Extract
Diamond Walnut Growers, 36 (1995)
Diamond Walnut Growers, Inc. and Cannery
Workers, Processors, Warehousemen & Helpers, Local 601, International Brotherhood of Teamsters, AFL-CIO. Cases 32-CA-13479 and 32-RC-3553January 20, 1995DECISION, ORDER, AND DIRECTION OF THIRD ELECTIONBY CHAIRMAN GOULD AND MEMBERS BROWNING AND TRUESDALEOn June 21, 1994, Administrative Law Judge Michael D. Stevenson issued the attached decision. The General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed limited exceptions and a supporting brief.1 The Respondent and the Charging Party filed answering briefs.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, and conclusions only to the extent consistent with this Decision and Order.This case involves a second representation election,2which was held during an economic strike, and allegations that the Respondent engaged in objectionable conduct and committed various acts in violation of Section 8(a)(3) and (1) of the Act in the weeks leading up to the election which the Union lost. The judge dis- missed the 8(a)(3) and (1) complaint allegations and overruled all election objections which were consolidated for hearing with the complaint.3 We reverse the judge and find that the Respondent violated the Act by its discriminatory treatment of three economic strikers in reinstating them to work just prior to the election. We further find that these violations, which encompassed the Union's Objection 11, warrant application of our usual policy, set out in Dal-Tex Optical Co.,4of directing a new election when, as here, the unfair labor practices were committed during the critical period.The Respondent operates a seasonal business receiving, processing, and marketing walnuts at its facilities in Stockton, California, where the Union has represented the employees for a number of years. The work force consists of regular year-round employees, supplemented by seasonal hires during the Respond-ent's peak season in September and October.On September 4, 1991, 2 months after the expiration of the parties' most recent collective-bargaining agreement, the Union commenced an economic strike which, at the time of the events at issue here, was still in progress. The Respondent continued operations by hiring both year-round and seasonal permanent replacement employees.On September 17, 1993,5 the Regional Director directed the instant second election be held on October 7 and 8. By letter dated September 20, the Union informed the Respondent that ''[s]everal of the strikers share the Union's conviction . . . that a fair election is simply impossible at this point. Nevertheless, because a rerun election is to be held, these employees feel that it is important that the replacement workers . . . have an opportunity to hear from Union sympathizers.'' Accordingly, the Union requested in its letter that four named economic strikers, including Willa Miller, be returned to work unconditionally. The next day the Union notified the Respondent that strikers Alfonsina Munoz and Mohammed Kussair also desired to return to work unconditionally.The Respondent replied that all year-round employee positions were currently filled by permanent replacements and that seasonal positions were the only jobs available. Miller, Munoz, and Kussair, each of whom held year-round jobs before the strike, agreed to accept the seasonal jobs.1 The Charging Party Union filed a motion to strike certain portions of the Respondent's brief in support of its limited exceptions which, according to the Charging Party, are beyond the scope of its limited exceptions. In light of our holdings here, we deny the Charging Party's motion.2 The first election in this case was set aside by the Regional Director by order dated September 17, 1993. The procedural history of the first election is set forth in fn. 3 of the judge's decision.The second election at issue here resulted in an initial tally showing 310 for and 195 against the Union, with 635 determinative challenged ballots. Thereafter, in proceedings which involved two separate decisions by the Regional Director resolving the challenged ballots and the denial by the Board of requests for review filed by the Union and the Respondent to the Regional Director's first decision on challenges, a final revised tally was issued showing 475 for and 575 against the Union.As to the objections filed by the Union to the second electio...See the full content of this document
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