California Cotton Cooperative Association, Ltd.

National Labor Relations Board - Board Decisions

Dec 15, 1954

110 N.L.R.B. 1494 (N.L.R.B. 1954)

1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall, therefore, direct elections in the following voting groups :
(1) All production and maintenance employees at the Employer's
Pittsburg, California, plant No. 25, including the oiler-greaser and
shipping department employees, but excluding machinists "A" and
"B," office and clerical employees, the storekeeper, firemen-watchmen,
guards, foremen, assistant foremen, and all supervisors as defined in
the Act.
(2) All machinists "A" and machinists "B" at the Employer's
Pittsburg, California, plant No. 25, excluding the oiler-greaser, all
other employees, and supervisors as defined in the Act.
If a majority of the employees in voting group (2) select the union
seeking to represent them separately, these employees will be taken
to have indicated their desire to constitute a separate bargaining unit
and the Regional Director is instructed to issue a certification of
representatives to the labor organization selected by the employees in
the unit, which the Board, in such circumstances, finds to be appro-
priate for the purposes of collective bargaining. If a majority of
the employees in voting group (2) do not vote for the union which is
seeking to represent them in a separate unit, that group will appro-
priately be included in the production and maintenance unit and their
votes shall be pooled with those in voting group (1),12 and the Re-
gional Director is instructed to issue a certification of representatives
to the labor organization selected by a majority of employees in the
pooled group, which the Board, in such circumstances, finds to be a
single unit appropriate for purposes of collective bargaining.
[Text of Direction of Elections omitted from publication.]
12 If the votes are pooled , they are to be tallied in the following manner : The votes for
the union seeking the separate unit shall be counted as valid votes , but neither for nor
against any union seeking the more comprehensive unit ; all other votes are to be accorded
their face value whether for representation by a union seeking the comprehensive unit or
for no union . American Potash if Chemical Corporation, 107 NLRB 1418.
CALIFORNIA COTTON COOPERATIVE ASSOCIATION, LTD., ALSO KNOWN AS
CALCOT COTTON COMPRESS Co. and INTERNATIONAL LONGSHORE-
MEN'S AND WAREHOUSEMEN'S UNION (ILWU) and "THE COMMIT-
TEE" and INTERNATIONAL CHEMICAL WORKERS AND ITS LOCAL 98,
AFL. Cases Nos. 01-CA-1531 and 21-CA-1596. December 15,
1954
Decision and Order
On December 28, 1953, Trial Examiner Herman Marx issued his
Intermediate Report in the above-entitled proceeding, finding that ths^
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
110 NLRB No. 222.
CALIFORNIA COTTON COOPERATIVE ASSOCIATION, LTD. 1495
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. He also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended dismissal of those allegations. There-
after, the Respondent and the Union filed exceptions to the Intermedi-
ate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the ex-
ceptions and briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner only to the extent that they are consistent with the Deci-
sion and Order herein.
1. The Trial Examiner found that, prior to the strike of the Re-
spondent's employees, the Respondent, in its bargaining negotiations
with the Union, refused to bargain with the Union on certain subject
matter, in violation of Section 8 (a) (5). In the absence of any ex-
ception thereto, we adopt this finding-
2. The Trial Examiner found that the evidence will not support a
finding that the employees in the Respondent's press crew engaged in
a slowdown on October 8, 9, and 10, 1952; and that, irrespective of
the alleged slowdown, the Respondent's discharge of five employees
on October 10 was not in any event motivated by the alleged slow-
down but was illegally motivated, and was therefore discriminatory.
We disagree.
The Respondent introduced considerable evidence in support of its
allegation that there was a slowdown, consisting of : (1) Testimony
that a slowdown was agreed upon at union meetings prior to the slow-
down; (2) testimony that union stewards told employees at work to
slow down because a slowdown had been agreed upon; (3) testimony
that a slowdown was observed and engaged in; and (4) production
records which show that production decreased almost 50 percent dur-
ing the 3 days of the alleged slowdown. The General Counsel intro-
duced considerable evidence that no slowdown was agreed upon, di-
rected, observed, or engaged in; and that other factors accounted for
the reduced production, such as bad cotton, 2 instead of 3 employees
feeding the dinkey, dinkey feeders working at other jobs, a substitute
less efficient weigher, and early season "sore hands" of the tiers. The
Trial Examiner discredited the Respondent's testimony that there was
a slowdown, and credited the General Counsel's testimony that there
was no slowdown; and found, in effect, that the production records do
not prove there was a slowdown in view of the other factors which
may have accounted for the reduced production. We are not con-
vinced, however, that these other factors caused the reduced produc-
tion. In our opinion, the only reasonable and logical explanation
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for such a substantial reduction in production on the 3 days in ques-
tion is that the employees did engage in a slowdown. Accordingly,
upon our appraisal of the entire record, and particularly the substan-
tial reduction in production, we find that the Respondent's press crew
engaged in a slowdown on October 8, 9, and 10, 1952.
The Trial Examiner found that the five employees were discharged,
not because of any responsibility for, or participation in, a slowdown,
but as an expedient to break the deadlocked bargaining negotiations
of the Respondent and the Union by precipitating a strike at that time
when the Respondent could "stand it better" than it could an antici-
pated strike later in the season. In so finding, the Trial Examiner
relies chiefly on the following : (1) There is no adequate explanation
for the singling out of the 5 dischargees for discharge in the face of
the Respondent's contention that the entire press crew slowed down;
(2) the Respondent and the Union were still deadlocked in their bar-
gaining negotiations at their fourth bargaining session on October 9,
and the discharges occurred the next day; (3) Superintendent Mul-
lins made statements to employees that the reason for the discharges
was to precipitate a strike then so as to avoid a strike later in the
season; (4) Mullins also made statements to the employees that their
return to work was conditioned on a no-strike agreement for the rest
of the season, in a situation where the Respondent had good reason
to believe that the limited no-strike clause of the existing contract
would not prohibit a strike ; and (5) 2 of the 5 dischargees were rein-
stated when the strike was over, and there is no explanation for their
reinstatement in the face of their alleged responsibility for the slow-
down, or for the distinction between them and the other 3 dischargees.
Contrary to the Trial Examiner, we find an adequate explanation
for the sin^ling out of the five dischargees for discharge in the face of a
slowdown by the entire press crew. The Respondent simply wanted to
make an "example" of these five employees in order to stop the slow-
down, and apparently felt that it was unnecessary to discharge the
entire press crew to accomplish that purpose. Moreover, we regard the
fact that the discharges came the day after the fourth stalemated
bargaining session as purely coincidental. The day of the discharges
was the third day of the slowdown, and it was not unreasonable that
the Respondent should have taken some action at this time to attempt
to stop the slowdown. Nor do we attach controlling significance to
Superintendent Mullins' statements that the reason for the discharges
was to precipitate an immediate strike so as to avoid one later in the
season, and his statements to the effect that all the Respondent was
seeking was a no-strike agreement for the rest of the season. That
such statements expressed the real reason for the discharges we find
highly implausible. First, there is undisputed testimony that on sev-
eral occasions between October 10 and October 13 Mullins requested
CALIFORNIA COTTON COOPERATIVE ASSOCIATION, LTD. 1497
the employees to return to work, which is wholly inconsistent with
a desire to foment a strike. Second, there is undisputed testimony
that at the October 9 bargaining meeting the Union stated there would
be a strike on October 13 if its wage demands were not met, which made
it wholly unnecessary for the Respondent to instigate a strike-all the
Respondent had to do was wait a few days for the Union to strike on its
own, or at least see if the Union would carry out this threat. In our
opinion, these statements by Mullins only represented ancillary objec-
tives which the Respondent hoped to gain as long as there already
was a strike, viz., the avoidance of a strike at the peak of the season
by obtaining an unlimited no-strike agreement for the rest of the
season. Nor do we find any particular significance in the fact that 2
of the 5 dischargees were reinstated when the strike was over, while the
other 3 were not. The fact that two dischargees were not discrimi-
nated against in reinstatement, if it supports any conclusion, supports
one that their original discharge was not for discriminatory reasons,
but only to serve as an "example" in order to stop the slowdown.
And the fact that the other dischargees were not reinstated does not
support the conclusion that all 5 discharges were discriminatory, in
view of the reinstatement of 2 dischargees. In our opinion, the most
plausible and real reason for the 5 discharges was because the 5 dis-
chargees had participated in the slowdown, and the Respondent made
the discharges as an "example" in order to stop the slowdown.
As the reason for the discharges was the dischargees' participation
in the unprotected activity of a slowdown, we find that the Respond-
ent's discharge of Talton Young, Thaddeus Brown, Tom Robertson,
W. W. Smith, and Irvin Garcia, on October 10, 1952, was lawful.'
As we have found that Mullins' statements to the employees as to
the reason for the five discharges did not represent the real reason
for the discharges but only represented ancillary objectives which the
Respondent hoped to gain as long as there already was a strike, we
find further, also contrary to the Trial Examiner, that such state-
ments were not violations of Section 8 (a) (1).
Moreover, as we find hereinafter that the strike of the Respondent's
employees which ensued immediately after the five discharges was
an unprotected strike, we find further, also contrary to the Trial
Examiner, that Mullins' solicitation of the employees to return to
work right after the strike started was not a violation of Section 8
(a) (1).1
3. We disagree with the Trial Examiner's finding that the strike
which ensued immediately after the five discharges was not only a
protected strike but an unfair labor practice strike as well.
Elk Lumber Company, 91 NLRB 333.
s United Ela8tue Corporation, 84 NLRB 768.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, in agreement with the Trial Examiner, that the five dis-
charges were the cause of the strike. We base this finding on : (1)
Undisputed evidence that immediately after the discharges union
stewards told the Respondent that there would be a strike unless and
until the dischargees were reinstated, and a strike then ensued; and
(2) undisputed evidence that thereafter the employees stated their
willingness to return to work if the dischargees were reinstated.
However, as we have found that the discharges were lawful, the
strike in protest of the discharges was economic in character and not
an unfair labor practice strike. Moreover, the existing contract be-
tween the Respondent and the Union contained a no-strike clause
which prohibited any strike except "in connection with a general
wage dispute arising as a result of a wage reopening" under the wage
reopening provision of the contract. The strike in protest of the
discharges was, therefore, a violation of the no-strike clause of the
contract. Accordingly, we find that the strike was also unprotected
and illegal.'
4. As the strike was unprotected, the Respondent was under no
duty to bargain with the Union during the course of such unprotected
activity 4 We find, therefore, contrary to the Trial Examiner, that
the Respondent's refusal, at the beginning of the strike, to bargain
with the Union concerning the reinstatement of the five dischargees,
was not a violation of Section 8 (a) (5).
5. The Trial Examiner found that the Respondent, during the
strike, solicited employees individually and in groups to return to
work, and that such conduct was a violation of Section 8 (a) (1) ;
he also found that the Respondent's accompanying statements that
(a) it would not recognize or deal with the Union, (b) the status of
the employees returning to work would not be that of members of
the Union but of men looking for work, (c) it would not recognize
their seniority rights, (d) the employees could have any union except
the Charging Union, (e) it would not recognize the contract with
the Union, and (f) it would match, or pay more than, any compress
"in the valley," were violations of Section 8 (a) (1). As we have
found that the strike was unprotected because in breach of contract,
we do not find that this conduct of the Respondent was unlawful.'
6. For the reasons set forth by the Trial Examiner, we agree with
his findings that the Respondent assisted The Committee and the
AFL Chemical Workers, and also dominated The Committee, in vio-
lation of Section 8 (a) (2). For the reasons set forth by the Trial
Examiner, we also agree with his finding that the Respondent is re-
3 United Elastic Corporation, supra, Fafnir Bearing Co , 73 NLRB 1008
4 United Elastic Corporation, supra; Boeing Airplane Co. v. N. L. R. B., 174 F. 2d 988
(C A, D. C ), setting aside 80 NLRB 447.
e United Elastic Corporation, supra.
CALIFORNIA COTTON COOPERATIVE ASSOCIATION, LTD. 1499
sponsible for employee Foster's threats while circulating petitions
for the AFL and against the Union.
Although this conduct of the Respondent commenced about a week
before the entire strike ended, it was not thereby rendered lawful.
An employer may lawfully refuse to deal with the bargaining repre-
sentative of its employees because the employees are engaged in un-105
protected activity, as we have found above, and may also lawfully
discipline employees for engaging in unprotected activity. However,
an employer may not lawfully engage in the wholly disconnected
conduct of assisting or dominating another labor organization, be-
cause its employees are engaged in unprotected activity.
The Respondent contends that The Committee was not a "labor
organization," because the four employees on The Committee were
only "mouthpieces" or "errand boys" between the Respondent and
the employees, and did not really bargain, and, therefore, that the
Respondent did not violate Section 8 (a) (2) in connection with The
Committee. The evidence shows, however, that the Respondent
agreed to "recognize" and "deal with" The Committee "as a union" ;
that the Respondent told The Committee it was their function to
settle all grievances ; and that thereafter the Respondent dealt with
The Committee on grievances, the reemployment of strikers, a gen-
eral wage increase, and the reinstatement of a laid-off employee.
Clearly, therefore, the Respondent's contention is without merit.
The Respondent also contends that it did not interfere with or
assist the AFL Chemical Workers, because it was the employees
themselves who sought the Chemical Workers, and the circulation of
the petitions for the Chemical Workers and against the Union was
no different from the activities which took place in the previous elec-
tion campaign when the Union was certified. The evidence shows,
however, that : (1) The Committee sought the AFL only after the
Respondent agreed that it could; (2) as it was The Committee which
sought the AFL, the AFL was sought by a labor organization which
the Respondent unlawfully assisted and dominated; (3) a supervisor,
Mansbridge, was in the group which sought the AFL; (4) the peti-
tions for the AFL and against the Union were circulated only after
the Respondent agreed that they could be circulated; (5) the peti-
tions were circulated by The Committee and Mansbridge during
working hours and in the presence of other supervisors; and (6) a
member of The Committee, Foster, and a supervisor, Green, threat-
ened employees with discharge if they did not sign the petitions.
Moreover, the circulation of the petitions was different from the ac-
tivities which took place in the previous election campaign, because
the employees, although permitted to campaign for the AFL, were
prohibited by the Respondent from circulating any petition for the
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union at this time.6 Accordingly, we find no merit in this conten-
tion of the Respondent.
7. For the reasons stated in paragraph numbered 4, supra, we find,
contrary to the Trial Examiner, that the Respondent's refusal to
bargain with the Union during the strike was not a violation of Sec-
tion 8 (a) (5).
8. The complaint alleges that certain strikers were unlawfully dis-
criminated against at the end of the strike. An employer may law-
fully discharge or otherwise discipline employees for engaging in an
unprotected strike,7 but he may lose that right by condoning the em-
ployees' participation in such unprotected activity.' As more fully
set forth in the Intermediate Report, the Respondent as late as 2
weeks before the end of the strike solicited the strikers to return to
work, in substance offering them reinstatement to their prestrike
jobs, and also failed, at or before the time they were denied reinstate-
ment to their former positions, to assign any lawful reason for not
reinstating them to such positions. We find, accordingly, that the
Respondent condoned the strikers' participation in the unprotected
strike, and thereby waived its right to discipline them because of their
unprotected activity.9 Under these particular circumstances, there-
fore, the unprotected strike may not serve as a defense to what would
otherwise be unlawful discrimination by the Respondent.
The Trial Examiner found, and we agree, that Sterling Green's
reinstatement at a lower rate of pay than he received before the strike
was a violation of Section 8 (a) (1) and (3). However, in view of
our finding above that the strike was economic in character, we do not
agree with his finding that Green and the other strikers were unfair
labor practice strikers entitled to unconditional reinstatement even if
it was necessary to discharge replacements.
The Trial Examiner found, and we agree, that Rogers was rein-
stated to a job of tieup man which was not equivalent to the flagger's
job he had before the strike. In the absence of evidence that Rogers,
an economic striker, had been permanently replaced in the flagger's
job during the strike, we also agree with the Trial Examiner's finding
that the Respondent violated Section 8 (a) (1) and (3) by reinstat-
ing Rogers as a tieup man instead of as a flagger. We disagree, how-
ever, with the Trial Examiner's finding that Rogers was not entitled
to reinstatement at the flagger's rate, because Rogers had been pro-
moted to the flagger's job only a few days before the strike began
8 See Salant & Salant, Incorporated , 92 NLRB 417, 447 , and cases cited therein.
7 United Elastic Corporation , supra.
8Alabama Marble Co., 83 NLRB 1047, 1048, enfd 185 F. 2d 1022 ( C. A. 5), cert denied
342 U. S. 823 ; E. A. Laboratories , Inc., 86 NLRB 711, 712-713, enfd. 188 F. 2d 885 (C. A.
2), cert. denied 342 U. S. 871
9The Sttiiley Plywood Company , Inc., 94 NLRB 932, 938, enfd . 199 F. 2d 319 (C. A. 4),
cert. denied 344 U. S. 933 ; Alabama Marble Company, supra ; E. A. Laboratories, Inc.,
supra; cf.- Longview Furniture Company, 100 NLRB 301, 306.
CALIFORNIA COTTON COOPERATIVE ASSOCIATION, LTD. 1501
and had not as yet received the flagger's rate when the strike began.
Rogers was entitled to the higher rate of pay for the flagger's job
under the collective-bargaining agreement between the Respondent
and the Union. Moreover, the Board has held that an employee is
entitled to back pay he would have received by reason of a promotion
he would have secured had he remained employed.10 Clearly, there-
fore, Rogers, who had already been promoted when the strike began,
was entitled to reinstatement at the flagger's rate of pay.
The Trial Examiner found that the Union sent a letter to the Re-
spondent on December 9, 1952, after the strike was over, requesting
"that all former employees and members of ILWU be reinstated to
their jobs on the basis of seniority"; but that Dobbs has not applied
for reinstatement, and in the absence of any proof that the Respond-
ent failed to reply to the Union's letter, there is no evidence that the
Respondent discriminatorily refused to reinstate Dobbs. Like the
Trial Examiner, we find that the Union's request for reinstatement of
the strikers was an effective request for reinstatement on behalf of all
the strikers, thereby eliminating any requirement that the strikers
thereafter make any individual applications for reinstatement." Con-
trary to the Trial Examiner, however, we find that the absence of evi-
dence as to whether the Respondent replied to the Union' s request
for reinstatement supports an inference that there was no reply; and
therefore that there was in effect a refusal to comply with the re-
quest on behalf of Dobbs. We find, therefore, in the absence of evi-
dence that Dobbs was permanently replaced during the strike and
that the Respondent's refusal to reinstate Dobbs was a violation of
Section 8 (a) (1) and (3).
The Trial Examiner found, and we agree, that the Respondent dis-
criminatorily refused to reinstate Rigsby on December 10, 1952.
Rigsby was not an unfair labor practice striker entitled to uncondi-
tional reinstatement, as found by the Trial Examiner. However, in
the absence of evidence that Rigsby was permanently replaced dur-
ing the strike, we find that he was entitled to reinstatement as an eco-
nomic striker.
The Trial Examiner found that Banks was in effect refused rein-
statement on December 4, 1952, by a guard, acting as agent for the
Respondent, who kept Banks out of the plant. In the absence of any
exception thereto, we adopt this finding. And in the absence of evi-
dence that Banks was permanently replaced during the strike, we find
that the refusal to reinstate Banks was discriminatory.
The General Counsel contends, in substance, that eight men 12 who
were not actually working when the strike began, but who had been
10 Underwood Machinery Company, 95 NLRB 1386, 1405.
11 M H. Ritzwoller Co v. N. L. R. B., 114 F. 2d 432 (C. A. 7) ; N. L. R. B. v. Brown and
Root, 203 F 2d 139 (C A. 8)
12 Mayfield, Hayward, Alameia, Jordan, Alvarez, Meza, Pickard, and Silas.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed in previous seasons and normally would have been reem-
ployed when the strike began and who joined the strike, were dis-
criminatorily refused reinstatement after the strike. The Trial Ex-
aminer found that these men were not "employees," as defined in the
Act, when the strike began, because they were not individuals whose
work had "ceased" as a result of the strike, and therefore that they
were not entitled to reinstatement after the strike as strikers. In
view of the evidence that these eight men were regular "seasonal" em-
ployees who normally would have been reemployed when the strike
began, we find that they were "employees" when the strike began."
Moreover, for the reasons stated above with respect to Dobbs, we find,
contrary to the Trial Examiner, that the Union made an effective
request for reinstatement on behalf of 2 of the 8 men who did not
individually apply for reinstatement, and that the Respondent re-
fused the request. However, there is no evidence that there were any
job openings for these eight men when they applied for reinstate-
ment. Accordingly, we find that the Respondent's refusal to rein-
state the eight men was not discriminatory.
The General Counsel advances a somewhat similar claim of dis-
crimination with respect to Contreras, another regular "seasonal"
employee who joined the strike instead of returning to work. The
General Counsel contends that the Respondent's reemployment of
Contreras after the strike at a lower rate of pay than he had received
during previous seasons was discriminatory. Contreras was reem-
ployed at a lower rate of pay, because he was reemployed in a different
job from the one he had held in previous seasons. However, there is
no evidence that the job he had held in previous seasons was open
when he was reemployed. Accordingly, we find that the Respondent's
reemployment of Contreras at a lower rate of pay was not
discriminatory.
Jordan, one of the eight "seasonal" employees discussed above, was
again refused reemployment at a later time. As there is no evidence
that there was a job opening for Jordan at this time either, we find
that the Respondent's refusal to reemploy Jordan at this time was
not discriminatory. In the absence of any exception thereto, however,
we adopt the Trial Examiner's findings that Superintendent Mullins
unlawfully interrogated and promised benefits to Jordan at this time,
in violation of Section 8 (a) (1).
9. The General Counsel also alleges that certain employees were
unlawfully discriminated against after the strike was over, and after
these employees had been reinstated.
The Trial Examiner found, in substance, that Leonard, a striker,
was shot at in the plant by another employee named Tate, a non-
12See Fajardo Development Company, 76 NLRB 955, 958; Gulf OR Corporation, 100
NLRB 1007.
CALIFORNIA COTTON COOPERATIVE ASSOCIATION, LTD. 1503
striker, who did so after saying to Leonard "You one of the sons of
bitches that chased me out the Fairview Road"; that Foreman
White and another unidentified foreman witnessed the shooting and
did not protect Leonard ; and that as a result Leonard quit. He found,
however, that White's status, and nonfeasance in the matter, are in-
sufficient to support a finding that the Respondent either encouraged
or condoned Tate's conduct; that there is insufficient evidence that
the shooting was related to the Union or the strike; and therefore
that Leonard was not discriminatorily discharged, whether construc-
tively or otherwise. The Union excepts to these findings on the
grounds, in substance, that : (1) An employer is responsible for the
conduct in such connection of the "lowliest" supervisor; and (2) the
discriminatory motivation for, and condonation of, the shooting can
be inferred from the fact that Leonard had been a striker and Tate
a nonstriker. Apart from any other considerations, we find that the
evidence is insufficient to show that the shooting was related to the
Union or the strike, so as to be discriminatorily motivated. Accord-
ingly, we find that Leonard was not discriminatorily discharged,
whether constructively or otherwise.
The Trial Examiner found that the Respondent discriminatorily
discharged Hernandez on February 12, 1953; that the Respondent vio-
lated Section 8 (a) (1) by interrogating and threatening Hernandez
on February 11, 1953; and that the evidence will not support a find-
ing that the Respondent violated Section 8 (a) (3) in connection
with Hernandez' discharge from a construction job in October 1952.
In the absence of any exception thereto, we adopt these findings.
In the absence of any exception thereto, we adopt the Trial Ex-
aminer's finding that the Respondent discharged Sterling Green on
April 16, 1953, because Green had given testimony contrary to the Re-
spondent's interest at the hearing herein, and thereby violated Section
8 (a) (4) of the Act. We disagree, however, with the Trial Ex-
aminer 's further finding that the Respondent's cancellation of Green's
prestrike seniority status, under the new seniority system inaugurated
by the Respondent on December 1, 1953, just before the strike ended,
was a violation of Section 8 (a) (1) and (3). As the new seniority
system was established during the course of the unprotected strike, the
cancellation of Green's seniority status thereunder was lawful.14
In the absence of any evidence to support the allegation that the Re-
spondent discriminated against Hayes, the Trial Examiner recom-
mended that this allegation be dismissed. We adopt this recommen-
dation.
14 See United Elastic Corporation, supra
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in unfair labor prac-
tices, we shall order that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed to them
by Section 7 of the Act, we shall order that it cease and desist from
such conduct.
Having found that the Respondent has interfered with the admin-
istration of, and has contributed support to, The Committee and the
Chemical Workers, and has dominated, recognized, and dealt with,
The Committee, we shall order that the Respondent withhold and
withdraw all recognition from The Committee as the representative
of any of the Company's employees for the purpose of contracting,
negotiating, or otherwise dealing with the Respondent with respect
to wages, rates of pay, tenure of employment, assignment of duties,
or any other terms or conditions of employment ; cease and desist from
contracting, negotiating, or otherwise dealing with The Committee
as such representative; completely disestablish The Committee as such
representative; and cease and desist from interfering with the ad-
ministration of, and contributing support to, The Committee, the
Chemical Workers, or any other labor organization, and from domi-
nating The Committee or any other labor organization.
It has been found that the Respondent has failed and refused to
bargain collectively with the Union as the exclusive representative of
its employes in an appropriate unit. We shall therefore order that the
Respondent, upon request, bargain collectively with the Union as the
representative of such employees, with respect to their rates of pay,
wages, hours of employment, and other conditions of employment, and,
if an agreement is reached, embody its terms in a signed agreement.
As it has been found that the Respondent has discriminated against
Sterling Green by employing him at a lower rate than that to which
he was entitled between December 2, 1952, and April 16, 1953, and
by discharging him on the latter date because he had given testimony
under the Act, we shall order that the Respondent offer him immediate
and full reinstatement to his former or a substantially equivalent
position," and without prejudice to any other rights and privileges
to which he is entitled, and make him whole for any loss of pay he
suffered by reason of the discrimination against him, by payment to
him of a sum of money equal to the difference between what he earned
15 In accordance with the Board's interpretation of the term , the expression "former or
substantially equivalent position ," as used at any point in the remedy herein, is interpreted
to mean "former position whenever possible and if such position is no longer in existence,
then to a substantially equivalent position ." See The Chase National Bank of the City of
New York, San Juan; Puerto Rico, Branch, 65 NLRB 827.
CALIFORNIA COTTON COOPERATIVE ASSOCIATION, LTD. 1505
between December 2, 1952, and April 16, 1953, and what he would
have earned during that period had he been paid at the rate of $1.775
per hour, and by payment to him of a. sum of money equal to the
amount of wages he would have earned, but for the discrimination
against him, from the date of his discharge to the date of a proper
offer of reinstatement to him, the said sum to be computed, and
deduction to be made therefrom, in the manner to be set forth below.
Having found that the Respondent discriminatorily denied Claude
Banks reinstatement on or about December 4, 1952, to the position
he held at the time the strike began, but that he was subsequently
reinstated to that position, we shall order that he be made whole for
any loss of pay he may have suffered by reason of the discrimination
against him, by payment to him of a sum of money equal to the amount
of wages he would have earned, but for the discrimination against
him, from the date of his denial of reinstatement to the date of his
reinstatement, the said sum to be computed, and deduction to be made
therefrom, in the manner set forth below.
As it has been found that the Respondent discriminatorily denied
M. C. Rogers reinstatement to the position and rate of pay of a flagger,.
we shall order that the Respondent offer him immediate and full
reinstatement to such position, or a substantially equivalent one,
without prejudice to his seniority and other rights and privileges,
and make him whole for any loss of pay he may have suffered by
reason of the discrimination against him by payment to him of a
sum of money equal to the difference between the rate of pay of a
tieup man and the rate of pay of a flagger, from the date of his rein-
statement as a tieup man to the date of a proper offer of reinstatement,
as a flagger.
As it has been found that the Respondent discriminatorily dis-
charged Refugio Hernandez on February 12, 1953, and discrimina-
torily denied Paul F. Rigsby and Lloyd Dobbs reinstatement on
December 10, 1952, we shall order that the Respondent offer each of
them immediate and full reinstatement to his former or a substan-
tially equivalent position without prejudice to his seniority and other
rights and privileges, and make each of them whole for any loss of
pay he may have suffered by reason of the discrimination against-
him, by payment to him of a sum of money equal to the wages he
would have earned, but for the discrimination against him, from the-
date of his discharge or denial of reinstatement, as the case may be,
to the date of a proper offer of reinstatement to him, the said sum
to be computed and deduction to be made therefrom, in the manner
set forth below.
The Respondent's business is of a seasonal nature. However, not
all employees are laid off, nor do all operations cease, at the end of-
338207-55-vol. 110-06
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a season . Before the strike, Sterling Green had worked with sub-
stantial regularity since September 1950 and the finding has in ef-
fect been made that he was discharged from a job which he had held
both during and between seasonal operations. Thus, there is no rea-
son to provide that the offer of reinstatement to Green become effec-
tive only during the Respondent's seasonal operations, and no such
provision is intended herein. Whatever evidence there is on the sub-
ject indicates that the periods of employment of Dobbs, Rigsby, and
Hernandez, and of flaggers such as Rogers, were substantially sub-
ject to the Respondent's seasonal operational requirements. It is
possible that because the Respondent's season has not yet begun
when an offer of reinstatement is made to Dobbs, Rigsby, Rogers,
,and Hernandez, no work may be available for them. In that event,
the offer of reinstatement to each of these individuals is to become
.effective at such time as the Respondent's next succeeding season be-
gins. No back pay shall be computed for Dobbs, Rigsby, Hernandez,
and Rogers for any periods in which they normally would not have
worked for the Respondent, nor shall any sums they respectively
earned elsewhere during such periods be deducted from any back pay
which may be due them, respectively.
For any period for which an individual is to be made whole under
any of the terms of this Order, loss of pay shall be computed on the
basis of each separate quarter or portion thereof. The quarterly
periods shall begin with the respective first days of January, April,
July, and October. Loss of pay shall be determined by deducting
from a sum equal to that which the individual normally would have
earned in each such quarter, or portion thereof, his net earnings,16
if any, in other employment during that period. Earnings in one
quarter shall have no effect upon the Respondent's back-pay liability
for any other quarter. The Respondent will be required, upon rea-
sonable request, to make available to the Board and its agents all
records pertinent to an analysis of the amount due as back pay or
to the reinstatements ordered herein.
As we have found that the Respondent has not engaged in certain
unfair labor practices alleged in the complaint, we shall order that
those allegations be dismissed.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)