Fruit Growers Supply Co.

National Labor Relations Board - Board Decisions

Aug 3, 1942

42 N.L.R.B. 1218 (N.L.R.B. 1942)

In the Matter of FRUIT GROWERS SUPPLY COMPANY and INTERNA-
TION AL WOODWORIcERS OF AMERICA, C. I 0
Case No C-OU43-Decided August 3, 1042
Jurisdiction : lumber and lumber products manufactuiing industry
Unfair Labor Practices
Company-Dominated Union based upon Tiial Examinei' s findings that em-
ployer had dominated and inteifered with formation and administration of
organization by suggesting its formation, participating in its activities through
supervisory employees, contributing support thereto, and executing prefer-
ential and check-off contract with such organization
Remedial Orders : requiring disestablishment of organization and abrogation of
contract, based upon findings and entire record including stipulation
Mr John Paul Jennings, for, the Board
Farr and ct Farrand, by Mr George E Farrand, of Los Angeles,
Calif , and Mr Hardin Barry, of Susanville, Calif , for the respondent.
Mr Cle/Jord E Gehrt and Mr Don F. Allen, of Susanville, Calif.,
for the Alliance
Mr Howard Dyer, of Janesville, Calif , for the I W A
Mr Raymond J Heilman, of counsel to the Boai d
N
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by International Woodworkers of America,
affiliated with the Congiess of Industrial Organizations, heiein called
the I W A, the National Labor Relations Board, herein called the
Board, by the Regional Directoi for the Twentieth Region (San Fian-
cisco, California), issued its complaint dated December 10, 1941, against
Fruit Growers Supply Company, Susanville, California, herein called
the respondent, alleging that the respondent,had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Na-
tional Laboi Relations Act, 49 Stat 449, heieun called, the Act.
Copies of the complaint and notice of hearing thereon were duly
sei ved upon the respondent, the I W A, and California Pine Work-
42 N L R B, No 224
1215
FRUIT GROWERS SUPPLY COMPANY 1219
ers Alliance, a labor oigamzation alleged to be dominated by the
iespondent and herein called the Alliance
With respect to the unfair labor practices, the complaint, as amended
without objection at the hearing;, alleged in substance that the re-
spondent initiated and instigated the formation of the Alliance at its
Susanville mill and continuously thereafter, dominated, mteifere 1
with and contributed financial and other suppoit to, the Alliance by
(1) permitting and encouraging active supervisory participation in
the affairs of the Alliance, (2) permitting and encouraging activities
on behalf of the Alliance on the respondent's property and time, (3)
entering into and maintaining an agreement according preferential
treatment to membeis of the Alliance with respect to terms and condi-
tions of employment and granting the Alliance free use of the respond-
ent's bulletin boards, (4) assuming the expenses incidental to the
operation of the Alliance and donating moneys toward a fund main-
tamed by the Alliance, and (5) unilaterally and on its own initiative,
instituting and maintaining a check-off system for the collection of
dues and initiation fees of the Alliance
On February 16, 1942, the respondent filed its answer, denying that it
had darn mated or inter fei ed with the formation or administration of
the Alliance, or contributed support to it and admitting that certain
of its supervisory employees became members of the Alliance; that it
has maintained a check-off system for the collection of Alliance dues;
that it entered into a collective bargaining agreement with the Alliance
which included certain provisions concerning seniority rights, that it
furnished a bulletin board for the use of the Alliance and that it fur-
nished a hall to the Alliance without charge prior to May 31, 1937, and,
theieafter, at a rental of $1.00 per month, and averring that it lacks
information as to whether or not any of its moneys were used to pay'
expenses of the Alliance
The Alliance, although served with a copy of the complaint and
notice of hearing, filed no answer
Pursuant to notice, a hearing was held at Susanville, California,
on March 4, 1942, before Thomas S Wilson, the Trial Examiner duly
designated by the Chief Trial Examiner The Board and the re-
spondent were represented by counsel and the I W A and the Alli-
ance, by their president and secretary, all parties participated in the
hearing Full opportunity to be heaid, to examine and cross-ex-
amine witnesses, and to introduce evidence bearing on the issues as
afforded all pai ties ,
At the close of the Board's case on March 4, 1942, the respondent,
the I W A, and counsel for the Board entered into a stipulation in
settlement of the case, subject to the approval of the Board The
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alliance, although not a party to the stipulation, did not object to
its admission in evidence 1 The stipulation provided as follows
IT IS HEREBY STIPULATED between Fruit Growers Supply Com-
pany, Respondent herein, by its attorneys, Farrand and Farrand,
International Woodworkers of America, C I 0 , herein called the,
Union, and John Paul Jennings, Attorney, National Labor Rela-
tions Board, as follows
I
Respondent is and has been since October 2, 1907, a corporation,
with its principal office and place of business at Los Angeles,
California, and a place of business at Susanville, California, here-
in called the Susanvrlle plant The Respondent is engaged in the
manufacture of lumber and lumber products and in connection
therewith operates a lumber mill at the Susanville plant
During the calendar year ending December 31, 1941 Respondent
cut approximately 70,000,000 board feet of lumber at its Susanville
plant. During this same period Respondent shipped from its
Susanville plant to destinations outside of the State of California
lumber and lumber products amounting to approximately 15,-
000 000 board feet, and shipped to 'destinations within the State
of California during such period, lumber and lumber products
amounting to approximately 44,000,000 board feet. The lumber
shipped to destinations within the State of California consisted of
box shook, used to make boxes in which to pack fruit. A substan-
tial amount in excess of seventy-five (75) percent of the fruit prod-
ucts packed in the boxes made from lumber produced in Respond-
ent's Susanville plant is shipped to points and places outside the
State of California.
For the purposes of this proceeding, and not otherwise, Re-
spondent admits that its' operations affect commerce within the
meaning of Section 2 (6) and (7) of the National Labor Relations
Act
II
1. International Woodworkers of America is, and at all times
hereinafter mentioned was, a labor organization affiliated with
'The Alliance was a party to the proceeding and appeared at the hearing through rep-
resentatives w ho were present throughout and who participated to the extent of stating
that the Alliance did not intend to file an answer to the complaint , and declining to
cross-examine witnesses and by stating that it did not object to the admission of exhibits
in evidence The stipulation was received in evidence after the Alliance stated that it
had no objection to the admission thereof in evidence The Alliance did not object to
the closing of the hearing after the receipt in evidence of the stipulation in settlement
of the case -
1
FRUIT GROWERS SUPPLY, COMPANY ' 1221
the Congress of Industrial Organizations, and is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2 The California Pine Workers Alliance, an unaffiliated labor
organization, hereinafter called the Alliance, is and at all times
hereinafter mentioned was, a labor organization within the mean-
ing of Section 2 (5) of the Act, admitting to memberhip employees
of Respondent at its mill in Susanville.
III
All the parties hereto waive their right to any further hearing
herein, and agree that the charge, complaint, and notice of hearing,
affidavit as to service of said complaint and notice of hearing,
answer of Respondent, this Stipulation, the transcript of evidence
heretofore taken herein, and all exhibits introduced in evidence,
shall constitute the entire record in this case.
IV
Without admitting that the unfair labor practices alleged in
the complaint or referred to in the form of order set forth below
have been committed by any of the parties hereto, and expressly
on the understanding that nothing contained in this Stipulation
or in the order or decree provided for herein shall be construed
as an admission or finding, expressed or implied, that any such un-
fair labor practices have been committed by any of the parties
hereto, the parties join in this Stipulation to the end that this
matter may be amicably and promptly settled Upon the entire
record in this proceeding including this Stipulation, if and when
approved by the National Labor Relations Board, an order may
be foithwith entered by the Board as follows.
1. Respondent, Fruit Growers Supply Company, its officers,
agents, successors and assigns, shall not :
(a) Dominate or interfere with the administration of the Cali-
fornia Pine Workers Alliance or dominate or interfere with the
formation or administration of any other labor organization of
its employees, or contribute financial or other support to Cali-
fornia Pine Workers Alliance, or, to any other labor organization
of its employees.
(b) Recognize the California Pine Workers Alliance as a
representative of any of its employees for the purposes of collec-
tive bargaining -
(c) Give effect to or perform any contracts or arrangements
with California Pine Workers Alliance or any modification or
extension thereof.
1222 DECISIONS OF ' NATIONAL LABOR RELATIONS BOARD
(d) In any other manner interfere with, restrain, or coerce its
employees in the exeicise of their right to form, join or assist labor
organizations, to bargain collectively through representatives of
their own choosing and to engage in concerted activities for the
puiposes of collective bargaining or other mutual aid or protec-
tion ;
2 Respondent, Fruit Growers Supply Company, its officers,
agents, successors and assigns, shall take the following affirmative
action to effectuate the policies of the National Labor Relations
Act
(a) Withdraw all recognition, from the California Pine
Woikers Alliance as a representative of any of its employees for
the purpose of dealing with Respondent conceiving grievances,
labor disputes, wages. rates of pay, hours of employment or other
conditions of employment; and disestablish the California Pine
Workers Alliance as such represeirtative
(b) Post immediately in conspicuous places at its Susanville
plant and maintain for a period of at least 60 consecutive days
from the date of posting, notices to its employees stating •- (1)
That the Respondent will not engage in the conduct prohibited by
Paragraphs 1 (a), 1 (b), 1 (c) and 1 (d) of this Oider; (2)
That the Respondent will take the affirmative action set forth in
Paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Twentieth Region in
writing within twenty days from date of this Order,-of the steps
taken by Respondent to comply herewith
V
After the entry of the Order by the National Labor Relations
Board as provided in Pararaph IV hereof, there may be entered
in the United States Circuit Court of Appeals for the Ninth
Circuit, a decree by said Court enforcing said Order in full, and
each of the parties hereto hereby consents to the entry of said
decree and hereby waives prior notice thereof
VI
This agreement and full performance by Respondent thereof
shall be in full settlement of all charges of unfair labor practices
now, or hereafter, alleged to have occurred at any time prior to
the date of this Stipulation.
VII
It is expressly understood and agreed that this Stipulation is
subject to the approval of the National Labor Relations Board.
FRUIT GROWERS SUPPLY COMPANY 1223
VIII
This Stipulation contains the entire agreement 'between the
parties heieto and theie is no understanding, oral or written, add-
ing to or in anywise altering the provisions of this Stipulation
On March 24, 1942, the Trial Examiner issued his Intermediate Re-
port, copies of which were duly served upon all parties, in which he
found that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8
(1) and Section 2 (6) and (7) of the Act He recommended that the
respondent cease and desist theiefrom and take certain affirmative ac-
tion deemed necessary to effectuate the policies of the Act No excep-
tions weie filed to the Intermediate Report, and no request for oral
argument was made by any of the parties.
On March 25, 1942, the Board issued an order transferring the case
to the Board, and on July, 20, 1942, having duly considered the matter,
the Board issued an order approving the stipulation and making it a
part of the record in the case
On the basis of the above stipulation and the entire record in the
case, the Board makes the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Fruit Growers Supply Company is and has been since October 2,
1907, a corporation with its principal office and place of business at Los
Angeles, California, and a place of business at Susanville, California,
herein called the Susanville plant The respondent is engaged in the
manufacture of lumber and lumber products and, in connection there-
with, operates a lumber mill at the Susanville plant, involved in this
proceeding During the calendar year ending December 31, 1941, the
respondent cut approximately 70,000,000 board feet of lumber at its
Susanville plant During this same period the respondent shipped
from its Susanville plant to destinations outside the State of California
lumber and lumber products amounting to approximately 15,000,000.
board feet, and shipped to destinations within the State of California
during'such period lumber and lumber products amounting to approx-
imately 44,000,000 board feet' The lumber shipped to destinations
within the State of California consisted of box shook used to make
boxes in which to pack fruit A substantial amount in excess of 75
percent of the fruit products packed in the boxes made from lumber
produced in the respondent's Susanville plant is shipped to points
and places outside the State of California The respondeiit admitted,
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for purposes of the present proceeding, that its operations affect,com-
inerce, within the meaning of Section 2 (6) and (7) of the Act.
We find that the above-described operations of the respondent con-
stitute a continuous flow of trade, traffic, and commerce among the
several States
II THE UNFAIR LABOR PRACTICES
Upon the entire record in the case, we find as follows with respect
to the unfair labor practices, as did the Trial Examiner :
Prior to June 1933, the Susanville employees of the respondent were
unorganized. In June or July of that year, at the instance of D S.
Painter, manager of the respondent's lumber division, the respondent's
employees were summoned to a meeting on company property at which
Painter introduced organizers for the Loyal Legion of Loggers and
Lumbermen, hereinafter called the 4-L, a labor organization composed
jointly of employees and employers, saying that he felt that both the
employees and the respondent would be benefited by having the 4-L
organization in Susanville After this introduction, the 4-L organ-
ir.ers attempted to institute a chapter of that organization among
the respondent's employees. However, either at this meeting or at a
later one, E B Birmingham, the respondent's resident manager at
Susanville, expressed to the employees his opinion that the employees
should form their own labor organization rather than join either the
4-L or the A. F of L In conformity with this suggestion and with
the approval of Painter, the employees did form the Alliance in August
1933 ,
The constitution and bylaws of the Alliance as adopted provided
inter alia that each applicant for membership therein "must be an
employee of a lumber concern" and must be "American citizens" or
have applied for "citizen papers within the last two years." The elec-
tive officers were the president, vice president, secretary and treasurer,
and a conference committee composed of three individuals, one elected
from three separate departments of the respondent's plant. The con-
stitution further provided that "no member of this [conference] com-
mittee shall have the authority to hire or discharge from employment "
This constituted the only restriction placed upon the participation of
supervisory employees in the Alliance.
Employees signed Alliance membership application cards on Com-
pany property during working hours In 1937, at the suggestion of
the respondent, the employment manager gave, the "Code of Ethics"
of the Alliance to each new employee as he was accepted by the re-
spondent for employment
With one possible exception all of the respondent's foremen having
authority to hire and fire became members of the Alliance 'and paid
FRUIT GROWERS SUPPLY COMPANY 1225
their dues of 25 cents per month to it These foremen took an active
part in the affairs of the Alliance, both in elective and appointive posi-
tions On May 20, 1938, however, the Alliance notified 14 of these
foremen that they were being dropped from membership due to deci-
sions of the Board "regarding the rights of those holding executive
positions to be members of a union " Regardless of this, Homer Clark,
whom the respondent acknowledged to be a foreman having authority
to lure and fire, was elected president of the Alliance for the year
ending August 1941. Besides participating actively in the Alliance,
Sutton, a foreman, in 1938 warned employee Joseph W Lewis to
keep his "mouth shut" about unions other than the Alliance
Practically without exception, all meetings of the Alliance since its
inception in 1933 have been held in company-owned buildings From
1933 until May of 1937, the respondent donated, rent free, one-half of
the second floor of the Story Building 2 for the use of the Alliance.
In May 1937, the respondent informed the Alliance that, due to the Act,
it could no longer donate this space to the Alliance, and that it would
have to charge the Alliance $12 a year rental The other half of the
second floor of the Story Building was donated by the respondent to
F. G. S. Ladies Club. This organization has on occasions rented its
share of the floor to outside persons for a rental of $5 per meeting. It
therefore appears that the rent charged by the respondent to the
Alliance was for the purpose of appearing to comply with the Act
At no time since the formation of the Alliance have the employees'
of the respondent at Susanville been afforded the opportunity freely to
choose their bargaining representative However, at the request of
Birmingham made prior to April 2, 1934, the Alliance presented the
respondent with a proposed working agreement After some negotia-
tions regarding this proposed contract, the Alliance and the respondent
executed a working agreement dated December 1, 1934 T11is contract
remained in full force and effect until superseded by a very similar
contract between the same parties dated April 30, 1938. Among other
provisions, this latter contract contained the following :
ART1ci.E V
*
Any employee having been employed by the Company for one
year or more, upon joining the union '[the Alliance], shall have
seniority recognition after having been a member of the union
ninety days New employees, upon joining the union, must wait
six months before their seniority begins.
* * * * *
2 The Story Building is owned and operated by the respondent
1226 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
All men laid off and all men notified by their foreman they are
to be laid off will report to the Employment Manager immediately,
and he will make replacements by length of service with the Com-
pany, with the understanding that union men be given preference
in all hiring. ,
It shall be left to the option of the union as to whether married
or single men shall have preference of replacements and shall be
decided by the Conference Committee.
Those men not reporting immediately to the employment office
shall lose rights up until the day of their application and take
their turn after all others ahead of them have been placed, provid-
ing those ahead are all C. P W A [Alliance] members. C P. W.
A members shall rate over non-members at all times
ARTICLE XI
The employer shall grant the Alliance permission to place notices
covering matters pertaining to affairs of the Alliance on its Bul-
letin Boards at the various time clocks
* * * * * *
ARTICLE XV
Whenever the wage scale is changed at the Fruit Growers
Supply Company, the California Pine Workers' Alliance, Local
No 1, trustees, shall go over the wage scale with the Company
officials before it is put into effect No employee shall be put on a
salary in order to work him excessive hours
* * * * * *
ARTICLE XXI
*
Alliance members shall be given preference in the matter of
promotion and work
In view of these provisions of the contract and the attitude of the
respondent, it was natural that employees who desired to continue to
work for the respondent should loin the Alliance in order to secure
"preference" in promotion and work
It should also be noted that these working agreements, contained
no wage scales or any agreement regarding the hours of work At its
meeting on June 29, 1934, the Alliance decided to accept the 1934 con-
tract without any such wage scale "as we could not do much about
wages " The record also shows that Painter suggested that the 1938
contract should be executed by the respondent immediately in order
FRUIT GROWERS SUPPLY COMPANY 1227
that the respondent could have it accepted and signed by the Alliance
"at the time of the contemplated wage adjustment "
In August 1935, the Alliance granted representatives of the 4-L
organization permission to address the employees at a regular Alliance
meeting, when requested so to do by Birmingham
Aside from the above proof of domination and interference, the
record-also shows that the respondent contributed financial assistance
to the Alliance Beginning in October 1933 and continuing to the date
of the hearing, the respondent has checked off dues for the Alliance
from the wages of its members Although both the 1934 and 1933
contracts contained the check-off provision, it is to be noted that the
respondent began this. practice even prior to the execution of its first
contract with the Alliance and even though the respondent knew in
1934 that the Alliance represented less than a majority of the em-
ployees
The bylaws and constitution of the Alliance provided that 10 cents
of the 25-cent dues should "be set aside as a relief fund " This relief
fund was used to benefit and assist sick and indigent employees. From
January 1934 until May 1937 the respondent "matched" the amount of
the employees' contributions to this so-called welfare fund The min-
utes of October 18, 1933, of the respondent's Operating Committee read
as follows
Under the name of California Pine Workers Alliance, an organ-
ization had been formed with approximately 50% of the men as
members, dues of 250 a month and of this, 100 is set aside to
create a welfare fund
Had the employees organized under the Loyal Lodge of Loggers
and Lumbermen, the Supply Company would be required to pay
250 a month for each employee member It was Mr Birmingham's
thought that the Supply Company should match the 10$ a month
contributed to the welfare fund, but that such contribution should
be deferred until the first of the year, pending the satisfactory
development of the organization, the contribution then to be retro-
active This suggestion received the unanimous approval of the
Committee
On December 19, 1933, apparently finding that "the development
of the organization" had been "satisfactory," the Operating Committee
agreed that the Supply Company would "match the donations of its
employees to this [welfare] fund, retroactive to the start, until such
time as the fund no longer needs assistance " Thereafter the respond-
ent made monthly contributions to this Alliance fund 'Until May 1937
when, because of the Act, the respondent ceased making such contri-
butions During that period, the respondent donated to the Alliance
1228 DECISIONS OF NATIONAL LABOR "RELATIONS BOARD
the sum of $1,057, a substantial portion of which was contributed after
July 5, 1935
Early in 1940, the Alliance requested permission of the respondent
to be allowed to have Coca-Cola vending machines installed in the
plant and to collect the revenue therefrom for its own treasury. The
respondent refused this request on the grounds that such contributions
might be construed as being in violation of the Act. However, the
respondent allowed the machines to be installed, but provided that the
proceeds therefrom go to the Ladies'Club. This amounted to indirect
financial assistance to the Alliance, as the $90 received by the Ladies
Club from the Coca-Cola machines in 1940 relieved the Alliance of the
necessity of financing the annual Clii istmas tree party given by the
Ladies Club This party had been financed by the Alliance for several
years prior thereto.
We find that, by the above acts, the respondent has dominated and
interfered with the formation and administration of the Alliance and
has contiibiited financial and other support to it, thereby interfering
with, restraining, and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act We further find that the Alliance
is incapable of serving as a free collective bargaining agency of the
employees and that the contracts granted to the Alliance by the re-
spondent are not the result of bona fide collective bargaining between
the respondent and the freely designated representative of its em-
ployees, but were executed by the respondent in furtherance of its
program to foster the Alliance
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, including the stipulation, the Board makes the fol-
lowing::
CONCLusIONs OF LAW
1 International Woodworkers of America, C I O , affiliated with
the Congress of Industrial Organizations, and California Pine Workers
Alliance, unaffiliated, are labor organizations, within the meaning of
Section 2 (5) of the Act
2 By dominating and interfering with the formation and adminis-
tration of California Pine Workers Alliance and by contributing finan-
cial and other support to it, the respondent has engaged in and is
engaging in unfair labor practices, within the meaning of Section 8
(2) of the Act.
3 By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed by Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4 The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act
I FRUIT GROWERS SUPPLY COMPANY 1229
ORDER
Upon the basis of the above findings of fact, conclusions of law, the
stipulation, and the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor Rela-
tions Board hereby orders that
1 The Fruit Growers Supply Company, its officers, agents, suc-
cessors, and assigns, shall not
(a) Dominate or interfere with the administration of the California
Pine Workers Alliance or dominate or interfere with the formation or
administration of any other labor organization of its employees, or
contribute financial or other support to California Pine Workers
Alliance, or to any other labor organization of its employees;
(b) Recognize the California Pine Workers Alliance as a representa-
tive of any of its employees for the purposes of collective bargaining;
(c) Give effect to or perform any contract or arrangement entered
into by the respondent with California Pine Workers Alliance or
any modification or extension thereof, provided, however, that this
piohibition shall not affect or prejudice any rights which any of the
employees may have under or by virtue of any such contract or
ari angement,
(d) In any othei manner interfere ii ith, restrain, or coerce its em-
ployees in the exeicise of their right to form, join, or assist labor organ-
izations, to bargain collectively through repiesentatives of their own
choosing and to engage in concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection
2 The respondent, Fiuit Growers Supply Company, its officers,
agents, successors, and assigns, shall take the following affirmative
action to effectuate the policies of the Act'
(a) Withdraw all recognition from the California Pine Workers
Alliance as a representative of any of its employees for the purpose
of dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment or other conditions of em-
ployment, and disestablish the California Pine Workers Alliance as
such representative;
(b) Post immediately in conspicuous places at its Susanville plant,
and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating : (1) that the
respondent will not engage in the conduct prohibited in Paragraphs
1 (a), (b), (c) and (d), above, and (2) that the respondent will take
the affirmative action ordered in Paragraph 2 (a) above ;
(c) Notify the Regional Director for the Twentieth Region in
writin g within twenty (20) days from the date of this Order what
steps the respondent has taken to comply herewith.