Continental Nut Co.

National Labor Relations Board - Board Decisions

Oct 18, 1950

91 N.L.R.B. 1058 (N.L.R.B. 1950)

In the Matter of CONTINENTAL NUT COMPANY and OLIVE CANNERY
EMPLOYEES, FRUIT PROCESSORS, WAREHOUSEMEN AND HELPERS,
LOCAL 954, AFL
Case No. 20-CA-159.-Decided October 18,1950
DECISION AND ORDER
On March 17, 1950, Trial Examiner Herman Marx issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged 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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting statement.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate report, the exceptions and supporting statement filed by the
Respondent, and the entire record in the case, and hereby adopts the
findings,2 conclusions, and recommendations of the Trial Examiner.
The Remedy
Since the issuance of the Trial Examiner's Intermediate Report, the
Board has adopted a method of computing back pay different from
that prescribed by the Trial Examiner.3 Consistent with that new
I Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated°its
powers in connection with this proceeding to a three -member panel [ Chairman Herzog
and Members Murdock and Styles].
2 The Trial Examiner erroneously states that the records of the Board show that the
Union herein was in compliance with Section 9 (f) and (g) of the Act during the entire
period between November 16, 1948, and March 17, 1950, the date of the issuance of the
Intermediate Report. Our records do show, however , that the Union was in compliance
with those sections , as well as Section 9 (h), on January 28, 1949, the date of the issuance
of the complaint. The complaint was, therefore , properly issued. See H & H Manufac-
turing Company , Inc., 87 NLRB 1373.
As we interpret the Trial Examiner 's finding with respect to the Hull -Turner telephone
conversation on November 26, 1948, he found that only that portion of the conversation, in
which Hull asked Turner to reveal the names of the other employees who had signed the
"union paper ," was violative of Section 8 (a) (1). In any event, we so limit our finding
of a violation in this connection.
3 F. W. Woolworth Company, 90 NLRB 289.
91 NLRB No. 161.
1058
CONTINENTAL NUT COMPANY 1059
policy,-we shall ^ order that the loss of pay be, computed on the basis
of each separate calendar quarter or portion thereof during the period
from the Respondent's discriminatory action to the date of a proper
offer of reinstatement. The quarterly periods, hereinafter called
"quarters," shall begin with the first day of January, April, July, and
October. Loss of pay shall be determined by deducting, from a sum
equal to that which these employees would normally have earned for
each quarter or portion thereof, their net earnings,' if any, in other
employment during that period. Earnings in one particular quarter
shall have no effect upon the back-pay liability for any other quarter.
We shall also order the Respondent to make available to the Board,
upon request, payroll and other records to facilitate the checking of
the amount of back pay due.5 .
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Continental Nut
Company, of Chico, California, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in any labor organization of its em-
ployees, by discharging or refusing to reinstate or in any other manner
discriminating against them in regard to their tenure of employment
or any term or condition of employment;
(b) In any manner interfering with, restraining, or coercing its
employees in the exercise of their right of self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual aid
or protection, and to refrain from any or all of such activities, except
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where, which would not have been incurred but for this unlawful discrimination, and the
consequent necessity of his seeking employment elsewhere . Crossett Lumber Company, 8
NLRB 440. Monies received for work performed upon Federal , State , county, municipal,
or other work -relief projects shall be considered earnings . Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7.
F. W. Woolworth Company, supra.
917572-51-vol. 91=68
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer to Aletha M. Turner, Lena Brown, Esther Owens, Vera
Backovich, and Margaret Huston immediate and full reinstatement
to their former or substantially equivalent positions and make them
whole in the manner set forth in the section entitled "The Remedy";
(b) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due and the right
of reinstatement under the terms of this Order;
(c) Post at its plant in Chico, California, copies of the notice at-
tached hereto and marked "Appendix A".6 Copies of said notice, to
be furnished by the Regional Director for.the Twentieth Region, after
being duly signed by a representative of the Respondent, shall be
posted by the Respondent immediately upon receipt thereof and main-
tained by it for a period of sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees
customarily are posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or cov-
ered by other material; and
(d) Notify the Regional Director for the Twentieth Region (San
Francisco, California), in writing within ten (10) days from the date
of this Order what steps the Respondent has taken to comply herewith.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership by our employees in any
labor organization, by discriminatorily discharging or in any
other manner discriminating against them in regard to their
tenure or any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all of
6In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words, "Decision and Order" the words , "Decree of the
United States Court of Appeals Enforcing."
CONTINENTAL NUT COMPANY 1061
such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
WE WILL orFER to Aletha M. Turner, Lena Brown, Esther
Owens, Vera Backovich, and Margaret Huston immediate and
full reinstatement to their former or substantially equivalent
positions, without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of discrimination.
CONTINENTAL NUT COMPANY,
Employer.
Dated.------------------- By ------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Robert V. Magor, for the General Counsel.
Mr. Burton J. Goldstein, of San Francisco, Calif., for the Respondent.
Mr. Stanley Neyhart, of San Francisco, Calif., for the Union.
STATEMENT OF THE CASE
On November 24, 1948, Olive Cannery Employees, Fruit Processors, Ware-
housemen and Helpers, Local 954, AFL, filed a charge against the Respondent,
Continental Nut Company, with the Regional Director for the Twentieth
Region of the National Labor Relations Board.' An amendment to the charge
was filed on December 14, 1948. Based upon the charge and the amendment
thereof, the General Counsel' of the Board, on January 28, 1949, issued a com-
plaint alleging that the Respondent had engaged, and was engaging, in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1)
and 8 (a) (3) of the National Labor Relations Act (49 Stat. 449-457, as amended
by 61 Stat. 136-163), herein referred to as the Act.
With respect to the alleged unlawful conduct, the complaint, in brief, charges
that on and after September 30, 1948, the Respondent, in violation of Section 8
(a) (1), committed certain specified acts constituting interference with, and
restraint and coercion of, its employees in the exercise of their statutory guaran-
tees, and that on or about November 23, 1948, it violated Section 8 (a) (1) and
B (a) (3) by discriminatorily discharging five named employees "because of their
membership in, and activities on behalf of, the Union."
The Respondent filed an answer specifically denying the commission of any
unfair labor practices. The answer admits the discharge of the employees but
' Olive Cannery Employees , Fruit Processors , Warehousemen and Helpers Local 954,
AFL, will be referred to herein as the Union ; Continental Nut Company, Inc., as the Re-
spondent or the Company,;' find ^ational Labor Relations .Board as the Board.
' References to the General Counsel include the attorney who appeared in his behalf at
the hearing in this proceeding.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affirmatively alleges, in sum, that they were discharged for "good, sufficient and
valid reasons" not connected'with their membership in, or activities on behalf of,
the Union.
.
Pursuant to notice duly served upon the Respondent and the Union, a hear-
ing was held at Chico, California, on August 2, 3, 4, 5, and 8, 1949, before the
undersigned, Herman Marx, duly designated as Trial Examiner by the Chief
Trial Examiner. The General Counsel, the Respondent, and the Union were
represented by counsel at the hearing,' participated therein, and were afforded
a full opportunity to be heard, examine and cross-examine witnesses, adduce
evidence, submit oral argument, and file briefs. The Respondent moved, at the
opening of the hearing that the witnesses be separated. The motion was granted
in part.4 At the close of the testimony, the Respondent made separate motions
to dismiss the complaint and the charge, as amended, upon the respective grounds
(1) that the evidence does not support the allegations of the complaint; (2) that
there is no proof that the Union has "jurisdiction over" the Respondent's em-
ployees ; and (3) that the Board is without jurisdiction over this proceeding
because the evidence allegedly shows that the Union has no constitution or bylaws
and is, therefore, unable to comply with the filing requirements of the Act. With
respect to the motion challenging the sufficiency of the evidence to support the
complaint, the Examiner reserved decision for disposition in the Intermediate
Report. The motion is hereby denied. The other motions addressed to the
complaint were denied at the hearing.` The Examiner granted the General Coun-
sel's unopposed motion to conform the pleadings to the evidence with respect to
such matters as the spelling of names and other minor variances. The General
Counsel and the Respondent waived the filing of briefs, but submitted oral argu-
ment after the close of the evidence.
Upon the entire record and from his observation of the witnesses, the Examiner
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a California corporation. It maintains its principal office
and place of business in Chico, California, where it is engaged in the business
3 The Union 's counsel withdrew before the close of the hearing in order to attend to
other matters.
* Under well-established doctrine, it would have been proper to deny the motion for
separation, with respect to the dischargees, but the Examiner, under all the circumstances,
deemed it appropriate to exclude all but one, Aletha M. Turner. It appeared to the Ex-
aminer that she acted on behalf of the Union, while employed by the Respondent, and was
thus in practical effect a representative of one of the parties to this proceeding, in addition
to her status as a dischargee.
The Board has held that a claim of noncompliance with the filing requirements may
not be litigated In a proceeding such as this. Norfolk Southern Bus Corp., 24 NLRB
1019 ; Shawnee Milling Co., 82 NLRB 1266; ef. Baldwin Locomotive Works, 76 NLRB 922;
Lion Oil Co., 76 NLRB 565. Moreover, the fact the Union has no separate constitution
or bylaws does not mean that it has not complied with the Act. The record establishes
that the Union operates under the Teamsters' constitution which contains detailed pro-
visions for the conduct of its locals' affairs. The pertinent constitutional sections may
perform the office of bylaws and a constitution for the Union. Hence, the Respondent's
basic position that the Union could not have complied with Section 9 (f) because it has
no separate constitution and bylaws Is lacking in merit. Finally, the Examiner takes
notice of the fact that the records of the Board -disclose that on November 16, 1948, the
Union filed the information required by Section 9 (f) and (g) with the Secretary of Labor
and has been in compliance with that section since that date..
CONTINENTAL NUT COMPANY 1063
of processing, packing, and selling edible nuts. During the year ending July
30, 1948, the Respondent purchased or handled edible nuts at a gross value in
excess of $1,000,000, of which sum approximately 1 percent represented nuts
shipped to the Respondent's plant from points outside the State of California.
During the same period, the Respondent sold or processed edible nuts at a value
in excess of $1,000,000, and more than 90 percent of such nuts was shipped
to places outside of the State of California. The Examiner finds that at all
times material to the issues in-this-proceeding, the Respondent was engaged is
interstate commerce.'
II. THE LABOR ORGANIZATION INVOLVED
Olive Cannery Employees, Fruit Processors , Warehousemen and Helpers, Local
954, AFL, is a labor organization which admits to, its membership persons em-
ployed by the Respondent.'
III. THE ALLEGED UNFAIR LABOR PRACTICES
8A. Prefatory statement
The Respondent's business consists, in the main, of shelling, sorting, and pack-
ing almonds and. black walnuts: Its facilities in Chico consist of a main ware-
house; two nearby buildings respectively used, among other things, for the
sorting of almonds and black walnuts; and three warehouses located at the Mu-
nicipal Airport near Chico. The main office is maintained in the almond sorting
building. The Respondent also conducts a packing operation, known as Cello-
pack, at one of the airport warehouses. This consists of packing almonds in
cellophane wrappers.°
The evidence in this proceeding centers primarily on the Company's almond
sorting operations at its plant in Chico. The Respondent purchases raw almonds
from growers. Shipments from the annual crop usually begin to arrive at the
Company's plant, in August or September. The nuts are stored until needed for
processing which begins with a shelling operation on the third (top) floor of the
almond building. After the nuts are shelled they descend through a chute to
the sorting room on the second floor, where they are carried on two moving belts.
Employees are stationed along both belts and grade and sort the nuts as they
come past. A maximum sorting,crew for each belt consists of 10 persons, 5 on
each side of a belt. The shelling and sorting operations usually begin during the
middle or toward the end of September (depending on the time of arrival of
the new crop). The Cellopack operation usually begins in September or October,
O The jurisdictional findings set out above are based upon admissions contained in the
Respondent's answer of relevant allegations of the complaint and upon facts stipulated at
the hearing.
T The findings concerning the labor organization are based on testimony given by Sarah
May Robinson and George Cole, and upon copies of the Union's charter and the constitution
of its parent organization, the Teamsters.
8 The prefatory statement is based upon undisputed evidence adduced at the hearing.
However, it is not designed to set forth all the undisputed facts in the case, but is
primarily intended as a preliminary basis for the discussion of the evidence. Reference
will be made at other appropriate points in this Report to undisputed facts not set forth
in this section.
6 The Respondent also leases another warehouse in Chico, known as the Hoobler ware-
house. The Respondent uses it for storage purposes and to shell almonds, as an accom-
modation, for growers. The Hoobler operations are not involved in this proceeding.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reaches a peak shortly before Thanksgiving and declines substantially soon after
the peak is reached. The walnut processing operations are conducted in a build-
ing adjacent to the one in which almonds are processed. As in the case of
almonds, walnuts are sorted by employees stationed on either side of a moving
belt. The walnut sorting crew consists of eight persons, four on each side of
the belt.
The Respondent's president is Gerhard W. Stiefvater. He is the sole owner
of its corporate stock, actively engages in the business as general manager, de-
termines its production and other policies, and exercises exclusive control over
the operation of the business. He determines the Company's production re-
quirements, makes all purchases of raw materials, and prescribes wage scales
and terms of employment. William Attinger is next in the managerial hierarchy.
As plant manager, and subject to Stiefvater's supervision, Attinger is in general
charge of production and shipments. He does not formulate policies. Gladys
Hull is forelady of the almond and walnut sorting departments where she exer-
cises supervision over the sorters and inspects the product to determine whether
it conforms to quality requirements. Attinger is her immediate superior. Oc-
casionally, she works as a sorter while performing her other duties. As fore-
lady, she is paid at an hourly rate, receiving 5 cents more per hour than those
employed under her. She also exercises some supervisory functions over the
persons employed in the Cellopack operation, but, because of her duties at the
plant, substantially limits such functions to visits to the night crews employed
in that operation. Hull has the right to hire and fire employees who work under
her supervision, and she exercises that function.
B. The organizational activities among the Respondent's employees
Processing of the 1948 almond crop began in September of that year. During
the month, there was "quite a bit of talk" 1° among the sorters concerning the
prospects of a wage increase. Toward the end of the month, a group of the
employees decided to prepare and circulate among the employees a petition for
an increase of 10 cents per hour. Lena Brown, an almond sorter, typed the
petition, and she and another sorter, Gladys Schroder, secured the signatures of
all the almond. sorters at the plant during rest periods. Practically all the
walnut sorters also signed the document. On or. about September 29, Brown
gave the petition to Louise Brink, the plant's-office manager, and requested the
latter to give the document to Stiefvater. Brink asked Brown for her name;
Brown furnished it; and Brink said that she would give the petition to Stief-
vater.n
A day or two later, in accordance with Stiefvater's instructions, Attinger
addressed all of the walnut and almond sorters who were assembled for that
purpose in the almond room. With one significant exception (to be noted be-
low), the events of the meeting are not in material dispute.11 In substance,
10 See testimony of Aletha M. Turner.
11 The findings concerning the origin, preparation, and presentation of the petition for
the increase are based on a synthesis of testimony variously given by witnesses Turner,
Brown, Owens, and Backovich.
12 With the exception of an alleged colloquy between Attinger and Brown, to which later
reference will be made, the findings with respect to the meeting are based on a synthesis
of testimony given by witnesses Attinger, Hull, Turner, Palvia, Backovich. Brown, Robinson,
Owens, Dutro, and Price. Some of the witnesses on both sides omit details which others
furnish, and variances exist among the accounts, but with the exception noted, there is no
substantial conflict among the respective versions.
CONTINENTAL NUT COMPANY 1065
Attinger told the employees that the state of business made it impossible to grant
the requested increase "at that particular time" ; that the Company had "a con-
siderable amount of stock on hand" ; and that Stiefvater, "if it were at all possible,
.. . would give them a raise in the near future." Various employees expressed
reasons why they thought the firm could afford to grant their request, Brown
pointing out that housework was a better paid occupation than sorting, and
Attinger stated the firm's position on the matters advanced.
The only significant conflict in the evidence bearing on the meeting involves
an alleged exchange between Brown and Attinger concerning unionization. Ac-
cording to Brown's testimony, at one point she posed the question : "Supposing the
union stepped in?" and Attinger responded that he "had no intention of letting
anyone tell him what he could do." Aletha M. Turner and Esther Owens, both
almond sorters, corroborated the substance of Brown's version of the colloquy.
Attinger denied that Brown made the quoted remarks or that he made the
response att_•ibuted to him. H?s denial was supported in varying degree by
Daisy Belle Robinson, Helen Price, Mary Dutro, and Clara Paivia (all sorters)
and Forelady Hull, who were called as witnesses by the Respondent. For the
reasons set out in the margin," the Examiner credits the testimony of the Gen-
eral Counsel's witnesses with respect to the disputed issue and finds that, in sub-
stance, Brown posed the possibility of intervention by a union and that Attinger
responded that he would not permit anyone (meaning a,union) to tell him what
to do.
Attinger was "given to understand (by employees at the meeting) that if the
girls did not get their increase, they were not going to report back to work,"
"With respect to the disputed incident, the Examiner regards the testimony of Brown
and Turner as reliable . He credits Owens , whose recollection of later incidents appeared
to be faulty, because her version is corroborated by Brown and Turner. Their versions of
the Attinger-Brown exchange find support in various aspects of the meeting. Before its
close, according to Attinger himself, an undetermined number of employees indicated their
resolve not to return to work unless their request was granted, and actually took in his
presence what was tantamount to a strike vote, dividing evenly on the issue. Moreover,
Brown and other employees admittedly asked Attinger some pointed questions bearing on
their request . In such a setting, a reference by Brown to the possibility of unionization Is
not unlikely. On the other hand, the Examiner regards the respective denials by the
Respondent's witnesses, with respect to the colloquy, as unreliable. The recollection of
Dutro, Paivia, and Price with respect to significant features of the meeting was manifestly
faulty. Dutro has substantial difficulty in speaking and understanding English, admitted
that she could not hear "everything" Attinger said, and, in response to a question whether
she recalled "everything that was said that day," asserted, "Well, just asked for more
wages, that is all I know." Paivia admitted at one point that she could not remember
"what any of the girls said ." She also seemed uncertain that a vote was taken during the
meeting, and she appeared to remember little of what Attinger said. Although there was
substantial unanimity among the witnesses who testified concerning the result of the vote
that it resulted in a tie, Price asserted that most of the girls voted to return to work.
Hull testified that she does not "believe" that a question was put to Attinger concerning a
union, and asserted that she cried during the meeting and was "nervous" and "excited."
To a question put by the Examiner to Robinson whether "anybody said anything about a
union," she replied, "Well, not that I heard directly." Then, asked whether she had heard
anything about the subject at the meeting, she responded, "No." The Examiner formed
the impression that she was evasive about her knowledge of the colloquy. Finally, as
indicated at other places in this Report, the Examiner considers other significant aspects
of the testimony of Dutro, Price, Hull, Robinson, Attinger, and Paivia to be unreliable,
and he is unable for that and the other reasons set out above to credit their respective
denials that the disputed colloquy occurred between Attinger and Brown.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and he told them that that was their privilege , and that "there would be no hard
feelings" ( Attinger 's testimony ). One of the girls suggested that a vote be taken
on the question of returning to work. There was a show of hands on the issue in
Attinger 's presence . The vote resulted in a tie. At that point, it was about
a half-hour before quitting time, and Attinger told the employees that they
could have the rest of the afternoon off "because there wouldn 't be any work
done." The meeting .,thereupon disbanded , Attinger left, and the employees quit
*for the day , returning to work the following morning.
Some of the employees , including Brown, Turner , and Schroder , did not leave
the building immediately , but retired to the rest room. Brown expressed the
view that the firm would not increase their wages and that that "is why we need
to contact the Union ." The group discussed the procedure to be followed, and
Schroder proposed that Turner look into the question of communicating with
the Union because "you are a union member." Turner stated that she did not
know whom to approach but that she "would see what I could do." 14
During the next several days, Turner performed her regular work at the plant
and also worked on one of the night shifts at the Cellopack operation. On Octo-
ber 2, she fell while at work and sustained an injury , as a consequence of which
she was .on sick leave until November 15, when she returned to her regular duties
in the almond room. In mid -October, while she was on sick leave , she communi-
cated with .George Cole , business agent for a Sacramento cannery workers' union
and a representative of the California State Council of the Teamsters , and asked
him if there was a union representative in the Chico area. He referred her to
George B. Hare, at that time president of the Union . Shortly thereafter, Tur-
ner communicated with Hare who visited her at her home. She told him, in
effect, that some of the employees were interested in unionization and requested
him to furnish her with "union blanks." Hare subsequently gave her a supply
of "applications ." ( From the context of her testimony , it is apparent that Tur-
ner's reference to "applications " is intended to describe a form purporting to
authorize the Union to represent employees for the purpose of collective bar-
gaining.11 It is variously referred to as a "union petition" in the record , but will
be designated herein as the authorization form. ) Before her return to work,
Turner spoke to Susannah Davidson and Zella Morton ( both walnut sorters)
about the authorization form (the record does not detail the conversation). She
brought the form to the plant the day after she returned to work. That day she
solicited Owens' signature during the lunch period , and both she and Owens
signed the authorization form at that time. The next day (November 17) she
asked Clara Paivia and that employee 's sister, Josephine Martin, ( both walnut
sorters ) to sign, but, although they asserted that they would do so, they stated
that they wished to speak to "a union man" before they did so. On November 22,
or within several days preceding that date,16 Turner secured the signatures of
Muriel Cox , Gladys Schroder , Margaret Huston, and Hazel Wimmer ( also known
as Loflin ) to the authorization form. These employees , all almond sorters, signed
14 The findings with respect to the meeting in the rest room are based on testimony given
by Turner.
15 See G. C. Ex. No. 4.
11 Turner testified that she "believe(s)" that Cox , Schroder , Huston, and Wimmer signed
on November 22. Cox fixes the date as "in the latter part of November" ; Wimmer as
"around the middle of November" after Turner returned to work ; Schroder as "a few days
before ( Turner was ) fired" ; and Huston as in November "a few days before I got let go."
CONTINENTAL NUT COMPANY 1067
as a group in the rest room during the plant's regular afternoon rest period. On
some unspecified date, Morton signed at her home at Turner 's solicitation"
Owens also solicited the signatures of employees for the authorization form.
During a rest period on the day after she signed the document, she asked Paivia,
Martin, and Mary Terry (another walnut sorter) to affix their signatures.
Owens did not have the form in her possession at that time. None of the three
employees signed it.18 On another occasion on the same day, Owens requested
Vera Backovich, an almond sorter, to sign the form. Backowich agreed to do so,
but did not affix her signature at that time.19
Eleven sorters, in all, signed the authorization form. In addition to the
signatories mentioned above, Della Rabo signed at some unspecified time;
Backovich signed it after she was discharged on November 23; Brown affixed
her signature a a union meeting in December (about 2 weeks after her
discharge) ; and Davidson signed the form at her home "about the last of
November.""
The authorization form remained in Turner's possession at least until after
her discharge. She did not show it to any member of the managerial staff, nor
did she exhibit it publicly except to employees when she solicited. signatures.
Stiefvater, Attinger, and Hull denied that they ever saw it and the Examiner
finds that they did not see it. The Union did not communicate with the Re-
spondent prior to the discharges.
C. The discharge of Turner, Owens, Brown, Huston, and Backovich and the
alleged acts of interference, restraint, and coercion
Hull discharged Turner, Owens, Brown, and Backovich shortly before quitting
time on November 23, and dismissed Huston later that week. The General Coun-
sel claims that these employees were dismissed because of actual or imputed
organizational activity. The Respondent contends that the discharges resulted
from a reduction of its force of almond sorters after the processing season had
reached its peak and had entered a state of decline, and that the five employees
were selected for reasons (to be considered below) wholly unrelated to organi-
zational or other concerted activities in the plant.
The Respondent's significant evidence bearing on the state of its business and.
production activities during the 1948-49 season consists, in sum, of the follow-
17 The findings with respect to Turner ' s injury , sick leave , and organizational efforts,
including her communications with Cole and Hare, her solicitation of signatures for the
union authorization , and its signing by herself, Owens , Huston, Cox , Morton , Wimmer,
and Schroder , are based on Turner 's testimony . Findings with respect to the signatures
are also based on testimony given by Huston , Cox, Schroder , and Wimmer and on G. C.
Ex. No. 4.
11 The details of Owens' approach to these employees are not particularly significant, but
some enlargement on the matter is appropriate. The sense of Owens' testimony is that
she spoke to the three as a group . According to Owens , the others told her that they were
willing to sign. Terry did not testify and Martin made no reference to the incident in her
testimony . Paivia denied that she agreed to sign the document , asserting that Owens asked
her to circulate it in the black walnut room, but that she refused with the statement that
she "didn't want to have anything to do with it."
19 The findings with respect to Owens' organizational efforts are based on uncontroverted
elements in her testimony and that of Paivia and Backovich , and on the contents of
G. C. Ex. No. 4.
20 The findlrigs with respect to thel signatures of Backovich, Brown, and Davidson are
based on G . C. Ex. No. 4 and on relevant testimony given to those individuals.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing : At the close of the preceding processing season, the Respondent had an
inventory (known as a "carry-over") of 13 carloads of almonds. The "carry-
over" was shipped to market during the 1948-49 season. By mid-November,
the Company ceased its purchases of raw almonds because it had enough on hand
for.processing purposes to meet its anticipated requirements. "There are some
buyers" (from the Respondent) who make "substantial purchases" in mid-Oc-
tober for delivery in that month or in November in order to fill their require-
ments until January, and who thereafter "space" their orders for shipments
as their needs may require. Therefore, the early portion of the season is de-
voted to "building up as quickly as possible an inventory . . . so that we (the
Respondent) can take care of all orders for delivery during that first part of
the season," and it is thereafter the Respondent's practice to adjust its pro-
duction to the "spaced" requirements of its customers' orders. The peak of the
Respondent's 1948-49 shelled (and sorted) almond season was reached "on or
about the 15th to the 20th of November, 1948," after which its stockpile was
sufficient to cover its needs until January 1949. For some unspecified period
thereafter, "our shipments were very light" and "beginning about February and
March we started to step up with approximately three or four cars a month,
until we ran out of the season" (July 1949). During the early part of the sea-
son (prior to the third week in November 1948), the Respondent found it nec-
essary to maintain a daily production rate of 15,000 pounds of almonds which
necessitated the employment of a full complement of sorters, but thereafter
the Company was "easily" able to meet its orders with a daily production of
8,000 to 10,000 pounds, requiring the employment only of a "minimum" crew of
almond sorters. (Stiefvater defined a "minimum" crew as consisting of 12 to
16 sorters.) After the discharge of the 5 sorters, and until the end of the
season, except for one or two occasions (unspecified in the record) ; the Respond-
ent did not employ more than 16 almond sorters, usually averaging from 6 to
8 on each belt, or a total of 12 to 16.2'
The Examiner is unable to draw any definitive conclusions from the Respond-
ent's economic evidence. It may be observed, in passing, that no data were sub-
mitted establishing the volume of the Respondent's sales and shipments for the
1948-49 season (or other seasons), and there is thus a lack of reasonably precise
information to support the generalizations concerning the Respondent's stock-
piling practices, its customers' purchasing policies, and the spacing of orders
both in the early part of the season and thereafter. Some of the testimony
(Stiefvater's) with respect to the "spaced" orders appears to have a hypothetical
cast. Moreover, unexplained contradictions emerge from the Respondent's proof.
Stiefvater asserted that a substantial portion of the "carry-over" (40 percent)
was processed during the early part (September and October) of the new
season ; Attinger claimed that processing of the "carry-over" was completed
before the new season began. Stiefvater stated that the "bulk" of the carry-over
was disposed of late in 1948; Attinger testified that the major portion of such
almonds was shipped in the spring of 1949. Another aspect of the Respondent's
evidence militates against full acceptance of Stiefvater's testimony with respect
to the Respondent's stockpiling practices and its policy of correlating the size
of its sorting crew with its customers' orders and shipping requirements. In
another connection, Hull testified that in July 1948 she "tried to have ten girls
on each (almond sorting) belt, twenty girls in all." This was at least 2 months
before the commencement of the 1948-49 season. The Respondent's evidence
Yl The quoted language appearing in the foregoing paragraph is drawn from Stiefvater's
testimony.
CONTINENTAL NUT COMPANY 1069
emphasizes that it had great difficulty in disposing of the 1947-48 crop, terming
it the greatest "carry-over" from one season to another which it had ever had.'
Stiefvater 's description of the firm's production standards would make it appear
that a "maximum " sorting crew is used to stockpile almonds during the early
part of the season ( September -November ) and that thereafter a "minimum"
crew is used , varying in size according to the Respondent 's customers ' orders and
shipping requirements . Stiefvater ''s..explanation for the continued processing
:activity so long after the end of the 1947-48 season' was that the firm was "so
overburdened with stock ( the "carry-over" ) that it was more advisable to work
the material and hold it in the warehouse for any potential business that might
develop later in the year of 1948," so that "when sales did develop we would
know exactly what we could sell." The explanation does not dispose of the
question of why it was necessary to have a "maximum " sorting crew between
seasons, for it is quite clear that there was no customer demand at that time and
no necessity for accelerating a stockpile . Nor was a "maximum" crew necessary
to preserve the almonds , for leaving them in their shells protects them against
infestation , according to Stiefvater . It would appear from the foregoing that,
if Stiefvater 's exposition of his "maximum" and "minimum" sorting crew
standards is credible , the firm would have used a "minimum" crew rather than a
"maximum" one between seasons.
The absence of reasonably precise data, coupled with the contradictory or un-
explained factors to be found in the economic testimony of the Respondent's
witnesses who, are familiar with the business and could readily have implemented
their testimony with evidence drawn from record sources , serves not only to
give the economic evidence a substantially imprecise character , but militates
against reasonably accurate findings with respect to the state of the Respondent's
business and production activities . At most, the economic evidence yields an
inference that the Respondent 's almond sorting activities were greater in the
period from September to about the third week in November than they were
thereafter during the season and that, except for one or two occasions after the
dismissals , the Company did not employ more than 16 sorters , averaging 12 to 16.
In the face of the limited data available and the indicated contradictions, it
would be inappropriate to make any findings with respect to the nature and scope
of the firm' s almond sorting requirements after the dismissals or to accept
Stiefvater 's thesis that it is the Respondent 's practice to correlate the number
of sorters employed with the necessity for stockpiling early in the season and
the "spaced" requirements of its customers thereafter , and that for that reason,
there was a reduction in the size of the almond sorting crew in the latter part
of November. Moreover , even if it be assumed , arguendo, that the Respondent's
almond sorting requirements from and after the third week in November necessi-
tated a reduction in force, the question still remains whether the 5 who were
chosen for dismissal were selected discriminatorily because of their actual or
imputed efforts at self-organization.
According to the Respondent 's evidence , the decision to reduce the almond
sorting staff was made by Stiefvater and executed by Hull, but the proof of the
circumstances surrounding the decision , particularly the evidence bearing on
22 According to the Respondent 's evidence the "carry-over" of 13 carloads of almonds from
the 1947-48 season into the next was "very abnormal" ( see testimony of Stiefvater and
Attinger). Stiefvater asserted that the normal "carry -over" is 1 or 2 carloads.
.23 Attinger testified that the almond processing season usually ends in April or May. but
that the 1948-49 seasoa ran into July 1949 ( see also Stiefvater ' s testimony ). Note, how-
ever , that according to Hull, a full crew of almond sorters was employed as late as July
1948 on the 1947 crop.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hull's alleged instructions, is shrouded in contradiction' and infected with im-
probability. This becomes apparent upon analysis of relevant portions of the
testimony given by Attinger, Stiefvater, and Hull.
Attinger testified that on November 22, 1948, Stiefvator instructed him to
terminate the Cellopack operation at the airport and to "cut down our almond
sorting operations to a minimum number." The reason for the retrenchment,
Attinger testified, was that all. Cellopack orders had been filled, current orders
for shelled almonds (on which the sorters worked) had been met, and the process-
ing of shelled almonds would be adjusted to the future requirements of customers.
(There is no substantial evidence that there is any significant relationship
between the work of the sorters and that done by the Cellopack crews.) u Stief-
vater's testimony enlarged somewhat on Attinger's version of the instructions,.
asserting that he told his subordinate that the sorting crew "was to be reduced
to whatever number of women Mrs. Hull felt that she needed on the belt to
operate it to minimum production," and that he indicated to Attinger that what
he meant by a "minimum" crew was from 12 to 16 sorters, or the number neces-
sary for a certain quantity of almonds "depending on the material that might
be running." According to Stiefvater, it was Attinger's function to pass the
instructions on to Hull, and the duty of both subordinates to execute them.
Attinger testified, however, that he gave Hull no such instructions, that he spent
most of November 22 and 23 at the Cellopack operation, dismissing 2 of the
shifts there on November 22, and, in effect, that he had no connection with the
discharge of the sorters. Stiefvater also testified that he gave Hull no instruc-
tions to dismiss the sorters or to reduce the staff, but his testimony on the ques-
tion was interlarded with evasions and self-contradiction." Hull, however,
24 The Cellopack operation was conducted on a three-shift basis. The employees on
two of the shifts were dismissed on November 22 and those on the remaining shift
were discharged on December 10. The almonds packed at the airport are produced
for the Thanksgiving and Christmas trade. According to the Respondent, the bulk.
of the Cellopack output was packed and ready for shipment by November 22. There
is no dispute that the Cellopack shifts were laid off because of the completion of the
operation. However, the record does not establish that the seasonal termination of
the Cellopack operation has any significant bearing on the issue of the sorters' discharge.
The sorters worked on almonds which had been shelled. Stiefvater's testimony suggests
at several points that the Cellopack almonds were unshelled. On the other hand, Attinger,
when asked as to the relation between Cellopack and the "amount of material" processed
at the main plant, replied, "well, there are shelled almonds which are sorted at the main
plant that go to that Cellopack operation to be packed into six-ounce bags. . . . The
question of "amount" went unanswered, and Attinger later asserted that the cessation
of the Cellophane operations "would (and did) have some effect" on the volume of almonds
sorted at the plant. The record is barren of any evidence as to the extent to which
sorted almonds were fed into the Cellopack operation. Stiefvater's testimony suggests
that they were not; Attinger states that to some unspecified extent some shelled (and
sorted) almonds were used in the Cellopack operation. It may be noted that this is
information within the peculiar knowledge of the Respondent. The Examiner can make no
finding that there was any significant relation between the two operations.
25 Stiefvater's testimony on the question of whether he had instructed Hull to effect
the reduction of the sorting crew contained substantial self-contradiction and was evasive.
Asked twice by Respondent's counsel who instructed Hull to reduce the almond crew,
he responded "Bill Attinger would." Then he was asked whether he had discussed the
matter with Hull, and he responded, "Not to my knowledge." Thereafter, under question-
ing of the Examiner whether he had given Hull "any instructions to reduce the number
of women on the belt" he asserted, "Definitely I did, because we were working at that
time at maximum production with the twenty women we had on there." Stiefvater's
attention was then directed to his previous disavowal of such instructions to Hull, and
he stated, "I meant by that I did not tell her how many to reduce her belt to. I told
her to reduce her belt in accordance with the minimum production that we intended
CONTINENTAL NUT COMPANY 1071
contradicting Stiefvater, testified that it was Stiefvater, and not Attinger, who
instructed her to reduce the sorting staff. According to her testimony, she asked
:Stiefvater on November 23, the day of the dismissals, whether the sorters would
be off on the day before the Thanksgiving holiday (which fell on November 25
that year) and he told her to give the almond sorters the rest of the week off,
but not to give the walnut sorters such time off because of the need for filling
current orders for walnuts. Then, Hull testified, Stiefvater told her, "the peak
of our production is over now, and keep the (almond) crew at a minimum."
Hull asserted that she then told Stiefvater that there were "some that I would
like to lay off" and that she wished to transfer "a couple" of employees from
the Cellopack operation to the almond sorting room. According to Hull, Stief-
vater responded, "That is entirely up to you, but try to keep your crew at a
minimum." Hull testified that Stiefvater did not define a "minimum" crew for
her, did not tell her how many, or whom, to discharge, and made no inquiry as
to the identity of those she proposed to dismiss. She also asserted that she
did not disclose their identity to Stiefvater, except that upon receipt of his instruc-
tions, she asked him whether, if she discharged Turner, the dismissal would have
any bearing on any claim that Turner might press as a result of her injury;
and that Stiefvater responded that the Respondent was insured and that Turner's
discharge would. have no bearing on any suit she might bring. Stiefvater, how-
ever, in addition to his denial that he gave Hull any instructions, makes no
reference in his testimony to a conversation with Hull concerning Turner, deny-
ing, in fact, that he knew "in, advance of the actual layoff . . . who would
be laid off."
It is evident from the foregoing that the Respondent's 1proof concerning the
origin of the decision to reduce the sorting staff evidences basic contradiction
and improbability. Stiefvater asserts that he instructed Attinger to reduce the
force and told the latter what he meant by the word "minimum"; denies that he
gave such instructions to Hull ; and states that it was Attinger's function to
instruct Hull to accomplish the reduction. Attinger, however, denies that he
told Hull anything, stating that he had nothing to do with the sorters' dismissals.
Hull contradicts Stiefvater, claiming that he gave her the instructions for the
reduction. If Stiefvater and Attinger are to be credited, their testimony leads
to the absurd result that Hull. acted on her own initiative and without any
instructions from either of her supervisors, a conclusion for which the Respondent
obviously does not contend, and one which the Examiner cannot accept.
Plainly, either Stiefvater or Attinger issued instructions (whatever they were)
to Hull, and their denial of either one or the other that he did so is untrue. On
the other hand, the mere conclusion that Hull did receive instructions from
either Stiefvater or Attinger does not warrant an acceptance of Hull's version
-of such instructions. That version is not only denied by the alleged source of
her orders, Stiefvater, but strikes an improbable note. Hull is a minor super-
visory employee, receiving only 5 cents per hour more than a sorter and from
time to time performing sorting work herself. She has no connection with the
purchase of raw materials, their flow into the plant and warehouse, and the sale
and distribution of the processed products. Stiefvater agreed in his testimony
that "the person who made the decision to reduce the number of people employed,"
to produce after that date." In response to additional . questions by the Examiner as to
whether he had, in fact, told Hull to . reduce the sorting crew , Stiefvater at first stated
that he had not. told her to discharge a specific number and then finally asserted that
he "gave no instructions to Mrs. Hull to make any dismissals or any reduction."
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the reasons given by him, would "have to know substantially the volume of
(the Respondent's) present and anticipated business."" There is no evidence
that Hull had such knowledge ; if anything, the context of the evidence strongly
suggests that she did not have it. Yet, according to Hull, all that Stiefvater, in
substance, told her was to reduce the sorting crew to a "minimum," without
defining a "minimum" for her or in any way discussing the number or the identity
(except that of Turner) of those considered for dismissal, and she thereupon
decided for herself what a "minimum" meant and how many persons to dismiss
to achieve the sorting staff desired by Stiefvater. The improbable quality of
her testimony is underscored by the fact that, although Attinger is Hull's superior
and has the knowledge of the firm's business which she evidently lacks (her
employment began only 5 months earlier), Stiefvater, according to his version of
his instructions to Attinger, discussed with the latter the number of sorters to
be retained. In the light of the record as a whole, the Examiner cannot accept
any of the Respondent's versions of the instructions to reduce the almond sorting
staff.
The Respondent's evidence leaves unresolved the question of the source and
details of Hull's instructions, matters which are peculiarly within the Respond-
ent's knowledge. The question is basic, for the Examiner is convinced that at
least a large measure of the truth of the Company's motive for the dismissals
resides in the details of Hull's instructions (whether received from Attinger or
Stiefvater) and their surrounding circumstances. The Respondent's evidence
on the subject, because of the infirmities noted above, not only fails to yield
credible evidence as to the origin and nature of the orders given to Hull, but poses
the question whether Stiefvater, Attinger, and Hull are reliable witnesses.
The Respondent's thesis is that the five sorters were dismissed in fulfillment
of its program to reduce its sorting staff for economic considerations and that
those discharged were selected for the following respective reasons : Turner,
because her injury interfered with the performance of,her work; Brown, because
she talked excessively in violation of plant rules ; Owens, because she had a body
odor which rendered her offensive to other employees; Backovich, because of
excessive absenteeism ; and Huston, because she had told Hull earlier that she
(Huston) had been informed by her doctor that she was pregnant and had been
told by the physician that she "would have to quit."
To support his claim that the employees were selected for dismissal on a dis•
criminatory basis offensive to the Act, the General Counsel relies upon a circum-
stantial setting of events, both before and after November 23, consisting, in thi
main, of statements made, and activities engaged in, by Stiefvater, Hull, and
Attinger.
The General Counsel produced, as a witness, one Asa Keep who is general
manager of the Chico branch of Herman C. Fisher Company, an almond
processing concern. The firm does not process walnuts in Chico (Keep did not
know if it did so elsewhere), but confines its business there to the purchase and
processing of almonds. On or about November 17, 1948, Keep called Stiefvater
on the telephone and told the latter that the Fisher concern had received a
letter from George B. Hare, purportedly on behalf of a union (apparently,
2e To the Examiner, Stiefvater also appeared to be evasive in responding to questions as to
what information a person would have to have about the firm's business before determining
how many sorters were necessary. The question was put to him twice and drew evasive
responses, and it was not until the question was repeated for a third time that it drew a
responsive answer.
CONTINENTAL NUT COMPANY 1073
the Union involved in this proceeding),n stating, that the organization repre-
sented Fisher 's employees and requesting Keep to communicate with it 22
According to keep, he informed Stiefvater of the receipt of the letter and inquired
whether the latter had received a similar communication, and Stiefvater denied
that he had. Keep testified that they talked about other matters (not germane
here) and that at some point he told Stiefvater that Fisher's employees had
designated a union as their representative; that Stiefvater stated, "Well, why
don't you fire thern"; that he (Keep) responded, "You just can't up and fire
them for that" ; and that Stiefvater replied, "Well, no, you can't just up and
fire them for that." Keep's cross-examination disclosed that several weeks
later Fisher's employees designated a labor organization as their collective
bargaining agent in an election conducted by the Board and that subsequently
the concern signed an agreement with the Union making provision for a wage
increase (about 12 cents more than the Respondent's scale). The collective
bargaining negotiations were conducted by the firm's main office in San Francisco
and Keep did not participate in them, nor did he sign the contract. Stiefvater
testified that the Fisher firm is a subsidiary of a large nut distributor located
in San Francisco. and that the latter organization and its subsidiary are the
Respondent's largest competitors. Stiefvater agreed that he spoke to Keep on
the telephone, but gave a different version of the conversation. According to his
account, Keep called him and inquired if he had received a letter from Hare,
and Stiefvater responded that he had not. Then, Stiefvater asserted, Keep told
him that Hare was attempting to unionize the Fisher plant and inquired of
Stiefvater "what would be our (Respondent's) policy of handling people if they
did go union," to which; according to Stiefvater, he replied that "It was not
my obligation to assume any position relative to what" the Fisher concern or its
parent company "decided to do." In determining which of the versions to accept,
the Examiner has given appropriate consideration to Keep's possible interest
as a witness, stemming from his connection with a competitor of the Respondent
and the fact that the Fisher plant has been unionized and has granted its em-
ployees a wage increase. However, Keep was plainly a reluctant witness and
appeared to regard his obligation to testify with some distaste. Moreover, he
appears to be no more than a subordinate employee, although of managerial
status in a branch establishment of a concern which is in turn a subsidiary of
another company. On the other hand, the Examiner does not regard Stiefvater
as a reliable witness. As pointed out above, significant aspects of his testimony
with respect to matters which are peculiarly within his knowledge were sub-
stantially self-contradictory and evasive. The Examiner finds that the con-
versation occurred in substance as outlined above in the summary of Keep's
testimony.
The record as a whole establishes, and the Examiner finds, that soon after
Turner's return and substantially coincident with the Keep-Stiefvater conversa-
tion, there was considerable discussion among the Respondent's employees of
the subject of unionization and of the organization of the Fisher plant, and that
27 The letter to Keep referred to Hare, at that time president of the Union involved in
this proceeding, as the labor organization 's representative . From the general context
of Keep's testimony , it appears that the Union is the organization which wrote to the Fisher
Company.
28 According to Keep, the letter was dated November 16, 1948 , and the witness used
that date to refresh his recollection of the date of his conversation with Stiefvater.
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hull participated in such conversations," talking to Turner "frequently" about
unionization (see Hull's testimony). Much of the discussions, including those
in which Hull took part, centered upon the organization of,the Fisher Company
which received publicity in the local press (see Hull's testimony). During con-
versations with employees between the time of Turner's return and her dis-
missal, Hull expressed the view to employees that the Respondent's plant "would
not go union , it would not work there" (see Davidson's testimony).
The evidence is undisputed that at some point between Turner's return to the
plant on November 15, and her discharge on November 23, Hull assembled the
almond and walnut sorters in the almond room and that Attinger announced to
the employees that their wages were being increased five cents per hour. There
is controversy, however, over the date of the announcement, the remarks made
by Attinger while addressing the employees, and the legal effect to be given the
increase. The General Counsel contends that the rise in wages was granted to
deflect the interest of the employees from the attempt then in progress to
organize the plant. The Respondent asserts that the increase was granted in
accordance with Stiefvater's September promise to raise wages when business
conditions warranted.
Stiefvater testified that prior to the increase, Attinger had often urged him
(during "almost daily conversations" about business matters) to raise the
sorters' wages when business improved. According to Stiefvater, he discussed
the matter with Attinger briefly on Wednesday, November 17, and on the follow-
ing day, he instructed his subordinate to announce to the employees that the
management could not grant a 10-cent increase but would increase their wages
5 cents per hour effective the following Monday, November 22, and that there
would be another increase in the future if business conditions warranted. Stief-
vater testified that he had rejected the employees' request in September be-
cause "we were actually losing on our sales," but that in the latter half of
November, the firm's black walnut operations were beginning to show a profit,
there were indications that almonds from the new crop would prove profitable,
and he, therefore, wished to comply with the promise he had made through At-
tinger at the September meeting. It was his desire, he stated, to time the
announcement of the increase to the period "just prior to Thanksgiving" and
that was the "basic reason" for selecting the week prior to the holiday for the
announcement. He added that the women employed in the Cellopack opera-
tion were "temporary" employees ; that he knew that two of the Cellopack shifts
were soon to be discontinued ; that the employees who "were entitled" to an
increase were those of longer tenure (the sorters) ; and that these factors were
among the "main reasons" why "I selected that particular time to make the wage
increase." Neither Attinger nor Hull could recall the precise date when the
increase was announced, both asserting, however, that it was announced dur-
ing the week preceding the one in which the discharges occurred. Both Attinger
and Hull asserted that the announcement was made on Wednesday or Thursday
(November 17 or 18). Daisy Robinson , produced by the Respondent , asserted
that the increase was granted either on Friday or Saturday (November 19 or 20)
of the week preceding Thanksgiving, but was uncertain that the plant was in
operation that Saturday. She, too, testified that the increase became effective
on November 22. Contrary to Stiefvater's testimony, Attinger testified that
29 See, for example, the testimony of Davidson , Turner, and Hull. At one. point in
Hull's testimony , she would not concede that there was a "good deal" of discussion of
unionization , but other portions of her testimony substantially confirm the fact that she
oft€n discussed the subject with employees.
CONTINENTAL NUT COMPANY 1075
between the time when he addressed the sorters in September and Stiefvater's
instructions to him in November, he had never discussed the matter of a wage
increase with Stiefvater.
Much of the text of Attinger's announcement is not in substantial dispute.
According to his testimony, he told the women that he had "some good news for
them," that "Stiefvater had seen his way to . . . grant them an increase of five
cents an hour" and "was sorry that it could not be the 10 cents . .. they had
requested," and that the increase would take effect the following Monday (Novem-
ber 22) S0 However, Backovich and Owens, although agreeing that he made the
substance of the foregoing remarks, enlarged considerably upon his version.
According to Backovich, Attinger also said, "Maybe ... that will stop you talk-
ing about the union because . . . my father worked with the union for years,
... he never came out of it rich, . . . I don't like to be told what to do." Owens
asserted that Attinger followed his announcement of the increase with a state-
ment that "if you girls are going union, . . . go ahead. I can't stop you." At
this point in her account, Owens asserted, "I can't recall exactly what he said,
but he said something," and shortly thereafter she testified (with a somewhat
speculative demeanor) that Attinger said that "this place is not going to turn
union" and that he "was not going to let the union man tell him what to do." The
Examiner does not regard the relevant testimony of Backovich and Owens as
reliable, and he does not credit it. Aside from the disparity in their respective
versions, the undersigned deems it significant that Turner does not confirm their
testimony. Turner impressed the Examiner as a reasonably perceptive individ-
ual and, in view of her leadership in whatever organizational activities were then
on foot, it is quite likely that she would have noted Attinger's alleged remarks
about unionization and his feeling about it.31 Turner's testimony was given in
a restrained and factual manner, and the Examiner regards her as a reliable
witness. It may also be observed that no other witness called by the General
Counsel gave any testimony supporting either Backovich orOwens.32 Moreover,
at significant points, Owens gave evidence of a faulty recollection. Much of her
testimony relating to the increase and other matters was confused 33
Turner's version of Attinger's remarks was in substantial accord with his, with
two exceptions. She asserted that he made the announcement on November 22,
that the increase became effective that same day ; and that Attinger told the
employees that "they" (the management) had discussed the project "several days
before and (Attinger) had just got around to telling the girls about it."
To support his contention that the motivation for the increase was unlawful,
the General Counsel stresses; among other matters, evidence of two alleged con-
so In addition to Attinger's testimony, see that of Turner, Hull, Daisy, Robinson, Owens,
Backovich, and Paivia.
31 On both direct and cross-examination, Turner in greatest part, gave the same version of
Attingers remarks as he did. On direct examination she was asked if the employees
responded to Attinger's talk and she stated that several made "a few remarks," but that
she did not know what was said. "I didn't pay any particular attention to it." On cross-
examination she asserted that some mention was made of "a union" (without specifying
who mentioned it), but that she "didn't hear all of it" and "couldn't repeat the conversa-
tion." She expressed the belief that Attinger did not say "anything about the union."
33 None of the General Counsel's witnesses, except Turner, Brown, Owens, and Backovich,
were interrogated on the subject. Brown testified that she could not recall the details of
Attinger's remarks because "I was on the other end of the belt and I couldn't hear very
well."
33 Owens described several alleged conversations between Hull and Daisy Robinson which
are so confusing with respect to dates and content that they are not readily susceptible to
analysis. Additional reference will be made later to Owens' testimony.
917572-51-vol. 91-69
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
versations between Turner and Hull on the morning of November 22. Turner's
version of the discussions follows: Hull came to-the belt at Turner's station, and
the sorter asked the forelady if she "had heard that the Fisher's plant had gone
union." Hull replied that she had not heard about the matter, and Turner then
expressed her understanding that "they (Fisher's employees) were getting a ten
cent an hour raise effective at once," to which Hull "made a few more comments
(undescribed in the record) about the union" and left the room. About a half-
hour later Hull returned and told Turner that she had spoken to Attinger and
had asked him if he bad heard about the unionization of the Fisher plant ; that
Attinger had responded that he had heard about the matter and requested the
reason for Hull's inquiry ; that Hull had told Attinger, "If you don't do some-
thing for those girls they are going union" and had suggested that they be given
an increase; that then Attinger had asked Hull "if she thought the girls would be
satisfied with a five cent an hour raise ; and that Hull had replied that she did not
know. After summarizing for Turner, her conversation with Attinger, Hull asked
Turner what she thought about the matter, and the latter responded, "Well,
Gladys, if Fisher's can pay ten cents an hour I don't know why this company
can't." Hull replied, "Aletha, it won't work, because Jerry (Stiefvater) won't
have it. He would close clown this plant and go around and put a complete new
crew on." Turner then expressed some doubt that such a crew would be a good
one, and Hull replied that there was "an abundance of help," that Stiefvater
"just simply would not go union, and (that) it would just make it pretty bad for
the girls."
Hull denied engaging in the foregoing conversations with Turner. However,
the quality of her testimony with respect to discussions with employees about
unionization is revealing. With respect to questions put to her concerning her
conversations about unionization with various employees, including Turner, Hull's
testimony and her demeanor reflected a persistent effort to minimize her role in
such discussions, and there was a consistent pattern of evasiveness in her re-
sponses to questions bearing on conversations about unionization. Thus,, when
asked whether she had discussed the organization of the Fisher plant with Turner.
"I may have said something to her or we talked in general. I don't know as I
singled her out any more than any of the other girls." " Although denying firmly
on direct examination that she had spoken to Turner on another occasion about
union wage scales, on cross-examination, she did not "know whether I asked Mrs.
Turner (about union wages) or whether I asked anyone that." The forelady
asserted that she "might have asked her (Turner) or someone" (about the scales)
and would not "say whether I did or not." It may also be observed here that
other facets of Hull's testimony, mentioned elsewhere in this Report, reflect
adversely upon her reliability as a witness. The evidence is clear that by Novem-
ber 22, Turner had assumed a position of leadership among the sorters in foster-
ing the organization of the plant. Hull admitted that she often discussed union-
ization with Turner, and the latter's interest in the subject must, have been
manifest to the forelady. It is not unnatural that Hull should make some inquiry
94 According to Hull, when she discharged Turner on the following day, she admitted
to the sorter that the dismissal was "probably" due to the latter's union activity (addi-
tional reference to this incident will be made below). In testifying about the matter, Hull
gave the somewhat illogical explanation that her remarks to Turner at the time of the
discharge were caused by the fact that both women had "frequently" had discussions about
unionization . From the general context of Hull's testimony, the Examiner formed the
opinion that the forelady would stress her conversations about unionization when it suited
her purpose, and minimize her role in such discussions when that appeared to be a desirable
course to follow.
CONTINENTAL NUT COMPANY 1077
of Turner as to the latter's views of a suitable increase. The Examiner regards
Turner's testimony as reliable and credits her version of the two conversations
with Hull, as described above 35 Within the context of Hull's statements, her
assertion that the Respondent would close the plant and replace the employees,
and that Stiefvater "just simply would not go union" was a coercive interference
with the employees' right of self-organization and, therefore, violative of Section
8 (a) (1).
Turner testified that the wage increase was announced on the afternoon of
November 22, after her two conversations with Hull described above, and on the
day preceding her discharge. As observed above, Attinger, Hull, and Robinson
were uncertain of the date of the announcement. Based on his estimate of the
reliability of Turner, Attinger, Hull, Robinson, and Stiefvater. as witnesses and
on the context of the credited evidence as a whole, the Examiner finds that the
announcement was made on November 22 36
Turner's testimony, although significant, is not the sole. measure of the
Respondent's motive for granting the increase. The truth may be flushed out
of the context of events, much of which are not in substantial controversy..
The employee's request for an increase lies fallow for over 6 weeks. Although
Stiefvater claims that he and Attinger considered the matter often, Attinger
contradicts him and asserts that between the rejection of the request in Septem-
ber and Stiefvater's direction to him about November 17 or 18 to announce
the increase, they never discussed the question. Turner comes back to work
on November 15, and almost immediately begins to solicit authorizations from;
sorters for representation by the Union. About 2 days later, Keep calls-
Stiefvater and tells the latter that his employees have been organized and
that the labor organization involved has requested a meeting. At about the
same time, the organization of the Fisher plant is publicized in the community
and is the subject of discussion among the Respondent's sorters, and Hull
participates in such conversations. She speaks about unionization with Turner,.
who is the spearhead of what organizational work has begun in the plant.
According to Stiefvater, on November 18 (probably the day after he spoke to.
Keep) he decides to grant the increase, and Attinger then announces,it to the
sorters. The increase is admittedly made effective on November 22 (whether
announced on that date or a few days earlier), and retroactively covers work
In appraising Turner's reliability, the Examiner attaches no significance to the fact
that she told Hull about a 10-cent increase at the Fisher plant on November 22, while an,
increase of 12 cents was actually granted at Fisher's several weeks later. There is no'
evidence that Turner was fully aware of the organizational situation at Fisher's which
appears to have been the subject of rumor and gossip among the Respondent's employees.
It is evident from Turner's testimony that she was expressing her understanding of wage
conditions at Fisher's, rather than stating what she knew to be absolute fact. Moreover,.
although the record is silent on the point, the possibility may not be discounted that nego-
tiations between the Union and Fisher had already begun (see Keep's testimony) and that
what Turner had in mind was some phase of the negotiations which eventuated in a 12-6ent
increase.
88 Backovich and Owens also testified that the announcement was made on November 22,
and made effective by Attinger as of that date. The Examiner credits this phase of their
testimony. Sylva, under the Respondent's examination, at first testified that she did not.
remember the date, then asserted it was during Thanksgiving week, affirming somewhat
uncertainly that the increase was to become effective on Monday, November 22, and,
finally testified that its effective date was to be the Monday after Thanksgiving (November
29). Brown, called by the General Counsel, and Paivia, produced by the Respondent,.
could not remember the date. Huston testified (somewhat speculatively) that the an-
nouncement was made on the day (November 23) Hull dismissed four of the sorters. As,
indicated elsewhere, Huston's memory is poor. The Examiner does not credit her testimony-
concerning the date of Attinger's announcement.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
already performed (the increase retroactively applied to almost a full week's
work even according to the Respondent's version of the date of its announcement,
since November 20 and 21 were, respectively, Saturday and Sunday). Soon
after the increase is announced, five sorters, three of whom had shortly before
signed the authorization form, are discharged, and, ignoring for the moment
the credited evidence of what Hull actually said on the afternoon of the dis-
missals (a subject considered below), according to Hull's own testimony, she
affirms to Turner that the latter's dismissal was "probably" due to her union
activity. The relevant events recited above are substantially undisputed. Added
to them is the credited evidence of Hull's conversations with Turner set out
above and of Stiefvater's thought, expressed to Keep shortly before the announce-
ment of the increase, that a possible corrective for union activity is the discharge
of employees who engage in it. It has already been pointed. out that other
elements of Stiefvater's evidence are characterized by evasion and self-contradic-
tion, as well as contradiction by Hull and Attinger. The implication of Stief-
vater's claim of many discussions with Attinger concerning a wage increase
is that the project was not decided upon in an atmosphere of developing organiza-
tional activity. But Attinger contradicts Stiefvater with respect to such discus-
sions. The Examiner cannot accept Stiefvater's claim of frequent conversations
with Attinger about the increase. Significantly, the Respondent produced no
records or concrete figures relating to the state of its business at the time of the
wage increase. There is nothing but Stiefvater's contradicted evidence that the
matter had been the subject of frequent discussions with Attinger and some
generalizations that the walnut business had begun to show a profit and that
there were indications that the firm's almond output would prove profitable. In
the face of the record, the Examiner cannot accept Stiefvater's reasons for
granting the increase and for its timing. The credible evidence bespeaks a
hasty, improvisation to debilitate the interest of the Respondent's employees in
self-organization. Against the background of the evidence, the fact that the
employees had requested an increase some 6 or 7 weeks earlier is without
significance. It was rejected, and nothing more was said to the employees about
the matter, either by Stiefvater or Attinger, until soon after some of them began
to organize to secure it. Despite the Respondent's denial, the credible evidence
points to the fact that at the time the increase was announced, the Respondent
was aware of the organizational activity among its employees 37 The announce-
ment of the increase was responsive to such activity and not to the employees'
September petition. It is also immaterial that the Union had not yet achieved
a majority and that neither it nor the employees had requested the Respondent
to bargain collectively. A wage rise, under the facts here involved, constitutes
"campaigning with increases" (Hudson Hosiery Co., 72 NLRB 1434) and is
violative of Section 8 (a) (1) ."
The General Counsel presented evidence to the effect that, prior to the dis-
charge of the five sorters, the Respondent knew of the development of organiza-
tional activity among its employees and that it had knowledge of the circulation
of the authorization form among them. Stiefvater, Attinger, and Hull denied
the possession of knowledge" both of the activity and of the form.
37 Other evidence establishing the Respondent's knowledge of organizational activity is
discussed below.
38 See, among other cases, N. L. R. B. V. F. W. Woolworth Co., 121 F. 2d 658 (C. A. 2)
M. H. Ritzwoller Co. v. N. L. R. B., 114 F. 2d 432 (C. A. 7) ; Southern Colorado Power
Co. Y. N. L. R. B., 111 F. 2d 539 (C. A. 10).
CONTINENTAL NUT COMPANY 1070
Davidson, a walnut sorter,' testified that 3 or 4 days after Turner came
back to work (and 2 or 3 days before the latter's discharge) during occasions
when Hull came to the walnut room the forelady stated "several" times to the
employees at the belt that she knew of the circulation of a "union petition" in
the plant and did not know who had it, but would "find out." According to
Turner, during the midmorning recess on the day of the dismissals, Hull came
to the place at the almond belt where Sylva and Paulo worked (Turner's station
was nearby) and asked the two women whether they knew "who had the union
petition," and when they responded that they did not, the forelady asserted that
when "she found the girl that had the petition . . . she was going to fire her
and anyone who signed it." Turner also stated that about a half-hour later,
while she was at work, Hull engaged her in conversation concerning union wage
scales, and informed the sorter that Stiefvater would not pay such wages and
that unionization "won't work here in this town." Thereupon, Turner testified,
she informed Hull that she had belonged to a union for years and had, in fact
"contacted a union man," and that "there is a union petition out," but did not
tell the forelady that she had the document in her possession. According to
Turner, Hull responded that unionization "would not work" and that Stiefvater
would close the plant before he would permit it to be unionized.
Hull denied making the statements respectively attributed to her by Davidson
and Turner. Sylva and Paulo denied that the incident involving them occurred.
Paivia, one of the two walnut sorters produced by the Respondent, entered a
denial that Hull had made the remarks in the walnut room imputed to the
forelady by Davidson.
Here, too, Hull's unreliability as a witness militates against an acceptance of
her denials, particularly in the light of other events which shortly followed
Turner's alleged conversation with her. On the surface it may appear strange
that, so soon after Turner overheard Hull's conversation with Sylva and Paulo,
she (Turner) would tell the forelady that she had "contacted a union man."
However, upon closer analysis of the evidence, particularly in the light of obser-
vation of the witnesses, Turner's statement is not improbable. Hull admitted, in
other connections, that she "frequently" discussed unionization with Turner,
and it is apparent from the forelady's own testimony that she was aware of
Taylor's prounion sympathies. With that as a background, Turner's assertion
that during the course of a conversation with Hull about union scales, she
"casually" told the forelady that she had "contacted a union man" and that a
"union petition" was being circulated does not seem to be as unnatural as may
appear on the surface. Moreover, Hull's admission that only a few hours later,
in discharging Turner, she told the latter that her discharge was "probably" at-
tributable to union activity lends support to Turner's testimony. It may also
be observed that, while Hull denied flatly on direct examination that she had
'had the conversation concerning the union wage scale, under cross-exami-
nation, she testified evasively that she did not know whether she had asked
Turner or "anyone" about the scale and then admitted, "I might have asked her
or someone." Turning to Sylva and Paulo, their recollection of the events sur-
rounding the dismissals of November 23, which occurred only a few hours after
Hull's allegedly inquiry about the "union. petition," was confused and significantly
faulty. Moreover, Sylva denied ever discussing unionization with Hull (or with
anyone else) while Hull, although denying that she ever spoke to Sylva about
such matters, at the same time indicated she had spoken to Sylva about the
subject, but "no more than a general conversation that everybody was involved
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in." Without elaborating at this point on the evidence of Sylva's poor recollec-
tion and the contradictory nature of significant features of other testimony given.
by Paulo, it is enough to say that for reasons to be set out below, the Examiner
does not regard their relevant denials as reliable. Similarly, Paivia's recol-
lection of other events, to which later reference will be made, impressed the
Examiner as faulty. Moreover, she testified in another connection that she
"never paid any attention" to Hull when the latter spoke to the sorters at'the
belt, and the Examiner cannot discount the possibility that she either paid no
attention or was absent from the belt on the occasions described by Davidson.
The Examiner regards the relevant. testimony of Davidson and Turner as
reliable, against the background of the credible evidence as a whore, and he
finds that Hull made the remarks in the walnut and almond rooms respectively
attributed to her by Davidson and Turner. The statements quoted by David-
son have a threatening implication and possess a coercive meaning. Its natural
tendency would be to discourage employees in the exercise of their right of
self-organization, and Hull's remarks are, therefore, violative of Section 8
(a) (1). This is equally true of the interrogation of Sylva and Paulo and
Hull's assertion to them that the possessor of the "petition" and its signatories
would be discharged upon discovery. Similarly, Hull's statement to Turner
that the Respondent would close the plant to avoid unionization is a coercive
interference with the exercise of the rights guaranteed to employees by the
Act. The Examiner finds that the Respondent, as a result of Hull's applicable
statements in both the almond and walnut rooms, as described by Turner and
Davidson, violated Section 8 (a) (1) of the Act.
Owens testified that about November 14, Hull told Daisy Robinson (who
worked near Owens) at the belt that a union official had visited Turner, and that
Robinson responded that she had signed one paper and would not sign another.
Later that day, Owens stated, Hull told Robinson that "the union paper is
passing around and I have to stop it if I can," and that "I got to go and get in
touch with Bill" (Attinger). According to Owens' testimony at this point, these
conversations occurred after Turner returned to work. Owns then asserted
that on a later occasion,' she heard Hull tell Robinson that "the union paper
is going around," that "the rest of the girls are going to sign this union paper,
the petition," and that "I got to go and get in touch with Bill" (Attinger). The
witness stated that Hull returned about 15 minutes later and told Robinson that
Attinger would be in "in ten or fifteen minutes and I will tell him." Asked
whether Hull told. Robinson why she "had to get in touch with Bill," Owens
responded that the reason was to "tell (Stiefvater) to give the five cents raise
to keep the union out and to keep more of the girls from signing this union
petition." Here, too, Owens asserted that Robinson told Hull "I signed one
paper and I am not signing any other paper." Then, because Owens' testimony
manifested some confusion as to whether Hull and Robinson. talked on two,
three, or four occasions (her initial account indicated that there were four)
efforts were made to establish these discussions with respect to the date of
Turner's resumption of work. Owens asserted successively that the conversation
about the "union man" occurred before Turner returned ; that it took place
"the day after she came back" ; that it occurred before her return ; that "it
(presumably the conversation) started November 16" and Turner "came back
November 14"; and, finally, that the discussion in question took place "two days
before" Turner came back. Subsequently, the witness stated that A'ttinger
31 Owens asserted that the date was November 14 or 15 and at other points that she
could not remember the date.
CONTINENTAL NUT COMPANY 1081
announced the increase on November 22 and indicated somewhat vaguely that
it was on the same day Hull told Robinson that she would "get in touch" with
Attinger. At another point, Owens testified that about a week before Turner's
return, she heard Hull tell Robinson that Turner "had this union paper," and
that it was on this occasion that Robinson stated that she had signed one and
would not sign another.4O There are other confusing elements in Owens' testi-
mony, but without elaborating further on the matter, it is enough to state that
the Examiner regards so much of her testimony as confused that, quite aside
from the fact that both Hull and Robinson denied having the indicated conver-
sations, in the absence of credible corroborating testimony;' the Examiner
attaches no weight to Owens' account concerning them and does not credit her.
The evidence is undisputed that Hull came into the almond room at about 4
p. In. on November 23 and told Turner, Brown, Owens, and Backovitch, individ-
ually that they were discharged, nor is there any conflict that Huston was dis-
missed later that week. However, the evidence is conflicting with resepect to
other activities by Hull on the afternoon of November 23.
Hull's version of the relevant events in the almond and walnut rooms on No-
vember 23 may be summarized as follows : After receiving Stiefvater's instruc-
tions to reduce the almond staff to a "minimum" and to lay off the remainder of
the crew for the balance of the week, she decided to discharge Turner, Brown,
Owens, and Backovich. The forelady thereupon went to the almond room about 4
p. m. and announced to the almond crew that there would be "no work until Mon-
day" (November 27), that "some of you girls won't be back Monday," and that
checks were "ready" for those who would not "be back." The forelady then in-
formed Backovich, Brown, and Owens, individually, that their checks were
"ready," after'which she proceeded to Turner's work place, put her arm around
the sorter, and said, "Aletha, I hate to tell you this ... but your check will be
ready for you, too." Thereupon, Turner inquired, "Is this on account of the
union?" and the forelady responded, "It probably is." After Turner's dismissal
Hull left the almond room, went to the walnut room, and told the sorters employed
there that "just the almond girls were going to have the week off" and that the
walnut sorters would not be "laid off for the balance of the week" because the
"black walnut orders had to be gotten out." Hull then returned to the almond
room about "quitting time" (4: 30 p. m.) and because she observed that the dis-
40 If, in fact, Turner was discharged for union activity on November 23, it seems
incredible that she would have been permitted to return on November 15, if Hull knew
at that time that Turner had the "union paper." Thus, if Turner's discharge was dis-
criminatory, that circumstance would militate against the acceptance of Owens' statement
that she heard Hull tell Robinson a week before Turner's return that Turner "had this
union paper."
"' Backovich worked next to Owens at the belt. She partially supports Owens' testimony
concerning a conversation between Hull and Robinson (placed by Owens a week before
Turner's return), but asserts that it occurred on November 22, the date of the announce-
ment of the increase. Backovich testified that on that occasion Hull told Robinson
that "there was a union petition around," expressed the thought that "Turner had it,"
and asked Robinson whether she would sign it. According to Backovich, Robinson
replied that she had "already signed one petition" and would not sign another. Both Hull
and Robinson deny the conversation. The Examiner's appraisal of the reliability of Hull
and Robinson and credited evidence of Hull's statements set out elsewhere in this Report
suggest that Backovich's testimony concerning the conversation is correct. However,
Backovich's recollection of other significant matters proved to be faulty, and the Examiner
does not accept her version of Attinger's announcement. The Examiner is, therefore,
not prepared to credit Backovich's version of the Hull-Robinson conversation. He holds
that the evidence does not preponderantly establish that it occurred as claimed by
Backovich.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged women ''were quite distressed," she told them, "Mr. Stiefvater is in his
office. If any of you want to go down and talk to him he is there." On the
following day (November 24), Hull decided to dismiss Huston as part of the
staff reduction, because "she (Huston) had told me previously that she was
pregnant and that she would have to quit." Later that day, the forelady visited
Huston at her home, brought the sorter her check, and discharged her.'
Evidence adduced by the General Counsel differs substantially from Hull's tes-
timony with respect to her colloquy with Turner and her remarks to the al-
mond and walnut crews.
According to Turner, in response to her inquiry whether her dismissal was
"on account of union activity," Hull responded, "I am sorry but it is. I told Bill
(Attinger) that he put all the dirty work on to me .. . After all, Aletha, you
are not the only one that is going."
Four almond sorters, Cox, Loflin, Schroder, and Vanschoiack, who were called
by the General Counsel, denied in effect that immediately prior to the dismissals
on November 23, Hull addressed the almond crew, but, on the contrary, these
witnesses testified, in substance, that the forelady made no reference to the
closing of the almond room until she returned at quitting time, after she had
discharged the four sorters, and that when she addressed the almond crew at
that time she not only announced the layoff for the rest of the week, but in sub-
stantial effect, among other things, told the group why Turner, Brown, Owens,
and Backovich had been discharged.
Cox's version is that at quitting time, "as we were leaving to go downstairs,"
Hull announced that "the girls were being fired because of the union," that more
were going to be discharged, that "we are going to get to the bottom of this,"
that Stiefvater had said that "if he didn't have the right ones he' would get the
right ones," that the rest of the crew "were being laid off for a week," and that
"if we didn't hear from her within this week, to return to work the following
Monday, but if we heard from her (luring the week we would be automatically
discharged." According to Cox, Hull made the foregoing remarks while the
forelady was among a group of the sorters (including Cox) who were at the stairs
preparing to descend in order to leave for the day. The witness estimated that
there were "at least" 14-sorters in the room, expressed the view that "some of
them may have been in the rest room," and asserted that the discharged women
had already left.43
Loflin testified that "just as we were getting ready to leave at 4:30" the fore-
lady told the sorters, "I guess you girls know that the union is the cause of all
this. . . . That is not all that is going to get it. We are going to get to the bottom
of this." At that point in her testimony, Loflin stated that Hull did not say "any
more that I heard." However, the witness was asked later whether "anything
(was) said about coming back to work the next day," and she responded, "Not
that I remember. I think she said if she (Hull) didn't call us between then and
42 Huston and Hull gave differing versions of their conversation. Reference to their
respective accounts will be made elsewhere.
41 During her direct examination, Cox stated that Hull made the quoted statements to
"a group of the girls off the two belts," except one or two girls that had already gone down
at that time." It is not clear whether at that point Cox meant by the phrase "one or two
girls" to refer to "one or two" of the discharged women or to others who had left for the
day, although under cross-examination, when asked who was present at the time of Hull's
statements, she asserted, "well, as I said before, the girls from both of the belts , except
the girls who had been sent downstairs after their checks." In any event, from the con-
text of the witness' testimony as a whole, including her specification of the names of a
substantial number present, it is plainly the import of her relevant testimony that the four
discharged women had already left the room.
CONTINENTAL NUT COMPANY 1083
Monday for us to come back to work." According to Loftin, when Hull made the
quoted remarks , the forelady "was just coming up the steps" leading to the al-
mond room and (from the context of the witness' testimony) was either near or
at the head of the steps. Loftin asserted that at that time, a "bunch" of the
sorters were in the room, but that she could not say who they were.
Schroder's version was that "just after we closed the belt down, and I was
ready to go home," Hull told the 'swhole group" of sorters that "those girls got
fired because of this union paper being passed around," that "that was not all
that was going to be laif off," that "they was going to get to the bottom of this,"
and that "Stiefvater (had) said that if they hadn't got the right person that
he would get . . . the right person." The witness asserted that she could not
recall any other statement by Hull "right now," but she stated that she did
not come to work the next day, and when asked the reason for it, she testified
that as part of Hull's statement quoted above, the forelady told the sorters
"they (the management) was going to wait and see how things turned out,
something to that effect." The witness then enlarged on the remarks she had
previously attributed to Hull, stating that the forelady also told the employees
at that point that she "didn't know when (the sorters) would go back to work"
and that if she "wanted us to come back to work" she "would call us." "
According to Schroder, she was standing at the end of her belt at the time of
Hull's remarks and the forelady was situated "toward the end of the belt," (the
witness did not specify near which of the two belts the forelady was standing).
According to Vanschoiack, at 4: 30 p, in., after the discharged employees had
left," "we wondered what it was all about, and she (Hull) said it was . . . on
account of the union petition going around, and ... it made him (Stiefvater)
so mad that he asked her to get the cards . . . of those that were fired and let
them go." The witness testified that Hull also told the sorters that "she (Hull)
begged (Stiefvater) not to let them go, for fear it was the wrong ones." Van-
schoiack also asserted that she does not know if Hull said anything else because
"I did not stay." The witness stated (somewhat uncertainly) that the almond
sorters worked the next day (although it is clear from the testimony as a whole
that the almond sorters did not work on the day after the dismissals, nor for the
rest of the week).48 According to Vanschoiack, Hull made her remarks while
"Under cross-examination, after Schroder repeated Hull's alleged remarks that the
dismissals occurred because of circulation of the "union paper," that others would be
discharged, and that the management "was getting at the bottom of this," the witness
stated that she could not remember anything else Hull said. During her cross-examination
in relating the comments she had earlier attributed to Hull, Schroder made no reference
to any statements by Hull that Stiefvater had said that "if they hadn't got the right
person . . . he would get . . . the right person," nor did the witness, under cross-
examination, attribute any statements to Hull that the latter "didn't know when (the
employees) would go back to work" and that the forelady "would call us if she wanted us
to come back to work."
45 Vanschoiack stated that all of the almond sorters were present in the almond room
at quitting time, except those who had been discharged. It may therefore be assumed
that the intendment of her testimony is that the four sorters had already left the room.
90 Cox, Schroder, and Vanschoiack were queried by Respondent's counsel, under cross-
examination, whether Hull, in the course of her announcement, stated that the almond
crew would be given time off "because of Thanksgiving." As Hull's definitive recital
of what she told the almond sorters contains no reference-to extra time off "because of
Thanksgiving," it would appear that the cross-examination of the witnesses on the
subject is not particularly germane , particularly as her version of Stiefvater ' s instructions
is that when she queried him about time off before the Thanksgiving holiday, he told her,
in effect , that the almond crew should be laid off for the rest of the week, indicating
that the reason for the shutdown was because "things are pretty slow." In any event,
Cox and Schroder denied that Hull made any reference to Thanksgiving , while Vanschoiack
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing, between the almond room and the rest room (the record indicates that
the rest room was adjacent to the almond room).
Huston gave a confused version of the events of November 23. She testified
that at "about 2: 30 or 3: 30" o'clock on the day that Turner, Brown, Owens,
and Backovich were dismissed, Hull came to the almond room and told the four
women in discharging them that she "was sorry that this all had to come out
about their signing the union petition . . . because she hated to let them go."
According to Huston, about 4 p. in., "there were groups of (sorters) sitting there
talking about getting laid off" and Hull told "a group of girls (which included
Cox, Schroder, and Paulo) standing at the end of one belt" that "he (presumably
Stiefvater) is going to let them go that signed the union petition, and they were
going to find out who was the rest of them that signed the union petition and lay
them off." At this point in her testimony, Huston "suppose(d)" that the almond
sorters were sent home that afternoon about 20 minutes before the usual quitting
time (there is no other evidence to that effect) and upon inquiry by the Examiner
into the circumstances, the witness asserted that Hull had told the almond crew
that they would be permitted to "go home early because they (the management)
had some things to straighten out about the union." Then, when asked to state
"everything Gladys Hull had to say at that time," the witness asserted that Hull
"gave each one of the (discharged) girls their checks," stating that the firm
"was releasing them over the union petition," that she "was very sorry this all
had to come out," that the Company "would find out the (rest of the girls) that
signed it," that "those would probably also be released," that the firm "would
shut the place down early" that afternoon, that the management "would come
around and let us know when to come back to work" by sending "a letter to let
us know or (calling) us some way." It will be observed that in this last version
of Hull's remarks, Huston has intermingled statements she first attributed to
Hull when the latter discharged the four sorters "about 2: 30 or 3: 30" with
comments which, according to Huston's earlier testimony Hull made to "a group"
off sorters about 4 p. m. Moreover, Huston's version' of the discharge has
Hull telling the four sorters that they were dismissed because of union activity,
although all other evidence on the subject is that while notifying the respective
sorters of their discharge that afternoon Hull made a union reference only
during her conversation with Turner .' Huston's assertion that the almond room
closed early on November 23 is at variance 98 with that of every other witness
stated at first that Hull made no reference to it, as far as she could remember, and then
admitted that Hull had told the employees "once" that the sorters "would not have to
work the rest of the week on account of Thanksgiving" but that she (Vanschoiack) could
not remember what day it was. It is not unlikely that what Vanschoiack had in mind
(although somewhat inaccurately) was a discussion among Hull and the sorters either
earlier that day or on another date as to whether the women could have time off before
Thanksgiving, as Backovich put it, "so they could get the turkeys ready" (concerning the
earlier discussion, see the testimony of Schroder, Hull, Owens, and P,ackovich).
47 Turner worked diagonally across from Huston at the same almond belt. Paulo worked
beside Huston. Paulo's testimony ( discussed elsewhere ) is that she heard Hull affirm
to Turner that the latter was discharged "on account of the union." These circum-
stances suggest the possibility that Huston overheard the Hull-Turner exchange and
that what she heard merged with her imagination into an erroneous belief that Hull told
all four sorters that they were dismissed because they signed the "union petition."
48 Huston 's statement that Hull gave the dismissed employees their checks when she
discharged them is also at variance with the weight of the credible evidence, although a
witness (Price) called by the Respondent also testified that Hull distributed the checks.
It may be noted that under cross-examination, Huston stated that she could not remember
whether Hull gave the four sorters their checks, asserting that she "think ( s)" Hull "gave
CONTINENTAL NUT COMPANY 1085
who gave a version of what happened when the sorting crew finished their work
for the day . For the indicated reasons, it is impossible to determine whether
the intendment of Huston's testimony is that Hull informed the discharged sorters
in midafternoon that they were dismissed because they signed the "union peti-
tion," at the same time making her other alleged remarks to the rest of the crew,
or whether her statements both to the discharged women and the other sorters
were made at about the same time later that afternoon, or whether the forelady's
comments to the four sorters were made at one point and those to the other
sorters were made later that afternoon.49
The respective versions of two walnut sorters, Susannah Davidson and Irene
Barnes, differ substantially from Hull 's account of her remarks in the walnut
room.
Davidson testified that between 3: 30 and 4 p. in. on November 23 Hull
asked the walnut sorters white they were at work whether they "knew the name
of the girl that had the petition and the names of the girls that were trying to
unionize the Continental Nut Company." According to the witness, the walnut
girls disclaimed any knowledge of the matter, whereupon Hull left, but returned
about 10 or 15 minutes later. Davidson asserted that upon Hull's return, the
forelady stated, "Well, we are not going to work tomorrow" ; and that when the
sorters "asked why," Hull said, "Well, this is on account of the union. . . . We
are going to get to the bottom of this, and we are going to find out all the girls
that signed the petition, and the ones that have anything to do with the union,
we are going to lay them off.. . . Mr. Stiefvater is going to get to the bottom of
it and we are going to thrash it all out and then we are going to have nothing
to do, nothing to say any more about the union." The witness stated that she
could not recall whether the walnut sorters worked on the following day, but
that they did work on Friday (November 26).
Barnes testified that Hull came to the black walnut room at about 4 p. in.
on the day of the four dismissals and "wanted to know who was giving this
union paper . . . that was signed" and received no response from the. girls ; that
the forelady said "she would find out" ; and that the management "had four in
the office (the discharged almond sorters), and they wanted to get the rest of
them." According to Barnes, Hull told the walnut sorters to "come back to
them something ." There were also other substantial variances between Huston's testimony
and that of other employees . For example she testified that Attinger' s talk rejecting
the request for an increase (which indisputably occurred in September) was made "a few
days" before "we signed the union petition" (which actually occurred about 7 weeks
after Attinger ' s talk ). She also asserted that the Respondent announced a wage increase
on the day of the dismissals , although it actually was announced earlier.
49 According to Huston , before she was discharged , she heard Hull discuss the "union
or union petition " on several occasions . Huston testified that she heard - Hull tell
employees , including herself , that "it ( the Union ) would ( not) go through" and that
"the girls would be laid off" if they signed the " union petition ." Huston asserted that
she heard such statements "ever since I started to work there ." Also , according to
Huston ( under cross -examination), "a day or two" before she signed the "union petition,"
she heard Hull state that the plant would close "if the union went into effect." Assuming
that Hull knew about the "union petition " before the dismissals , it is very unlikely that
she heard about it before Turner ' s return in mid -November , and certainly not as far
back as September ( it was not in existence then ). It is the Examiner ' s belief that facts
are interwoven with imagination in Huston ' s testimony , feeding both on remarks she
heard Hull make and on the statements imputed to Hull by others. The Examiner
regards Huston as an unreliable witness, and, in the absence of credible corroboration,
he does not credit her testimony with respect to any alleged statements made by Hull
before the dismissals.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work the next day," but laid off Barnes for the rest of the week, telling her
to return to work on Monday. From the context of Barnes' testimony as a
whole, particularly her cross-examination, it appears that, according to her,
Hull's quoted statements were not made during one visit to the walnut room, but
that the forelady visited the sorters twice late that afternoon, first to inquire
about the circulation of the "union paper," and later to tell the walnut girls
about their schedule for the balance of the week (at which time Barnes was told
not to return until the following Monday).
In support of applicable phases of Hull's testimony relating to events in the
almond and walnut rooms on November 23, the Respondent produced the testi-
mony of five almond sorters, Dutro, Price, Paulo, Sylva, and Robinson, and two
walnut sorters,.Paivia and Martin.
All of the almond sorters (except Price) testified in material substance on
direct examination that Hull's general remarks to the crew on the afternoon of
November 23 consisted of a statement that the almond sorters would not work
for the balance of the week,60 and each of the five women denied, in sum, that the
forelady told the crew anything to the effect that the discharged women were
dismissed "on account of the union petition" and that the management "would
get to the bottom" of the document's circulation and discharge others who had
signed it. Each of the women also denied that Hull made any reference to a
"union petition."
With respect to Hull's remarks in the walnut room, Paivia and Martin testi-
fied, in effect, that what Hull told the walnut sorters was that because of "an
order" the walnut employees would work on the following day (Wednesday).'
Both Paivia and Martin denied that on the afternoon of November 23, Hull made
any reference to a "union petition," and that the forelady made the specific
remarks respectively attributed to her by Davidson and Barnes.
The Examiner cannot credit Hull's version of the significant events of Novem-
ber 23 and the supporting evidence adduced by the Respondent. Most of the
witnesses called by the Respondent manifested a faulty recollection (principally
under cross-examination) with respect to disputed and significant matters, and
the testimony of all of the Respondent's witnesses on the relevant questions does
not accord with the credible evidence, some of which is undisputed.
Dutro, contrary to Hull's testimony, stated that she did not hear the forelady
say anything about discharging some of the sorters, nor did she see Hull talking
to any of the discharged employees (an undisputed fact) at the time of their
dismissals, although Dutro's place at the belt is close to Turner's. Dutro also
admitted that she did not grasp everything Hull said, asserting "I heard some
things and some things I didn't just get right." 52 Price testified that all five
sorters were discharged that afternoon and that Hull gave the dismissed em-
ployees their checks, although the evidence is clear that Huston was dismissed
later in the week and that the forelady did not give any pay checks to the dis-
50 price was uncertain whether. Hull told the crew to return to work on the following
Friday or Monday. She expressed the belief that she returned on Monday.
Si According to Paivia, Hull also stated that the almond crew would be laid off for the
balance of the week. Martin testified that Hull also said that the walnut sorters would
have only 1 day (Thanksgiving) off that week. Paivia, manifesting some uncertainty,
expressed the belief that she worked on Friday, and Martin asserted that the walnut crew
worked that day.
52 Dutro is.Portuguese. She has difficulty in speaking and understanding English. She
impressed the Examiner as an honest witness, but it was evident that she remembered
little, if anything, of the afternoon's events and that her faulty recollection was due, at
least in substantial degree ; to her language difficulties.
CONTINENTAL NUT COMPANY 1087
charged women 63 . Moreover, Price at first did not remember whether Hull made
the announcement in the same statement (as claimed by the forelady) that some
sorters would be discharged and the rest laid off for the balance of the week,
then the witness testified that Hull addressed the sorters as a group only once
that day; and finally, under cross-examination, Price intimated, somewhat
vaguely, that Hull first announced the discharges (without naming the employees
involved) and later made the announcement concerning the rest of the sorters.'`
Paulo's testimony was confused and self-contradictory. After stating that she
did not recall whether Hull said anything beside the fact that the almond roon
would be closed until the following Monday, she denied that the forelady said.
anything about. "any girls being fired on account of the union." Shortly there-
after Paulo asserted twice that Hull made a statement that "they" were dis-
charged "on account of the union." Immediately following that testimony, Paulo'
stated that Hull said "that they were not getting fired on account of the union,"
then asserted that she did not remember what the forelady had said,aa and later
testified that Hull responded affirmatively to Turner's inquiry whether she was
being discharged because of union activity. Sylva testified that she did not hear-
Hull say anything (as claimed by the forelady), in announcing the shutdown
of the almond room for the balance of the week, that "some of the girls" would be'
discharged. But more significantly, toward the close of her cross-examination,.
the witness, asserting that "it is hard to remember that day" (November 23)
agreed that she did not remember "what (Hull) might have had to say" and:
testified that "I don't even remember what happened that day, if anything did.
happen." Sylva's faulty recollection is too evident to require additional elabora•'
tion.60 Robinson,, the remaining almond sorter produced by the Respondent,.
53 At one point Price asserted that she knows that Hull gave checks to Backovich, Brown,.
and Owens who worked "near me," while at another, she expressed the belief that they
forelady gave the checks to "the five girls." She was evasive on the question whether she
saw Hull give Owens a check, asserting "it was always customary to hand out checks
at that time" (presumably at the time of a discharge, although the record shows that
there was no fixed practice about .the matter). It was apparent to the Examiner that
the witness' testimony about the distribution of the checks was wholly conclusionary anmi
that she was persistent, although evasive, in adhering to her conclusion.
as Price also testified that as she was preparing to leave for the day, an employee
whose name she could not recall told her that there had been a report "that I had the
union paper in my purse." She thereupon went to Stiefvater's office in an "angry" mood!
and told hint "to take my purse and go through it." According to the witness, Stiefvater
was "very much astonished," and disclaimed any knowledge of what she meant and of
"a union paper." However, Price testified that he did go through her purse. Stiefvater
denied searching her purse, and his denial is supported by Turner, Brown, and Owens-
The fact that so soon after the time when Hull is alleged to have talked about the "uniom
petition," the possession of the document was apparently a subject of discussion among;
the employees suggests, although it does not establish, that the preceding chain of events
.in the almond room was substantially different from that claimed by the Respondent's.
witnesses, including Price. Moreover, the credible evidence establishes to the Examiner's:
satisfaction that Stiefvater did not search Price's purse, and her assertion that he did is,
to say the least, a reflection on her reliability as a witness.
as On numerous occasions during her testimony, Paulo responded to questions bearing
on the events in question with the statement that she did not remember. Her responses
In that regard far exceeded that of any other witness.
60 Sylva's testimony contained other substantial infirmities. One of the most note-
worthy of these occurred in connection with testimony she gave in support of the Re-
spondent's claim that Brown engaged in excessive talking and that Owens had an offensive
body odor. Asked to identify Owens at the hearing, she pointed to Brown who was seateiI
near Owens. ' Against the background of the subject of Sylva's testimony, the erroneous
Identification gives additional emphasis to her unreliability as a witness.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gave no substantial evidence of poor memory 5' However, the Examiner does
not regard her testimony as reliable. Her account, which had an argumentative
flavor, gave evidence of advocacy rather than objectivity. For example, among
other things, in testifying in support of Hull's reasons for selecting Huston,
Brown, Owens, and Backovich for discharge, Robinson, both in text and de-
meanor, gave undue emphasis to her description of the alleged shortcomings of
some of these women, and convinced the Examiner that she was exaggerating in
the interest of a result she felt to be a desirable one.58
The relevant testimony of Paivia and Martin was equally unconvincing. Al-
though finally agreeing that Hull spoke on one occasion to the walnut sorters as
a group on the afternoon of November 23, Paivia preceded such testimony with
one statement that Hull did not speak to the walnut crew as a group and another
that she did not remember whether the forelady did so, asserting also, that it
was the forelady's practice "to come over to the end of the belt to us" and that
"we never paid any attention." sB Whether because of inattention (attributable
perhaps to absorption in work near noisy equipment) or a faulty memory,80
Paivia, the Examiner finds, had no clear recollection of Hull's activities in the
walnut room' on the day in question , Martin's testimony was confused and self-
contradictory. Under cross-examination, she stated that she could not recall
whether she came .to work on the day after Hull's announcement, although both
on direct and redirect examination she asserted that she did. She also admitted,
under cross-examination, that she could not remember whether on the after-
57 Unlike Hull, who stated that the discharges and her-announcement of the layoff of
the almond crew for the rest of the week occurred at 4 p. m., or shortly thereafter,
Robinson testified that Hull made the announcement 3 or 4 minutes before quitting
time ("I think we had already turned the vibrators off on the belt") and then discharged
the four women. While the Examiner attaches no particular significance to the indicated
discrepancy between Hull and Robinson, it may be observed that with respect to the time
when the forelady addressed the almond crew as a group (whatever her remarks were)
Robinson's testimony accords substantially with the time (quitting time) fixed by Cox,
Loftin, Schroder, and Vanschoiack.
n Without elaborating unduly, it is appropriate to advert to one or two other features
of Robinson's testimony. Brown was allegedly selected for discharge for excessive talking
at the belt. Hull admitted that Robinson also talked excessively at the belt, although
not as much as Brown. Somewhat reluctantly, Hull agreed that no other employee
talked as much as Brown and Robinson. Robinson was argumentatively descriptive in
ascribing excessive talking to Brown and evasive in answering questions whether
Brown, who worked from 20 to 25 feet away, interfered with her work. Robinson mani-
fested reluctance in admitting that Brown's talking did not interfere. Contrary to-Hull's
testimony, Robinson disclaimed. any excessive talking by herself, asserting that she talked
no more than others and "not as much as some."
In describing Attinger's talk in September about the employees' petition fqr an
increase, Robinson characterized' Attinger as appearing "dumbfounded," although the
latter claims no such reaction to the petition which he had previously discussed with
Stiefvater. This, and other semantic descriptives, added to the Examiner ' s impression
that Robinson's testimony was not disinterested. Peculiarly, the witness ascribed to
herself a leadership role in connection with the employees' reaction to Attinger's rejection
of the petition. She testified that the other employees stood by silently after Attinger
had stated the Company's position, but that she "spoke up" and told him that "we were
going to walk out." None of the other witnesses, including Attinger, attribute any
remarks to Robinson during the meeting.
as There is evidence that the witness also paid little attention to the details of Attinger's
meeting with the sorters in September. All that she could remember is that he said that
wages could not be increased at that time, but that an increase would be granted "when
things picked up." Describing the announcement of the increase at one point, Paivia
asserted, "I wasn't paying no attention to what he did say. All I know we got the raise."
60 It may be noted, also, that Paivia expressed the belief at one point (later giving testi-
mony to the contrary) that Owens worked in the walnut room on the day of her discharge.
In fact, Owens had been working in the almond room for a substantial period.
CONTINENTAL NUT COMPANY 1089
noon of November 23, Hull had a "conversation" either with her "personally"
or "with the group" of walnut sorters, and to a question by the Examiner
whether she remembered Hull "saying anything to you as a group on that day,"
the witness responded, "she might have, but I don't remember."
The question of Hull's credibility is central to the major issues in this pro-
ceeding. As previously pointed out, the Respondent's version of the inception
and details of Hull's instructions to reduce the sorting staff is shrouded in im-
probability and contradiction. The Examiner is convinced that this is the prod-
uct of an absence of frankness by Stiefvater, Attinger, and Hull in recounting
significant events preceding the dismissals. This militates against an acceptance
of Hull's account of her statements and activities on November 23 or on any
other occasion relevant to the questions at issue. Moreover, the forelady's de-
iueanor, in testifying, had a defensive cast and was characterized by evasive-
ness and argumentativeness. Previous reference has been made to evasive ele-
ments in her testimony, but it is appropriate to advert to one of the more notable
instances here. On her direct examination, she was asked why she made the
response, "It probably is" to Turner's inquiry whether the latter's dismissal was
"on account of the union." Hull gave. the explanation that she was sympathetic.
to Turner because of the latter's injury and had talked to her on the telephone
"frequently;" that Turner often discussed unionization, and both women talked
about it on the telephone ; and that because of such discussions, when Turner
put the inquiry to her, she responded, without giving the matter any thought,
that Turner's discharge was "probably" "on account of the union." The Exam-
iner regards Hull's explanation of her remark to Turner as implausible, and he
does not credit it. He is convinced that her reaction to Turner's inquiry was to,
express what lay at the bottom of the whole affair. Upon observation of Hull,
and in the light of the whole context of her testimony, the undersigned does not
regard her as a reliable witness, and he does not credit her testimony as a sub-
stantially correct version of her statements and activities in the almond and
walnut rooms on the afternoon of November 23.
There are variances among the versions of Hull's statements in the almond
and walnut rooms on the afternoon of November 23, as given by the General
Counsel's witnesses. In making findings on the matters in issue, the Examiner
does not thereby assume that the respective powers of recollection of all of
such witnesses are good, nor does he assume that all are reliable. He regards
the memory faculties of Cox (particularly), Loflin, Schroder, and Davidson
as reasonably good. He considers the powers of recollection and the faculties
of perception of 'Vanschoiack, Barnes, and Huston (particularly the last) as
unreliable. If the testimony of the last-mentioned witnesses stood alone, the
Examiner would conclude that the General Counsel had not established by a
preponderance of the credible evidence that Hull, on the occasion, in question
had evidenced a design by the Respondent to discharge the five sorters for
actual or suspected complicity in union activity. However, their testimony does
not stand alone ; certain essential features of it find corroboration in the evidence
given by witnesses whom the Examiner regards as reliable. In the light of
all the evidence, the undersigned does not regard variance in the respective
versions of Cox, Loftin, Schroder, and Davidson as significant. There is a basic
consistency in their accounts. The fundamental fact which emerges from the
General Counsel's evidence is that Hull in substance made remarks to the effect
that the four sorters had been discharged for organizational activity ; that the
Respondent would probe such activity further and get to the bottom of it;
that if other employees were found to be involved, they also would be discharged ;
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the almond crew would be laid off for the balance of the week ; and that if
the Respondent decided to discharge any other employees, it would communi-
cate with them before the following Monday when the rest of the crew were
to return to work. Significantly, one uncontraverted fact gives corroborative
support to a basic feature of the testimony given by these witnesses. Although
there is controversey whether Huston was discharged oh November 24 or No-
vember 26, it is undisputed that she was discharged after those dismissed on
November 23, The Respondent does not explain the differentiation between
Huston and the other sorters, other than Hull's assertion that she decided on
Huston's dismissal on November 24. The fact of Huston's discharge after the
others, coupled with the lack of any credible explanation of the reason why it
was decided to dismiss her after the others, is an objective circumstance lend-
ing support to the evidence that Hull, in both sorting rooms, made statements
to the effect that the Respondent would discharge others if it determined later
that they had engaged in union actvity.
The Examiner finds, crediting applicable testimony to that effect, that shortly
before 4 p. in. on November 23, Hull made inquiry of employees in the walnut
room whether they knew the identity of those who were circulating or had
signed the "union petition" ; that employees in the walnut room professed ig-
norance of the matter; that the forelady then proceeded to the almond room
and shortly after 4 p. m. individually informed Turner, Brown, Owens, and
Backovich of their respective dismissals; that in response to Turner's inquiry
whether her discharge was "on account of union activity," Hull told Turner that
that was the case and that "I told Bill (Attinger) that he put all the dirty work
on to me" ; that Turner then left the almond room to see Stiefvater, and Hull
left for the walnut room where she stated in words or substance to the em-
ployees there that the walnut sorters would work for the rest of the week
(except Thanksgiving Day), but that the almond sorters, would be laid off
until the following Monday ; 01 that on hull's second visit to the walnut room she
also stated in substance, that the management would get to the bottom of union
activity in the plant and would dismiss all of the employees who had signed the
"union petition" and "the ones that have anything to do with the union" ; 62
that Hull returned to the almond room as about quitting time and told Backo-
vich and Owens that Stiefvater was avalable if they wished to see him ; that
61 Davidson quoted Hull as telling the walnut sorters, "we are not going to work
tomorrow" (Wednesday). However, taking her testimony as a whole, it is not clear
whether the intendment of the witness was to quote Bull with reference to the walnut
schedule or that of the almond room, since she later asserted that she could not remember
whether the walnut sorters worked on Wednesday, but did on Friday, and, under cross-
examination quoted Hull as stating that the almond crew would not return until
Monday. Barney, Hull, Martin, and Paivia quoted the forelady as stating in effect
that the walnut crew would work on Wednesday. Hull testified that they worked both
Wednesday and Friday. Martin could not remember whether they worked on Wednesday,
and Paivia could not recall if they worked on Friday. Barnes was laid off by Hull on
Tuesday for the balance of the week and gave no testimony as to whether the walnut
crew worked on Wednesday and Friday.
02 According to Davidson. when Hull announced to the walnut sorters. "we are not
going to work tomorrow," the employees' inquired the reason, and the forelady responded
that it was "on account of the union." As indicated above (see the preceding footnote)
it cannot be clearly determined from Davidson's testimony whether she purported to
quote Hull with respect to the almond crew's work on Wednesday or that of the walnut
crew. From the context of Davidson's testimony as a whole, the Examiner is inclined
to believe that Davidson's intendment was to quote Hull with reference to the almond
room ' s shutdown . However , because of the indicated uncertainty , the Examiner makes
no finding on the question whether Hull stated that "on account of the union we are
not going to work tomorrow."
CONTINENTAL NUT COMPANY 1091
Backovich and Owens thereupon left for Stiefvater's office 83 and were followed
by Brown ; a4 and that the forelady then told a substantial group of almond
sorters in substance that the four sorters had been discharged because of union.
activity, that the Respondent would get to the bottom of union activity in the
plant, that other employees who engaged in such activity would be discharged,.
that the management would find the "right ones" (those engaged in union,
activity) if it had not already done so, and that the rest of the sorters were
to return to work on the following Monday unless they heard from Hull sooner,.
in which event they would be discharged."
Hull's interrogation of the walnut sorters as to the identity of those identified
with the circulation and signing of the authorization form, her response to
Turner at the time of the latter's discharge, and her statements in both the,
almond and walnut rooms, constituted interference with, and restraint and.
coercion of, the Respondent's employees in the exercise of rights guaranteed to
them by Section 7. The Respondent thereby violated Section 8 (a) (1) of the-
Act.
The General Counsel also presented evidence of a conversation Hull had
with Turner after the dismissals of November 23, and of remarks the forelady
allegedly made in the walnut room after that date.
According to Turner, she telephoned Hull on the Friday (November 26) follow-
ing _her dismissal to assume "all responsibility" for the "union paper" and to
request the forelady to reinstate Owens because the latter was not responsible
for the document and was in "difficult" economic circumstances. The forelady,.
Turner stated, declined to reconsider Owens' discharge. Turner testified that
during the phone conversation she inquired of Hull whether the latter had quoted
her (Turner) to the effect that the Respondent could not discharge her because,
she would bring suit against it 80 According to Turner's testimony, Hull denied
imputing such a statement to Turner and then asserted that she had requested
Stiefvater to "think twice" before dismissing Turner since the latter had been
injured in the Respondent's employ, to which Stiefvater had responded that he.
had received information that Turner had the "union paper" and that he had had
to discharge her or she would have unionized the plant. Turner also quoted
Hull as stating during the conversation that Stiefvater had criticized her for
telling Turner that the latter had been discharged for union activities and had
admonished the forelady that she should have told Turner that the reasons for
her discharge were dissatisfaction "with the wages or working conditions" and
inefficient performance. Turner also stated that Hull asked her to reveal the
navies of the other employees who had signed the "union paper," so that they
could be discharged, but that she refused to furnish the information. Hull
denied that she had a conversation with Turner on November 26 asserting that
the sorter called her on the clay after the latter was discharged. Hull's version
of the conversation was very brief. The forelady testified that Turner asked her
as See testimony of Backovich , Owens, and Hull as to the conversation among them and
the departure of the two discharged women from the almond room.
a' See Brown 's testimony concerning her departure from the almond room.
a Although a finding on the subject is unnecessary , the testimony of Cox, Login, and
Schroder strongly suggests that the almond room, in which organizational talk and
activity were mainly centered , was closed in order to afford the Respondent an opportunity
to probe the circulation of the "union petition " further , and to enable the management
to discharge any other signatories before the resumption of work . The discharge of
Huston later in the week adds support to this view.
oa Turner testified that another employee had informed her about Hull's quotation of
Turner concerning a suit and that that was the reason she brought the matter up when she
spoke to Hull on the telephone.
917572-51-vol. 91-70
1 092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether she had inquired of Stiefvater whether the sorter's discharge "would
have any bearing on a damage suit";,that she (Hull) responded that she had
asked Stiefvater that question ; and that Turner replied, "That is all I wanted to
know. I was told on very good authority that you did ask Mr. Stiefvater that."
Davidson testified that in mid-afternoon of the Friday following the discharge
of Turner, Brown, Owens, and Backovitch, the forelady, who was at work at the
-walnut belt in Barnes' place, stated, "I am going to do something I have been
wanting to do for a long time" ; that Hull then left the room, remaining away
for about three-quarters of an hour or an hour ; and that when she returned she
sat opposite Davidson and said, "Well, I have found out everything. I went to
Margaret Huston's place, . . . (she) told me the names of all the girls that
signed the petition, the union petition, and she signed it herself." Then, David-
son testified, Martin inquired whether any of the walnut sorters "had signed
the petition, and Hull responded that there were two who had done so, that Stief-
vater and Attinger were not at the plant that day, and that "by rights I ought
to go down and have a check made out for those two women and lay them off
.tonight." 6" Hull denied that she had made any such statements. Paivia and
Martin, the walnut sorters produced by the Respondent, gave no testimony on the
subject.
Aside from the appraisal by the undersigned of the reliability of Turner and
Hull as witnesses, to which previous reference has been made, Hull's version. of
the telephone conversation impressed the Examiner as having an unnatural
flavor. The credible. evidence as a whole suggests no motivation for such a
conversation. On the other hand, Turner's version is rooted in natural motiva-
tion,69 that of seeking restoration of Owens' job. The credited evidence of Hull's
remarks in the almond and walnut rooms on November 23 indicates that the
dismissals and their underlying cause were a focal point in her thinking, and it
would not be unnatural, during this general period, for her to engage Turner in
conversation concerning Stiefvater, as testified to by Turner. Moreover, the
,credited evidence given by other sorters of Hull's remarks in the almond and
walnut rooms reflects uncertainty by the Respondent concerning the identity
of the signatories on the "union petition," and a desire to ascertain additional
information about the matter. Huston's unexplained selection for discharge
after the other sorters tends to support that conclusion. These circumstances
67 Respondent 's counsel , both in oral argument and during Hull's examination , appar-
ently assumed that Davidson testified that Hull's remarks quoted above were made to
Barnes . That assumption is erroneous and undoubtedly stems from the fact that Davidson
somewhat unresponsively prefaced her account by adverting to the fact that Barnes, who
had been laid off for the week on the preceding Tuesday, came into the walnut room on
Friday. After mentioning that fact, Davidson began her recital of Hull's activities by
stating, "She sat at the belt, and around 3 : 00 o'clock Gladys Hull said, 'I am going to do
something I have been wanting to do for a long time.' " Respondent's counsel (not without
some justification in the light of Davidson 's imprecise sentence structure ) assumed that
the phrase, "She sat at the belt" referred to Barnes, and he apparently assumed that
Davidson's intendment was that Hull made the quoted statement to Barnes. The context
of Davidson's examination and her testimony are that Hull made the statement to her and
not Barnes. Under cross-examination Barnes stated that she did not come to work on
Friday. However, upon analysis, that is not inconsistent with Davidson's statement,
since Davidson did not testify that Barnes worked. Her testimony was that Barnes "came
in" while Hull was working in Barnes ' stead . The sense of her testimony is that Barnes
dropped in for some unexplained purpose. Barnes (lid not testify to the contrary. There
is no evidence that Barnes was present when Hull made the quoted statements, and no
inference can be drawn from the absence of such testimony by Barnes.
66 Turner ' s initial version of the. telephone conversation suggests only indirectly what
her motives were for calling Hull . Her motivation was explained in some detail at later
points in her testimony.
CONTINENTAL NUT COMPANY 1093
impart additional plausibility to Turner's testimony that before the week was
out Hull asked her to reveal the names of other signatories to the "union paper."
The Examiner credits Turner's version of the telephone conversation.
Similarly, the circumstance of the Huston discharge lends some support to
Davidson's account of Hull's statements on Friday, November 26. It may also
be observed that neither Paivia nor Martin, whose respective stations at the belt
were close to Davidson's, although called by the Respondent, gave any testimony
on the matter in question, and there is thus no denial by Martin that she asked
Hull whether any of the walnut sorters had signed the "union petition," and
that the forelady responded that there were two and that "by rights" they should
be discharged." In appraising the reliability of Davidson's testimony, the Exam-
iner has weighed the fact that Huston's version of her conversation with Hull
at the time of the fornier's discharge makes no mention of the disclosure by her
of the names of other signatories." Consideration has also been given to the
fact that two walnut sorters, Morton and Rabo, whose names appear on the
authorization form were not discharged. However, the Examiner regards both
Hull and Huston as unreliable witnesses, and, aside from the undisputed fact
that Hull told Huston she was discharged, he can make no finding as to what
they spoke about when the forelady called on the sorter, nor assuming the reli-
ability of Davidson's testimony, whether Hull accurately quoted Huston when
the forelady returned from Huston's home. The critical question is whether
Davidson reliably quoted Hull and whether the claimed incident occurred.
Davidson's testimony suggests that Hull's decision to discharge Huston was a
sudden one . Hull 's failure to explain the reason why she did not discharge
Huston with the others. on Tuesday and elements in her own testimony support
Davidson's intimation that Hull suddenly left the walnut belt to dismiss Huston.
The forelady testified in another connection that the walnut sorters worked both
on November 24 (Wednesday) and November 26 (Friday), and she indicated
that she replaced Barnes on both days. Irrespective of the date of Huston's dis-
charge, Hull entered no denial that she left the belt to effect the dismissal. If
anything, Hull's testimony circumstantially tends to support Davidson's claim
that the forelady left during working hours to discharge Huston." Against the
background of the fact that Davidson's description of Hull's sudden departure
is a credible one, of Hull's unexplained discharge of Huston after the other
"" As noted earlier, two walnut sorters, Morton and Rabo (in addition to Davidson)
signed the authorization form.
"According to Hull's version when she discharged Huston, the latter laughed and
said "Well, I didn't get laid off on account of the union," to which the forelady replied
that "no one got laid off on account of the union," whereupon Huston remarked, "That
is all right . You know I had to quit anyhow ." Huston ' s version of her discharge is
that Hull came to her house on November 27 or 28 , informed her of her dismissal and
gave her a check, expressing regret over the discharge and that "those girls had signed
the union petition," and stating that she "bated to see them go," and that Huston
responded that her discharge was "all right" and that "I probably won't be able to work
over four or five months anyway. " Huston also testified that she and Hull had some
discussion about "the union," and that the forelady told her that "there was a few more
girls that they were not sure of that they had to look up." According to Huston, she
and Hull also discussed unionization of the plant , the forelady stating that she did not
"think the union would ever go through, because this was not a union town" and
that if they (the Union?) did get a raise, . . . it would not be over, 85 cents. As the
Examiner regards both Hull and Huston as unreliable witnesses , he makes no finding
with respect to either version, except that the forelady discharged Huston.
71 According to Hull, she spoke to Huston in the latter's garden and Huston gave her a
squash. Hull nowhere asserts that she visited Huston after working hours or during
the lunch period (which was a half-hour). As the period was late in November, these
circumstances suggest that Hull visited Huston during the day.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sorters, and of the credited evidence of Hull's remarks on the afternoon of
November 23, and in the light of the Examiner's appraisal of both Hull and David-
son '2 as witnesses, the undersigned credits Davidson's account of Hull's departure
from the walnut room and her return, and of the forelady's remarks in connection
therewith. The Examiner also finds that Bull discharged Huston on November
26.'3 Hull's remarks in the walnut room, whether or not she correctly quoted
Huston, conveyed the meaning that Huston had been discharged' for signing the
authorization form and that the penalty for such signatures was discharge.
The tendency of statements of that nature is to inhibit the exercise by employees
of their right of self-organization. As a result of Hull's statements, the Re-
spondent violated Section 8 (a) (1) of the Act.
Before setting down concluding findings with respect to the dismissals, it is
appropriate to examine the individual justifications offered by the Respondent
for the respective discharges.
Hull, Sylva, and Robinson testified that Brown was an excessive talker. Hull
asserted that Brown was a good worker, but "chattered incessantly," and that
the latter is a person of a "very happy frame of mind" and "laughed a great
deal." Turner, Schroder, and Cox denied that Brown talked excessively. Signif-
icantly, contrary to Hull's claim that Brown's talkativeness interfered with the
other employees, Robinson, whose station was between 20 and 25 feet from
Brown's admitted that it did not interfere with her work. Brown worked
behind Sylva at another belt. Sylva asserted that she could not hear what
Brown was saying because the latter was too far away, although the distance,
according to Sylva was only 5 feet. Moreover, when asked to identify Owens
in the hearing room, Sylva picked out Brown. Although, Hull claimed that the
rule against talking at the belt was "one of the strictest," the record as a whole
establishes that if that were the case, it was honored much in the breach by the
women, including Hull (despite her claim to the contrary)." It may be observed,
also, that other employees (including Robinson who, according to Hull, was,
after Brown, the most excessive talker in the plant) were not discharged for
violating the alleged rule.
There was a division of opinion among the witnesses concerning the state of
Owens' hygiene." An offensive body odor was ascribed to her with varying
descriptives and degrees of emphasis by Hull, Robinson, Paulo, Price, Sylva, and
Paivia. Turner, Huston, Schroder, and Backovitch denied that Owens had the
72 In appraising, the reliability of the various witnesses , the Examiner has given,
appropriate consideration to the possibility that the testimony of each witness might
be affected, as the case may be, by such factors as bias in favor of or against unionization
or a concern for continued employment . In that regard , it may be noted that Davidson,
was still employed by the Respondent ( in cleaning work ) at the time of the hearing,
although the 1948-49 walnut season had ended several weeks earlier and the sorting
crew had been laid off.
43 Huston expressed the belief that Hull visited her on a Saturday . Elsewhere she
thought it was on a Friday or Saturday. Those days respectively fell on November
2G and 27. Her testimony with respect to the dates is somewhat confused by her
assertion that the visit was before Thanksgiving which actually occurred on Thursday,
November 25. It may be noted that Hull testified that she visited Huston on Wednesday,
November 24 (before Thanksgiving ). The Examiner gained the impression from the-
context of Huston ' s testimony that she felt certain that Hull's visit was toward the end!
of the week , but that she had no clear conception whether Thanksgiving Day occurredi
that week or the next week.
44 See the testimony of Cox, Brown and Davidson and the credited evidence of Hull'w
conversations about unionization , the "union petition ," and wage scales.
'S There is no claim in the record that Owens' alleged body odor contaminated the
almonds.
CONTINENTAL NUT COMPANY 1095
condition attributed to her. Hull stated that "for quite some time" she received
"a great deal of complaint from the girls who worked with" Owens, and that "the
girls all asked me if I couldn ' t do something about it." According to Hull , Robin-
son whose station was near Owens , complained "very strongly ," an employee
named Brooks opened the window ( on some unspecified occasion ), and Schroder
and Loflin also spoke about the matter, (whether to Hull or between themselves
is not clear)." Under cross-examination, Hull asserted that Owens' condition
-was "mentioned to her (Hull) several times," and questions designed to elicit
the names of complainants brought. the response that there was "general com-
plaint" and that "various girls" talked about it in the forelady's presence., Ad-
ditional detailed elaboration of the evidence is unnecessary. It appears from
the Respondent's evidence that Robinson was the strongest objector to Owens'
alleged condition,' and it is not unlikely that she stimulated much of the discus-
sion in the plant about the matter. The condition involved lends itself to gossip
(sometimes humor of a low order), and gossip is the mother of reputation. With
respect to witnesses such as Sylva, Price, Paulo, and Paivia, the Examiner is
unable to determine how much of their reaction to Owens was the product of
personal experience and how much of gossip and reputation 78 The undersigned
believes that there was some criticism of Owens among employees, but he is
unable to determine by any reasonably sound criteria the nature and extent of
Owens' condition. What ,was unpleasant, for example, to Robinson was un-
noticed by Turner who lunched with Owens, and to Backovich 78 who worked beside
her. Owens, who was conceded by Hull to be a good worker, had been employed
by the Respondent for about 11 months. During that time no one, including
management representatives, ever mentioned her condition to her or suggested
ts correction. Such a subject is understandably difficult to broach to the indi-
vidual concerned , but it seems strange , in view of Owens' admitted qualities as
a worker, that the Respondent suddenly selected the drastic corrective of dis-
charge as a remedy instead of using its managerial prerogative of bringing the
matter to Owens' attention with a view toward the elimination of the cause of
the claimed condition, Aside from the fact that such a condition is immaterial
if the real reason for Owens' dismissal was her union activity, the Examiner is
unconvinced that her alleged disability was of such a nature as to interfere
with the operation of the plant or in any substantial sense with the comfort of
the employees.
Despite the fact that Hull admittedly, at the time of Turner's discharge, indi-
cated to the sorter that the dismissal was due to the latter's union activity, the
Respondent now presents the claim that that was not the reason, but that she
"Schroder denied talking to anybody about the matter . She asserted in effect that
Robinson was the only one whom she heard refer to Owens' alleged condition and that
-such references were made after Owens ' discharge . Schroder indicated Robinson's ref-
erences to the matter occurred while both employees (and possibly Loflin and Cox) ate
their lunch together.
" Paulo testified that Robinson was the only employee she heard mention the matter,
and that occurred after Owens ' discharge.
78 As noted elsewhere , Sylva , although using descriptive terms in testifying about
-Owens , identified Brown as Owens in the hearing room. She testified at one point
that she had never participated in, nor heard, a discussion about Owens ' condition, but
.asserted later that she had heard complaints about Owens , claiming that she had not
understood the questions which led to her testimony that she had neither heard nor
,participated in any conversation about Owens ' condition.
79 Backovich who worked next to Owens and "never " noticed "anything unusual" about
her, stated that on one occasion ( the date was unspecified ), Hull asked her if she noticed
an odor emanating from Owens , and she informed the forelady that she did not.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was discharged because her injury, sustained while at work, prevented her from
performing her duties efficiently. , Although there is no doubt that Turner's
injury caused her some discomfort after she returned to work,80 the Examiner,.
in the face of the credible evidence, can attach no weight to Hull's claim that
Turner's rate of production was about one-third less than the average, nor
does the undersigned credit the forelady's assertion Turner went to the rest
room with unusual frequency 81 Significantly, Hull never criticized her work
prior to the discharge, nor did she do so at the time of the dismissal. Although
the Respondent has a right to discharge its employees for any reason or no
reason at all, if in so doing it does not violate the law, the question may well
be posed, in appraising the Respondent's motives, whether in the case of an
employee who has only recently returned from sick leave occasioned by an injury
arising out of the employment, it is normal industrial practice to discharge the
employee solely because the injury results in some impairment of efficiency. It
is also worthy of note that during her testimony, Hull appeared to go out of
her way to emphasize that at the time of the dismissal, she was sympathetic
toward Turner because the latter had been injured and, according to Hull, was
encountering some difficulty in processing her claim for workmen's compensation.
As Turner's injury arose out of her employment, it is difficult to reconcile Hull's
professions of sympathy and desire to assist Turner with the forelady's claim
that she selected the sorter for discharge because the injury impeded the latter's
efficiency.
The Respondent's position on Huston is not quite clear. Hull testified that
Huston was discharged because she was pregnant and had been informed by
her physician that she would have to quit. However, the Respondent also ad-
duced testimony by employees (Price, Robinson, and Paulo) that Huston went
to the rest room' frequently: The Examiner is uncertain whether it is the
Respondent's position that Huston was discharged because she was pregnant
or because she made frequent visits to the rest room. In view of the reasons
assigned by Hull for the discharge, unless the rest room testimony was adduced
in support of the view that Huston was pregnant prior to her discharge (she
denies it), such evidence, much of which is either improbable of confused, is
irrelevant. Moreover, some of the indicated testimony probably applies to a
period, preceding Huston's pregnancy when she allegedly had a rectal infection.
The witnesses did not appear to be certain when the rest room incidents occur
red, and the Respondent's implication that they were associated with Huston's
pregnancy is unconvincing.82
s° Turner ' s injury was to the base of her spine. She asserted that "it was a little difficult
for me to sit down at all times ." Hull testified that Turner gave evidence of great discom-
fort both sitting and standing at the belt.
11 Loflin testified that she worked next to Turner and that there was nothing wrong with
the latter ' s performance.
82 Much of the testimony bearing on Huston's rest room visits is uncertain . Hull stated
that Huston had had a rectal infection about a month before her discharge , and intimated,
somewhat vaguely, that Huston "would have to go to her rest room" (Hull could not state
how often) on that occasion. However, Huston was not pregnant then, and Hull admitted
that the infection had no connection with Huston 's discharge. Price asserted that through-
out Huston's employment , the latter would leave the belt for the rest room "several times"
a day , and the witness stated that such departures were because Huston "thought she was
pregnant ." Huston's employment began about September 27, 1948 , and her baby was born
on August 5, 1949. The improbable nature of Price's testimony is evident . Moreover,
the visits to the rest room mentioned by Hull were associated with Huston ' s infection, not
her pregnancy . Robinson asserted that "a week or two" before her discharge , Huston
went to the rest room for 5 or 10 minutes "several " times on "several " occasions, but the
CONTINENTAL NUT COMPANY 1097
Huston's baby was born on August 5, 1949. Hull places her conversation
with Huston as occurring several days before November 23 or (under cross-
examination) "perhaps" a week prior to that date. Estimates*of dates when
Huston allegedly told others that she was pregnant were: a week or two before-
November 23 (Sylva, who also gave an estimate of 2 or 3 weeks before
Huston's discharge) ; 2 weeks before that date (Paivia, who also stated
that Huston said she would not work much longer) ; and many occasions dating
back to the start of Huston's employment in September 1948 (Price). The sense-
of Huston's testimony, which is not notable for clarity, is that she was ill about
a week before her discharge with what she thought was an intestinal disturbance;.
that she then jokingly expressed the belief in the presence of Hull and some
sorters that she was pregnant ; that she was not certain that she was pregnant
at the time Hull dismissed her, but believed that she was, and informed Hull
then'that she would not have'been able to work longer than 4 or 5 months
in any event ; that her pregnancy was not medically confirmed until December
10, 1948, when she visited her doctor a second time ; and that therefore, in effect,
she could not have told Hull that her physician had advised her to quit.
Although not clearly expressed, she testified in effect that her first intimation.
that she might be pregnant came when she went to see a doctor 2 or 3
days after the almond room was closed."'
Judging by the date of the baby's birth, there is no doubt in the Examiner's
mind that Huston was pregnant prior to the layoff in the almond room, nor
does the undersigned entertain any question that she made statements to
employees that she was pregnant. It is unnecessary to resolve the question
whether, at the time specified by Hull, Huston had such certain medical con-
firmation of her condition that she would quote her physician as advising her
to quit. Assuming that Huston made such a statement to Hull (the Examiner
is not convinced that Huston did at the time claimed by Hull) ,14 no sound reason
appears why Hull should have given such early implementation to the doctor's
advice. According to Hull, Huston was a "very good worker." The forelady
testified that she was short of almond sorters when the crew returned to work
on November 29. Bearing in mind Huston's occupational status, her qualities
as a worker, and the fact that it is common practice for women to continue to
work for months after they become pregnant, it seems strange that Hull would
select a period only a few weeks after Huston became pregnant to put into effect
the "advice" that Huston's doctor allegedly gave the sorter, particularly at a
witness did not know the reason. Paulo stated that Huston "would get sick" and go to
the rest room on two or three occasions but could not remember when it happened, nor did
she know the reason . Paulo herself would go to the rest room outside of recess periods "as
many times as necessary."
"Huston stated that she went to see a physician on November 27 or 28 and that
he told her to return on December 10, when he confirmed her pregnancy. Her November
dates are apparently inaccurate because she asserted that the sorters were off one day
and that she visited the doctor the following day. Although not clearly expressed, the
sense of her testimony is that the day "off" referred to was either the Wednesday (Novem-
ber 24) before Thanksgiving or the holiday itself, and that she went to the physician
the day after one.of those two days. If her use of the days off as a guide to memory
is accurate, that would place her initial visit to the doctor as occurring either on
November 25 or November 26.
84According to Hull ' s testimony , Huston made the relevant statement to the forelady
about 260 days before the baby's birth. As the normal period of gestation is approxi-
mately 280 days, the Examiner believes it more probable that Huston received medical
confirmation on December 10, as she claims, than that she received it at the early stage
of her condition suggested by Hull ' s testimony.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time when the plant was short of almond sorters." In the light of the credited
-evidence , the explanation of the reason for Huston 's discharge has the earmarks
of a posteriori emphasis rather than a credible statement of motive.
Turning to Backovich, the evidence is undisputed that she had an operation
in May 1948 and that after she returned to work, out of a total of 79 working
days during the period from July 31, 1948, to November 27, 1948, she was absent
25 days, or 31.6 percent of the working days The evidence is also substantially
undisputed that her absences were due to illness or visits to a physician. The
Respondent neither reprimanded nor warned her prior to her discharge that she
should improve her attendance record.
It is apparent from the foregoing review of the Respondent ' s several justifica-
tions for the dismissals that much of its supporting evidence is insubstantial,
some of it is improbable; and only in the case of Backovich is there certainty.
But assuming , arguendo , that all five sorters possessed either the disabilities or
shortcomings ascribed to them, the question would still remain whether those
were the actual reasons for the discharge . If they were not, and actual or
imputed organizational activity was the cause, the dismissals were discrimina-
tory and unlawful.
The credited evidence, much of which is undisputed, describes a pattern of
events which illuminates the Respondent's motivation. A brief statement of
the facts, as found above ; may summarize the Examiner 's conclusions. The
employees petition the Respondent for an increase late in September. Attinger
rejects it , asserting that if business conditions warrant, an increase will be
granted at some unspecified future date. After rejection of the request, half of
the employees evince a desire to walk out but do not do so because of the even
division of sentiment concerning the project among the employees . Brown,
who had typed the petition and presented it to the office manager, poses for
Attinger the possibiltiy of unionization, and he expresses hostility to the sug-
gestion. Attinger and Stiefvater, during the next 6 or 7 weeks, do not discuss the
employees' desire for an increase . Meanwhile some of the employees decide
to secure the assistance of a union to implement their request for more wages.
Turner undertakes to solicit information from a labor organization and, during
her sick leave, communicates with the Union and secures an authorization
form from it. She returns on November 15 and at the plant, apparently without
any particular effort to conceal her project from employees, at least, during the
ensuing week-solicits and secures the signatures of some employees. Substan-
tially contemporaneously with her organizational efforts, Keep calls Stiefvater
and tells him of the organizational events in the Fisher plant. Stiefvater sug-
gests discharge of employees as a corrective, but when Keep asserts that one
83 On November 29, Ella H. Rist , a former employee , was put to work in the almond
room . Rist had been on leave of absence for the entire . season to perform other work,
having been promised restoration of her job after completion of fuch work. Several
weeks before the dismissals, she met Hull and told the latter that her other work was
finished and that she would like to return to the plant . According to Rist, Hull promised
to reemploy her when an "opening" developed . Some time after Thanksgiving, Hull
communicated with Rist and told her to come to work on November 29. Although Rist
had been told she could return to work after termination of her other duties, the fact
is that she was not reemployed until an "opening" occurred and that Hull made the
'opening."
ac Hull asserted that there were times when Backovich would not notify her that she
would be absent . Backovich denied the allegation , asserting she had no telephone and
that when she could not attend because of illness, she would send word through her
daughter . In view of the findings made herein , a resolution of the disputed testimony is
unnecessary.
CONTINENTAL NUT COMPANY 1099'
"just can 't up and fire them for that ," Stiefvater agrees. While Stiefvater's
suggestion , standing alone, is not significant , in the light of the evidence , it casts
a revealing light on his attitude toward unionization and possible measures to
avoid it. Meanwhile , news of the organizational activity in the Fisher plant
spreads to the Respondent 's establishment , and employees there discuss the
matter and Hull participates in the discussions . The Respondent , already
aware of the organizational activity in the Fisher plant, also becomes aware
not only that there are discussions of unionization among its own employees,
but that a "union petition" is being circulated among them and that some of
them have signed it . Hull makes efforts to identify the signatories and those
responsible for the document 's circulation . The Respondent , concerned about
the existence of an organizational atmosphere in Chico's nut processing industry
and the organizational activity in progress in its own plant, decides to grant its
employees a wage increase and, through Hull , endeavors to learn what the em-
ployees would regard as satisfactory . The forelady , with some knowledge of
Turner's union sentiments , sounds the latter out on the subject on November
22, and later that day the Respondent grants an increase to its employees in
order to cause them to lose interest in organization of .the plant . On or about
the same day , Turner secures the signatures of a number of employees in the rest
room. The following day; Hull makes an effort to learn the names of those
associated with the "union petition ," and Turner tells the forelady that she has
"contacted a union man ." That afternoon Hull discharges Turner, Brown,
Owens, and Backovitch ; affirms to Turner that she is being discharged for union
activity , with the statement that Attinger had "put all the dirty work on to
me ;" and announces the layoff of the almond crew for the balance of the week,
accompanying the announcement with statements to the effect that the four
sorters had been discharged because of union activity , that the management
would get to the bottom of such activity in the plant , that other employees who,
had engaged therein would be dismissed , that it would find the "right ones" so
engaged if it had not already done so, and that the remaining almond , sorters
were to return on the following Monday unless they heard from Dull sooner,
in which event they would be discharged . Later that week Hull decides that
Huston is one of those who had been involved in union activity and abruptly
leaves the walnut room , proceeds to Huston 's home, and discharges her.
The Examiner accords no significance to the fact that at the time of their
dismissal , Backovich and Brown had not yet signed the authorization form or
that others who had signed ( Cox, Loftin , and Schroder and probably Morton and
Rabo ) were not dismissed or that Davidson who signed in December has not
been discharged . The Respondent had never seen the authorization form, and,.
in the light of credited evidence of Hull's remarks on the afternoon of November
23 and the undisputed fact of Huston 's discharge after the others, it is plain
that it had no precise information as to the identity of the signatories, but
assumed that those who were discharged were the "right ones." The facts are
that Turner was a ringleader in the organizational activity ; that Owens solicited
the signatures of employees ; that Turner was told that her activity was the
reason for her discharge ; that Turner , Owens , and Huston were signatories on
the authorization form ; and that Brown had previously manifested to Attinger
a possible interest in unionization and had played a leading role in processing
and forwarding to the management the employees ' request for an increase. In
the light of the credited evidence , it is of no moment that there is no proof that
Backovich participated in any organizational activity 67 That circumstance and
84 The Respondent points to the fact that when Backovich filled out a form in applying
for unemployment compensation on November 29, 1948, she wrote into the blank place pro-
.1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her undisputed record of absenteeism may not be viewed in isolated context, for
her discharge was inextricably interwoven with that of the others and she, like
them, was discharged because the Respondent imputed organizational activity
to her. A discharge based upon such an imputation is as discriminatory and
unlawful as one grounded on actual exercise of rights protected by the Act "
The Examiner finds that Turner, Brown, Owen, Huston, and Backovich were
'discriminatorily discharged in violation of Section 8 (a) (1) and 8 (a) (3) of
the Act.
IV. THE EFFECT OF TIIE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
,connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
.among the several States, and tend to lead to labor disputes burdening and
-obstructing commerce and the free flow of commerce.
V. THE REMEDY
In the opinion of the Examiner, the evidence reveals an underlying opposition
by the Respondent to the policies and objectives of the Act. The undersigned
finds that the unfair labor practices disclosed the record are closely related to
other unfair labor practices proscribed by the statute, and that a danger of their
commission in the future is to be anticipated from the conduct of the Respondent
in the past. In order to make effective the interdependent guarantees of Section
7, it is necessary, therefore, that the undersigned recommend to the Board that
its order be made coextensive with the threat of future disregard by the Respond-
ent of its statutory obligations. ,
Having found that the Respondent has engaged in unfair labor practices
violative of Sections 8 (a). (1) and (3) of the Act, the Examiner will recommend
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 discriminatorily discharged Aletha M.
Turner, Lena Brown, Esther Owens, Vera Backovich, and Margaret Huston, the
vided : "Laid off, lost time on acct. sickness." Backovich offered the explanation that
when she filled in the form., the clerk at the State office had inquired the reason for her dis-
charge, and that she had informed the clerk that the management had told her that she
had been laid off for absenteeism, whereupon the clerk told her to insert that as the reason.
The Respondent also presented testimony by Paivia that on some unspecified date she met
Owens in a grocery store and that Owens told Paivia that she had heard that she had been
discharged because she had a body odor. Owens, who places the conversation in December
1948, testified that, among other things, she told Paivia that she (Owens) had heard that
Paivia and Robinson had made a complaint to Hull concerning the alleged body odor ; that
Paivia inquired, "why, don't you know what you got laid off for ; that Owens responded
in the negative ; and that Paivia asserted, "That was because you signed the union paper."
'he Examiner attaches no importance either to the compensation form or to the Paivia-
Owens conversation (in either version). It is not unusual for discriminatorily discharged
persons to be unaware of the real reason for discharge. The very nature of the unlawful
act makes for concealment from the employee involved. It is not surprising that Backovich
and Owens would be unaware of the true reason for their dismissal, particularly during
the early part of the period following their discharge. Moreover, this is a proceeding
brought in the public interest and not a private controversy and the critical question is not
whether Backovich and Owens made admissions of the type ascribed to them, but whether
the Respondent had in fact violated the law in discharging them.
88 Des Moines, Springfield and Southern Route, 78 NLRB 1215 ; Industrial Cotton Mills
Co., 50 NLRB 855; Link-Belt Co., 12 NLRB 854 (Board's order enforced, 311 U. S. 584).
CONTINENTAL NUT COMPANY 1101
Examiner' will recommend that the Respondent offer the said individuals im-
mediate and full reinstatement to their former or substantially equivalent
positions bB without prejudice to their seniority and other rights and privileges
and to make them whole for any loss of pay they may have suffered, by reason
of the Respondent's discrimination against them, by payment, respectively, to
Aletha M. Turner, Lena Brown, Esther Owens, and Vera Backovich of sums of
money equal to the respective amounts which they would normally have earned
,as wages, but for the discrimination, from November 23, 1948, to the date of
the offer of reinstatement, less their respective net earnings during such period,
and by payment to Margaret Huston of a sum of money equal to the amount
which she would normally have earned as wages, but for the discrimination,
from November 26, 1948, to the date of the offer of reinstatement, less her net
earnings during such period.90
Having found that the Respondent has interfered with, restrained, and coerced
its employees, as described above in Section III of this Report, the Examiner will
recommend that the Respondent be directed to cease and desist from interfering
with, restraining, or coercing its employees, in any manner, in the exercise of
their right to self-organization, to form, join, or assist labor organizations, to
Join or assist Olive Cannery Employees, Fruit Processors, Warehousemen and
Helpers, Local 954, AFL, to bargain collectively through representatives of their
-own chosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or all of
such activities, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as authorized in Section
8 (a) (3) of the Act.
Upon the basis of the foregoing findings of fact and of the entire record in
:this proceeding, the undersigned makes the following :
CONCLUSIONS of LAW
1. Olive Cannery Employees, Fruit Processors, Warehousemen and Helpers,
-Local 954, AFL, is a labor organization within the meaning of Section 2 (5)
,of the Act.
2. By discriminating in regard to the tenure of employment of Aletha M.
'Turner, -Lena Brown, Esther Owens, Vera Backovich and Margaret Huston,
the Respondent discouraged membership in Olive Cannery Employees, Fruit
Processors, Warehousemen and Helpers, Local 954, AFL, a labor organization
within the meaning of the Act, in violation of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its said'employces in the
exercise of the rights guaranteed to them in Section 7 of the Act, the Respondent
has engaged in, and is engaging in, unfair labor practices, within the meaning
of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Sections 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
e' In accordance with the Board's consistent interpretation of the term , the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible, but 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.
D0 For a construction of the term; `net earnings ," see Crossett Lumber Company, 8 NLRB
440.