Germain Seed and Plant Co.

National Labor Relations Board - Board Decisions

Dec 31, 1941

37 N.L.R.B. 1090 (N.L.R.B. 1941)

In the Matter of GERMAIN SEED AND PLANT COMPANY and INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN &
-'HELPERS OF AMERICA, LOCAL No. 595, AFL
Case No. C-1913-Decided December 31, 1941
Jurisdiction: seed, plant, and garden supplies industry.
Unfair Labor Practices:
Interference, Restraint, and Coercion: warning, advising and urging employees
not to join or remain members of an "outside" union ; distributing to employees a
so-called "Statement of Facts" indicating respondent's disfavor toward an "out-
side" organization ; crediting wage increases to company formed and dominated
union in face of threat by employees to join "outside" union.
Company-Dominated Union: formation of, following appearance of outside organi-
zation ; aiding and permitting active solicitation during working hours and con-
tinuing such activity after granting "inside" union recognition; anti-union state-
ments ; inducing employees to forego "outside" union ; threatened shut-down
should outside union be successful: supervisory employees and representatives
of respondent active in.
Remedial Orders: disestablishment of company-dominated union, ordered.
Mr. James A. Cobey, for the Board.
Latham d Watkins, by Mr. Paul R. Watkins, of Los Angeles, Calif.,
for the respondent.
Mr. Ralph Woolpert, of Burkank, Calif., for the Union.
Mr. Marvin C. Wahl, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed on February 28, 1941, by Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Local No. 595, A. F. of L., herein called the Union,
the National Labor Relations Board, herein called the Board, by the
Regional Director for the Twenty-first Region (Los Angeles, Califor-
nia), issued its complaint dated April 5, 1941, against Germain Seed
and Plant Company.' Los Angeles, California, herein called the re-
'The designation of the respondent In the caption of the case was corrected at the
hearing to read as above stated.
37 N. L. R. B., No. 190.
1090
GERMAIN SEED AND PLANT COMPANY - 1091
spondent, alleging that the respondent had engaged in and was engag-
ing in unfair labor practices affecting commerce, within the meaning
of Section 8 (1) and (2) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. A-copy of the
complaint, accompanied by notice of hearing, was duly served upon the
respondent, the Union, and Consolidated Seedsmen's Union, Inc., herein
called the Consolidated.
With respect to the unfair labor practices, the complaint alleged in
substance that the respondent (1) by various specified acts on the part
of its officers and agents dominated and interfered with the formation
and administration of the Consolidated, and contributed support and
assistance to it; and that (2) by the foregoing acts, by announcing and
placing into effect a general wage increase in September or October
1940, by attempting in divers manners to persuade and coerce various
of its employees from joining and/or remaining members of the Union,
and by uttering remarks disparaging to the Union, the respondent in-
terfered with, restrained and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
On April 19, 1911, the respondent filed with the Regional Director a
motion to dismiss the complaint on the grounds that it was not engaged
in commerce within the meaning of the Act and that the charge upon
which the complaint was issued did not conform to the Rules and Regu-
lations of the Board. It also filed a motion for a bill of particulars and
a motion to strike various portions of the complaint on the ground that
they-were "conclusions," "generalities," and "unintelligible." On April
23, 1941, the respondent filed its answer, in which it admitted certain
allegations of the complaint pertaining to its business but denied that
it had engaged in the unfair labor practices alleged in the complaint or
that such alleged acts affected commerce within the meaning of the Act.
Pursuant to notice, a hearing was held at Los Angeles, California,
from April 24 to 28, 1941, before James C. Paradise, the Trial Exam-
iner duly designated by the Chief Trial- Examiner. The Board, the
respondent, and the Union were represented and participated in the
hearing. The Consolidated did not appear. All parties were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. At the beginning of
the hearing, the portion of the respondent's motion to dismiss the com-
plaint predicated upon the alleged invalidity of the charge was denied
by the Trial Examiner. At the same time, decision was reserved on
that portion of the motion based upon the claim that the respondent
was not engaged in commerce within the meaning of the Act. The
Trial Examiner denied the motion in'his Intermediate Report. The
motions for a bill of particulars and to strike certain allegations of
the complaint were also denied by the Trial Examiner, except that
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counsel for the Board was directed to particularize the allegation that
the respondent had interfered with, restrained, and coerced its em-
ployees "by attempting in divers manners to persuade and coerce vari-
ous of its employees from joining and/or remaining members of the
Union." Thereafter, this allegation was stricken by consent of the
parties. During the course of the hearing, the Trial Examiner ruled
on other motions and on objections to the admission of evidence. The
Board has reviewed the rulings of the Trial Examiner and finds that
no prejudicial errors were committed. The rulings are hereby
affirmed.
On June 13, 1941, pursuant to a request made by the Trial Exam-
iner, the parties entered into an additional stipulation concerning'the
business of the respondent. In accordance with its terms, the stipu-
lation was made a part of the record as Trial Examiner's Exhibit
No. 1.
The Trial Examiner thereafter filed his Intermediate Report, dated
June 17, 1941, copies of which were duly served upon the parties. He
found that the respondent.had engaged in and was engaging in unfair
labor practices within the meaning of Section 8 (1) and (2) and
Section 2 (6) and (7) of the Act, and recommended that it cease
and desist therefrom and withdraw recognition from and disestablish
the Consolidated. Thereafter the respondent filed exceptions to the
Intermediate Report. The Board has considered these exceptions to
the Intermediate Report and insofar as they are inconsistent with the
findings, conclusions, and order set forth below, finds them to be
without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Germain Seed and Plant Company is a California corporation hav-
ing its principal office and place of business at Los . Angeles, Cali-
fornia. It is engaged in the growing , refining, purchasing , and selling
of seeds, bulbs , plants, and nursery stock , and in the purchase and sale
of insecticides , poultry, and garden supplies and remedies, hardware,
and other similar products.
The respondent operates a wholesale and warehouse department in
Los Angeles , where it is engaged in selling both at wholesale and
retail . It also has retail stores in Los Angeles , Salinas, and Santa,
Maria, California ; a retail store and nursery in Van Nuys , California;
a warehouse - and 'wholesale and retail store in San Francisco, Cali-
fornia ; a- warehouse in Fresno , California; and a bulb farm at Cama-
rillo, California . During 1940, the respondent purchased various prod-
ucts valued at approximately $900,000. About 17 per cent of these
GERMAIN SEED AND PLANT COMPANY 1093
products, valued at about $150,000, originated at points outside the
State of California. During the same year, the respondent sold
products valued at approximately $1,500,000. About 24 per cent of
such products, valued at about $360,000, were shipped to points out-
side the State of California.
This proceeding concerns only the warehouse and retail store in Los
Angeles and the retail store and nursery in Van Nuys. In 1940, the
respondent's purchases for this warehouse amounted to $719,860, of
which 40 per cent was shipped to the warehouse from points outside
the State of California. During the same period, the products sold
from the warehouse were valued at $873,968; 25 per cent of these prod-
ucts were shipped to points outside the State of California. Approxi-
mately 90 per cent of the business of the Van Nuys retail store and
nursery is handled through the warehouse, from which merchandise
is shipped directly to customers of the Van Nuys establishment. Pur-
chases made from the Los Angeles retail store in 1940 amounted to
$88,739, of which about 5 per cent was shipped to` this store from
points outside the State of California. The products sold by the re-
tail store during the same period were valued at $158,393.50; about 2
per cent of these products were shipped from this store to points out-
side the State of California 2
On October 31, 1940, the respondent employed 176 workers, of whom
146 were employed at the Los Angeles and Van Nuys establishments.
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, Local No. 595, is a labor organization af-
filiated with the American Federation of Labor. It admits to mem-
bership employees of the respondent.
Consolidated Seedsmen's Union, Inc., is an unaffiliated labor organ-
ization, admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Supervisory employees
The employees of the respondent discussed below played a large part
in the formation and administration of the Consolidated. As noted
previously, the complaint alleges that the Consolidated was organized,
dominated, and supported by the respondent. The respondent con-
tends that it was not responsible for the activities of these employees
in view of the positions which they occupied in the plant.
2 The record does not disclose whether merchandise is shipped to this store from the
warehouse or whether any of the sales made at this store are shipped from the warehouse
433257-42-vor . 37-70
1094 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
Walter P. Sage had been in the employ of the respondent for 22
years. He was in charge of the shipping department for several
years, then served as superintendent of the warehouse and order-
filling department for about 12 years , and became purchasing agent in
about 1933 . As purchasing agent, Sage was in charge of the purchase
of insecticides , spray pumps , and miscellaneous items. Manfred Mey-
berg, president of the respondent , testified that Sage was included
among the small group of employees .designated as "department
managers," who met regularly at the plant every Saturday morning
to discuss means of bettering the respondent 's service . Present at
these meetings were Meyberg, W. J. Schoenfeld, vice-president of the
respondent , Marks, the sales manager, Dwight Gates, the manager of
the warehouse and mill room, Woolcott Hill , the manager of the
shipping department , and Pieters , the supervisor of the third floor of
the warehouse.
Harold Frauenberger had been employed by the respondent for 14
years. He held the position of city shipping clerk in the warehouse;
Hill was his immediate superior . Although Frauenberger had no
authority to hire, discharge , or discipline employees , he was charged
with the duty of relaying Hill's order to the truck drivers, assigning
and directing work, helping load the trucks , checking out the loads;
and attending to complaints concerning deliveries.
Vivian Nesbit, who had been in the respondent 's employ for 17 years,
was an order filler on the fourth floor of the warehouse , his superior
being either Hill or Gates, whose offices were on the first and fifth
floors , respectively . The number of employees on the fourth floor
ranged from two to five depending on the season . Nesbit denied that
he was in charge of this floor, but explained that "my idea of being in
charge is being in charge . . . so as to hire and fire." Roy Yoakum,
Charles Loy, and Eric Hulphers, employees of the respondent , testi-
fied, and we find, as did the Trial Examiner, that Nesbit was in charge
of and directed the work of the other employees on the fourth floor.
Kenneth Luck testified , and we find , that he was head of the bulb
department on the third floor of the warehouse . While at times during
the off-season, he had been the sole employee in that department, there
were three or four other employees under him during the busy season,
which normally covered approximately 71/2 months during the year.
He supervised and inspected their work, prepared the invoices, and
purchased merchandise for resale . Concerning his authority to recom-
mend hiring or discharging , he testified :
Well , I could certainly recommend it, whether I was in any
position or not. I mean , as to having the ability to, why, in my
department at times it was very busy and we did have more
people, and when some of them possibly weren 't getting the job
GEIRMAIN-- SEED : ANDY PLANT COMPANY 1095
done, I would go to Mr. Pieters, who was in charge of that depart-
ment` as to hiring and firing, and tell him I would like to have
somebody either replaced or put on some other job ... I would
possibly like recommend.
We find that Luck had authority to recommend persons for hire and
discharge.
Allan Hook had been employed by the respondent for 18 years and
operated the mills on the sixth floor of the warehouse where seeds were
cleaned. During the busy season, about 12 additional employees
worked in this department. Hook testified, and we find, that his duties
required him to relay the orders of Gates to these employees as well as
to the "bull gang," to assign work, be responsible for its proper per-
formance, and to guide and instruct the men. He testified that "If
they don't do as I ask them, I ask them to go down to see Mr. Gates
and give them some other work to do;"
Daniel Hatfield had been employed by the respondent for 22 years
and filled seed orders on the fifth and sixth floors of the warehouse.
When the work required, he had one or more helpers. When he
needed additional help, he asked Gates for it,- but if the need was
urgent, he testified, "I just grab anybody that is there," usually from
the "bull gang." He directed and supervised the work of his helper
or helpers and was responsible for the proper filling of seed orders.
One of the early demands which the Consolidated made was for
"A better allotment and statement concerning sub-foremen and their
positions." 3 It is evident from the record that Frauenberger, Nesbit,
Luck, Hatfield, and Hook were the only employees of the respondent
who could be characterized as subforeinen. Hook testified that' this
demand affected himself, Nesbit, and Hatfield, and that they believed
that they should get more pay than the ordinary employees "for being
a little more responsible for the type of work we was doing." More-
over, at the time of the hearing, Frauenberger, Nesbit, Hook, and
Hatfield received $115 per month as wages from the respondent. Luck
received $120 per month. It appears that none of the respondent's
production and maintenance employees who testified received more
than $100 per month from the respondent.
W. S. Clark was in charge of the Van Nuys nursery. He was in-
cluded in a group of management representatives invited by the'Con-
solidated to attend a dinner meeting on May 2, 1939, in order to promote
a "closer relationship" between the Consolidated and the Management.
Upon the basis of the entire record, we find that Sage was an execu-
tive of the respondent and represented the respondent in the activities
E On December 22, 1937 , the Consolidated issued a notice to its members setting forth
"agreements obtained" from the respondent .- One of the items claimed to have been agreed
to was "A better allotment and statement concerning sub-foremen and their positions."
1096 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
described below, that Frauenberger, Nesbit, Hook, Luck, and Hatfield
were working foremen with supervisory authority whose interests
were closely identified with those of the management, and that Clark
was a supervisory employee. We also find that the employees of the
respondent had just cause to believe that the foregoing supervisors
and officials were acting for and on behalf of the respondent 4 and
that the respondent is responsible for the activities of these employees,
as described below, in connection with the organization and adminis-
tration of the Consolidated.5 The respondent concedes, and we find,
that Gates, the manager of the warehouse and mill room, and Hill, the
,manager of the shipping department, were supervisory employees
with authority to hire and discharge.
1. The organization of the Consolidated
Commencing about August 1937, efforts were made by represent-
atives of the American Federation of Labor to organize the Los
Angeles employees of the respondent. There was much discussion
of the question of union organization among the employees. The
activities of the union organizers were brought to the attention of
Sage, the respondent's purchasing agent. Sage testified that some
of the employees discussed with him the desirability of organizing
a union of some kind; the only ones whose names he could recall
were Nesbit and Hatfield. Sage testified, further, and we find, that
as a result of these discussions, he decided to call a meeting of the
employees and that he "just sent word around- the building and asked
them if they would care to enter into a meeting with me after work,
Saturday afternoon, and talk the thing over, and they said they
would." As a result, a meeting of 15 or 20 employees was held
on the shipping floor of the Los Angeles warehouse after working
hours on a Saturday in August 1937. Among those present at the
meeting were Hill, Gates, Hatfield, Nesbit, Hook, and Luck.6
Sage presided at the meeting and was the only speaker. He testi-
fied, and we find, as did the Trial Examiner, that he stated to the
employees :
"Several of you boys have come to me and told me that there
were different union organizers coming into the plant talking
to groups, and that you had expressed to me a desire to have
a union of some kind;" and I made the suggestion that, "Per-
International Association of Machinists , Tool and Die Makers, Lodge No. 35, etc. v.
N. L R. B, 311 U. S. 72; N. L. R. B. v. Link-Belt Company, 311 U. S. 584.
5 H. J. Heinz Company v. N. L. R. B , 311 U. S. 514 ; Swift d Co. v. N. L. R. B., 106 F.
(2d) 87 (C. C. A. 10).
9 All these employees are found in Section III A, supra, to be representatives ^ of the
management.
GERMAIN SEED AND PLANT COMPANY 1097
haps you would like to have a little independent union of your
own."
They said that they wanted to form the union , and I said,
"Well, I think then you should have a legal man to do that
for you." And they-asked me'if I knew of anyone, and I told
them I did .. .
Sage then offered "to get a man for them if they wanted one," and
suggested the name of J. P. Voorhees. Prior to this meeting, Sage
explained at the hearing he had heard that an "independent" union
was functioning at the local plant of the Cudahy Packing Company
and had conferred with one David Stratton, the secretary and busi-
ness agent of that union, in order to obtain more information about
it. Stratton, Sage testified, had given him the name of Voorhees as
an attorney who was familiar with the organization of "independent"
unions.
In addition, Hulphers, Yoakum, and Alfred Freeman, all -em-
ployees of the respondent, testified that at this meeting Sage made
statements to the following effect: That they were all one happy
family and wanted to be sure that what they did was right; that
they should not do anything which might endanger their' jobs; that
the respondent would prefer a "house" union to an "outside" union;
and that President Meyberg and Vice-President Schoenfeld had
plenty of money and could close the plant down at any time. Of
the foregoing statements, Sage denied only having said that Meyberg
and Schoenfeld had plenty of money and could close the plant down
at any time. The Trial Examiner found, and we find, that Sage
made the statements attributed to him.
About 2 weeks later Sage again held a meeting of employees at
the same place on a Saturday afternoon after working hours.
Voorhees, whom Sage had requested to attend, and Stratton were pres-
ent. Sage introduced Voorhees as a lawyer experienced in the organi-
zation of "independent" unions. Voorhees told the employees that
they could form any union- they pleased, explained the alleged ad-
vantages of "independent" unions over "outside" unions, and advised
them to incorporate. He also stated that employees having the
right to hire, discharge, or discipline or occupying executive posi-
tions could not belong to a union. Hill then inquired about his
right to be present and was told that both he and Gates should
leave. They departed but Sage, Nesbit, Hatfield, Hook, and Luck
remained. Voorhees then introduced Stratton, who spoke briefly
about the success of the "independent" union at the Cudahy plant.
It was-also suggested.at.this meeting-that-an election should be held
to determine the wishes of the employees before an "independent"
1098 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
union was formed. Two or three days later an election was held in
the plant during working hours. Printed ballots, the source and au-
thorship of which are not established by the record, were distributed
to the employees during -.working. hours. Richard Kadous, an
employee of the respondent, testified that Frauenberger, who has been
found herein to be a supervisory employee, undertook to arrange the
details of the election. Hulphers testified that Frauenberger handed
him his ballot and that a ballot box for the traffic department was kept
on Frauenberger's desk. Frauenberger denied that he had anything
to do with the "arrangement" of the election. He did not deny, how-
ever, that he had handed Hulphers a ballot or that a ballot box was
kept on his desk. . We find that Frauenberger arranged the details of
the election and actively participated in the election. Other ballot
boxes were placed in the various departments of the warehouse, the
Hill Street store, and the Van Nuys branch. The employees voted at
such times as they found convenient and the ballots were counted and
tabulated on the shipping floor.7
The ballots gave the employees a choice of the C. 1. 0., the A. F. of L.,
an "independent" union, or "Have Mr. Meyberg talk to us." Of 102
ballots cast, 45 were for an "independent" union, 33 for the A. F. of L.,
11 for a talk by Meyberg, 3 for the C. I. 0., and 10 were spoiled. Al-
though less than a majority had voted for an "independent" union, the
sponsors of Consolidated nevertheless proceeded with their organiza-
tional activities.
A pre-organizational committee was then created, composed of em-
ployees from the various departments. None of the witnesses, includ-
ing members of the committee, was able to explain how the committee
was chosen. The committee included Clark, Frauenberger, Luck,
Hook, and Dorothy Turton, private secretary to Vice-President
Schoenfeld.s The members of the pre-organizational committee cir-
culated petitions designating themselves as "a committee to formu-
late an independent union" and to represent the employees for the
purposes of collective bargaining; they also collected initiation fees.
These activities were carried on in the warehouse during working hours
about September 1, 1937. Among the signers of the petitions were
Turton, Sage, Clark, O. E. Johnson, assistant manager of the Hill
Street retail store, A. Stanley Williams, assistant to Earl E. Side-
7 None of the witnesses was able definitely to state bow the persons who counted the
ballots were chosen, although there is some evidence that Frauenberger appointed them.
Among those in the group were w. S. Clark and Vivian Nesbit, both of whom have been
found above to be supervisory employees.
9 As private secretary of the respondent 's vice president , Turton , we find , occupied a
confidential position which allied her closely with the respondent , and gave employees just
cause to believe that she represented the management . Cf. Matter of Central Greyhound
Dines,- Inc., of New York and Brotherhood of Raslroad Trainmen, etc., 27 N . L. R. B.,
No. 163.
GERMAIN SEED AND PLANT COMPANY 1099
bottom, secretary-treasurer of the respondent,9 Nesbit, Hatfield, Hook,
Frauenberger, and Luck.
On September 9,1937, Articles of Incorporation of the Consolidated,
prepared by Voorhees, were executed. Included among the seven
incorporators, who also became the first Board of Directors, were
Frauenberger, Turton, Hook, Luck, and Clark.1° After the Consoli-
dated was incorporated and the bylaws drafted, another meeting of
the employees was held in the respondent's Hill Street store. Voorhees
testified, and we find, that at this meeting several employees ques-
tioned whether Sage had the right to belong to the Consolidated in
view of his supervisory or executive position. Voorhees then stated
that "since they felt he was in that position . . . that he had no right
in the meeting whatsoever" and asked Sage to leave. There is no
evidence that Sage had any connection with the Consolidated after
this occurrence.
Meyberg testified, and we find, that after one of these meetings,
the respondent distributed a signed statement to its employees as
they left the premises. The statement reads as follows :
A STATEMENT OF FACTS
Because of many stories and rumors that, are being circulated
and believing that those with whom we have worked side by side
have confidence in their employers and will welcome comment
from time to time on matters of vital interest to our business
and our jobs, we wish to say that:
This business believes in the American right of every man and
woman to work without coercion, or intimidation of any sort.
In support of this principle we believe in the open shop and, in
justice to all, we are opposed to any form of closed shop agree-
ment.
You do not have to join any labor union or organization in order
to hold your jobs. The law does not require it. This business
does not require it.
You do not have to pay dues, levies, nor any kind of tribute to
any organizer or group to hold your job.
You do not have to belong to any organization to get wage
increases or enjoy shorter hours. Whenever these benefits are
possible they are made to those who do not belong to any or-
ganization just the same as to those who do.
You do not have to be a member of any organization. Likewise,
you are at liberty to join any lawful organization.
• We find that Johnson and Williams are representatives of the management.
m Clark -and Hook resigned as directors on -September 20. 1937
1100 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
This business takes pride in the high type of its personnel and
the friends they have made of thousands of customers.
It is a pleasant relationship that should be continued for the best
interests both of employees, and of customers, who after all are
our real employers, whether our job happens to be selling, mar-
keting or delivering merchandise, or planning and-managing The
many activities involved in modern business.
We have steady employment. Our operations are all carried
on in a spirit of friendly acquaintanceship, in close contact with
each other and with the public.
There are no inaccessible "bosses." Everyone knows everyone
else. ' We like to feel that we work with, not against, each other.
We want to meet each day in that spirit.
GERMAIN SEED & PLANT CO.
MANFRED MEYBERO , President.
On September 28, 1937, the Consolidated informed the respondent
that it represented a majority of the employees and submitted the
preorganization petitions and membership applications in support
of its claim. This evidence was checked by the respondent which, on
October 1, recognized the Consolidated as exclusive representative of
its employees at the Los Angeles and Van Nuys establishments.
2. Subsequent history of the Consolidated
Although Sage withdrew from the Consolidated after it was incor-
porated, various supervisory employees and representatives of man-
agement continued to play an active role in the Consolidated. Frauen-
berger was its president from September 1937 to April 5, 1938, Luck
from April 1938 to April 1939, and Hook occupied that office at the
time of the hearing. Turton was secretary until she left the respond-
ent's employ on June 7, 1938, and Violet Ashley, who succeeded
Turton as Vice-President Schoenfeld's private secretary, was secre-
tary of the Consolidated from August 1938 to November 1938. The
directors since the beginning of 1938 have included, at various times,
Luck, Hook, Hatfield, Nesbit, and Frauenberger.ll
Early in October, 1937, the Consolidated prepared and submitted
to Meyberg a list of 20 "Suggestions," concerning wages, hours, and
working conditions. While many of these were statements of existing
practices, several represented changes of substantial benefit to the
employees. The respondent approved all but four of these sugges-
tions; those rejected included changes in the length of the work week,
2 weeks vacation with pay, and restoration of the 1929 wage scale.
u Employees having the power to hire and discharge have been refused membership in the
Consolidated.
GERMAIN SEED AND PLANT COMPANY 1101
'However, the respondent granted wage increases ranging from 5 to 18
per cent. The Consolidated did not then ask the respondent to enter
into a written contract covering those matters upon which the par-
ties had agreed. On October 14, 1937, however, the Consolidated
informed the respondent that its members had authorized its Board
of Directors "to proceed with making definite agreements ...
as per the suggestions already presented ...." It does not appear
that anything further was done toward obtaining "definite agree-
ments" in accordance with the approved suggestions.12
Despite the increases granted by the respondent in October 1937,
'there was considerable dissatisfaction among the employees with the
wage scale. On February 1, 1938, a petition was presented to the
Consolidated On behalf of a group of employees by their representa-
tive, Hook, calling for, among other things, $100 per month as a mini-
mum wage for common labor. The Board of Directors of the
Consolidated voted to take no action on this request and nothing fur-
ther was done about it until August 20, 1940. At that time Hulphers,
an employee of the respondent and member of the Consolidated, again
demanded action on this request . The minutes of a meeting held on
that day state : "The men said they are willing to give this Union a
chance. If they couldn't produce the desired conditions the men
would join another Union." At the same meeting of the Consoli-
dated, a motion was carried requiring the president to "go to the
Labor Council and find out the wage scale and find out what depart-
ments would be taken care of by the other Unions."
Thereafter, as appears from the uncontradicted testimony of Loy,
an employee of the respondent, which we credit, as did the Trial Exam-
iner, the members of the Consolidated were informed by their repre-
sentatives that "it was absolutely impossible to get a raise." As a con-
sequence, in the first week of September 1940, a number of employees,
including Hulphers, Loy, and R. H. Montgomery, went to the offices
of the Union where several of them signed applications for member-
ship in the Union. The following morning Hulphers, Loy, and Mont-
gomery went to see Meyberg. They' told him that they had not been
able to obtain satisfaction through the Consolidated, that there was
unrest among the employees, and that they wanted to consult him before
going any further. Meyberg stated that he wished to speak to all of
the employees and asked that, in the meantime , the men prepare a
petition embodying their demands. That evening, after working
hours, practically all of the men in the warehouse and some of the
women gathered in Meyberg's office. John Butterfield, who became
president of the Consolidated shortly thereafter, presented two peti-
12 The minutes of a meeting of the'Consolidated held on August 20 , 1940, show that one
of the ,, employees,proposed •that- the- Consolidated obtain a signed agreement, to which-the
president replied that this could not be done.
1102 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
tions-to Meyberg, one which had been sponsored'by the group led by
,Hulpers calling for a substantial wage increase, and one which had
been sponsored by Butterfield himself calling for a smaller increase.
Neither of these had been authorized by the Consolidated. Hulphers
reiterated the substance of what-had been told Meyberg that morning.
There-was some discussion of the possibility of the employees: joining
an outside union. Meyberg then stated that he would like to discuss
the problem with the men only and suggested that he take them to
dinner at a later date, at which time the matter could be further
discussed.
That this move for wage increases was supported by members and
non-members of the Consolidated, wholly apart from the Consolidated,
is established not only by the testimony of Loy and Hulphers, but also
by the following statement contained in the minutes of a meeting of
the Consolidated on September 13, 1940:
Union [i. e., Consolidated] and non-Union members went in to
Manfred Meyberg to ask for more money. He is to have a meet-
ing with the men September 17th.
On September 17, Meyberg met with the men at the plant after
having taken them to dinner. There were both members and non-
members of the Consolidated present. We find, as did the Trial
Examiner, on the basis of Hulpher's undenied testimony, that Mey-
berg addressed the employees, stating that he had heard of unrest
among them, and that "We are all here together, so we want to try to
work all these things out among ourselves. We are one happy fam-
ily . . ." He stated further that the Consolidated had not presented
any demands for wage increases, but then said that whatever he
would do would be handled through the Consolidated. He added that
any wage increases granted would be retroactive to September 15, 1940.
Finally, he said, according to the undenied testimony of Hulphers and
Loy, which the Trial Examiner credited and which we,credit, "Give
me a chance to do something. Being you come (sic) up here for the
chance, before you do anything, before you call the doctor in,, maybe it
is not the right ailment. Maybe you have got the wrong ailment.
Maybe you won't need the doctor." It is clear from the testimony of
these witnesses, and we find, that by the "doctor" Meyberg meant the
Union. On October 3, 1940, Meyberg granted substantial wage in-
creases of which the employees were apprised through notices sent by
Meyberg to the Consolidated. On October 8, 1940, Meyberg met with
the Directors of the Consolidated to learn whether the various divi-
sions were satisfied with the wage increases. The minutes of this
meeting reveal that, with regard to some employees who were dissatis-
fied,namely, Wilford, Casey, Bushing, and Cook, their grievances
were disposed of by having Meyberg talk to them.
"GERMAIN" 'SEED AND PLANT COMPANY 1103
On several occasions, the Consolidated furnished Meyberg with
lists of employees not in good standing with the Consolidated.
Although Meyberg denied having requested lists of delinquent mem-
bers, he admitted that he received such lists and stated that he used
his own judgment in acting on them. The Consolidated informed
delinquent members by letter that their names were being included
on a list of "non-union members" which "goes to Mr. Meyberg each
month" and that "any future lay-offs are to be chosen" from that
list. On or about May 23, 1939, Hook'received such a letter from the
Consolidated. We credit, as did the Trial Examiner, Hook's un-
denied testimony that he went to Meyberg and asked whether the
Consolidated had a closed-shop agreement and whether he would be
laid off if he did not pay his dues. To both these questions Meyberg
replied in the negative and then stated that "to keep harmony in the
firm, it is better to join the union, the fifty cents a month doesn't
break you . . . it is best to join, to keep paying your dues." Hook
paid his dues and remained active in the Consolidated.
Jack Thrift"testified that on October 10, 1940, he was asked by
Hill, his foreman, whether he belonged to the Union; that when
Thrift answered in the affirmative, Hill stated:
Well, that makes it sort of bad, Jack, because I intended to keep
you on here. Now I don't know what to do about it,. . . to
my notion, the A. F. of L. and the C. I. 0., all these unions
are a bunch of leeches. They feed off the efforts of others. You
belong to the C. S. U. [Consolidated] as well, they are taking
care of you here, whereas the dues you are paying into the
A. F. of L. is doing you no good. We don't want the A. F. of L.
in here or any other union.
Hill then asked him whether he could secure a withdrawal card and
Thrift replied that he preferred to remain a union member. Hill
was not called as a witness. The'Trial Examiner found, and we find,
that Hill made the statements attributed to him by Thrift. -
On May 19, 1938, the Consolidated invited Meyberg and other
representatives of the respondent to' attend a picnic to be held on
May 22, and asked Meyberg for the use of a company truck and for
"any financial consideration that the firm would deem feasible."
Meyberg granted the Consolidated the use of a truck, contributed
$10 toward the picnic, and paid a fine incurred by the driver of the
truck. On July 30, 1938, the Consolidated held a "Weenie Roast"
and the respondent again lent its truck. On September 7, 1938, the
'Consolidated wrote to Meyberg expressing thanks for "the help
and cooperation you. and the Germain Seed & Plant Company ex-
tended ..." It also appears that Meyberg gave the Consolidated the
1104 DECISIONS OF NNATIONAL LABOR 'RELATIONS BOARD
use of the shipping floor in'the warehouse for a dance held in October
1938.
In addition, the uncontradicted testimony of numerous witnesses
establishes, and we find, thait• the Consolidated` solicited members and
customarily collected dues during working hours on the respondent's
premises; that notices of meetings were regularly posted over the
time clocks in the various divisions; that the secretary of the Con-
solidated frequently advised the Board of Directors of meetings by
use of the respondent's telephone during working hours; and that,
on occasion, the Board of Directors of the Consolidated held meet-
ings in the warehouse., Although the record establishes that the per-
mission of the respondent was neither sought nor specifically given
,for these practices, and although on one occasion in the summer of
1940 Gates told Hook not to collect dues during working hours, it is
clear, and we find, that the activities of the Consolidated in the plant
were open and notorious and had the tacit consent of the respondent 13
3. Conclusions
The Consolidated was formed immediately after the American
Federation of Labor began to organize the respondent's employees
in August 1937. It was, brought into being by Sage and various
other supervisors and representatives of the respondent. Sage called
the initial meeting, which was held in the plant, to discuss the forma-
tion of an "independent" union; he admitted that he told those present
at the meeting that certain employees had "expressed . . . a desire
to have a union of some kind" and that he suggested that "perhaps
you would like to have a little independent union of your own." He
then informed the meeting that Voorhees, an attorney, was experi-
enced in organizing "independent" unions and that he would be glad
to secure his services. About 2 weeks later, Sage held another meet-
ing in the plant and introduced Voorhees who proceeded to speak
on the advantages of "independent" over "outside" unions. Sub-
sequently Voorhees arranged for the incorporation of the Consoli-
dated. With the Consolidated *well established, Sage withdrew when
some employees questioned whether he could properly belong to the
union in view of his supervisory or executive position with the re-
spondent. Nevertheless, other supervisory officials continued there-
after to play an active part in the Consolidated.
Not only did the respondent form an "inside" union in the face
of an organizing drive by the American Federation of Labor but, in
addition, it openly indicated its hostility to "outside" unions. At
'a Contrary to the contention advanced ' by the respondent, theie is no substantial evidence
that organizational activities on behalf of the Union took place in the plant during working
,,hours on - a scale in any way comparable to those, of • the-Consolidated described herein.
GERMAIN- SEED"AND PLAN-T COMPANY 1105
the first meeting which Sage called, he advised employees that the
respondent preferred a "house" union to an,"outside" union and that
Meyberg and Schoenfeld had plenty of money and could close the
plant down at any time. Shortly thereafter, Meyberg distributed a
"Statement of Facts" in which. he ' emphasized that the employees
"do not have to join any labor union" or "pay dues, levies, [or] any
kind of tribute to any organizer or group to hold your job." He
added that the respondent's operations were carried on "in a spirit
of friendly acquaintanceship," that "there are no inaccessible bosses,"
that "everyone knows everyone else," and that "we like to feel that we
work with, not against, each other." Through this letter; delivered
at a time when certain "accessible bosses" were busily engaged in or-
ganizing an "independent" union, the respondent made amply clear
to its employees that it would not look with favor upon their affiliation
with an "outside", union.
In September 1940, when certain employees became dissatisfied with
the Consolidated and indicated that they might' join an "outside"
union, Meyberg treated the employees to dinner and then spoke to
them about the unrest ' among them and urged that "we want to try
to work all these things out among ourselves." He then pleaded that
the employees should give him "a chance to do something . . . be-
fore you call the doctor in." He indicated at this meeting that-he
would grant a wage increase but that it would be handled through
the Consolidated although he admitted that the Consolidated had not
requested any wage increases. Subsequently, the respondent granted
substantial wage increases of which employees were apprised by
notices sent to the Consolidated. Although the Consolidated thereby
achieved credit for the raises, it had previously refused to press the
demands of its members for a wage increase. The campaign which
eventually induced the respondent to grant the increases was con-
ducted not as a project of the Consolidated, but by the employees
generally, both members and non-members of the Consolidated. The
Consolidated, in fact, has been consistently reluctant to bargain with
the respondent for concessions to which the respondent was opposed;
on the other hand, it has always' been-; amenable to the wishes of the
respondent. Thus, the Consolidated continuously acquiesced in the
respondent's unwillingness to enter into a written agreement.
In other ways, the respondent supported and assisted the Consoli-
dated. In May 1939, Meyberg advised an employee to join the Con-
solidated "to keep harmony in the firm." In addition, the Consolidated
conducted its activities in the plant and received other material benefits
from the respondent. On the other hand, when Hill, a foreman,
learned that one of the employees had joined the Union, he remarked
that it was "sort of bad . . . because I intended to keep you on here,"
and then commented that the A. F. of L. and the C. 1. 0. were "a bunch
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of leeches," and that "we don't want the A. F. of L. in here or any other
union ." The Consolidated, he advised this employee, had been "taking
care" of him.
We find that the respondent dominated and interfered with the
formation and administration of the Consolidated and contributed
support to it, and that the respondent thereby, and by warning, ad-
vising, and urging its employees not to join or remain members of an
"outside" union, by disparaging "outside" unions, by distributing the
"Statement of Facts," described above, and by crediting Consolidated
with a wage increase in the, face of a threat by employees to join an
"outside" union, interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that 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
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act.
We have found that the respondent has dominated and interfered
with the formation and administration of the Consolidated and con-
tributed financial and other support to it. In order to effectuate the
policies of the Act and free the employees of the respondent from such
domination and interference, and the effects thereof, which constitute
a continuing obstacle to the exercise by the employees of the rights
guaranteed them by the Act, we shall order the respondent to withdraw
all recognition from the Consolidated as the representative of any of
the respondent's employees for the purpose of dealing with the re-
spondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment, and other conditions of work, and completely to
disestablish it as such representative.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following
CONCLUSIONS OF LAw
1. International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, Local No. 595, A. F. of L. and Con-
,
GERMAIN SEED AND PLANT COMPANY 1107
solidated Seedsmen's Union, Inc., are labor organizations within the
meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and admin-
istration of Consolidated Seedsmen's Union, Inc., and contributing
support thereto, 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 in 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.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent Germain Seed and Plant Company, Los Angeles, Califor-
nia, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Con-
solidated Seedsmen's Union, Inc., or with the formation or admin-
istration of any other labor organization of its employees, and con-
tributing financial or other support to Consolidated Seedsmen's
Union, Inc., or to any other labor organization, of its employees;
(b) Recognizing Consolidated Seedsmen's Union, Inc., as the
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 work;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid and protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Consolidated Seedsmen's
Union, Inc., as the 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 condi-
tions of work and completely disestablish Consolidated Seedsmen's
Union, Inc., as such representative;
1108 DECISIONS OF NATIONAL, LABOR 7RELATIONS BOARD '
(b), Immediately post in conspicuous places throughout its places
of business in Los Angeles and Van Nuys, California, 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 from which it is ordered to cease and
desist in paragraphs 1 (a), (b), and (c) of this Order; and (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 Twenty-first Region in
writing within ten (10) days from the date of this Order what
steps the respondent has taken to comply herewith