
facilities.
Under the Grain Millers' contract, in effect since Sep-
tember 1, the senior power technician (previously clas-
sified as powerhouse operator) is accorded the highest
wage rate of $3.50 per hour.13
D. Conclusions
The immediate issue is, raised by Respondent's conten-
tion that the separate unit of powerhouse operators for
11 Four other classifications of senior technicians receive this contract
rate.
" Cf Mallinckrodt Chemical Works, Uranimum Division, 162 NLRB
387.
'' Where powerhouse units were granted, despite a similarly strong in-
tegration factor, see Olin Mathieson Chemical Corporation, Olin Works,
117 NLRB 1441, 1444; Minnesota Mining & Manufacturing Company,
Olin Works, 129 NLRB 789, 791; North America Aviation, Inc., 115
NLRB 1090. 1093, Hawley & Hoops, Inc., 115 NLRB 1276, 1279. And
generally, cf. Temple Associates, Inc, 161 NLRB 1604.
16 E I. Du Pont de Nemours and Company, 162 NLRB 413. The
Board has abandoned the National Tube rule which precluded separate
units in certain highly integrated industries . Ibid. The Grain Millers' posi-
tion is therefore rejected that this doctrine be extended to the sugar refin-
ing industry , and the instant Montezuma plant.
17 In the experience of the past year , and in the indicated plans for fu-
ture operations , the essential powerhouse functions have been and will be
performed exclusively by the powerhouse operators and their assigned
helpers. These functions , which constitute their principal duties, consume
a major portion of their time, notwithstanding the off-season periods dur-
ing which they may be temporarily assigned to incidental maintenance
which the Operating Engineers sought recognition was in-
appropriate and therefore failed to raise a real question
concerning representation as would preclude Respondent
trom its subsequent recogntion of the Grain Millers as
representative of such employees within a plantwide unit.
First, it should be quickly set at rest that a unit sev-
erance problem requiring stricter standards is not here in-
volved, there being no history of collective bargaining.14
However, consideration is given to all relevant fac-
tors in the case which bear upon the particular interests
of the powerhouse employees as would test the ap-
propriateness of the separate unit claimed. While the
evidence shows a high degree of plant integration and
coordination in Respondent's sugar refining processes, I
find this factor insufficient in itself to bar the claimed unit
of powerhouse employees 15 as it clearly does not out-
weigh or submerge the elements of their separate in-
terests for bargaining purposes as detailed herein.'6
In my opinion, the evidence in totality amply provides
the essential factors to justify separate representation of
a powerhouse unit-as for example, the character of the
power plant equipment; the required qualifications, spe-
cialized experience, skills, and high rate of pay of the
powerhouse operators; their different shift schedules;
their lack of interchange with other employees;17 and
their separate supervision, here shown at least prior to the
time Respondent recognized and contracted with the
Grain Millers.18 Accordingly, I find that the powerhouse
unit claimed by the Operating Engineers 19 encompasses
a functionally distinct and separate group of employees 20
of the type which the Board customarily accords
separate representation.21
E. Unlawful Assistance to Grain Millers
The long-settled Midwest Piping doctrine, which is not
as such disputed herein, provides in effect that-an ern-
ployer faced with conflicting claims of two or more rival
unions may not recognize or enter into a contract with
one of these unions while a real question concerning
representation exists.22 The major positions of Respon-
dent and the Grain Millers based upon appropriate unit
considerations have been resolved against them, supra.
As already indicated, the recognition claim of the Operat-
ing Engineers in a powerhouse unit presented on April 26
was a substantial one predicated upon new organizational
chores outside the powerhouse proper.
18 In any event, separate immediate supervision is not an indispensable
factor. See Kolker Chemical Corporation, 130 NLRB 1394; Minnesota
Mining & Manufacturing Company, 129 NLRB 789, North American
Aviation , Inc, 115 NLRB 1090, Ketchikan Pulp Company, 115 NLRB
279
19 As to any question concerning inclusion in the claimed unit of par-
ticular employees in dispute , these would not affect the substance of the
Operating Engineers' recognition claim, and would involve only minor
variations in the basic umt, subject to modification by the parties.
Hamilton Plastic Molding Company , 135 NLRB 371, 373.
20 Relating to the defense that a powerhouse unit is inappropriate, it
should here also be noted that Respondent and the Grain Millers had en-
tered into the election stipulation on Noveiliber 14, 1965, approved by the
Regional Director , which in effect conceded the appropriateness of such
a unit, and that a Board election was conducted in such a voting group.
21 See, e.g., cases cited in fn 15 and 18, supra. And in principle , see also
Chas. Pfizer & Co., Inc., 162 NLRB 1501.
22 Midwest Piping & Supply Co., Inc , 63 NLRB 1060, Novak Logging
Company , 119 NLRB 1573; Retail Clerks Union , Local 770 v. N.L.R.B.,
370 F. 2d 205 (C.A. 9),-
EMPIRE STATE SUGAR CO.
support following the earlier unsuccessful election.23 This
claim, as I find, gave rise to a real question concerning
representation.24 Respondent now advances the conten-
tion that, when it accorded recognition to the Grain Mil-
lers on July 1, a real question concerning representation
"no longer existed" because, without illegal act or pres-
sure, it had obtained "indisputable proof" of majority
support from the Grain Millers in the production and
maintenance unit, inclusive of the powerhouse. The con-
tention is without merit.25 Among other things, it can
scarcely be held in the circumstances here that the Grain
Millers was the free and untrammeled choice of the
powerhouse employees when recognition was granted.
As a background fact, Respondent admittedly preferred
dealing with the Grain Millers in a single comprehensive
bargaining unit. The Operating Engineers, first on the
scene, had presented Respondent in writing with a new
recognition claim and an offer of appropriate majority
proof. -Respondent's letter of rejection on May 3 ex-
pressed doubt of the Operating Engineers' majority and
referred to the Board as the proper recourse for resolving
the representation question. Not unreasonably, this reply
was construed by the Operating Engineers as an in-
sistence by Respondent upon a Board election (barred at
the time under Section 9(c)(3)) before it would recognize
any union as representative of the employees involved in
the prior election. So rebuffed, the powerhouse em-
ployees who sought and signed for separate representa-
tion by the Operating Engineers were left to the pressures
of the Grain Millers alternatively to accept representation
as part of a broader unit. And they were subjected to
further pressures. Each of the five employees 26 who had
freely signed for the Operating Engineers only a few days
before (on April 24), was told by Local President Mc-
Nabb of the Grain Millers that they were "holding up
recognition" by Respondent. McNabb then gave the
blank authorization cards to Huff (who in this campaign
had not signed for the Operating Engineers). After about
2 weeks (during which interval Respondent had written
its rejection of the Operating Engineers' claim and offer
of proof), Huff brought back to McNabb 6 signed cards,
including his own, bearing dates from May 13 to May 16.
It must be assumed that Huff solicited the signatures
from, or at least delivered the cards to, the particular em
ployees in question. As Huff then occupied the position
of powerhouse foreman, I am satisfied that there was
present an element of supervision in his activity sufficient
to reflect Respondent's illegal assistance in the obtaining
of these card 'designations.27 On May 11 or 12 (before it
obtained signed cards from any of the powerhouse em-
ployees), the Grain Millers verbally demanded recogni-
tion in a plantwide unit which included the powerhouse.
After a threat of strike by the Grain Millers, Respondent
acceded to a neutral party check of the Grain Millers'
,authorization cards. Reverend Shamon then conducted
23 Although under Section 9(c)(3), a new election could not be con-
ducted within a year after the valid election held on November 16,-dur-
ing this period Respondent was not relieved of its obligation to bargain,
nor were the unions precluded from obtaining recognition for the same
employees by proper means other than a Board election. Conren, Inc.
dlb/a Great Scot Supermarket, 156 NLRB 592; and see Majestic Lamp
Mfg. Corp., 143 NLRB 180, 186.
24 E.g., Weather Seal Incorporated, 161 NLRB 1226
zs And the cases cited by Respondent, e.g., N.L.R.B. v Trosch, et al,
dlbla Maryland News Company, 321 F.2d 692 (C.A. 4), and N.L.R.B. v
Air Master Corporation, 339 F.2d 553 (C.A. 3), are found inapposite in
any event.
35
the card count and "certified" that the Grain Millers
"represents a majority of the employees in the Produc-
tion, Maintenance and Power House Unit."28
Respondent does not argue, and it is, of course, no
defense to illegal conduct, that it succumbed to the strike
threat of the Grain Millers. At stake were the vital rights
of the employees under the Act to choose their own bar-
gaining representative with complete freedom. Respond-
ent was well aware of the recent and viable claim of the
Operating Engineers which imposed upon it a duty of
strict neutrality. In Midwest Piping terminology, there in-
deed existed a real question concerning representation,
and it could not be removed or resolved simply by a count
of the Grain Millers' authorization cards-regardless.-of
the percentage shown or the manner of proof. More espe-
cially is this so in view of the added pressures exerted
upon the powerhouse employees to sign cards for the
Grain Millers, after the substantial claim had been made
by the Operating Engineers. To say, in these circum-
stances, that the Grain Millers had accomplished a "suc-
cessful coup," or that Respondent validly relied on "in-
disputable proof," i.e., the cards, is to disregard the very
essence and purpose of Midwest Piping. While in a dif-
ferent context, authorization cards may provide accepta-
ble evidence of majority representation,29 it has been long
recognized that cards are notoriously unreliable because
of duplications which occur when competing unions are
soliciting such cards. 30
Upon all the evidence, I am impelled to agree with the
General Counsel that Respondent rendered unlawful sup-
port and assistance to the Grain Millers by the disparate
treatment of granting its request for a card count, after
denying such a procedure to the Operating Engineers;
and while a real question concerning representation ex-
isted-by recognizing the Grain Millers as exclusive
representative in a unit including the powerhouse em-
ployees; by entering into a collective-bargaining contract
with the Grain Millers covering such employees; and by
requiring the powerhouse employees, as a condition of
employment, to be members of the Grain Millers. Ac-
cordingly, I find and conclude that by such conduct,
severally and collectively, Respondent violated Section
8(a)(2) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section 1, above, have a close, intimate, and
substantial relation to trade, and commerce among the
several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
26 Tallman, Butler, Kushnir, DeLamarter, and Young.
27WIliie Thugs supervisory status was not litigated as such , Respond-
ent makes no claim that Huff was not a supervisor during such period
and does not dispute General Counsel's evidence that the powerhouse
employees were separately supervised by Huff at least until he was super-
seded by assistant master mechanics. See Majestic Lamp Mfg. Corp., 143
NLRB 180, 185.
26 It is not indicated who prepared the particular form of the "Cer-
tificate" reported by Father Shamon; the report appears to emphasize that
the Grain-Millers represents 100 percent of the powerhouse employees.
29 Bernel Foam Products Co., Inc., 146 NLRB 1277.
30 Majestic Lamp Mfg. Corp., 143 NLRB 180, 186
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(1)
and (2) of the Act by recognizing and entering into a
union-security contract with the Grain Millers covering
a unit which includes the powerhouse employees, I shall
recommend that Respondent cease and desist from en-
forcing and maintaining such contract in its coverage of
the powerhouse employees, and that it withdraw and
withhold all recognition from the Grain Millers, or any
successor, as the collective-bargaining representative of
the powerhouse employees, unless and until such labor
organization shall have been so certified by the Board.
Circumstances are present (e.g., Huff's solicitation of
cards for the Grain Millers) which may appear sufficient
to justify an order against Respondent to reimburse the
dues and fees paid by the powerhouse employees to the
Grain Millers following the illegal assistance rendered by
Respondent. Although it is primarily a matter for the
Board to determine the appropriate remedy, considera-
tion is given to the recommendations of the General
Counsel -which here specifically omit a request for such
reimbursement. Unlike other comparable situations in
which a reimbursement order was issued,31 the General
Counsel here did not allege discrimination under Section
8(a)(3).32 Additionally, all the alleged powerhouse em-
ployees joined the Grain Millers before it illegally
received recognition and a contract from Respondent.33
And further, for purposes of remedy, although not for the
substantive violations, I believe some weight may be ac-
corded the factor that Respondent was under a serious
strike threat before it consented to a card count leading to
its recognition of the Grain Millers. For all these various
reasons, I shall not recommend a reimbursement order.34
Upon the basis of the factual findings and upon the en-
tire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Operating Engineers and the Grain Millers are
labor organizations within the meaning of the Act.
3. At all times material, an appropriate unit for the
purpose of collective bargaining within the meaning of
Section 9(b) of the Act consisted of-
All powerhouse employees at Respondent's Montezu-
31 E g ., Lunardt-Central Distributing Co, Inc., 161 NLRB 1443;
Meyers Bros. of Missouri, Inc, 151 NLRB 889. But cf, Majestic Lamp
Mfg Corp., 143 NLRB 180, 187, in which reimbursement was not recom-
mended by the Trial Examiner or ordered by the Board, despite solicita-
tion of cards by supervisors.
32 Operating Engineers on October 1, 1966, filed an 8(a)(3) charge
predicated upon the union-shop requirement affecting certain alleged
powerhouse. employees, but the charge was withdrawn after the instant
complaint was issued
33 Cf., Sinko Manufacturing and Tool Company, 154 NLRB 1474,
1476
34 While it was not necessary for purposes of the substantive violations
to determine precisely the placement of employees in a powerhouse unit
at the time of the Operating Engineers' recognition claim or thereafter, the
parties should be made reasonably aware of the specific employees to be
excluded from Respondent's recognition of the Grain Millers and from the
ma, New York, plant, including powerhouse operators or
senior power technicians, and the regularly assigned hel-
pers and trainees in the powerhouse, but excluding all
other employees and supervisors as defined in the Act.
4. A real question concerning representation affecting
an appropriate unit of powerhouse employees of Re-
spondent existed on and after Respondent's receipt of
the Operating Engineers' recognition claim dated April
26, 1966.
5. By acceding to an authorization card count; by
recognizing the Grain Millers as representative in a unit
including the powerhouse employees; by executing a con-
tract covering such employees; and by providing union
security requirements in the contract, Respondent en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(2) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
it is recommended that Respondent, Empire State Sugar
Company, Inc., Montezuma and Auburn, New York, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Assisting and contributing support to American
Federation of Grain Millers, AFL-CIO, and its Local
332, or to any other labor organization.
(b) Giving effect to the collective-bargaining agree-
ment entered into on or about September 5, 1966, with
American Federation of Grain Millers, AFL-CIO, and
its Local 332, or to any extension, renewal, or modifica-
tion thereof, insofar as it embraces the powerhouse em-
ployees in an appropriate unit.
(c) Recognizing the above-named labor organization
as the representative of such powerhouse employees for
the purpose of dealing with it concerning wages, rates of
pay, hours of employment, or other conditions of employ-
ment, unless and until such labor organization shall have
been certified by the Board as the exclusive representa-
tive of such employees.
(d) Requiring as a condition of employment that such
powerhouse employees be members of the above-named
labor organization.
(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
contract coverage in order to carry out the terms of this Recommended
Order Accordingly, for such purposes the appropriate unit based upon
the evidence herein is defined as including all powerhouse operators or
senior power technicians, and the regularly assigned helpers and trainees
in the powerhouse Young, the water and sanitary treatment operator,
does not perform any of the intrinsic functions of the powerhouse,
although his water treatment work is in part related to certain power plant
equipment and such work is done by the powerhouse operators in
Young's absence. He devotes substantial time to duties unrelated to and
outside the powerhouse, and he works only on the day shift schedule.
Considering also that he was not included on the agreed eligibility list of
the powerhouse voting group in the November 1965 election, Young is
excluded from the unit here found. DeLamarter and Huff, who are no
longer employed, need no further mention. Tallman , Butler, Kushnir, and
Knapp are presently full powerhouse operators (senior power technicians)
and therefore plainly within the unit
EMPIRE STATE SUGAR CO.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Amer-
ican Federation of Grain Millers, AFL-CIO, and its
Local 332, as the exclusive representative of its em-
ployees who are appropriately in a powerhouse unit, un-
less and until such labor organization shall have been cer-
tified by the Board as such representative.
(b) Post at its Montezuma, New York, plant copies of
the attached notice marked "Appendix."35 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 3, after being duly signed by Respondent, shall, be
posted immediately upon receipt thereof, and be main-
tained for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of receipt of this Deci-
sion , what steps Respondent has taken to comply
herewith.36
31 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
36 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 3 , in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board, and
in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify
our employees that:
37
WE WILL NOT give effect to the collective-bar-
gaining agreement entered into on or about Sep-
tember 5, 1966 , with American Federation of Grain
Millers, AFL-CIO, and its Local 332, or to any ex-
tension , renewal, or modification thereof, insofar as
it embraces the powerhouse employees in an ap-
pro^?riate unit.
WE WILL NOT assist or support the above-named
labor organization or any other labor organization.
WE WILL NOT require as a condition of employ-
ment that such power house employees be members
of the above-named labor organization.
WE WILL withdraw and withhold recognition from
the above-named labor organization as the exclusive
representative of such powerhouse employees, un-
less and until such labor organization shall have been
certified by the Board as such representative.
WE WILL NOT in any like or related manner inter-
fere with , restrain , or coerce our employees in the ex-
ercise of their right to self-organization, to form, join,
or assist any labor organization , to bargain collec-
tively through representatives of their own choosing,
and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protec-
tion , or to refrain from any or all such activities.
All our employees are free to become , or refrain from
becoming , members of any labor organization of their
own choice.
Dated By
EMPIRE STATE SUGAR
COMPANY, INC
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting , and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Fourth Floor,
The 120 Building, 120 Delaware Avenue, Buffalo, New
York 14202, Telephone 842-3112.
308-926 0-70-4