Tri-Pak Machinery, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 8, 2005

16-CA-024112 (N.L.R.B. Aug. 8, 2005)

JD(ATL)–33–05
Harlingen, TX

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

TRI-PAK MACHINERY, INC.

and

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION 1015,
a/w INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS AFL-CIO
Case 16–CA–24112

Roberto Perez, Esq., for the General Counsel.
Glenn Jarvis, Esq., for the Respondent.
Mr. Michael Murphy, for the Charging Party.

BENCH DECISION

Statement of the Case

George Carson II, Administrative Law Judge: This case was tried in Harlingen, Texas,
on July 11, 2005. The charge was filed on February 10, 2005.1 The complaint issued on May
24, 2005. The complaint alleges that the Respondent, Tri-Pak Machinery, Inc., has, since
December 20, unlawfully failed and refused to recognize and bargain with the Union as the
exclusive collective bargaining representative of employees in the Unit in violation of Section
8(a)(1) and (5) of the National Labor Relations Act.2 At the conclusion of the hearing, after
hearing oral argument, I issued a Bench Decision pursuant to Section 102.35(a)(10) of the
Board’s Rules and Regulations.

Consistent with the allegations of the complaint, I found that the Respondent did
unlawfully fail and refuse to recognize and bargain with the Union as the exclusive collective
bargaining representative of employees in the Unit. As discussed in my decision, I found that
the Respondent had notice that the International Union had chartered a new local, Local 1015,
and that the Respondent thereafter dealt with that local as the Union representing its
employees. At the hearing, the Respondent argued that the Union did not represent a majority
of unit employees, but the Respondent presented no objective evidence establishing loss of
majority status. Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001). As pointed out in
Eden Gardens Nursing Home, 339 NLRB 71, 72 (2003), regarding dues deduction
authorizations, the “employees may prefer to pay their dues only at convenient times or in
person, or may even be ‘free riders’ who desire and accept union representation without joining
the union and paying dues.” As discussed in the Bench Decision, the Respondent’s refusal to
1 All dates are in 2004 unless otherwise indicated.
2 The appropriate unit is: All production and maintenance employees, including shipping
clerk(s), who are employed by the Company in Harlingen, Cameron County, Texas; but
excluding all office clerical employees, professional employees (including salesmen), draftsmen,
guards and supervisors as defined in the Act.

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recognize and bargain was predicated upon its belated challenge to the chartering of the new
local union, the Union with which it had dealt for the previous two years. As established by the
case authority cited in my decision, and as recently reaffirmed by the Board in Alpha
Associates, 344 NLRB No. 95, slip op. at 1-2 and fn. 4 (2005), such belated challenges are
barred by Section 10(b) of the Act.
The Respondent, Tri-Pak Machinery, Inc., is a Texas corporation engaged in the
manufacture and retail sale of parts and machinery used in the processing of
agricultural products. The Respondent admits that it annually purchases and receives
goods and materials valued in excess of $50,000 directly from points located outside
the State of Texas. The Respondent admits, and I find and conclude, that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act.

The Respondent admits, and I find and conclude, that International Brotherhood of
Electrical Workers, Local Union 1015, a/w International Brotherhood of Electrical Workers, AFL-
CIO, the Union, is a labor organization within the meaning of Section 2(5) of the Act.

I certify the accuracy of the portion of the transcript that sets out my decision, attached
hereto as Appendix A, page 219, line 11, through page 226, line 13.3

Remedy

Having found that the Respondent has engaged in unfair labor practices by refusing to
recognize and bargain with the Union, I find that it must cease and desist from withholding
recognition for the Union, that it must recognize and bargain with the Union, and that it must
post an appropriate notice.4

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended5

ORDER

The Respondent, Tri-Pak Machinery, Inc., Harlingen, Texas, its officers, agents,
successors, and assigns, shall:

3 Appendix A has been corrected. The corrections are reflected in Appendix C. Appendix C
does not reflect the corrected capitalization of the word “Company” when referring to the
Respondent Tri-Pak or the word “Union” when referring to the Charging Party Local 1015. Case
names have been italicized consistent with Board format.
4 The Notice to Employees shall be in both English and Spanish insofar as a significant number
of unit employees are native speakers of Spanish rather than English.
5 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
purposes.

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1. Cease and desist from:

(a) Refusing to recognize and bargain with International Brotherhood of Electrical
Workers, Local Union 1015, a/w International Brotherhood of Electrical Workers, AFL-CIO, as
the exclusive collective bargaining representative of its production and maintenance employees,
including shipping clerk(s), in Harlingen, Cameron County, Texas.

(b) In any like or related manner interfering with, restraining, or coercing 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) Recognize and upon request bargain with International Brotherhood of Electrical
Workers, Local Union 1015, a/w International Brotherhood of Electrical Workers, AFL-CIO, as
the exclusive collective bargaining representative of its production and maintenance employees,
including shipping clerk(s), in Harlingen, Cameron County, Texas, with respect to rates of pay,
wages, hours, and other terms and conditions of employment and, if an understanding is
reached, embody such understanding in a signed written agreement.

(b) Within 14 days after service by the Region, post at its facility in Harlingen, Texas,
copies of the attached notice marked “Appendix B.”6 Copies of the notice, on forms provided by
the Regional Director for Region 16 in both English and Spanish, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since December 20, 2004.

(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

Dated, Washington, D.C., August 8, 2005.

____________________
George Carson II
Administrative Law Judge

6 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the
notice reading “POSTED BY ORDER OF THE NATIONAL 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.”
JD(ATL)–33–05
Harlingen, TX

APPENDIX A

BENCH DECISION

219

11 The complaint in relevant part, paragraph 14, alleges that

12 since on or about December 20, the Respondent has failed and

13 refused to recognize and bargain with the Union as the exclusive

14 collective-bargaining representative of the Unit. The Union,

15 for the purposes of the complaint, is the new local, 1015.

16 There is no issue but that a valid collective-bargaining

17 agreement between the Company and Local 278 was entered into on

18 February 16, 2002, and it

19 expired at midnight on February 15, 2005,

20 insofar as it indicates that it is for three years.

21 There is virtually no testimonial conflict with regard to

22 any of the facts before me. In the summer of 2002, Organizer Fernando

23 Huerta, with at least two others, he testified to three,

24 and that's actually uncontradicted, although the third individual with him

25 didn't leave his business card, met with Mr. David Fitzgerald,

220

1 President of the Company, and spoke with him informally with

2 regard to the union's intention of chartering a new local which

3 would have offices in Weslaco, Texas, some 20 to 30 minutes from

4 Harlingen, Texas, rather than the two hours from Corpus Christi, Texas, which

5 is where the Local 278 was headquartered.

6, 7

8 On September 26, 2002, Jonathan Gardner,

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9 International Vice President, wrote to Mr. David Fitzgerald,

10 President of Tri-Pak, advising him that a new local, to wit

11 1015, had been chartered, that effective immediately Local 1015

12 would assume the representational responsibility for bargaining for

13 unit employees at Tri-Pak in place of Local 278. The letter

14 gives the address, and indicates that Local 1015 “looks forward

15 to working with you and developing a mutually beneficial

16 relationship. If you have any questions, feel free to contact

17 us."

18 I appreciate from the testimony that Mr. Fitzgerald did

19 not necessarily internalize the communication which he

20 acknowledges receiving. By the same token, I have difficulty

21 determining how there was any question but that Local 278 was

22 out of the picture and Local 1015 was in the picture in view of

23 the fact that he began dealing with a new local president, Mr. Jesse

24 Sanchez.

25 All correspondence between the parties relative to

221

1 barbecues and coming onto the premises and whatever were between

2 the Company and Local 1015 at the Weslaco location. Dues ceased to be

3 sent to Local 278 in Corpus Christi as of the first deduction in 2003,

4 admittedly two or three months late, and were sent to Weslaco. When the address

5 for Local 1015 changed from 607 International Boulevard in

6 Weslaco to 3102 East Business Highway 83, Suite 1, Weslaco,

7 that's where the communications from the Company were sent.

8 I am mindful that after the Company’s receipt of Respondent's

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9 Exhibits 11 and 12, documents dated respectively 8/26/04 and

10 9/7/04, that dues were not being deducted for any employee.

11 However, as Board case law establishes, the absence of receipt

12 of dues or check-off authorizations does not constitute

13 objective evidence of disaffection with a union, and there's no

14 evidence before me that the Company had any objective evidence

15 that a majority of the employees in the Unit no longer desired

16 representation. More to the point, there was no claim when the

17 Union made its initial demand for recognition that a majority of

18 the employees did not desire representation by the Union or that

19 the Company had objective evidence that a majority of the

20 employees no longer wished to be represented by the Union.

21 On November 11, Joint Exhibit 9 reflects that, in

22 preparation for upcoming contract negotiations, the Union

23 requested employees' names, addresses, and telephone numbers. By

24 fax, on Tri-Pak letterhead, all of the requested information,

25 excluding telephone numbers, was provided to IBEW Local 1015; that is,

222

1 the Company was dealing with Local 1015.

2 On December 13, following up on the request for

3 information relating to upcoming contract negotiations, the

4 Union sent a proposal relating to changes in the current

5 agreement, which would be the substance of the new agreement.

6 By letter dated December 20, Counsel for the Company raised an issue,

7 and the issue that was raised in that letter had nothing

8 to do whatsoever with regard to majority support by employees

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9 represented by the Union, but

10 related to the fact that Local 278 was certified.

11 The letter requested that the Union forward documentation establishing that

12 Local 1015 is the legally authorized successor. Information, Joint Exhibit 14, in

13 response to that request was sent.

14, 15, 16, 17

18 On January 5, 2005, the Company responded through its attorney, thanking

19 the Union for the documents that were disclosed and confirming

20 that Local Union 1015 had been chartered as a new local in

21 Weslaco. That, of course, was old news, because that had been stated

22 in the September letter in 2002.

23 The Company letter of January 5, 2005, Joint Exhibit Number 15,

24 reflects that the Company wanted

25 documentation regarding involvement of the company's employees

223

1 in the change of their collective-bargaining representative and

2 that the Company believed that they should have been involved

3 in that change.

4 On February 7, after conversation and an exchange

5 of some case authority cited by the Union, Counsel for the Company indicates that

6 he's reviewed the case authority sent and still believes that

7 there's a question regarding whether the company's employees

8 selected Local 1015 in accordance with various cases cited

9 therein and notes what he perceives as a legal conundrum of

10 refusing to enter into a collective-bargaining agreement with a

11 union that represents a majority of employees may constitute a

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12 violation of Section 8(a)(5) versus execution and negotiation with a union

13 that does not represent a majority of the company's employees,

14 violating Section 8(a)(1) or unlawful domination and assistance under 8(a)(2),

15 and concludes with, "Should you have further evidence as to the

16 status of Local 278 or participation by the company's employees

17 in the change of their collective-bargaining representative,

18 please forward," which is to say that as late as February 7 of

19 2005, there was no claim that the Company had a good faith doubt

20 or objective evidence with regard to a desire by a majority of

21 unit employees not to be represented by the union.

22 Rather, the issue as framed in the correspondence was the

23 representative status of Local 1015. I appreciate and

24 understand that Mr. Fitzgerald may not have been fully aware of

25 the possibility of a lawful refusal to recognize if it had been

224

1 timely raised, but the short answer to that question is: He

2 didn't raise it; the Company dealt with 1015 for well over two

3 years, and even submitted information to Local 1015 in

4 anticipation of bargaining for a successor contract.

5 General Counsel, in his oral argument, has cited to me several cases.

6 RPC, Inc., 311 NLRB 232 (1993) involved a similar issue. Board precedent

7 establishes that, under 10(b), an unfair labor practice complaint may

8 not be issued relative to events that occurred

9 more than six months preceding the

10 filing of the charge and that, consistent with the Supreme Court

11 decision in Local Lodge 424, IAM (Bryan Manufacturing Company)

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12 v. NLRB, 362 U.S. 411 (1960), a respondent may not defend

13 against a refusal-to-bargain allegation on the ground that the

14 underlying original recognition of the union was unlawful if it

15 occurred more than six months before any charges had been filed

16 in the proceeding raising the issue.

17 In Route 22 Toyota, 337 NLRB 84 (2001), which was relatively complicated, the

18 Respondent recognized and signed a contract with another local

19 and then was attempting to back out of it when the predecessor

20 union sought to reassert its bargaining rights. The Board held that the company’s

21 action came too late. The Respondent was not privileged to withdraw

22 recognition from Local 747, and the Board

23 held that the Judge erred in

24 finding that Local Union 148 presented a valid competing claim

25 for recognition that should be resolved by an election.

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1, 2

3 What it comes down to, as I see it, is under the

4 principles stated in RPC, Inc., 311 NLRB 232, at 234, the Board

5 has historically and continuously held that a respondent's

6 challenge to a merger or an affiliation, and by extension the

7 creation and issuance of a charter to a new

8 local, if the respondent had knowledge of that within what would

9 have been the 10(b) period for that event and does not challenge

10 it, it cannot raise it at a later time, and it certainly cannot

11 raise it more than two years after the event occurs.

12 In RPC, the company argued with regard to defending

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13 against the General Counsel's equitable estoppel position, that

14 10(b) was not triggered because it did not have knowledge of all

15 of the facts relating to the affiliation, and the Board stated,

16 "To be sure, the 10(b) period commences only when a party has

17 clear and unequivocal notice of the action giving rise to an

18 alleged violation of the Act, but it is knowledge of the act or

19 the event to be challenged that triggers 10(b). There is no

20 requirement that an affected party have knowledge of all the

21 circumstances leading up to or surrounding the event in issue."

22 And relative to that, in this case, I can find nothing

23 clearer than the letter sent by the Union on

24, 25

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1 September 26, 2002: "The IBEW has chartered a new IBEW local,

2 1015, to represent the workers in the Rio Grande area.

3 Effective immediately Local 1015 will assume the

4 representational responsibility for bargaining unit employees in

5 place of Local 278."

6 As my summary of the facts and the law indicates, I have

7 no basis for finding anything other than that the Company was on

8 notice. The Company dealt with the new Union. Regardless of

9 the propriety of the chartering and the absence of participation

10 by any Tri-Pak employees with regard to it, the refusal to

11 bargain cannot be excused, and I will issue an order certifying

12 this decision and setting out the obligation of the Respondent.

13 This ends the bench decision.

JD(ATL)–33–05
Harlingen, TX

APPENDIX B

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board had found that we violated Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT refuse to recognize and bargain with International Brotherhood of
Electrical Workers, Local Union 1015, a/w International Brotherhood of Electrical
Workers, AFL-CIO, as the exclusive collective bargaining representative of our
production and maintenance employees, including shipping clerk(s), in Harlingen,
Cameron County, Texas, and WE WILL recognize and upon request bargain with the
Union with respect to your rates of pay, wages, hours, and other terms and conditions of
employment and, if an understanding is reached, embody such understanding in a
signed written agreement.

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.

TRI-PAK MACHINERY, INC.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
819 Taylor Street, Fort Worth TX 76102-6178
(817) 978–2921, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
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. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (817) 978–0678
JD(ATL)–33–05
Harlingen, TX

APPENDIX C

Page Line Delete Insert
219 14 unit. Unit.
17 in on
18 February—16th of February 19—
I’m sorry—2002. And it
February 16, 2002, and it
19 either, I’m assuming at
19 February 15, of 2005 February 15, 2005,
20 that is that it is
22 Mr. Organizer
23 others—and he testified to three, others, he testified to three
24 fourth one third individual with him
25 -- ,
220 1 president of the company President of the Company
4 Harlingen rather than the two
hours from Corpus Christi,
Harlingen, Texas, rather than the two
hours from Corpus Christi, Texas,
6-7 On--off the record. (Off the record)
8 JUDGE CARSON: -- On
9 international vice president International Vice President
10 president President
12 for bargaining for bargaining for
13 278, and he then 278. The letter
14 Local 1015 looks Local 1015 “looks
16 “If If
23 Mr. Mr. Jesse
221 2 and 1015 and Local 1015
3 to Corpus Christi to Local 278 in Corpus Christi
4 late but—and when the address late, and were sent to Weslaco.
When the address
7 changed to from the Company were sent.
8 that as of the receipt of that after the Company’s receipt of
15 unit Unit
21 that in that, in
23 numbers by numbers. By
24 fax on Tri-Pak letterhead. All fax, on Tri-Pak letterhead, all
25 IBEW 1015 IBEW Local 1015
222 3 informations information
5 agreement a agreement.
6 nd for the first time, on December
20, 2004, an issue
By letter dated December 20,
Counsel for the Company raised an
issue,
7 raised,
9 union. Union, but
10 It relates to the fact that Local 278
was certified and
related to the fact that Local 278 was
certified.
11 requested that the union The letter requested that the Union
12 In formation Information, Joint Exhibit 14,
13 sent, and the next document that sent.
14 was sent.

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Page Line Delete Insert
15-16 Off the record. (Off the record.)
17 JUDGE CARSON: The union sent
documentation and on

18 January 5, the company On January 5, 2005, the Company
21 that had been that had been stated
23-24 The company letter, Joint Exhibit
Number 15, that is, the letter of
January 5, reflects that the
company wants
The Company letter of January 5,
2005, Joint Exhibit 15, reflects that
the Company wanted
223 2 it’s the company belief the Company believed
4 And then on February 7, after
conversation and a
On February 7, after conversation
and an
5 case authority, counsel for the
company
case authority cited by the Union,
Counsel for the Company
12 8(5) Section 8(a)(5)
14 8(1) Section 8(a)(1)
14 8(2) 8(a)(2)
21 union Unit
23 Local 1015, and I Local 1015. I
224 4 relationship contract
5 of course in his oral argument
6 It Board precedent
7 notes that establishes that,
8 occur during—must issue occurred
9 relative to events occurring in the more than
16 preceding of proceeding
17 In that case, In Route 22 Toyota, 337 NLRB 84
(2001)
20-21 And, you know, too late. The Board held that the company’s
action came too late.
22 agreed that the other
23 local, Local 148—the Board
agreed
held
25 That
225 1-2 case, the Local 747 case, is Route
22 Auto Sales—I believe it might
be cited as Toyota, but I will fix
that—337 NLRB 84.

7 certification, the
15 states stated
18 knowledge of the Act knowledge of the act
23 of--off the record. sent by the Union on
24 (Off the record,)
25 JUDGE CARSON: I can find
nothing clearer than the

226 13 That This