Extract
Boghosian Raisin Packing Co., 383 (2004)
Boghosian Raisin Packing Company, Inc. and Packing House Employees and Warehousemen’s Union, Local 616 a/w International Brotherhood of Teamsters, AFL–CIO. Cases 32–CA–17721–1, 32–CA–17839–1, and 32–CA–17985–1
June 30, 2004DECISION AND ORDERBy Chairman Battista and Members Liebman and SchaumberOn October 31, 2000, Administrative Law Judge James L. Rose issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief.The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[1] and conclusions as further discussed below, and to adopt the recommended Order. The primary issue in this case is whether the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to reinstate 42 economic strikers and violated Section 8(a)(5) and (1) by subsequently withdrawing recognition from their collective-bargaining representative and changing terms of employment. We find, in agreement with the judge, that the Respondent was not required to reinstate the strikers because the strikers had, under the express language in the loss-of-status provision of Section 8(d), lost their protected status as employees under the Act by reason of their Union’s failure to file a notice with the Federal Mediation and Conciliation Service (FMCS) as required by Section 8(d)(3).[2] We find further that subsequently the Respondent lawfully withdrew recognition from the Union based on a petition signed by an uncoerced majority of the unit employees, and changed their terms of employment.i. material factsThe Union represented the Respondent’s processing, handling, and packing employees from 1970 until the time of the strike at issue. The most recent agreement between the parties expired by its terms on May 31, 1999.[3] By letter dated January 26, the Union notified the Respondent that it desired to terminate the contract. On February 19, the Union sent notice of the pending dispute to the California Mediation and Conciliation Service (CMCS) as mandated under Section 8(d)(3). Although the Union’s secretary-treasurer, George Avalos, prepared a similar notice to the FMCS, as mandated by Section 8(d)(3), that notice was not mailed due to a clerical error within the union offices.The parties held a number of bargaining sessions between January and June. On June 3, they agreed to extend the expired contract pending further negotiations. The extension agreement permitted either party to terminate the agreement on 7 days written notice. Negotiations continued through September, but the parties remained far apart in their bargaining proposals.On September 22, the unit members voted to reject the Respondent’s “last, best, and final” offer, and on September 24 the Union notified the Respondent that it was terminating the extension agreement as of October 1. Also on September 24, Avalos completed a Teamsters Joint Council questionnaire concerning the contract dispute and instructed his secretary to mail it to the Joint Council. The questionnaire specifically asked whether notice of the dispute had been sent to the FMCS and the state mediation service as required by Section 8(d)(3). The questionnaire further directed the local to “attach copies of the return receipts” (emphasis in original) for such notices. Without taking any action to verify that the required notice had been sent, or that return receipts confirmed delivery, Avalos signed the form, indicating that the 8(d)(3) notices had been sent.[4] At the hearing, Avalos conceded that he did not then, or at any other time prior to the strike, look for a return receipt to confirm that the FMCS notice had been sent. He candidly admitted that his failure to ensure that the FMCS notice had been sent was “based on the fact that [he] just didn’t know the legal significance of . . . mailing it.” He conceded further, regarding the Joint Council questionnaire, “We weren’t familiar with it, because I had never done it myself.”The Respondent was unaware of any action by the Union with regard to notifying or intending to notify FMCS as required by Section 8(d)(3). Upon receiving the Union’s September 24 notice terminating the extension agreement, the Respondent’s attorney, Howard Sagaser, contact...See the full content of this document
Sponsored links
