General Dehydrated Foods

National Labor Relations Board - Board Decisions

Dec 4, 1942

45 N.L.R.B. 1027 (N.L.R.B. 1942)

In the Matter of FRED F. KNIPSCI-IILD AND J. R. SIMPLOT, CO-PARTNERS,
DOING BUSINESS UNDER THE NAME AND STYLE OP GENERAL DEHYDRATED
Foons and CANNERY WORKERS UNION, LOCAL No. 21634, A.F. OF L.
Case No. C-2358.-Decided Dece'imber 4, 19440
Jurisdiction : vegetable dehydrating industry.
Unfair Labor Practices
interference, Restimnt, and Coercion: anti-union statements by supervisory em-
ployees ; attempt to form "inside" union.
Diser nianatiov: discharge of two employees found discriminatory.
Collective Bargaining: charges of, dismissed where, after admitted refusal to
bargain, respondents thereafter bargained in good faith.
Remedial Orders: cease and,,desist unfair labor practices, employees discrimi-
nated iigaiist who did,not desire reinstatement awarded back pay from date
of their discharge to date they received the jobs which they held at the time
of the hearing.
DECISION
AND
ORDER
.On October 1942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondents
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take cer-
tain affirmative action as set out in the copy of the Intermediate Report
attached hereto... Thereafter the respondents filed exceptions to the
Intermediate Report and a brief in support of the exceptions. The
Board has considered the rulings of the Trial Examiner at the hear-
ing and finds that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner except as noted below. •
The Trial Examiner found that the respondents, on January 22,
1942, and at all times thereafter, refused to bargain collectively with
the Union as the exclusive representative of their employees in an ap-
propriate unit. In their answer to the complaint, the respondents ad-
mitted having refused to'bargain on various occasions between January
22 and March 10, 1942, averring, however, that they had in good
45 N L R. B. No 145.
1027
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
faith bargained collectively with the Union at all times after March
10. The record shows that in April the respondents met with the Union
and negotiated with it regarding the terms of a proposed contract.
The action of the respondent Knipschild in suggesting to employees
_the formation of a "union of their own," shortly after April 15, 1942,
creates some doubt as to the respondents' good faith in these nego-
tiations. However, the evidence shows that Knipschild promptly re-
tracted his suggestion for the formation of an unaffiliated union and
that the respondents thereafter had further conferences with the Union
and fully disclosed to it certain problems which seriously affected the
future prospects of their business. It is apparent that the respondents
were then uncertain whether they would continue in the same enter-
prise with certain improvements requiring new capital and the re-
training of personnel, or institute an altered type of operation, or go
out of business altogether. We think it is clear from the testimony
of Galbreath and Westfall that the Union agreed to await the respond-
ents' decision concerning these problems before insisting upon further
negotiations. In the circumstances, we are of the opinion that the
respondents bargained with the Union in good faith during the final
phase of the negotiations, prior to the closing of the plant and the
dissolution of the partnership. Consequently, we do not consider that
the respondents' conduct, in its entirety, constituted a refusal to bar-
gain within the meaning of the Act. We shall, accordingly, dismiss
the complaint insofar as it alleges that the respondents violated Sec-
tion 8 (5) of the Act.
ORDER
Upon the entire record in ' the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents , Fred F. Knipschild and
J. R. Simplot , co-partners doing business under the name and style
of 'General Dehydrated Foods , jointly and severally , their officers,
agents, successors, and assigns , shall :
1. Cease and desist from :
(a) Discouraging membership in Cannery Workers Union, Local
No. 21634, affiliated with the American Federation of Labor, or any
other labor organization of their employees , by discriminating in re-
gard to hire or- tenure of employment , or any term or condition of
employment;'
(b) In any other manner interfering with, restraining , or coercing
their 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 purposes of collective bargaining or other mutual
FRED F. KNIPSCHILD 1029
aid and protection, as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole D. L. Bates and Harvey M. Atkison for any loss
of earnings they have suffered by reason of the respondents' discrimi-
nation against them by payment to each of them of a sum of money.
equal to that which each would normally have earned as wages from
the date of his, discharge to the date when he secured the job which
lie held at the time of the hearing in this matter, less his net earnings
during such period;
(b) Post immediately in conspicuous places throughout their plant-
and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to their employees stating: (1) that the
respondents will not engage in the conduct from which they are ordered
to cease and desist in paragraphs 1 (a) and (b) of this Order; (2)
that they will take the affirmative action set forth in paragraph 2 (a)
of this Order; and (3) that the employees of the respondents are free
'to become or remain members of Cannery Workers Union, Local No.
21634, affiliated with the American Federation of Labor, and that the
respondents will not discriminate against any employee because of
membership in or activity on behalf of that organization;
(c) Notify the Regional Director for the Twentieth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondents have taken to comply herewith.
IT is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the respondents refused to bargain
with the Union.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. LeRoy Marceau, for the Board.
Mr. B. J. Galbreath, of Yuba City, Calif., for the respondent
Mr. Raymond V. West fall, of Oroville, Calif., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly ,filed on April 4, 1942,' by Cannery Workers
Union. Local No. 21634, A F. of L, herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director for the
Twentieth Region (San Francisco, California) issued its complaint dated May
'Original charge filed February 4, 1942
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
21, 1942, against Fred F Knipschild and J R Simplot, co-partners doing busi-
ness under the name and style of General Dehydrated Foods, herein called the
respondents, alleging that the respondents had engaged in and were engaging
in unfair labor practices within the meaning of Section 8 (1), (3) and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449 , herein
called the Act.
With respect to the unfair labor practices, the complaint alleged in substance
(1) in January and February, 1942 the respondents through their supervisory
employees made statements to employees designed to discourage membership
in the Union; (2) the respondents discharged D. L Bates and H. M Atkison
on January 27 and 28, 1942, respectively, because of membership in and activity
on behalf of the Union; (3) on specified dates in January, February, and March
1942 the respondents refused to bargain collectively with the Union, although
the Union at such times had been selected as collective bargaining agent by a
majority of the respondents' employees within an appropriate unit, and (4) by
the above acts the respondents have interfered with, restrained, and coerced
their employees in the exercise of rights guaranteed in Section 7 of the Act.
The complaint and accompanying notice of hearing were duly served upon
the respondents and the Union.
In their answer the respondents denied that their supervisory employees
had uttered anti-anion statements; denied that Bates and Atkison were dis-
charged for union membership or activity ; alleged that Bates was discharged
for cause, and that Atkison quit his employment ; admitted the refusal to
bargain on the specified dates, but averred that they thereafter recognized
and bargained with the Union; and further alleged that the co-partnership
was dissolved, and the dehydration of vegetables ceased on May 27, 1942; that
part of the equipment was removed, and that the dehydrator thereafter was
to be operated by Fred F. Kuipschild upon products which would not be
shipped by him in interstate commerce.
Pursuant to proper notice, a hearing was held in Yuba City, California, on
June 4, 5, 6, 8 and 9, 1942, before the undersigned, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the respondents
were represented by counsel, the Union by its business representative. All
participated in the hearing and were afforded full opportunity to be heard,
to examine and cross-examine witnesses and to introduce evidence bearing on
the issues.
At the end of the hearing counsel for the hoard moved to conform the com-
plaint to the proof. The motion was granted. Counsel for the Board and
respondents' counsel argued orally at the conclusion of the hearing. Oppor=
tunity to file briefs with the Trial Examiner, extended to the participants,
was waived.
Upon the entire record in this case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENTS
The respondents, a partnership composed of Fred F. Knipschild and J. R.
Simplot, were engaged from December 19, 1941, to May 27, 1942, in the business
of dehydrating vegetables at their plant in or near Yuba City, California.
While so engaged the respondents processed vegetables valued at more than
$100,000 of which approximately 50 percent was shipped out of the State of
California. The respondents concede that during the above period they were
FRED F. KNIPSCHILD 1031-
engaged in interstate commerce , and were subject to the jurisdiction of the
Board. At the time of the hearing the partnership had ceased operations and
had been dissolved . Knipschild , one of the partners , testified that he, as an
individual, proposed to use the buildings and land formerly used by the partner-
ship in its operations , for the dehydration of prunes . He had not commenced
these operations at the time when the hearing concluded.
II. THE ORGANIZATION INVOLVED
Cannery Workers Union , Local No. 21634 , is a labor organization affiliated
with the American Federation of Labor. It admits to membership production
and maintenance employees of the respondents.
III THE UNFAIR LABOR PRACTICES
a. Interference , restraint and coercion
On the evening of January 21, 1942, Raymond V. Westfall and John Medina
business representative and organizer of the Union respectively , signed up a
large number of the employees of the respondents for membership in the Union
at the plant as they changed shifts. On the following day Westfall first met
with Fred F. Knipschild and requested recognition of the Union as the bargain-
ing agent for the employees . The union representatives continued their organ-
izing efforts among the respondents' employees, and signed up additional
employees in the Union . Knipschild testified that he knew of the efforts of
Westfall and Medina to organize the employees.
D. L. Bates, one of the respondents ' employees, signed an application for
membership in the Union when Westfall and Medina first appeared at the
plant-. During the latter part of 1941 Bates had suggested to the business
representative of the Union that the respondents ' plant should be organized.,
Shortly after Bates signed the application for membership in the Union, he
showed his foreman, Barrie P. Rogers , his union membership book. Not long
thereafter Rogers discussed the Union with Bates. According to Bates, Rogers
said, "Well, Fred will never go for it [the Union ]. He has said time and
again that he would never go union; that he would close the plant and turn
it over to the Government before he would do that." Rogers , although called
to testify concerning other natters , was not questioned about the above state-
ments. Employee Harvey M. Atkison also, credibly testified without contra-
diction that Rogeis made a similar statement to him about the time that
organization commenced at the plant.
Will. B. Clark , another employee , credibly testified that when organization
at the plant commenced , Rogers told him and 8 or 10 other employees that
Knipschild would close the plant before he would let it "go union ," and that if
the men expected to hold their jobs they had better not sign up with the
Union, or let Knipschild find out about it.
Employee Eugene Grammer testified that in March Rogers told him that
he was getting "big-mouthed" like "Hot Shot" Howard , another employee, and
if he didn ' t "shut up" about the Union he might'lose his job . As in'the case
of the Bates conversation Rogers was not examined about the above testimony
of Atkison , Clark and Grammer . The undersigned credits the testimony of
Bates, Clark, Atkison and Grammer and finds that Rogers made the statements
as outlined by them.
Oliver Howard, an employee and member of the Union , testified that around
the first of February he had a conversation with Foreman Martin Dewey at
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which Knipschild was present, and that during the conversation Dewey asked
him if he was going to join the Union, to which he replied-that he was already
a member, and that Dewey then said in substance that anyone would be
crazy to pay $25 or $30 to join the Union. Dewey denied that he made the
statement to Howard. He did testify that Howard told him that the latter
was a member of the Union, and also stated that in his (Dewey's) opinion it
wouldn't cost ' $25 to join the Union, although he denied any knowledge of the
amount of the union initiation fee. Knipschild, although present at this
conversation, was not questioned about Howard's testimony. In view of
Dewey's admissions and the absence of rebuttal of Howard's testimony by
Knipschild, who heard' the conversation, the undersigned is of the opinion
and finds that Dewey made the statement as testified by Howard.
Sometime about the middle of April, 1942, just 4 or 5 days after Knipschild
had concluded a tentative agreement with the Union, which he had initialed
and sent to his partner for approval, Knipschild approached a number of his
employees including Joe Wheeler, James King, Seth Fuston. Each testified
in substance that Knipschild suggested to them that they discuss with other
employees the formation of a union of their own, stating that he would be
willing to give them the same contract that he was negotiating with the A. F.
of L. except that the wages for women employees would be 2 cents per hour
lower; that the A. F. of L. contract would not'be legal until it was signed by
his partner, and pointed out to them that by forming a union of their own the
employees could save initiation fees and dues. When King asked about the
Union, Knipsehild told him that he had it "fixed" with Westfall. Knipschild
substantially corroborated the testimony of Wheeler, King, and Fuston, and ad-
mitted that he talked with them concerning the formation of a union of their
own. He took this action against the advice of his counsel, and gave what
appears to the undersigned to be an incredible explanation for his action.2 The
reasons, however , are unimportant, the important fact is that he did suggest to
his employees that they abandon the Union, and form an organization of their
own.
The undersigned finds that the respondents, by threatening to close the plant
if the employees joined the Union ; by warning the employees that they would
lose their jobs if they joined the Union ; by threatening them with discharge
if they did not cease their activities in behalf of the Union, by telling employees
that anyone would be crazy to pay $25 or $30 to join the Union ; by urging em-
ployees to abandon the Union and to form a union of their own, and by promising
them certain concessions if they did so, have interfered with, restrained and
coerced their employees in the exercise of the rights guaranteed in Section 7
of the Act.
2 Knipschild testified that he suggested the formation of an emoplyees' union after receiv-
ing a call from a Mr Morrison, president of the Yuba City Chamber of Commerce. Accord-
ing to Knipschild , Morrison advised him that he had received information from a mutual
friend of his and the president of the A F. of L. Teamsters Union, to the effect that
attempts to organize the respondents ' plant by the C. I. 0. were impending ; that the
Teamsters ' official was of the opinion that it would be better to have an unaffiliated union
in the plant than the C 1 0 , and that if Knipschild would interest the employees in a
union of their own, the Teamsters' official would "take off" Westfall. Knipschild admitted
that he did not check such information with Westfall before he approached the employees
In view of the fact that he had ostensibly negotiated a contract with the Union, the under-
signed finds this explanation of his reason for going to the employees directly highly
improbable
FRED F. KNIPSCHILD 1033
B. The discrinvinatory discharges
1. D. L. Bates
D. L. Bates commenced to work for the respondents in the early part of
January 1942, and was discharged January 27, 1942. In their answer the
respondents alleged that Bates was discharged for "wilfully injuring, damaging
and destroying porperty-of the respondents." The complaint alleged that Bates
was discharged for membership in and, activity on behalf of the-Union. As
noted above Rogers, Bates' foreman, learned of Bates' membership in the Union
about a week before his discharge. Bates talked extensively in favor of the
Union on the job, had suggested the initiation of organizational activities in the
plant and had joined the Union early in January 1942.
Bates testified that Rogers gave him his check on the day of his discharge,
and when he asked Rogers why he was being discharged, Rogers said that he
didn't know why, that he would have to see Knipschild. Bates then went to
see Knipschild. According to Bates, Knipschild told him that some employees
had to be laid off, and he was one of the newer hands. Bates testified without
contradiction that he had been at the plant longer than the majority of the em-
ployees. Bates told Knipschild that the real reason why he was being dis-
charged was because of the Union, and that Knipschild would have to pay him
for the time he lost, and reinstate him. He then went back to Rogers, asked
him if his work had been satisfactory, and Rogers said that it had been "100%."
There was considerable testimony as to whether Bates was a good or a poor
worker. Since it was not given as one of the reasons for his discharge either
in the respondents' answer or to Bates at the time of his -discharge, it appears
to be immaterial to the issue. However, Rogers testified that Bates was a good
worker, and the undersigned finds that he was. There was also considerable
testimony by the respondents' witnesses to the effect that Bates had been "a little
-rough" in unloading some cans and had bent a number of cans in unloading
and stacking them,. and Knipschild, at the hearing, seemed to place emphasis
on this as a motive for the discharge. However, even according to the testimony
of those witnesses the number of cans bent appears to have numbered no more
than 8 or 10 and it was not shown that any of the cans so bent had to be dis-
carded. Bates denied that he had ever unloaded a car of cans while working for
the respondent, and was corroborated in this testimony by employee Clark who
testified that he unloaded the only car of cans which came to the plant during
the period while Bates worked there." Seth Fuston, an employee who worked
with Bates, -testified that on one occasion he had seen Bates run one of the trucks
used in the transfer of produce off the loading platform, causing it to fall four
or five feet to the ground. Fusion denied that he had reported this incident to
any of the supervisory officials, and there was no showing that any of the super-
visory officials knew of the accident. In view of the lack of knowledge of this
incident on the part of Knipschild or Rogers prior to Bates' discharge it could
not have been formed. the basis for the discharge.
Rogers testified that when Knipschild gave him Bates' final check he also told
him the reason for the discharge. Concerning the reasons given him by Knips-
child, Rogers testified as follows : "Well, he said he was making too much noise,
As noted hereinbefoi e the undersigned has found' Knipschild's testimony unreliable
in other respects . He therefore credits Bates ' denial , as corroborated by Clark ,,that he
e',er unloaded cans.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and disturbing the men, and stuff like that, which I had spoken to him about
before." Knipschild denied that he told Rogers the reasons for Bates' discharge.
However, it seems more probable to the undersigned that some reason for the
discharge would be given to Bates' foreman, especially in view of the fact that
Rogers considered Bates as a good worker, and would normally be interested
in the reason for the discharge of a good man, about whom he had made no
complaint. Obviously to Rogers in his statement Knipschild made no reference
to the destruction or damaging of the respondents' property.
Employee Clark credibly testified without contradiction that shortly after
Bates was discharged, Rogers told him that Bates "popped off" about the Union
at the wrong time, because Knipschild was just passing by, and Knipschild had
been after him for some time to let Bates go because of his attempts to organize
the employees. Rogers added that lie didn't like to lose Bates because he was
one of the best "wheel" men'he had. The Union requested the respondents to re-
instate Bates on a number of occasions after his discharge, but these requests
were refused At the hearing Board's counsel stated that Bates did not now
desire reinstatement. ,
From the foregoing recital, it is clear that Bates was an active member and
advocate of the Union, whose activity in this respect was known to the respond-
ents
In view of the unconvincing testimony that Bates had willfully damaged or
destroyed the respondents' property, and in further view of Rogers' statement
to Clark that Bates was discharged by Knipschild for his attempts to organize
the employees, the undersigned finds that Bates was discharged and refused
reinstatement because of his membership in and activities on behalf of the Union.
-2. Harvey M. Atkison
Harvey M. Atkison testified that on the last day he-worked for the respondents,
which was February 2, Rogers, his foreman, came to him and said that he
would have to lay him off for a few days- He returned to-the plant for three
successive days and each time was told by Rogers that there was no work.
Finally he appealed to Knipschild for work, but his appeal was ignored. Atkison
had joined the Union about 10 days before his lay-off and Rogers learned of
this fact from Atkison about the time when he told Atkison he believed Knips-
child would close the plant before "going union " It is clear that work was
available after Atkison's lay-off which Atkison could do, as the parties stipu-
lated that in excess of 10 new employees were hired to do common labor after
Bates and Atkison were discharged, and several employees with less seniority.
were retained.
In their answer and at the hearing the respondents contended that Atkison
had quit his employment with the respondents Knipschild testified that he
had given Atkison instructions to clean out the ditch which carried the refuse
from the plant in a certain manner, that on the last day Athison worked he
had observed Atkison doing the work contrary to his instruction, and had there-
upon again instructed him as to the manner in which he wanted the ditch
cleaned. According to Kuipschild, Atkison then proffered the shovel to Knips-
child, and said that Knipschild should come down and show him how he wanted
the ditch cleaned. Knipschild then left, and it few minutes later Atkison came
into the office, said that he wasn't able to do the work to Knipschild' s satisfac-
tion, and asked for his time. Rogers testified that he was present when the
above incident happened, but was not present when Atkison came into the office
FRED F. KNIPSCHILD 1035
However, he said he later had a conversation with Atkison as Atkison was leaving
the plant, and that Atkison informed him that be had quit.
Atkison denied that Knipschild said anything to him about the way he cleaned
the ditch on the last day lie worked ; he denied that he told Knipschild-to come
down and show him how he wanted the ditch cleaned, and he denied that he went
in and asked for his time. Atkison was not questioned regarding Rogers' testi-
mony that he admitted to Rogers that be had quit. He related it conversation
he had with another employee, Ed Helger, who worked on the ditch after he
was laid off He testified that in the conversation with Helger which took place
several days after lie last worked for the respondents, Helger told him he had
quit under circumstances similar to those outlined by Knipschild.
The undersigned does not think that the matter presents a case of mistaken
,identity. Either Atkison told the truth, or Knipschild told the truth-they
are not different versions of the same story. As regards credibility Atkison
made no indelible impression on the undersigned He was a witness who told
a consistent story which held up on cross-examination, and the undersigned recalls
no outstanding item which would load to belief or to disbelief of his testimony.
In considering the credibility of Knipschild, the undersigned recalls his ad-
mission that after having negotiated with the Union, and having initialed an
agreement with that organization, which would tend to leave the impression
that he accepted it in good faith as the bargaining agent, he attempted to under-
mine it, and gave a highly improbable explanation for his action. In addition;
other witnesses were present, according to Knipschild when Atkison quit. These
were the office employees of the respondents, and hence were readily available-
Despite the conflict between the testimony of Knipschild and Atkison on this
materifl point, they were not called to corroborate Knipschild's testimony.
In view of these facts the undersigned credits the testimony of Atkison.
There are other factors which lead to the conclusion that it was Atkison's mem-
berahip in the Union which caused his discharge. The Union at the time was
attempting to complete the organization of the plant. It was attempting to bar-
gain with the respondents and the respondents were evading and resisting those
efforts. This was just about the time that Rogers was telling other employees
that they might lose their jobs if they joined the Union, and that Knipschild
would close the plant before he would bargain with the Union and just a few
'days before the respondents clearly discharged Bates for union activity. If
the respondents' contention that Atkison quit be rejected as it is, there is no ex-
planation for the discharge of Atkison at a time when work was available which
he could do. It is clear Atkison's membership in the Union was known to the
respondents. In view of the resolution of conflicting testimony made above, the
record contains no explanation for Atkison's discharge, admittedly at a time
when work was available which he had done. New employees were hired, after
his discharge, to do work which he could do,-although he made application for
reinstatement. On a number of occasions the anti-union animus of the respon-
dents had been demonstrated prior to the date of Atkison's discharge by their
discharge of Bates and by Rogers' statement that the men had better not let
Knipschild know of their membership in the Union, if they ekpected to retain
then jobs Under these circumstances, the undersigned is of the opinion and
finds that Atkison was discharged because of his membership in the Union. At
the hearing Board's counsel stated that Atkison did not now desire reinstatement.
By discharging and refusing to reinstate Bates and Atkison the respondents
discriminated against them in regard to hire and tenure of employment, thereby
discouraging membership in the Union.
1036 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
C. The refusal to bargain collecth;ely
1. The appropriate unit
The complaint alleged and the respondents ' answer admitted that all pro-
duction ' and maintenance employees of the respondents at their Yuba City, Cali-
fornia, plant, excluding supervisory employees , constitute a. unit appropriate
for the purposes of collective bargaining.
The undersigned finds that all production and maintenance employees of the
respondents at their Yuba City, California plant, excluding supervisory em-
ployees, at all times material herein constituted and that they now constitute
a unit appropriate for the purposes of collective bargaining with respect to
rates of pay, wages , hours of employment , or other conditions of employment
and that said unit insures to employees of the respondents the full benefit of their
right to self-organization and to collective bargaining and otherwise effectuates
the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
Respondents' counsel and counsel for the,Board stipulated that on January 23
and 30 , 1942 , and on March 10, 1942, more than a majority of the employees
within the appropriate bargaining unit were members of the Union . It was not
contended nor shown by the respondents that the Union thereafter lost its
majority.
The undersigned finds that on and at all times after January 23 , 1942, the
i'nion was and now is the duly designated representative of a majority of the
employees in the aforesaid appropriate unit, and that, by virtue of Section 9 (a)
of the Act, the Union at all such times was and now is the exclusive represen-
rative of all the employees in such unit for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment , or other conditions of
employment.
3. The refusal to bargain
The complaint alleged and the respondents admitted that the respondents re-
fused to bargain collectively with ' the Union on January 22, 27, February 2,
and March 2 and 10, 1942 . ' On, part or all of the above dates , the Union repre-
sentatives advised the respondents that it had been designated as collective
bargaining representative by a majority' of the respondents ' employees ; offered
to prove such majority , and requested recognition as the collective bargaining
representative . The respondents refused the recognition requested by the Union,
although they did not question the Union 's claim that it represented a majority
of their employees , and merely kept putting off the union representatives upon
one pretext or another.' The undersigned finds that at all times between
January 22 and March 10, 1942, the respondents refused to bargain collectively
with the Union and refused to grant it the recognition to which it was entitled
as representative of a majority of,the respondents ' employees.
However, the respondents while admitting the initial refusals to bargain,
contended that they bargained collectively with the Union after March 10. The
facts bearing upon this contention will be considered.
413nipschild at the first conference stated to Westfall that he wanted to discuss the
matter with some friends before he signed the written request for recognition proffered by
Westfall ; at the next conference he said that he desired to send the request to his partner
before signing it, and finally at the 3rd or 4th conference he stated that he first wanted to
consult an attorney.
FRED F. . KNIPSCHILD 1037
After March 10 the Union continued its efforts to meet and bargain with the
respondents. Finally, in the forepart of April a conference between the Union
and the respondents was arranged by Stanley White, of the United States Con-
ciliation Service of the Department of Labor. At the first conference, at which
Attorney Galbreath and Knipschild for the respondents, Westfall for the Union,
and White were present, a proposed contract submitted to the respondents sev-
eral days prior to the conference was discussed and considered. A number of
modifications were suggested which principally concerned the wage, scale pro-
posed, and it was agreed that the union representatives would submit the modi-
fications to the union members and that a later meeting would be held with a
committee of members from the Union in attendance.
The later conference was held April 15 and was attended by a union committee
composed of three employees in addition to those who attended the first con-
ference. At this second conference the proposed agreement was discussed item
by item. Certain modifications and alterations were agreed upon and made in
the draft. After going through the agreement, White and Galbreath, who had
made the alterations upon the copies of the agreement, confirmed their
copies and Westfall and Knipschild initialed the agreement as confirmed.
Galbreath stated to the conferees that by initialing the agreement Knipschild
indicated that he was willing to enter into the agreement, was willing to submit
it. to•his partner for approval, and explained that since the respondent was a
partnership, Simplot's approval would be necessary before the agreement would
be binding upon the respondents It was agreed that a copy of the agreement
be sent to Simplot, who lived in Caldwell, Idaho, and this was done by Galbreath.
Westfall thereafter called Galbreath on, several occasions for information
about Simplot's answer. Although Simplot talked by telephone with both Gal-
breath and Knipschild with respect to the agreement after he received it, Gal-
breath informed Westfall that Simplot desired certain modifications in the agree-
ment and tliat.it would be necessary to wait until Simplot came to Yuba City
to discuss such modifications. Both Knipschild and Galbreath testified that
Galbreath had been authorized by Simplot to carry on the negotiations for the
respondents prior to the conferences in April.
It was during this period while the Union was awaiting Simplot's answer
on the agreement ostensibly agreed,to by Knipschild that Knipschild attempted
to by-pass the Union, and offered to grant, to an organization formed by- the
employees themselves essentially the same contract. Finally, about April 29
Simplot arrived-in Yuba City He did not then -confer with the Union nor give
it his answer regarding the agreement. Galbreath testified that Simplot asked
him to try to secure some modification of the wage scale set out in the agreement.
Thereafter, a Mrs: Carveth, who had- been engaged by Simplot to make a
study of the operations at the plant, came to Yuba City in the early part' of
May. Galbreath told her that the Union was pressing him for action on the
agreement, and advised her that he was dissatisfied with the agreement in a
number of particulars. When Westfall was informed of the presence of Mrs
Carveth, he requested a meeting with her. He met with Galbreath and Mrs.
Carveth. Mrs. Carveth advised him that the respondents were operating at a
loss and, that Simplot, who was advancing the money for the operations, either
desired to put 'the plant on a paying basis or to cease, operations. She said
that if the plant continued to operate, it would 'be' necessary to weed out a
number of employees. Westfall stated that, the elimination of employees, would
constitute a serious problem, inasmuch as most of the.employees were members
of the Union. However, he stated that the problem was not insurmountable
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and requested that Mrs Carveth discuss the matter with the president of the
Union.
On May 9, Mrs. Carveth being unavailable, Westfall and Rannells, president
of the Union, met with Galbreath Galbreath explained the contemplated plans
to Rannells. Rannells told Galbreath that he would cooperate in every-way
possible, provided assurance Nyere given that the respondents would negotiate
with the Union as soon as a decision regarding the method of operations was
reached. The record does not show that this assurance NN as given. This was
the last meeting before the hearing between representatives of the Union and
the respondents. The agreement initiated by Knipschild and Westfall on April
15 was never executed.
During May the dehydration of vegetables at the plant was discontinued. On
May 27 the partnership between Knipschild and Simplot was dissolved. At the
hearing Knipschild testified that he proposed to operate the plant as an indi-
vidual, that he would dehydrate prunes only, that the vegetable dehydration
machinery was to be removed, and prune dehydrating equipment was to be
installed.
From the foregoing facts based almost entirely upon the testimony of Knip-
schild and Galbreath, it is clear that the respondents did not in good faith
bargain collectively with the Union after March 10. At the conferences in
April it appeared that the respondents spurred on by the United States Concili-
ation Service, after 3 fruitless months of urging by the Union were apparently
bargaining. However, that this was apparent rather than genuine bargaining
is shown by Knipschild's subsequent attempt to deal with the employees directly
rather than through the Union. Simplot, who had objections to the proposed
wage scale which he could not voice over the telephone and whose arrival in
Yuba City the Union was requested to await, did not attempt to meet with the
Union when he did come to Yuba City While Simplot objected to the wage scale,
Knipschild offered substantially that wage scale to the employees if they would
form an organization of their own.
The undersigned finds that the respondents on January 22, 1942, and at all
times thereafter have refused to bargain collectively with the Union as the
exclusive representative of their employees in an appropriate unit and have
thereby interfered with, restrained and coerced their employees in the exercise
of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT-OF THE UNFAIR LABOR PRACTICES UPON COMMERCE.
The activities of the respondents set forth in Section III above, occurring in
connection with the operations of the respondents 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.
Since it has been found that the respondents have engaged in unfair labor
practices, it will be recommended that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondents discriminatorily discharged and refused
to reinstate employees D. L. Bates, and Harvey M. Atkison. Neither Bates nor
Atkison desire reinstatement since they have secured other work. Accordingly,
an order of reinstatement will not be recommended. However, there was a
period of time during which Bates and Atkisson were unemployed following
FRED F. KNIPS^CHILD 1039
their discharge by the respondents and before they secured their present employ-
ment. The undersigned will recommend that the respondents make Bates and
Atkison whole by paying to each of them the amount of wages they would have
received working for the respondents from the respective dates of the discrimi-
natory discharges , to the dates when they received the jobs which they held at
the time of the hearing, less their net earnings ' during such periods.
It has been found that the respondents refused to bargain collectively with
the Union . Under the usually prevailing circumstances , the appropriate remedy
would be to order the respondents to bargain collectively with the Union. How-
ever , in the present case, the evidence shows.that on May 27 , 1942, the respondents
ceased the operation of dehydrating vegetables and the partnership was dissolved.
Despite the cessation of operations by the respondents , it appears , -to be advisable
to enter the usual cease and desist orders against the respondents , as well as an
order to bargain collectively with the Union and to post notices. Such an order
will operate as a continuing direction to the respondents to be obeyed in the event
that they resume operations as a partnership.
At the time of the hearing, Fred F. Knipschild testified that he proposed to
engage in the operation of dehydrating prunes, using the buildings and installa-
tions used by the respondents in their operations . Under these circumstances,
it appears that the appropriate remedy for the refusal to bargain is to order
Knipschild as an individual to bargain collectively with the Union . While the
order to bargain directed to the respondents undoubtedly binds Knipscbild indi-
vidually, it will be recommended that a specific order to Knipschild be included
so that there cannot be any misunderstanding on this point . The fact that he
will operate as an individual rather than as a partnership , and that he will
dehydrate prunes rather than vegetables , is no bar to this order , since, as the
United States Circuit Court • of Appeals for the Sixth Circuit pointed out, it is the
,employing industry which is to be regulated rather than the particular form of
business entity.' -
At the hearing Knipschild testified that he would not have title to the prunes
which he would dehydrate ,, and in their answer the respondents averred that
the prunes would not be shipped by Knipschild in interstate commerce These
facts constitute no bar to the order here proposed .` Knipschild also testified
that he did not know where the primes, he dehydrated would be shipped. It
seems likely to the undersigned that prunes dehydrated in quantity would enter
into interstate commerce, and would not be consumed in appreciable amount in
the locality where they are grown . However, irrespective of whether the prunes
enter into interstate commerce or not, the Board, having found that the respond-
ents committed unfair labor practices while engaged in interstate commerce,
retains jurisdiction' of the parties and subject matter long enough to remedy
effectively the effects of such unfair labor practices. Unquestionably the question
of which of the respondents ' employees are to be retained for the dehydration
of prunes , and their wages ,' hours and working conditions present matters for
'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
elsewhere than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employ meat elsewhere . See Matter of
Crossett Lumber Company and United Biotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N L R B . 440 Monies received for
work performed upon Federal , State , county , municipal , or other work -relief projects shall
be considered as eainings See Republic Steel Cos poration v N L. R B , 311 U S. 7
'See N. L R. B v . Arthur J Colten and Abe J Colman, Co-Partners doing business
as Kiddie Kover Manufacturing Company , 105 F (2d) 179 (C. C. A. 6).
See N L R B v Fainblatt, 306 LT S 601.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective bargaining. Since Knipschild retains control of the physical properties
of the respondents under the dissolution agreement, it will be recommended that
he be ordered to post the required notices.
Upon the basis of the foregoing findings of fact and upon the entire record
in the proceeding, the undersigned makes the following :
CONCLUSIONS OF L_1w
1. Cannery Workers Union, Local No. 21634, affiliated with the American
Federation of Labor, is a labor organization within the meaning of Section
2 (5) of the Act. V ,
2. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondents have
engaged in and are engaging in unfair labor practices, within the meaning
of Section 8 (1) of the Act.
- 3 By discriminating in regard to the hire and tenure of employment of D L.
Bates and Harvey M. Atkison, thereby discouraging membership in Cannery
Workers Union, Local No. 21634, affiliated with the American Federation of
Labor, the respondents have engaged in and are engaging in unfair labor prac-
tices, within the meaning of Section 8 (3) of the Act.
4. All production and maintenance employees of the respondents at their Yuba
City, California, plant; excluding supervisory employees, constitute a unit appro-
priate for the purposes of collective bargaining, within the meaning of Section
9 (b) of the Act.
5. Cannery Workers Union, Local No. 21634, affiliated ' with the American
Federation of Labor, was on January' 22, 1942, and at all times thereafter has
been, the exclusive representative of all the employees in such unit for purposes
of collective bargaining, within the meaning of Section 9 (a) of the Act.
6. By refusing to bargain collectively with Cannery Workers Union, Local
No. 21034, as exclusive representative of their employees in the appropriate unit,
the respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (5) of the Act. '
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of. Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in this case, the undersigned recommends that the respondents,
jointly and severally, their officers, agents, successors, and assigns shall:
1. Cease and desist from
(a) Refusing to bargain collectively-with Cannery Workers Union, Local No.
21634, affiliated with the American Federation of Labor, as the exclusive repre-
sentative of all the respondents' production and maintenance workers at their
Yuba City, California, plant, excluding supervisory employees, with respect to
rates of pay, wages, hours of work, or other conditions of employment;
(b) Discouraging membership in Cannery Workers Union, Local No. 21634,
affiliated with the American Federation of Labor, or any other labor organization
of their employees, by discriminating in regard to hire or tenure of emp'oyment,
or any term oi• condition of employment ;
(c) In any other manner interfering with, restraining, or coercing their em-
ployees 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 purposes of collective
FRED F . KNIPSCHILD 1041
bargaining or other mutual aid and protection, as guaranteed in Section 7 of
the National Labor Relations Act
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with Cannery Workers Union, Local
No. 21634, affiliated with the American Federation of Labor, as the exclusive
representative of all production and maintenance employees at their Yuba City,
California, plant, excluding supervisory employees, with respect to rates of pay,
wages, hours of,employment and other conditions of employment;
(b) Make D. L. Bates and Harvey Al. Atkisson whole for any loss of pay.
they have suffered by reason of their discharges, by payment to them of a sum
of money equal to that which they normally would have earned as wages from
the dates of their discharges to the dates when they secured the jobs which they
held at the time of the hearing in this matter, less their net earnings 8 during
such periods;
(c) Post in conspicuous places in their plant, and maintain for a period of
at least sixty (60) consecutive days from the date of posting, notices to their
employees stating: '(1) that the respondents will not engage in the conduct
from which it has been recommended that they cease and desist in paragraphs
1 (a), (b), and (c) of these recommendations; (2) that they will take the
affirmative action set forth in paragraphs 2 (a) and (b) of these recommenda-
tions ; and (3) that their employees' are free to become or remain members of
the Cannery Workers Union, Local No. 21634, affiliated with the American
Federation of Labor, and that they will not discriminate against any employee
because of membership in or activity on behalf of that organization;
(d) Notify the Regional Director for the Twentieth Region (San Francisco,
California) in writing within twenty (20) days from the date of the receipt of
this Intermediate Report what steps the respondents have, taken to comply
herewith.
It is further recommended that Fred F. Knipschild, as an individual, upon
request bargain collectively with Cannery Workers Union, Local No. 21634,
affiliated with the American Federation of Labor, as the exclusive representa-
tive of all his production and maintenance employees, at the plant formerly
owned by the respondents, excluding supervisory employees, with respect to rates
of pay, wages, hours of employment and other conditions of employment ; and
that he post in a conspicuous places in such plant, and maintain for a period of
at least sixty (60) consecutive days from the date of posting, notices to his
employees stating that he as an individual: (1) will not engage in the conduct
from which it has been recommended that the respondents cease and desist in
paragraphs 1 (a), (b) and (e) of these recommendations; (2) that he will
take the affirmative action set forth in paragraph 2 (a) and (b) of these recom-
mendations, and (3) that his employees are free to become or remain members
of Cannery Workers Union, Local No. 21634, affiliated with the American Feder-
ation of Labor, and that he will not discriminate against any employee because
of membership in or activity on behalf of that organization.
It is also recommended that Fred F. Knipschild, as an individual, file a report
in writing with the Regional Director for the Twentieth Region within twenty
(20) days from the receipt of this Intermediate Report outlining the steps he
has taken to comply herewith.
It is further recommended that unless on or before twenty (20) days from the
receipt of this Intermediate Report, the respondents and Fred F. Knipschild
8 See footnote 5, supra.
493508-43-vol. 45-66
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as an individual notify the said Regional Director in writing that they will
comply with the foregoing recommendations, the National Labor Relations Board
issue an order requiring the respondents and Fred F. Knipschild as an individual
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended-any party may within
thirty (30) days from the date of the entry of the order transferring the case to
the Board, pursuant to Section 32 of Article II of said Rules and Regulations,
file with the Board, Shoreham Building, Washington, D. C., an original and four
copies of a statement in writing setting forth such exceptions to the Inter-
mediate Report or to any other part of the record or proceeding (including rulings
upon all motions or objections) as it relies upon, together with the original and
four copies of a brief in support thereof. As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within twenty (20) -days after
the date of the order transferring the case to the Board.
FRANK A. MOURITSEN
Trial Examiner.
Dated October 3, 1942.