Idaho Potato Growers, Inc.

National Labor Relations Board - Board Decisions

Apr 10, 1943

48 N.L.R.B. 1084 (N.L.R.B. 1943)

In the Matter of IDAHO POTATO' GROWERS, INC. AND IDAHO TRAFFIC ASSOCIATION and TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN 'AND HELPERS, LOCAL 983, A. F. L. In the Matter of W. P. WILSON AND IDAHO TRAFFIC ASSOCIATION and TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, LOCAL 983, A.F.L. In the Matter of L. S. TAUBE, TED TAUBE, AND L B. HOIDEN, CO-PAR'I- NERS, D/B/A L. S. TAUBE & COMPANY AND IDAHO TRAFFIC ASSOCIATION and TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, LOCA1, 983, A. F. L. In the Matter Of MEYER FRIEDMAN AND ARTHUR E. FRIEDMAN, CO-PART- NERS, D/B/A S. FRIEDMAN & SONS, AND IDAHO TRAFFIC ASSOCIATION and TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, LOCAL 983, A. F. L. In the Matter Of IDAHO FALLS WAREHOUSE COMPANY AND IDAHO TRAF- FIC. ASSOCIATION and TEAMSTERS, CHAUFFEURS, WAREHOUSEMFN AND HELPERS, LOCAL 983, A. F. L. In the Matter of ROWENAH O'NEIL, ADMINISTRATRIX OF THE ESTATE OF J. E. O'NEIL, DECEASED, AND IDAHO TRAFFIC ASSOCIATION and TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, LOCAL 98i, A. F. L. ' In the Matter of A. G. STUART AND IDAHO TRAFFIC ASSOCIATION and TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, LOCAL 983. A. F. L. In the Matter of C. R. HOLDEN AND L. L. HOLDEN, CO-PARTNERS, D/B/A HOLDEN BROTHERS AND IDAHO TRAFFIC ASSOCIATION and TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, LOCAL 983, A. ,F.' L: Cases Nos. C-2489 through C-2496 respectively.Decided April 10, 1943 Jurisdiction : potato packing and shipping industry. Unfair Labor Practices Interference, Restraint, and Coercion: anti-union statements of supervisory employees; anti-union speeches; assistance in planning anti-union meeting; asking'employees to attend meeting, knowing its anti-union purpose; depreca- tion of union and suggestion that employees form unaffiliated labor organiza- tion ; promotion of grievance committee ; unilateral wage increases. 48 N. L. R. B., No. 131. 1084 IDAHO--POTATO GROWERS, 'INC. - _ 1 __7___77_ 1085 Collective Bargaining: majority stipulated-refusal to bargain by. announcement that because of farmer opposition respondents could not deal with the union: failure of respondents' representative to meet with union representative or to communicate with him regarding further negotiations, unilateral wage in- creases, failure to make counterproposals Dlscrnnin« lion. charges of, sustained as to two employees and dismissed as to five others Definitions : warehouse and cellar crew,v employees, held not to he agricultural em- ployees within the meaning of the Act; association of which respondent dealers are members, which constituted a forum in which they discussed their labor and other problems, and which in other ways acted in their interest, held to be an employer within the meaning of the Act. Units Appropriate for Collective Bargaining : employees of the respective deal- ers on their cellar and warehouse crews, exclusive of office employees, cellar crew foremen having the power to hire and discharge, and supervisory em- ployees of higher rank that cellar crew foremen DECISION AND ORDER - On January 9, 1943, the Trial Examiner issued his Intermediate Report in the above -entitled proceedings, finding that the respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and that they take certain affirmative action, as set forth in the copy of the Inter- mediate Report annexed hereto. Thereafter , the respondents filed exceptions to the Intermediate Report and a brief in support of their exceptions . The Union has not excepted to the findings and recom- mendations of the Trial Examiner . The Board has considered the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon request of the respondents and pursuant to notice , a hearing was held before the Board in Washington , D.- C., on March 16, 1943, for the purpose of oral argument . The respondents and the Union Were represented by counsel and participated in the hearing. The Board has considered the Intermediate Report, the exceptions and brief filed by the respondents , and the entire record in the case, and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner with the following exception. The Trial Examiner has found that the employees of the respond- ent Potato Growers on its cellar and warehouse crews at Idaho Falls and Shelley, of the respondent Taube on its cellar and warehouse crews at Idah() Falls and Shelley, of the respondent Wilson on his cellar and warehouse crews at Firth, of the respondent Stuart on his cellar and warehouse crews at Shelley, and of each of the other, re- spondent dealers on the cellar and warehouse crews at Idaho Falls, 1086 - DECISIONS OF -NATIONAL LABOR RELATIONS BOARD exclusive of office employees and supervisory employees of higher rank than cellar crew foreman, constitute in the case of each of said respondents a separate unit appropriate for the purposes of collective bargaining. The evidence indicates, howdver, that in the case of at least one of the respondents, cellar crew foremen have the power to hire and discharge members of their crews. We shall therefore ex- clude such cellar crew foremen from the appropriate units. - We, accordingly find that at all tines material herein the employees of the 'respondent Potato Growers on its cellar and warehouse crews at Idaho Falls and Shelley, of the respondent Taube on its celhir and warehouse crews at Idaho Falls and Shelley, of the respondent Wilson on his cellar and warehouse crews at Firth, of the respondent Stuart on his cellar and warehouse crews at Shelley, and of each of the other respondent dealers on the cellar and warehouse crews at Idaho Falls, exclusive of office employees, cellar crew foremen having the power- to hire and discharge, and supervisory employees of higher rank than cellar crew foreman, constituted, and that they now constitute, in the ease of each of said respondents, a separate unit appropriate for the purposes 'of -collective bargainuig,'within the meaning of Section i (b) 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: 1. The respondents, Idaho Potato Growers, Inc. ; W. P. Wilson ; L. S. Taube, Ted Taube, and L. B. Holden, co-partners doing busi- ness as L. S. Taube & Company; Meyer Friedman and Arthur E. Friechmin, co-partners doing business as S: Friedman & Sons; Idaho Falls 'Warehouse Company; Rowenah O'Neil, administratrix of, the Estate,of J. E. O'Neil, deceased; A. J.•Stuart; C. R. Holden and L. L. Holden, co-partners doing business as Holden Brothers; and Idaho lralffic Association„when acting as agent for or in the interest of any .of the other respondents; and their respective officers, agents, suc- ces'ors, and assigns, shall: a. Cease and desist from : . (1) Refusing to bargain collectively with Teamsters, Chauffeurs, Warehousemen & Helpers, Local 983, affiliated with the American Fed- •eration of Labor, as the exclusive representative of the employees of the respondent dealers in each of the units found above to be appro- priate for the purposes of collective bargaining.; • - "rhe pasties stipulated at the heariuc that a malonti of the einploiees']n each of the -units found to lie appioin late had, in or about Febi nai t 1942, c1es„nated the Union as their ,collectiNe bai,aimug iepiesentative - so fai as the lewd shows, exclusion fioin,the alt- p!opnate units of the eompatatlielc small number of cellar crew foremen having the power `to hire and dischaige ANill not affect the Union's repiesentati%e status. IDAHO POTATO GROWERS, 1\C. ,1087 (2) In any other manner interfering with, restraining, or coercing the employees of the respondent dealers in the exercise of the right to self-organization, to form,, join, or assist labor organizations, to bargain collectively through representatives oftheir own choo,ing, and to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, as- guaranteed in Section 7: .of the Act. - b. Take the following affirmative action, which the Boardfinds.wilU effectuate the policies of the Act: - (1) Upon request, bargain collectively with Teamsters, Chauffeur,, Warehousemen & Helpers, Local `.983, affiliated with the American Federation of Labor, as the excl,lsive representative of all the em- ployees of the respondent dealers in each of the units found above to be appropriate, with respect to rates of pay, wages, liours of em ployment, and other conditions of employment; - • (2) Post inunechate'ly in conspicuous places in the respective ware- houses of the respondent dealers in Idaho Falls, Firth, and Shelley, an,d iii the place of business of the Idaho Traffic Association in Idaho Falls, and nuuntiiin for a period of at least silty (60) consecutive days from the date of posting, notices to employees of the respondent dealers stating that the respondents will not engage in the conduct from which they are ordered to cease and desist in paragraphs 1, a, (1) and (2) of this-Order, and that they will take' the'a,ffirmativ(1, action set forth in, paragraph 1, b, (1) of this Order; (3) Notify the Regional Director, for the Nineteenth Region in. writing, within ten (10) days from the date of this Order, what steps they have taken to comply herewith. 2. The respondents L. S. Taube, Ted Taube, and L. B. Holden, co- partners doing business as L. S. Taube &.Company, and their,agents, successors, and assigns, shall, in addition : a. Cease and desist from discouraging membership in Teamsters,. Chaliffeurs, Warehousemen & Helpers,- Local 983, affiliated with the American', Federation of Labor, or in any other labor organization of their employees, by discharging or refusing to reinstate any of their employees or in any other mariner discriminating in regard to their hire and tenure of employment or any term or condition of their employment. b. Take the following affirmiitive action, which the Board finds AN-ill effectuate the policies of the Act. (1) Make whole Willard Moore for any loss of pay lie has suffered; by reason of-the'discrimination,against_lhim' by pay',nent to him of sum of-money egaal to the'amount which''he normally would have earned as wages during the period from the date of'the di,.criminat,oia 1088' DECDSIONS OF NATIONAL LABOR RELATIONS. BOARD against him to the date on which he obtained his present employment, less his net-earnings during such period; (2) Insert in the notice which they are directed to post in para- graph 1, b, (2) of this Order the statement that they WL11 not-engage in the conduct from which they are ordered to cease and desist in paragraph 2, a, of this Order; that they will take the affirmative action set forth in paragraph 2, b, (1) of this Order; that their em- ployees are free to become and remain members of Teamsters, Chauf-, _feurs,. Warehousemen '& Helpers, ;Local 983, 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 ; 3. The respondent Idaho Potato Growers, Inc., and its officers, agents, successors, and assigns, shall, in addition : a. Cease and desist from discouraging membership in Teamsters, Chauffeurs, Warehousemen & Helpers, Local 983, affiliated with the American Federation of Labor, or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment. b. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Make whole Milo Rash for any loss of pay he has suffered by reason of the discrimination against him by payment to him of a sum of-money equat-to the amount which h'e normally -would have earned as.wages during the period from the date of the discrimina tion against him to the date on which his wife obtained her present civil service employment, less his net earnings during such period; (2) Insert in the notice which it is directed to post in paragraph 1, b, (2) of this Order the statement that it will not engage in the, conduct from which it is ordered to, cease and desist in paragraph 3, a, of this Order; that it will take the affirmative action set forth in paragraph 3, b, (1) of this Order; that its employees are free to become and remain members of Teamsters, Chauffeurs, Warehouse- men & Helpers, Local 983, affiliated with the American Federation of Labor; and that it will not discriminate against any employee because of membership in or activity on behalf of that organization. ANDIT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges that the respondents L. S. Taube, Ted Taube, and L. B. Holden, co-partners doing business as L. S. Taube & Company; discriminated in regard to the hire and tenure of employment of Jack C. Hendricksen, C. A. Falk, Clency L. Wads- worth, Marvin Crandall, and Harold Goodell. IDAHO POTATO GROWERS, IN C. 1089 INTERMEDIATE REPORT Mr.'Wiltia'm A. Babcock, Jr, and Mi. Louis S Penfield, for the,Board. Mr. E. A. Weston, of Boise, Idaho, for the respondents. X147 Lee Owen, of Pocatello, Idaho, for the Union. ST;TEMENT OF THE CASE Upon charges duly filed by Teamsters, Chauffeurs, Warehousemen and Helpers; Local 983. affiliated with the American Federation of Labor, herein called the Union, the \ational Labor Relations Board, herein called the Board, by its Regional Director for the Nineteenth Region (Seattle, Washington), issued its complaint dated October 14, 1942, against Idaho Potato Growers, Inc., herein called Potato Growers ; W P Wilson, herein called Wilson ; L. S. Taube, Ted Taube, and L B Holden, co-partners, doing business as L. S. Taube & Company, herein called Taube; Meyer Friedman and Aithnr E' Friedman, co-partners, doing business as S. Friedman & Sons, herein called Friedman ; Idaho Falls Warehouse Company, herein called Warehouse Company; Rowenah O'Neil, administiatr'ix of the estate of J E O'Neil, deceased, both this administratrix and business predecessor being at times referred to herein as the respondent O'Neil.' A. G Stuart, herein called Stuart; C R Holden and L. L Holden, co- partners, doing business as Holden Brothers, both this respondent and its prede- cessor firm Holden Brothers, Inc., being at times referred to as the respondent Holden: and Idaho Traffic Association, herein called Traffic Association' The complaint alleged that the respondents had engaged in and were engaging in unfair labor practices within the meaning of Section 8 ( 1) and ( 5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, herein called the Act, and that the respondents Potato Growers and Taube had each also engaged in and were engaging in unfair labor practices within the meaning of Section 8 (3) and Section 2 (6) and (7) of the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon each of the respondents and the Union. With respect to the unfair labor practices the complaint as amended at the hearing alleged in substance. (1) that the respondents by and through the i espondent Traffic Association and its executive secretary and others did on or about January 24, 1942 , cause a meeting to be held at Idaho Falls , Idaho. of employees'of the respondents Potato Growers, Wilson, Taube, Friedman, Ware- house Company, O'Neil, Stuart, and Holden, and the respondents and a number of farmers well known to them advised, urged, and warned said employees ,not ' This respondent was named in the complaint as Idaho Falls Potato Growers Association. Early in 1942 it changed its name as set forth above. The complaint was amended 'ac- cordingly at the hearing. 2 Although J. E O'Neil and Holden Brothers , Inc, are not parties respondent to these proceedings , at 'timers in this Report they , as business predecessors to the i espondents Rowenah O'Neil, administratrix of the estate of J. E O ' Neil, and L S Taube, Ted Taube, :in(] L B Bolden copartners . doing business as L S. Taube & Company, resbeciively, for purposes of convenience only are included when reference is made collectively to "the respondents" and to "The respondent dealers ." , Whether the terms refer to the business predecssor depends in each instance on the time the respondents O'Neil and lioldcn began business operations as business successors of J E O'Neil and Holden Brothels, Inc., re- spectively . The extent to which J E O'Neil and Ilolden Brothers , Inc, are responsible for the unfair labor practices is discussed in Section V infi a 8 The first eight named i espondents represent eight different cases , Idaho Traffic Associa- tion being also pained as a party respondent in each of these cases BN a corrected order dated September 30, 1042, these cases were consolidated 1090 DEChSIONS OF NATIONAL LABOR RELATIONS BOARD to join or remain members of the Union, but to form all unaffiliated committee or union, and threatened to discontinue work of the employees if they joined or remained union members ; (2) that on or about February 10, 1942, and thereafter, the respondents directly and through the respondent Traffic Associa- tion, its executive secretary, and a named attorney for the respondents in conversations and meetings with farmers and Grange representatives condemned the Union and collective bargaining contracts presented by it to the respondents and encouraged said persons to assist in opposing the Union; (3) that as 'a result. of these activities of the respondents various local Grange and farmers' meetings were held during February and March 1942 at which statements were made and resolutions passed in opposition to the Union and threats made to boycott dealers who entered into agreements with the Union, said activities being publicized and circulated among employees of. the respondents ; (4) that on or about March 7, 1942, the respondents arranged a meeting of farmers and potato dealers, ostensibly for the purpose of allowing union representatives to explain the program of the Union, at which time statements were made and resolutions passed in opposition to membership of the respondents' employees in the Union and to collective bargaining with the Union, and threats were made to employees that there would be loss of work if they joined or remained members of the Union; (5) that in February and March 1942, and thereafter, the respondents made or caused to be made and published in newspapers circulated among the employees statements and press releases expressing opposition of the respondents,. farmers, and Granges to employee membership in the Union and to the attempts at collective bargaining, threatening loss of work and disapproval of public opinion if such membership and attempts were continued; (d) that the respective respondents Potato Growers, Wilson. Tanbe, Friedinan, Warehouse Company, O'Neil, Stuart, and Holden, beginning in January 1942, have urged and warned their employees to refrain from union membership; (7) that the respondents jointly and severally have failed and refused by specified acts to bargain collectively with the Union, as representative of the respective respond- ents ' employees in appropriate units, although the Union at said times repre- sented employees of each of the respondents in the appropriate units; (8) that the respondent Potato Growers on or about February 24, 1942, demoted a named employee to an inferior position and forced him to quit his employment, or discharged and refused to reinstate hint because of his membership in and activities on behalf of the Union ; (9) that the respondent Taube on or about February 5, 1942, discharged and refused to reinstate six named employees because of their membership in and activities on behalf of the Union. The respondents, prior to the hearing, filed an answer in which they denied the commission of any unfair labor practices. "'Ito respondents also amended their answer at the hearing, alleging in the amendment that the units set forth in the complaint with respect to the respondents Potato Growers and Taube were not appropriate. Pursuant to notice, a hearing was held at Idaho Falls, Idaho, from November 2 to 10, 1942, before the undersigned, the Trial Examiner duly1designated by the Acting Chief Trial Examiner. 'The Board and the respondent were represented by counsel and the Union by its representative. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. The respondents moved during the hearing for a dismissal of the complaint with respect to the Traffic Association on the ground that it was not an employer within the meaning of the Act. They also moved for a dismissal of the complaint both in part and in its entirety on various IDAHO POTATO GROWERS, INC. 1091 grounds ' Ruling -on these motions was reserved . Except as otherwise herein- after indicated they are denied . At the close ' of the hearing motions were' made to amend the pleadings to conform to the proof with respect to-names - and similar- matters : There' was no objection and the motions were granted . • Also at' the close of the hearing counsel for the 'Board and the respondents argued orally before the undersigned The opportunity of filing briefs with' the` undersigned was likewise afforded, but' only counsel for the Board has availed-himself of the privilege . Upon the entire record in the case and from'his observation 'of the witnesses, the undersigned makes the following:' - FINDINGS OF FACE' I '1 HE BUSINI'SS 01 TIE ' RESPONDENTS AIL of the, respondents except the Traffic Association, being herein at times `called the respondent dealers, are dealers in potatoes in Idaho Falls, Idaho,, and vicinity The respondent dealers except the Potato Growers customarily buy lots of potatoes from other dealers and farmers in the vicinity, and pack, load, ship, and re-sell them The respondent Potato Growers, being a cooperative enterprise, does not buy the potatoes in.which it deals !but !ships them for the account of farmers, both members and non-members, and of other dealers with all of whom it ordinarily makes 'fin, settlement at.the end of the season All of the respondent dealers nu intain warehouses and employ country crews in the !Snake River Valley in the 'vicinity of: Idaho Falls,. Idaho The specific operations of each are particularized below The respondents L S '1-'aube, Ted Taube, and L. B. Holden, doing business, as L S., 'I'aube i&Company, are' a copartnership with their principal office in Kansas City. .Missouri This firm maintains warehouses for the handling of potatoes at both Idaho Falls and Shelley, Idaho It buys potatoes in the vicinity of these warehouses from both growers and dealers and re-sells them During the 1941-42 season it sold and shipped from its Idaho Falls and Shelley ware- houses approximately 1000 carloads of potatoes,. more than 90 percent of which were shipped to points outside the State of Idaho. ; - The respondent W 1'. Wilson maintains a warehouse for the handling of potatoes at Firth, Idaho Between 10 and 15 percent of the potatoes handled by him during the 1941-42 season consisted of potatoestigrown,by,.himself, the remainder of the potatoes handled- by hun• during that. period, consisting of potatoes bought by hint from other dealers and growers and re-sold iby, him He sold and shipped from his Firth plant -during the 1941-42.season approxi- mately 450 .carloads of potatoes, about. 90 percent of whichi,.werel shipped :to points outside the State of Idaho , it - Meyer Friedman and Arthur E Friedman are co-partners, doing, business as Friedman & Sons 'Thls firm, whose main office is in Chicago, Jllinois, leases and operates a wai ehouse at Idaho Falls. for the handling..of+ potatoes. It is generally engaged in the produce business in various-States . Iii-the course'of ° The giounds urged included the contention th.it the employees involved were engaged in, agriculture and for such roa.on the Boni d did not have jurisdiction, that the consoml.il,ion of the 'cases was nupropei and pielndicial, that the Board had never determined nhiether the Union ,vas the eniphn gee collective hat caiiiing representative, and that ,lie Board had ,,no jurisdietiop over the ie-pondents holden, 0 Neil and Friedman 1legarding 1-lolrlen and- O'Neil it was contended that they could not properly be held accountable for the ualair labor practices of their business predecessors Regarding h'riednuui it was urged that no business opeiations had taken place dui tug the current-season ;i'_' 1247-43-i of 4S--70 1092 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD its Idaho Falls operations it purchases potatoes from growers and other dealers. During the 1941-42 season it sold and shipped from its Idaho Falls warehouse approximately 360 carloads of potatoes, about 90 percent of.which were •sold and shipped to points outside the State of Idaho. Idaho Falls Warehouse Company_ an Idaho Corporation, among vat ious business enterprises conducted by it at tIdaho' Falls, maintains a warehouse for the handling of potatoes. This respondent not only buys potatoes from growers and dealers for re-sale, but also at times acts as an agent in the handling of potatoes for growers. About 65 to 85 percent of the potatoes handled by it during the 1941-42 season were purchased by it for re-sale During that season this respondent shipped approximately 700 carloads of potatoes, about 90 percent of which were sold and shipped to points outside the State Idaho Potato Growers, Inc, is a non-profit cooperative association, incorporated under the laws of the State of Idaho. This respondent sorts, packs, ships and sells potatoes for both its members and other growers. It also at times markets in carload lots potatoes acquired from other dealers. It carries on a substantial portion of its operations in the vicinity of Idaho Falls and Shelley, Idaho, and maintains,a warehouse at each of these places. Its method of handling potatoes is to find a buyer who offers to purchase potatoes at a stipulated sum and then by oral agreement with the grower or dealer to dispose of his potatoes to the buyer at the oltered price less expenses incurred by the Potato Growers in the c, ji'se sorting, packing and handling them At the end of the season this respondent makes settlement with the growers and dealers whose potatoes it has handled during the season During the 1941-42 season the Potato Growers shipped approximately 1300' carloads of potatoes in the course of its operations in these vicinities. About 95 percent of these potatoes were shipped to points outside the State of Idaho. Some of the potatoes handled by this respondent during the 1941-42 season were sold to the United States Army. . Rowenah O'Neil is the duly appointed and, acting admrnistratrix of the estate of J. E O'Neil, deceased. As adrninistratI'ix she carries on the business of .1. E.• O'Neil in substantially the same manner as it was conducted by the latter before his death in August 1942. O'Neil before his death and Rowenah O'Neil, admimstiatrix, since that time have maintained a warehouse in Idaho Falls for the handling of potatoes During the 1941-42 season he bought 800 to 900 carloads of potatoes from growers and other dealers, of which more than 90 percent was shipped and sold outside the State of Idaho. A. G. Stuart owns and operates a warehouse at Shelley, Idaho. He handles in the course of his operations at Shelley potatoes grown by both himself and other growers. During the 1941-42 season about 95 percent of the potatoes handled by him was bought from other growers. During the season 1941-42 he sold and shipped approximately 200 carloads of potatoes, about 95 percent of which was sold and shipped to points outside the State of Idaho. C. R Holden and L. L Holden, doing business as Holden Brothers, are a co- partnership. This firm, which came into existence in July 1942, owns and olier-- ates a warehouse at Idaho Falls where it handles potatoes and operates a general produce business. At the time this partnership was organized it acquired this property in Idaho Falls from Holden Brothers, Inc.,"an Idaho Corporation, which 6 This respondent shipped during the 1941-42 season a total of about 2500 carloads of potatoes in the course of its operations throughout the State of Idaho Its manager testified that slightly more than halt of these were from the Idaho Falls and Shelley operations I IDAHO POTATO GROWERS, INC. . 1093 was liquidated in June 1942 C R. Holden, L L Holden, and an individual in New York were the sole stockholders in this corporation, which operated a produce business both in New York and in Idaho Falls During the 1941-42 season this corporation sold 739 cars of potatoes acquired from growers, 610 of these cars being sent to posits outside the State of Idaho The corporation sold 129 carloads. on the tracks at Idaho Falls for cash and the buyers sent most of the cars so pur- chased to points outside the State of Idaho. The Holdens operated the corpora- tion's Idaho business and at or about the time of the liquidating of.the corpora- lion acquired the Idaho interests of the third stockholder Since that time the co-partitetship as described above has operated the same type of business as.was Conducted at Idaho Falls by the corporation. Idaho Tititlic Association is an Idaho corporation with its office at Idaho ' Falls. This corporation was organized in September 1941 for the purpose of rendering aid and assistance to shippers with respect "to traffic problems of all kinds, and matters arising out of the preparation, inspection, sale and shipment of merchandise and commodities of whatsoever nature." It has no stockholders, but issues member- ships instead of stock All the respondent dealers and about seven other potato dealers and shippers in the vicinity of Idaho Falls hold such memberships For ,some time since prior to 1942 the Association has sponsored a luncheon meeting each Monday in Idaho Falls Representatives of the member companies and some others have attended these meetings Carl DeLong, executive secretary of the Iespondent Traffic Association, has usually presided at these meetings Early in 1942 after the Union became active in Idaho Falls and asked the respondents and certain other potato dealers and shippers to,bargain collectively with it as repre- sentative of their respective employees, as described more fully below, Eli Weston, counsel for the respondents, received an invitation to attend one of these meetings He'did so and the respondents and others present voted to retain him to represent them in labor negotiations. He'later received a fee paid by a check of the Traffic Association! lI THE EMPLOYEES As set forth above. the respondent dealers handle potatoes which they acquire from farmers and other dealers. The employees who sort and pack potatoes for -each of these responodents 'in the process of preparing them for market, except when perfortnitig certain odd jobs in the warehouses,' work in crews. The work done by the crew, of each of these respondents is substantially the same. A crew, consisting of about eight employees, works at a sorter machine run by electric power. The employees on a crew usually consist of four employees known as sorters, one as a scooper, one as it jigger, one as it swamper, and one as a sack sewer. After a dealer has agreed with a grower to buy or handle the latter's potatoes it is necessary to sort the potatoes according to grade and pack them for ship- ment This work is performed either in the dealer's warehouse or in the grower's cellar by one of these crews which works at the sorter machine where it grades, weighs and sacks the potatoes. Most of.such work as is done in the various ware- house's of the respondent dealers takes place'during' a rush period' of, s' few weeks in the fall of the year Throughout the season considerable of su'h work is done in the growers' cellars. Approximately 90 percent of the potatoes handled by some of the respondent dealers are graded'and packed in the country. If the Most of the respondents made a contribution to the Association for this purpose At least one of them, however , appears to have paid its portion of the tee duet t to Attoi net Weston See footnote 26, infra The work of Milo Rash discussed infra is an example of such an odd ioh Cat loading and packing potatoes for special types of shipment are other examples of wi•h «ork 1094 DECPSIONS OF NATIONAL LABOR RELATIONS BOARD work is-done in the country it is necessary for either the farmer or the dealer to truck the potatoes to the dealer's warehouse or direct to railroad cars. If it is done in the dealer's warehouse the potatoes are then loaded on cars at the ware- house for shipment. At times the potatoes are only partially sorted in the grower's cellar In such 'instance, they are not graded and all of the culls are not removed, so there has to be a further sorting at the dealer's warehouse. At tin:,as also the potatoes' alive of such a quality that it is necessary for the respondent dealers to wash them at the warehouse befrlre they will, pass government ihspecrion The respondents contend that the employees who sort and prepare the potatoes for shipment in the growers' cellars and the dealers' warehouses on the crews described above are engaged in agriculture and that the act does not give the Board jurisdiction over these employ ees 8 ' These crews. whether working in a fa rmer's cellar or lit it dealer s wa rehouse, are under I lie supervision of the ware- house foreman When ivoi king in a farmer's cellar they are lunle>_ the innnediate direction of a crew foreman who i. also lenown as head sorter man When work is to be done in a farmer's cellar a complete crew is usually salt by the dealer front the warehouse At i ones, how ever, the dealer does not send a complete clew because the farmer himself works as a men..ber of the crew and at tunes also has one or more farm hands work as members of 'the crew Usually the dealer pays the wages of the crew members sent to the country by hum, although (Ili occasions the farmer pays them for the work done in his cellar Except for the unusual cases when the farmer pays the crew, the dealer deducts from the stiles price paid the farmer for the potatoes the amount paid the crew as' wages in sorting and packing the potatoes The farmer at times is dissatisfied with the job of sorting being done by the crew and in such'cases customarily resisters his complaint with file crew foreman- whether the complaint is directed'to individuals on the crew or to the crew as a whole Occasionally after a f,in eel iegisters his complaint the crew, is stopped from working until a representative of the respondent dealer conies to the cellar and adjusts the complaint Thine is no evidence that any inember of a crew has ever been discharged because a farmer complained about the crew member's work. The authority to lure and discharge crew members finally rests with the foremen or managers of the respective respondent's warehouses, alt hough crew fo-eiiien of country crews frequently are allowed to select their own crews ' When, the potato season begins each fall the respondent dealers customarily rehire upon application satisfactory crew members who have 'previously worked for them. _ Prom the facts as detailed above it is obvious that the warehouse and cellar crews ale employees of the respective respondent dealers They work under supervisors designated by the dealer. They work either, in the dealer's ware- house or in the cellar of growers with whom the dealer has made arrangements to, buy or dispose of potatoes. The farmers and faint hands furnished by them to "fill in" on crews ale not inloh-ed in this else, but only such employees as:ue carried on the respective re'pondent dealers' payrolls The undersigned is con- vinced that these employees are not agricultural laborers within the meaning of the Act : Tlic services of these employees are not rendered in the,helds Their' woik looks not toward the production of potatoes but toward their marketing. Their services a:c,deeled emitiiely to the sorting of potatoes, and then' grading, weighing, sacking preparation for shipment. and loading The -work is of such- H Section 2 ('1) of the Act e,Achides "ncncull-unit 1a1,oi" tiom the lerni "euiplocee" a, theiem defined and consequeully fiom the lnusdiclion of the 11Oaid ns eoilined by the .Net IDAHO POTATO -GROWERS, INC. __ - 1095 r a nature that it can be done in the dealer's' warehouse as well as in the farmer's cellar. The undersigned finds that the cellar and warehouse crews employed by the respondent dealers are not employed as agricultural laborers 9 III IIIE OR(',ANIZATION IN OLVFD Teamsters, Chauffeurs, 'Warehousemen and Helpers, Local 953, is a labor, organization affiliated with the American Federation of Labor. It admits to membership employees of the respondent dealers. MGTAE UNFAIR LABOR PRACTICES A Opposition to the.Unaolt darnel its atlenapt to orqua, e the pot(tfo Ivo,Leis; late) tereJtve, restraint alld (,0(,/ (,:Opt' In August 1941 Jack C Iiendrrclaen, an employee of the respondent Taube, had a conversation with Keyes Blur, "an executive of the Carpenter s' Union " 19 Blair suggested to Hendricksen that some of the eaiployees of potato dealers attend a meeting of meat cutters and gi ocery clei ks Hendi icksen and thi ec ,other such employees attended such a meeting Blair on that occasion explained to these employees how to'start a labor orgti1n iathon . Two or three weeks later one Rosduist, an .Annerican Federation of Labor eveCUPve, called at Ilendricksen's home and suggested to Ilendf icksen that petitions be calculated :among those employees interested in foimmg I labor org:unzatio'I Hendricksen, C A Falk and anol.her employee of the respondent Taube caused such petitions to be circu- -l: led anion, employees of Ibnt respondent and also among, employees of the Iespoudents Potato (iioWWeis, Holden. and the Warehouse Company In Janu:uy P142 Rayniond L Hansen, an oig:unizer for the "Joint Council of Teamsters," came to Idaho Falls and began to organize the ca e:unery work cr s un the vicinity. Hendricksen and Falk, another employee of the respondent Tanbe, called on Hansen while lie was in Idaho Falls and turned over to him solve of the petitions which had been circulated among the potato growers , Hansen told these two employees that arrangements would be made fora meeting of the potato workers on January 10 An organizational meeting was held at that time -News that the Union was organizing these workers soon spread among the respondent dealers, and other dealers and also :wrong the farmers is the vicinity of Idaho Falls. About January 20, after Milo Rash, an' employee in the w: ie- house of the Potato Groaners, had signed an application for membership in the -Union, Fred Foreman, who had supervision over employees in the Idaho Falls warehouse of the Potato Growers, called Itasli into the, toreninn's office . Rash's uacontradreted^teahnuony, which the undersigned credits, was that Foreman asked ",,tatter of Upland Citrus Association and Gitrus Partnig house II'orl„eis' Union Ni 40911, 24 N L R B. 1136. Norfla Whittier Heights Cihus As,oriat,on V. AT L R B 100 lY (2d) 76 (C C. A. 9), cent denied 310 U S 62, rehearing denied `ill U S 724, enf'g -Hatter of Nmth Whither Heights Citrus As.sochation and Citrus Packniq House Tl'orkers Union, Local -Vo 111091, ]ON L It It 1296; Matter of Amciscan sit Grousers, Inc, et at and Fruit it Vegetable TVorkeis Sub-Local of No 191, UCAPAWA, C 1 0, 10 N L R B alb, Matter of George G Ater all, et al , and Fi esta Fr nit it Vegetable IVmleers Union, Local )S. C 1 0 , I t N L R B 411 , Matter of Grower-Shipper Vegetable Association of Central California, at at and Fm umt and Vegetable ito, tam s' Union of California, No 1S?11, 13 N L R B 322, modified m other respects by N L R B v Grower-Shipper Vegetable .1ss'n 122*F (2d) 368 (C. C A 9) Ct Matter of Start„ Brothers Nurseries and Orchards Company, a cm-poration, and Local Industrial Union No 1131, affiliated with the C I 0 , 40 N L 'It B 1245: '0 This testimony apparently refers to United Ihotheihood of Car pent ems and Jotneis (if America, affiliated with the _Anierican Federation of Labor. 1096 DECISIONS OF NATIONAL LABOR RELAVf-JoN-s -BOARD him "what all this union business was about." saying that "sev-eral people of the different dealers" had telephoned that Rash was the instigator, of its Moreover, according to the ancontrad:eted testimony of Swell Swman, an employee of J. E O'Neil at the time, in about January 1942 O'Neil's foreman, Lloyd Johnson, in the presence of Sorman and other O'Neil employees at the O'Neil warehouse in Idaho Falls, stated that O'Neil and several others had retained'an attorney who was "going to break the Union so the Union, would never go through " This testimony is credited by the undersigned. Thereafter, on the evening of January 23, 1942, Farrel L. Hansen, manager, Fred Gustafson, secretary treasurer, and E S Trask, a director of the Potato Growers, C. R Holden, L. B Holden, J E O'Neil, CF,arl DeLong, A. G Stanger, manager of the Warehouse Company, and about 50 other persons, mostly farmers interested in the growing of potatoes, held a meeting in a, hotel in Idaho Falls, to discus`s the matter of the Union's drive to organize the potato workers. The farmers expressed concern over any possible increase in the wages of potato workers and asked the dealers present the nature of the employees' complaint. It was decided that a committee of farmers be appointed to invite a representative of employees from each potato dealer's warehouse to attend a meeting with the farmers next day at the Idaho Falls City Hall and discuss settlement of the difficulty It was understood by those present, that, this discussion was to be for *the purpose of attempting to adjust differences without the intervention of an "outside union " It does not appear from the evidence whether or how the committee issued invitations to the meeting to be held next day. All of the respondent dealers, however;, asked certain of their employees to attend this meeting. Before the meeting on the afternoon of January 24, Manager Hansen of the' Potato Growers told Ernest Norell and one or two other employees of that respondent about the meeting and said he wanted them to be present About the same time Rash asked Foreman if he should attend the meeting to be held that afternoon. Foreman said, "Yes. I want you to go " Foreman also told Rash that he would be paid for time spent at, the meeting About noon the day, of the meeting Warren Coon, buyer for the respondent Taube, went to a cellar in the country where a crew of that respondent's employees were at work I-Ie announced the meeting to be held that afternoon at the City Hall and gave instructions that two members of the crow were-to attend He stated' that wages would be paid as usual to those who attended. The crew selected two of its members, Willard Moore and Jack Hendricksen, to attend Rash, Moore, Hendrieksen and the other respondent dealers' employees who attended this meeting were naid for their time so spent. The meeting at the City Hall was attended by 60 to 70 people Employees from dealers operating in the Idaho Falls, Shelley, and Firth areas, including employees of all the warehouses affected by' this proceeding, attended the meeting George Hersley, a farmer, presided at the meeting" and informed those present of the fact that lie and four other farmers who were present hind been selected as a committee to talk to the employees and propose that they form a union of their own He stated that "the carpenters and the laborers and everybody else" in the Pocatello area, which was near Idaho Falls, "had made a racket of labor unions and lie sure didn't want that same condition to come to Idaho Falls " He said there was no need of letting their money get out of the State when they could keep it at home. He introduced one West. West stated that the com- munity had always gotten along all right until "these God damned rackoteers and agitators came in here" and caused trouble. Manager Hansen and Secietnry- 11 Beesley also had acted as chairman of the January 23 meeting IDAHO POTATO GROWERS, INC. 1097 Treasurer Gustafson i= of the Potato Growers were both present at the meeting and spoke Hansen stated, among other things, that the employees at the Potato Growers had always been one happy family until the Union had started trouble Organizer Hansen testified that on this occasion Gustafson started that a few years previous he and Manager Hansen had succeeded in getting the State legis- lature to enact a so-called "potato sorting bill", that this bill caused an increase in employment for people who worked in sorting and packing potatoes: and that Gustafson and'Manager Hansen would return to the legislature and obtain repeal of this law "unless conditions changed " Neither Gustafson nor Manager Hansen ,specifically denied this testimony of Organizer Hansen avid the undersigned'credits his testimony as stated above" It is obvious from the facts detailed above that the meeting, of January 24, 1942, was not an attempt by the respondent dealers to enable the Union to reach an understanding with the farmers On the contrary the purpose of the meeting. as stated when it was planned, was to settle labor difficulties by methods which, would defeat the Union Manager Hansen and Secretary-Treasurer Gustafson further gave their support to these activities by the statements made at the meeting They, Trask, C It and L' B Holden, J E O'Neil and Carl DeLong further lent their assistance by helping plan the meeting The respondents Potato Growers. Taube. and Warehouse Company lent assistance by asking certain of their employees to attend The undersigned finds that by the remarks of Foreman to Rash as detailed above: by the conduct of Manager Hansen, Secretary-Treasurer Gustafson and Director Trask, L B Holden, and Manager Stanger in helping plan the meeting of January 24; by the speeches of Hansen and Gustafson at the meeting; and by the acts of the respondents Potato Growers, Taube, and Warehouse Company in asking certain of their employees to attend the meeting knowing, its anti-union purpose, the re, spondents Potato Growers, Taupe, and Warehouse Company inter- fered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. The effect of the conduct of C R' Holden. J E O'Neil. Lloyd Johnson, and Carl DeLong will be discussed hereinafter." B The cases of discri-nnnation 1 The discrimination of the respondent Taube against Moore The complaint alleges that on February 5, 1942, the respondent Taube, terminated the employment of Willard Moore, Jack C Hendricksen, Clency L Wadsworth, C A Falk, Mervin Crandall and Harold Goodell because of their membership in and activity on behalf of the Union The respondent Taube denies that these employment terminations were for union membership and activity, but contends that in making them it singled out those employees who were least 12 Gustafson was also one of the farmers on the committee referred to by Hersley , chair- man of the meeting i Organizer Hansen also testified that Gustafson stated lie could gladly spend time in jail for the opportunity to "run a pitchfork" through Hansen ' s "God damn guts " This testimony was vehemently denied by Gustafson Manager Hansen and other respondents' witnesses testified that Gustafson made no mention of attacking Organizer Hansen with a pitchfoi lc Manager Hansen and Gustafson testified that the legislation they had sponsored was adverted to by Gustafson as indicating their pro - labor attitude , but the other witnesses for the respondents tailed to controvert Organizer Hansen's version of Gustafsons threat involving this legislation . Under the circumstances . the undersigned finds, that although Gustafson threatened repeal of the "potato spiting bill ," lie did not speak of assaulting Organizer Hansen with a pitchfork. 14 See Section V infra. 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' capable. A total of eleven lay-offs were made at the time and the evidence shows that a decline in business necessitated such a number of lay-offs. The question is whether the six employees named above were singled out for inclusion among those to be-laid off because of their union membership and activity Carl Metcalf, foreman of the respondent Tanbe's Idaho Falls warehouse, after conferring with L. B. Holden, prepared a list of those to be laid off on February 5 According to Holden,•he told Metcalf at the iilne to keep efficient men on the job. Metcalf's attitude toward the Union is shown by the unconti adicted testi- mony of 1j'adsworth,15 which the undersigned ciedits, about a remark made by Metcalf in the presence of Wadsworth and other einployeos a week to ten days before these employment terminations. On that occasion Metcalf said regarding the Union, "Now that you belong to the God damned Union do you feel any better about it'?" L B. Holden's participation in the meeting of January 23, which was designed to thwart the Union, has been discussed above Willard Moore, one of those whose employment Metcalf terminated on this occasion, began work for the respondent Ta tibe in the fall of 1936 He worked for it every season thereafter until February 5, 1942, except for one voluntary lay-off from February until December 1941. Moore attended the Union's organi- zational meeting on January 16 and joined the ,Union He attended and spoke at the meeting at the City Hall on January 24. Hersley, chairman of the meet:- ing, stated that the Union would take money out of the State. and Moore aui'swered this contention by stating that his experience as a member of a labor organization on the coast showed that "this condition slid not exist" Moore also stated un this occasion that it should be possible-for the Union and the dealers to come to an- agreement -which would -inipiove the conditions of the employees "without hurting the dealer very much." On the afternoon, of February 5 after the eleven employees mentioned above had returned to the warehouse from ,voik in the courtly, Metcalf told :Moore and the others that he, had • orders from the,ofTic,e to, -lay them off On the same crew with)-Moore was -Hyruni Beck, a sorter hand Beek, had worked for the respondent Taube only since the spring of 1941 Also on the same crew were Cleo Teats. Milton Aller, and Dave Mahoney • Teats, a scooper, was work- ing his first season for the respondent Taube; Allen, a jigger, and Mahoney, a cull picker,'"-were ,'orking• only their second season Moore. -who at the time was a cull picker, had also had experience at other types of sorting and also as a scooper and.jigger. - The respondent Taube contends that it had no policy -as, to seniority and for that reason did not give weight to seniority . in making these lay-offs However, during the month of'Deceniber 1941-before the advent of the Union this respondent- similarly found it necessary to make eight lay-offs All of those laid off at that time were working their first season at this respondent's Idaho Falls warehouse Moreover, prior to the Deeenber lacy-offs -Metcalf con- ferred with Clifford Moore, it country ,crew foreman, as to what members of-his crew should be laid off Moore recommended that in employee on his 'crew who was working his first season be laid off', In February, however, Metcalf did not confer with Moore 'regarding the lay-offs to be made, although three employees from Moore's crew were at the time laud off, more than from airy other crew One of them was Willard Moore.'' g Se A culi picker is a type of sorter 16 Wadsworth at tomes worked in the country and iwhovi doin soA^as crew foreman The other members of'Chfford Mooie's crew to be laud nff were Elendiicl.een,.wliosg case is discussed below, and Jim Singleton, who is not n.u led iu-tlie complaint - - IDAHO POTATO GROWERS, INC. 1099 L 13 holden , testifying as to why Motile was laid off, stated that he was one of the youngest men on the ci ew,"l aitd° "a little slow' on' Thor table, pos- sibly.", Metcalf; ' who' had supe'vision over the warehouse -and , country crews of the respondent Taube, was not tatted as it witness Clifford Moore , Willard Moore's crew foreman , described the latter, as'a "good man in the crew." Met- calf did not consult with Foreman ' Moore 'during' the 1941 =42 season about the iluahty of work of Willar d Moore • -1-le-visited the cellars where this crew worked daring the season only three or four toles and remained ' only 15 to 30 rmnutes of these occasions Moreover , at the time of the lay -offs. Moore and Hendrickson , discussed below , asked Metca lf if their work was satisfac- tory and Metcalf replied affirmatively All the circumstances detailed above, when studied in connection with Holden and Metcalf ' s :uumus toward the Union , raise the question whether the respondent Tanbe terminated the em- ployment of Moore because of his union membership and, activity L B Holden 's activities to ihuunit the Union in(] Metcalf 's remark made prior to these lay-offs ill opposition to the Union . have been stated above Soon after the lay -ofts the Union sought execution on behait of its members of collective bargaining (omtraets with the vat ions respondent dealers under cnrutnsta)ces detailed below Metcalf about the time further signified h is anunosity toward 'the Unioii by statm to i i group of employees ' while at work that lie didn't "think very damned much of the Union " Metcalf iefei red to the collective bargai n ing, cont racts as outrageous and stated that "anybody who signed it 'contract like that 'would lie a clammed fool " Of 48 employees in the respondent Taube's Idaho Falls w:uehonse at the time of the February lay-offs a ll but five were' members of the Union and all eleven of those laid off were Union members The undersigned is convinced that Moore would not have been included in the group except by reason of his pronounced activity as a mem- ber of the Union L. 13 Holden testified that lie never undertook to asceit:un which employees were members of the Union , although lie understood prac- tically all of the Tanbe, employees were members The undersigned , is con- vinced mid-finds , however , that in view of the nature of Moore ' s union activity the respondent Tatibe had knowledge of it The undersigired finds that in ternunatnig the employment (if Wiiiiid Moore on February ' S, 1942 , the respondent Taube discriminated in regard to his hire and tenure of emplo^; nient and discouraged membership in a labor organiz a tion ; that by such discrimination said respondent interfered with, restraii ed , and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2 The alleged disci,iin nation of the respondent Taube against Hendricksen, ` Wadsworth, Falk, Goodell, and Crandall - Hendricksen, one of those whose employment the respondent Toiube terminated, began work,for this respondent in the,fall of 1937 and except for the season of 1938-39 worked for Taube each season thereafter until his lay-off in February 1942 During the preceding August, he had concei,veil the idea of forming a union among the potato workers and hid made inquiry as to'how this could be done He helped circulate petitions among those employees signifying their desire to organize and met with Organizer Hansen soon after this individual came to Idaho Falls. ,Hen- drrckseii attended the Union's organizational meeting on January 16 He spoke at the meeting of January 1G,.urging the other employees to join. He also joined the 10Ilolden appaientty referred to liooie's service dmiing the 1941-42 potato season, as Moore had worked for this respondent since the fall of 193(1 1 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union about that time . He attended the meeting of January 24 at the City Hall and spoke, although the record is silent as to the nature of his remarks at that meeting. On the afternoon of February 5 Metcalf notified Hendricksen of his lay-off. Hendricksen worked in the same crew with-Willard Moore, discussed above, and 'had seniority over Beck , Teats, Aller, and Mahoney, and although a sorter at the time of his employment termination , was experienced in the types of work being done, by those employees. L. B. Holden, in testifying as to why Hendricksen was included among those to be laid off, stated that Hendricksen was it little older and slower than the"other employees. He testified also that lie "understood" in cases where the warehouse "changed from the small packs to hundred pound bags" or the other way Hendricksen would spend too much time counting sacks rather than cleaning the Odor and getting ready to pack according to the changed size of'the bags Although Clifford Moore, Henc1ricksen's crew foreman, described the latter as a steady man who did good work, and Metcalf told him on February 5 that his, work had been satisfactory, the undersigned, while viewing Hendricksen's employment termination with suspicion, is' not convinced under all the circumstances that the respondent Taube singled him out to be laid off because of his Union membership and activity. His activity on behalf of the Union was somewhat pronounced, but the evidence does not show that the respond- ent Taube had knowledge of it.1D - The undersigned finds that in laying off Hendricksen on February 5, 1942, the 'respondent Taube did not discriminate in regard to his hire and tenure of employment. Wadsworth began working regularly for the respondent Taube in the fall of 1938. About the second season of his employment Wadsworth was foreman of a country crew. Thereafter until his employment termination on February 5, 1942, he worked most of the time in the warehouse as a sorter and grader During the 1941-42 season he was head grader on one of the crews opelating in the ware- house. Wadsworth attended the organizational meeting of the Union on January 16 and at that time signed an application for membership He thereafter talked in favor of the Union to other employees with whom he worked On February 5 only one sorter was operating in the respondent Taube's, warehouse. That was the machine on which Wadsworth was head grader At the close of work that day Metcalf told Wadsworth he was on the list of those to be laid off Since Wadsworth began to work, regularly for this respondent lie had never previous to this occasion been laid off before the end of the season After Wadsworth's lay-off Pete Schultz ' a head grader of less experience than Wadsworth, continued working. Schultz, however, was also a member of the Union. Moreover, there is no evidence to show that the respondent had knowledge that Wadsworth was more active in the Union than Schultz The explanation given by the respondent Taube for Wadsworth's lay-off was in L B Holden's testimony that growers sometimes complained that Wadsworth unnecessarily, clipped off the ends of potatoes and that he always verified the correctness of his pay check. Although Wadsworth's testimony shows that none of his superiors had ever considered these matters of sufficient importance to discuss them with him prior to his employment 10 Although tlendeiieksen spoke at the meeting on January 24, as did Moore, the record does not disclose the content of his remarks When testifying at'the hearing Flendricksen was asked what lie said on that occasion, and he stated that he could not remember. It is therefore not clear whether the remarks he made on that occasion revealed that lie was a supportei of the Union 20 Erroneously mentioned in the transcript as Pete Schuetz IDAHO POTATO GROWERS, INC. 1101 termination, the undersigned is not convinced that Union affiliation and activity rather than the reasons given by this respondent were the real causes of Wads- worth's employment termination. The undersigned finds that in laying off Wadsworth on February 5, 1942, the respondent 'l'aube'did not discriminate in. regard -to his hire and tenure- of employment. Falk a° began.'work for the respondent Taube in the fall of 1936. He worked most of the .time as a jigger and was so employed at the time of the Febi uary 1942 lay-offs Falk was one of the employees who assisted•Hendricksen circulate the petitions mentioned above among employees interested in forming a labor organization He joined the Union He also attended and spoke at the Union organizational meeting on January 16 He assisted Organizer Hansen distribute pamphlets among the, potato workers. Falk was selected by the Union as a member of a committee to prepare the proposed contracts mentioned above for presentation to the respondent dealers He attended the meeting at the City Hall on Januay 24 Falk was one of those laid off on February 5 Holden testified that Falk was laid off because, among other reasons, he used intoxicants. He related no specific instances of Falk's using intoxicants and testified on cross-examination that his knowledge of the subject was limited to hearsay. Holden testified also that Falk was slower and older than some of the other employees' Aller, mentioned above, another jigger of less expel ience than Falk, was not included among those laid off Aller, however, was also a member of the Union and the evidence does not show that the respondent Taube knew Falk's union activity to be more pronounced than that of Aller. Although Wadsworth who had on ecasions acted as country crew foreman over Falk, testified that Falk's work was satisfactory,' and Falk's work had apparently novel been criticized before his lay-off, the undersigned is not con- vinced undei all the circumstances that Falk's employment was terminated for union membership and activity. The undersigned finds that in terminating the employment of Falk on Feb- ruary 5, 1942, the respondent Taube did not discriminate in regard to his hire and tenure of employment. , Goodell, a carloader in the respondent Taube's warehouse, had worked for this respondent since 1937 - He attended and spoke at the Union's organizational meeting on January 16, and attended the meeting at the City Hall on Janu'- 'ary 24 He also helped distribute Union literature. He was absent from Idaho Falls and did not appear as a witness at the hearing, and evidence as to some of the circumstances surrounding his lay-off is somewhat meager. Holden testi- fied Metcalf had reported to him that Goodell did not follow instructions in loading cars and was laid off for that reason The evidence fails to show that the respondent T:uibe had knowledge of Goodell's Union activity. Nor does it show that he was experienced at other types of work than that of carloader or that any carloaders employed by this respondent a shorter period of time than Goodell were retained on the payroll after his lay-off On the basis of the evi- dence the undersigned is not convinced that his lay-off was discriminatory. The undersigned finds that in laying off Goodell on February 5, 1942, the respondent Taube did not discriminate in regard to his hire and tenure of employment: 21 Although this employee was not present to testify at the hearing, the facts' as delailed below about his case were elicited from other witnesses v Holden's explanation of this reason for Falk's lay-off was as follows "The only thing I recall is-mould he his ability to handle the front end of the machine, and also he was very slow in helping clean up, and things like that, around the machine." -a Willard' -Sioore, who at times had worked with Falk, also testified that he regarded Falk as a good worker 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Crandall, a sack sewer, had worked for the respondent Taube about three seasons at the ,tune of his ]ay-off He joined the Union, advocated' it to other ei'nplo -ees at the 'time it was organizing' them, attended the Uuton meeting on January 16, and was one of those selected to attend the meeting on January 24 Crandall, like Goodell did not appear as a witness at the hearing. Holden indi- cated that Crandall was laid oft because he did not "get along" with the other' employees and growers. In support of this contention Holden referred to a con- bersation between himself and another dealer about some "trouble" the latter had with Crandall The respondent Tauhe also elicited some testimony from other' witnesses, apparently intended to show that Crandall before his lay-off had some difficulty with a farmer named Hanson while the crew of which Crandall was a member was working it Hanson's farm Although this evidence regarding the respundent '1'anlw'.s icaso is for laying oft Crandall is somewhat unsatisfac- tory and testimony adduced by the Board showed that the "aigumnent*' between Crandall and Hanson may riot have been as serious as this respondent con- tAnded, the utidersigned is not convinced that he was discrmmiatorily laid oft Although this'emplo,'ee was somewhat active on behalf of the Union, the evi- dence fails to show that the respondent •laube had knowledge of this activity- The undersignedfinds that inlaying OJT Crandall on February 5, 1942, the respond- ent Taube did not discruni site in regard to his hire and tenure ofeniployinent. 3. The discrimination of the respondent Potato Growers against Rash The complaint alleges that Rash was discriminatorily demoted and forced to quit his position or discharged on February 24, 1942 Rash began work for the Potato Growers in 1935 He did not i etu &n to woi k during the 1939-40 season, but-returned in the fall of 1940 and worked until the (late of the alleged dis- crimmation .. During his first season of employment Rash did sorting and mis- cellaneous work in the Idaho Falls warehouse . I)urmg the 1940-41 season lie worked mostly on sorting crews both in the warehouse and in the country At the'close of the season in 1941 , Manger' Hansen sent for Rash and told him in the former 's office that he was grateful for the work done by Rash during the season and he hoped Rash would return the following season as he would need him more at that time In September 1941 Rash returned to work It was the practice of the respondent Potato Growers to ship potatoes in bags known as brand, bags and to use field bags . or dump bags, in the country as a teniporary- means of packing potatoes that had to be "re-run ' in the warehouse. Soon after Rash began his employment in September 1941 Foreman assigned him the work of looking after these bags This work did not,iequi re all his time. how- ever , and when he was not busy looking after the bags Rash did other -work such as helping the carloader and packing bags and boxes of potatoes Part of the time Rash was under the direct supervision of Foreman and at other times Lester Long , a foreman in charge of certain packing work in the ware- house , supervised his work Rash attended the Union 's orgirnizational meeting on January 16 and imme- diately became active on its behalf Foreman 's interrogation (of Rash soon thereafter about "this union business" and his statement to Rash that some of the dealers had said he was "the instigator of the whole business "' has been,- detailed above Foreman thereafter told Rash to attend the meeting , at the City, Hall on January 24 as detailed above Rash kins also elected a member of the Union 's contract comnuttde ' Between February 10 and 16 , 1942, Owen sent sepauate letters. to tlie`variopls respondent dealers in which he requested meetings on behalf of the Union with these respondents for the purpose,of negotiating collective, bargarrung contracts IDAHO POTATO GROWERS, INC. 1103 l copy of a proposed contract was enclosed in each of these letters The letter to the respondent Potato Growers and a copy of the proposed contract was sent to it on or about February 13 Soon after receipt of this letter and the proposed contract 1L•unager Hansen called a meeting at this respondent's Idaho Frills,, warehouse of all employees at both its Idaho Falls and Shelley operations. Both Hansen and Fred Foreman, the supervisor of the Idaho Hills warehouse em- ployees, attended this meeting Hansen spoke, suggesting to the employees that they would "get lots further lots quicker" by forming a labor organization of their own than by belonging to the Union. Rash stated in reply to'Ha nsein that lie did not think an organization of their own would give them its much power or support as affiliation with an international organization Hansen stated, however, that he did not believe the employees would need such aflilin- tion and said that if they would take up their problems with him and the Board of Directors he believed they could get whatever they wanted He suggested that they take up their problems through a grievance committee An election by written ballot was then held for members of such a committee in the presence of Hansen and Fore line Rash and two other employees were elected to this committee, Rash being elected its chairman by receiving the most votes. Thereafter on February 24, Foreman entered the "sack room" where Rash was at work and, although that date was not the end of pay period, gage 1lrish his pay Foi eman ,said to Rash oil this occasion, "Well, I guess that is all of it . They have decided to discontinue voin' job. . . The dumpers will put the sacks into the,sa,k ioom,,and be truck drivers will take them out to the country'crews."=' Foreman told Rash tlirrt the latter might be. able to get work on a country crew Rash protested that if he did so he would be unable to do scooping soon after these events 'Mmiogel' Haii^en told Organizer Hansen' that Hash ions not discharged. but was tempouuily laid oft raid he wonld.like to talk to Rash. Rash then called on Manager Hansen when Hansen was attending a meeting of the Traffic Association it, it hotel ill Idaho Falls Hansen said -to Rash on that occasion that lie thought Rash was misled by the Union, but' that he did not discharge hum for union activities. Hansen' said he would take up with the Potato Growers' board of directors the matter of putting Rash back to work is the warehouse amt would let Hirsh know Litei Ilansen did nod, however, offer Hash a position After I{rish's emplolnieiit termination Victor llussmrtn, a wurehouse_ennlihiyee, was assigned to the work of handling the sack: Nlus^man hart begun work tor the respondent Potato, Growers duly'the preceding fall Joe Schofield, another warehouse, employee, at the same time ryas assigned to help look after the sacks After about 2 days Lester J Lonna, a foreman ill the warehouse, was told by It'orenian to take over the sack joli, as the sacks were getting into such a suite of confusion from inpiopej handling that there might be'tiouble Long accordingly transferred from other work ill the warehouse to that of handling the sacks Long still performs this work. The work consumes about two-thirds of his time Late iii February or early nin ilaivIt after Rrnsh's employment ter•muratiin -Manager Hansen called a meeting of,the respondent Potato Growers' euiplosces Is the Idaho Falls warehouse for discussion of whether it should allow the dealer O'Neill to use part of the Potato GGrowers, wrirehomse Iur earryung Oil • =i It Is. notewortlnv that ^[nnuger 1Guisen himself bud, created the_pnsition of tooting .irtei the, sacks betore Rosh •aas assigned to it It is clear is discussed below, that the position as not penuanently abolished at the time of ltaah's e1111)14 meat teununatuou 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain operations'' Rash asked Hansen if he should attend this meeting as chairman of the grievance committee Hansen told Rash there was no need of his presence, but that it would be all right if lie wished to attend Rash attended the meeting and asked Hansen before its conclusion whether lie was discharged. Hansen Itestified that Rash indicated on this occasion after inquiring as to his status that there were certain jobs lie would not take; that Hansen asked if Rash thought himself "better than any of these other boys," and indicated the necessity of working with reduced force; that Rash then said, "I feel sorry for you, in.fact, I feel so sorry I thing I will pass the hat right now to get'sonie money to help on out;" and that after this remark Hansen told Rash that in view of his attitude he had better look for other work. Rash did not deny this testimony by Hansen The undersigned credits it. As Rash's employment had already been terminated at the time of the ieiiark about "passing the hat" for Hansen's benefit, it is obvious that he was not discharged for having made this remark Hansen stated on cross examination an inability to recollect ever havingi offered Rash any specific job after his employment termination. Ernest Norell, a foreman of one of the respondent Potato Growers' country crews, testified that he told Rash after Ills I.ly-off that the latter could work for Norell's country crew and that Rash could have had work on the crew "if he wanted to scoop" Rash denied that Norell offered Win a job In any event Foreman, who was Norell's superior, told Norell about that time to have Rash do "scooping or something" if lie went on the crew. Whether Norell offered Rash a job on the litter's country crew is not free from doubt. It is clear, however, that if lie (lid so the offer was confined to a sc2op- iug'job' ' Hansen testified that before Rash's employment teruiin:iuori he told Fnri'nilii to attempt, on account of decreased business, to reduce the pav ill and cumin ai operations He testified that he suggested Long as being able to do Rash's woik- The undersigned is impressed by the fact, however, that there were no other lay-offs of the respondent Potato Growers' employees on February 24, 1942 't'his' fact and the transfer of Long about two days later to Rash's position, indicates ai desire by this respondent to sever Rash from its employment rather than to eliminate his position and "cut down" its force Foreman's instructions to Norell to have Rash do scooping work indicates a similar desire The evidence shows that scooping was a "heavy job" and required "bending" for substantially all the time that an employee was so engaged Moreover, since scooping paid 5 cents an hour less than Rash's former position, which was .still continued as hart of the operations of the respondent Potato Growers, Rash was not offered sub- stantially equivalent employment Hansen testified that Foreman may have held a different attitude towaid Rash than himself because about the time of Rash's employment termination there was some confusion in packing for shipment some potatoes of a customer named Wood. This customer furnished his own bags for the packing of his potatoes According- to Hansen, Rash failed to have these bags available to be filled with potatoes at the time loading of the car for shipment wars begun As a result, part of the potatoes had to be unloaded and re-packed for shipment. Hansen testified that at the time he blamed Foiemain and Foreman blamed Rash for this mistake. Foreman did not mention the above incident at the time he gave Rash his pay check on February 24. Since he did not testify at the hearing there is no evidence directly to indicate that he warred ito terminate Rash's employmvit because of "There had been a fire at the O'Neil wan ehouse and the discussion was whether that dealer should be given use of part of the Potato Growers' warehouse during the emergency- IDAHJ POTATO GROWERS, INC. 1105 the carloading incident mentioned by Hansen Any such conclusion would be speculation. Moreover, at the time of Rash's employment termination on Febru- ary'l4 the reason given by Foreman for such action was that Rash's position was being eliminated - Under all the circumstances the undersigned finds that on February 24, 1942, the respondent Potato Growers discriminated in regard^to the hire and tenure of employment of Rash and discouraged membership in a labor organization ; that by such discrimination said respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act. C: The refulcala to ba?!atn, other intcrfelence, iestraiat. u,-nd coercion I The arrangement of the respondent and other dealers to handle their labor problems through the Traffic Association' 1\Ieanwhile, after the letters and proposed contracts inentioned'above had been mail(!(] to the respondent and other dealers on behalf of the Union. Manager Hansen and Eugene Trask, a director of the Potato Grower s, asked Eli Weston, :ui attorney at Boise, Idaho, to come to Idaho Falls in order to discuss with the potato dealers their labor problems On February 16, 1942, Attoiney Weston attended a meeting sponsored by the Traffic Association in Idaho Falls The respondents and other dealers who were present, voted to retain Weston and to contribute to a fund for his payment. The voted contributions were made accord- ingly, most of them being deposited with funds of the Traffic Association and paid Weston by De Long, its executive secretary.28 2 The appropriate units The complaint alleges that all employees of the respondent Potato Growers on its cellar and warehouse crews at Idaho Falls and-Shelley, of the respondent Taube on its cellar and warehouse crews at Idaho Falls and Shelley. of the respondent Wilson on his cellar and warehouse crews at Firth, and of the re- spondent Stuart on leis cellar and warehouse crews at Shelley, and of all the other respondent dealers on their respective cellar and warehouse crews at Idaho Falls exclusive of office employees and supervisory employees of higher rank than cellar crew foreman. constitute, in the case of each of said respondents, it unit appio- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act The answer, as amended at the hearing, admits the appropriate- ness of the units as alleged except with'respect to the respondents Potato Growers and Taube The Idaho Falls and Shelley warehouses of each of these respondents are under separate supervisors The supervisor of each of these warehouses, how- ever. is responsible to it manager who has an office in the ,plant at Idaho Falls, which is about S miles from Shelley The Shelley foreman of each, as a practice telephones "his manager in Idaho Falls repeatedly every day about business matters at the Shelley warehouse The general nature of the work performed by the warehouse and cellar crews at Idaho Falls and Shelley is the same Occasionally, employees are exchanged between the warehouses of each of these respondents in the two places That'Manager Hansen viewed the employees of 2" Although a stipulation made at the hearing recited that the contributions were thue - paid through the Traffic Association, the stipulation ieseived to the pasties the right to introduce evidence as to Traffic Association matters There was testimony that the re- spondent Taube paid Weston its portion of the fee diiect. 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent Potato Growers at Idaho Falls and Shelley as one group with common interests- as to matters of labor organization is shown as set forth above by the fact that in February 1942, he called to one meeting employees of, both the;Idaaho Falls and, Shelley warehouses of that respondent at which he urged them to start a union of their own._ The Union has members in both the Idaho Falls and Shelley warehouses of these respondents It is the only labor organization, moreover, which has members among the employees in any of these warehouses. The undersigned finds that at all times material herein the employees of a the respondent Potato, Growers on its cellar and warehouse crews at Idaho Falls and Shelley, of the respondent Taube on its cellar and warehouse crews at Idaho Falls and Shelley, of the respondent Wilson on his cellar and waieliouse crews at Firth, and- of the respondent Stuart on his cellar and ware- house crews at Shelley, and of all the other respondent dealers on their respective cellar and warehouse crews at Idaho Falls, ,exclusive of otlic•e employees mad supervisory employees of higher rank. than cellar crew foreman, constitute and constituted in the case of each of said respondents a unit appropriate for the purposes of collective bargaining, and that said dnits insure to the employees of each of said respondents the full beuefit of their rights to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 3 Representation by the Union of a majority in the appropriate units It was stipulated at the hearing that the;Union had heed 'designated as rep- resentative for the purposes of collective bargaining of a. majority, of the em= ployees on pay rolls of the respective respondent dealers in or about February 194224 in each of the units found to be appropriate r. The undersigned finds that in or about February 1942, and at all tunes material thereaftei,'the Union was designated and selected by a majority of the enipkryees of the respondent deiilers in the units found to be appropriate and pursuant to Section 9 (a) of the At, was at that time and at all times material thel eafter, and now is the exclusive representative of the employees in each of said Units for the purpose of collective bargaining in respect to rates of pay. wages, hours of employvlent, and other conditions of emplovinent. 4 The refusals to ban'gaini Important in the vicinity of Idaho Falls is the'Gra nge, a well known faraners' organization. The Grange'meinbers and other farmers were concerned about the attempt to unionize the potato workers because, they contended, labor costs'are ultimately paid by the' farmer Soon after the pa uposed contracts were sent to, the respondent and various other dealers on behalf of the Union as stated above, a meeting of so-called local Grange piasters and others took place in a hotel in Idaho Falls. Manager Hansen and Director Trask of the respond- ent'Pothto Groweis attended this meeting Attorney Weston was also present. It was agreed on this occasion to hold `a general giowers uaeeting' in order to explain 'the proposed Union contracts and the deNelopnaents with respect to unionization of the potato, workers Such a meeting took place on February 23, 1942, in' York Grange Hall, a meeting place, near Idaho Falls Weston was 2PThe Union has'as menibeas•.a naalority of the, emploiees ill the combnied Idaho. Balls and Shelley plouite of each of these employees . but not in the Shell pl:mit, .Ilene -s The pai-rolls ieferied-to•in - the stipulatinn ' vvero.i, of 1lil appioXini .ite d.ites the pro- posed contract,, were sent the variou s reapmulent de,ileis 'rhea co%ered %a ions periods during the month of Febi u:u y. IDAHO POTATO GROWERS, INC . 1107 present and explained the nature of the contracts presented the dealers. Some statistics prepared by Manager Hansen regarding how the Union contracts would increase labor costs were read at the meeting. The group voted a resolution which recited, among other things, that those present at the meeting pro- tested the entering into any contracts between dealers and the Union unless the farmers in the vicinity ere allowed to participate in the negotiations ; also, that the farmers should be represented and allowed to present evidence in case the matter went before the Board. Those at the meeting further passed a motion unanimously "that all growers and producers in this area refuse to ship or send potatoes or produce to any packer or shipper who signs the contracts dis- cussed at the meeting " Several other similar meetings of the Grange and other organizations were held in the vicinity soon after the York Grange meeting Manager Hansen testified that he attended and spoke at several of these meetings and that he attempted at such times to organize the growers so that they could "put themselves in,posi- tion to properly represent their interests in the case of cases where any costs of wages were under consideration that would affect the prices they receive for their potatoes." Hansen's activities encouraged farmer opposition to the Union. On March 2, 1942, Organizer Hansen, Owen, and others representing the Union, met with Weston, representing the respondent dealers. Weston mentioned the York Grange meeting and the other meetings being held by the Grange as show- ing the attitude of the farmers. He stated that in order to negotiate, it would be necessary for the Union "to recognize" the Grange. A similar meeting was again held ,the next day, Manager Hansen also attending this meeting Weston .and Manager Hansen reiterated the position taken by Weston the preceding day. Manager Hansen also said that he did not see why the Union undertook to organize the community's potato workers, as the community was devoted to agriculture and was getting along "very good" without the Union. Owen stated at this meeting that he would like to talk to the farmers, as he understood they had an erroneous idea of the Union's contract demands. Weston and Manager Hansen stated that they thought they could arrange such a meeting and the former agreed to invite those who were to attend. On March 7, 1942, the proposed meeting was held, attended by 60 to 70 persons. Weston presided and several of the respondent dealers were represented at this meeting A number of the employees were there Owen spoke, undertaking to state the purposes of the Union and the nature of the proposed contracts. Several growers also spoke at this meeting. J. E O'Neil spoke, stating to Owen in the presence of the group, " ... what in the Hell have you ever done for your coun- try ; why in the H211 don't you get a gun on your back instead of causing trouble on others, . . ." Manager Hansen also spoke, stating that the Potato Growers' sorting costs had risen from eight to fifteen cents a hundred because of lack of interest of his employees since union activity began: I The meeting finally broke up during an argument between Owen and O'Neil. The farmers and dealers, however, remained for further discussion after the meeting. On Sunday, March 8, 1942, Weston wrote a letter to Owen, stating that the dealers-' were perhaps in a worse predicament than before the meeting of March 7. He stated that he planned to attend the regular meeting of the dealers 30 the next day, however, when a decision would be made as to "the farmer matter." Weston stated that he would advise Owen as'to progress made at that meeting. Meanwhile on March 4, Owen wrote the' respondent Wilson reminding him of i 20 In his letter Weston referred to the group as "the potato packers" Whether he in- tended to include in the category other dealers besides the respondent dealers, is not clear. 00 Apparently Weston had reference to the Traffic Association's weekly meeting. 521247-43-vol. 48-71 .1108 DECPSIONS OF NATIONAL LABOR 'RELATIONS. BOARD the proposed contract previously mailed, stating that under the Act it was a duty to negotiate within a reasonable time with a union which represented 51 percent or more employees, and asking him his position with reference to negotiating. Wilson replied that the dealers as a group had turned the matter over to Weston and he understood that Weston was in cominumcation with Organizer Hansen. On March 10, Owen sent letters like that sent Wilson to the other respondent dealers. On Monday, March 16; Weston wrote Owen that he had been unable to attend the dealers' meeting;31 that day in Idaho Falls, although he had expected to do so. Weston stated that he favored considering the'various contracts indi- vidually-and that, although he had understood that upon failure of Owen' to convince the farmers at the "last meeting" the dealers were to be for the time relieved of negotiating, he would communicate with Owen as soon as he heard from the dealers about further negotiations. Weston indicated that there were three or four dealers with respect to whom lie questioned the Union's majority, and he would later submit the names of those dealers to Oren 32 No such names were ever submitted. On March 18, Organizer Hansen and Owen had another meeting with Weston. Weston suggested that since he was located at Boise, Idaho, negotiations be 'conducted by mail. Hansen and Owen refused to consider favorably this sug- gestion Weston again questioned whether in the case of certain dealers the Union had a majority, but did not name any of the respondent dealers Hansen indicated the Union' was willing to submit proof of majority whenever negotia- tions began. The three discussed the question of the order in which possible negotiations should be conducted, Hansen and Owen urging that they should proceed according to the order in which the contracts had been presented, but, Weston urging that the Potato Growers' negotiations should be conducted first Owen asked if the dealers would consider an election covering the employees of all dealers in the area. Weston replied that he thought not,'but that lie, w6uld discuss the matter with the dealers and advise Owen of the result. On March 23, Weston wrote Owen from Boise, stating that lie had attended a convention of the Traffic' Association at Twin Falls, Idaho, the preceding Saturday and had been unsuccessful after the meeting that night in an attempt to call together a quorum of a Committee on labor problems He stated that he told those to whom he talked about the Union's insistence upon having further negotiations Weston stated as to the order of negotiations that he believed the dealers' position to be the better one "inasmuch as Nye should eliminate all questionable cases involving the 51 percent rule before we proceed with the others." He suggested the possibility of getting an "advisory opinion" from the Board about the law with respect to the necessity of "bargaining for the entire industry " Weston stated an intention of seeing Owen on March 26 or 27 after the meeting with a labor committee of the dealers, but did not coiiiinunicate with Owen on either of those dates. On March 31, Weston wrote Owen another letter in which he stated that he had been unable to get the labor committee together for a meeting, but that he would be in Idaho Falls again the next day. The letter stated that Weston would discuss matters with the committee 33 and notify Owen "just as soon as we can arrange a meeting." Owen did not hear 31 See footnote 30, supra. 31 The letter named one such dealer , who is not a respondent ; it added , "There are three or four others in this same category whose navies I do not have. I will send them to you in a day or two I believe we should eliminate this question first "The letter mentioned "these committees ," apparently referring to another committee which represented the employers in some negotiations then\also pending as to certain creamery employees. , , IDAHO POTATO GROWERS, INC. 1109 from Weston the next day, but a few days later received a copy of a letter dated April,3 in which Weston's secretary wrote Manager Hansen that Weston'was ill in bed and could not attend the Monday meeting, presumably of the Traffic Association. Also on April 3, Owen wrote a letter to Weston in which he'stated that in the meetings held there had been no negotiations in good faith, that he saw no reason for further meetings until the Union was shown that there would be such negotiations. The letter stated that charges of refusal to bargain were being filed with the Board. Owen filed such charges in April. The 1941-42 potato season ended soon after these charges had been filed and there were no further dealings between representatives of the Union and the respondent dealers respectively until October 5, 1942 On that date Organizer Hansen and Owen met Weston who said that there was a possibility some of the dealers could meet with the Union representatives. Weston asked Owen and Hansen if they could prove a majority for the Union They assured him they could and Owen stated they would claim it as of the date the proposed contracts. had been presented. Organizer Hansen about that time also talked to C. R. Holden about the possibility of discussing the situation with some of the dealers. such a meeting took place on October 7. At this meeting Owen, Organizer Hansen, and International Representative Al May were present for the Union. Manager Hansen of the Potato Growers, L. B -Holden of Taube, C. R. Holden of Holden, A. G. Stanger of the Warehouse Company, De Long of the Traffic Association and Wilson were present from among the respondents On this occasion -there was discussion of the wages being paid potato workers in the locality, the dealers explaining that labor pirating was causing wage increases. The Union representatives stated that the Union could be of assistance in stopping pirating. There was also discussion about "Show-up time" and whether the dealers would be willing to pay employees for time spent in traveling between the warehouses and the cellars. Weston asked the Union representatives why they wanted such a lengthy agreement and Owen replied that it would be pos- sible to write a two paragraph contract which would be satisfactory to the Union. The respondent dealers represented at the meeting inquired whether the Union would accept a`wage and other items which the dealers had agreed to among themselves They asked the Union representatives to submit the proposal to the Union membership The proposal was presented to the member slap at a meeting on October 9 and the members did not agree to accept the proposed wages because of the disparity in wages that were being paid in the Idaho Falls and Shelley areas. On October 12 Owen, May, and Organizer Hansen met with Weston. They -presented him with a, proposed contract. Weston called attention to the length of the contract and said he had understood the Union would be satisfied with -a two-paragraph agreement. Owen replied that the document was something on which to start, • and. "probably could be,cut down " Weston raised no,other substantial objection to the document except to a closed shop clause, and the 'Union representatives expressed a willingness to delete or modify it. They also explained their version of how the Union could assist' to stop pirating, pro- vided it was given the check-off. The Union representatives stated that the Union could then issue termination slips' whenever employees left their em- ployment and prevent pirating by requiring the employees affected to report at the Union's office before receiving other employment., During the meeting of October 12 Weston agreed to submit a counter-proposal to the Union's pro- posed contract.. He never did so. Organizer Hansen suggested that the Union representatives be allowed to meet with the dealers at the next Traffic Asso- elation meeting-on Monday, October 19, and those dealers who wished to 0 c 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiate a contract with the Union could do so. Hansen and Weston there- after arranged for such a meeting On Saturday before the proposed meeting of October 19 Weston telegraphed Organizer Hansen that De Long was in the hospital and C. It Holden and Manager Hansen had gone to Washington on the price ceiling.' The Union representa- tives and the dealers did not meet on October 19. On October 24, Weston wrote a letter to Owen in which he stated that the Union never had proved its ma- jority and that the respondent dealers took the position there should be a certification "as of this date or as of the date of the filing of the Complaint and not as of February, 1942." The letter stated that the respondent dealers did not deem themselves obliged to bargain until proof of majority by certifi- cation or otherwise. About the time of sending the letter Weston saw-Organizer Hansen, telling Hansen that he was recommending to the respondent dealers that they proceed with the hearing and that he saw no use of further negotia- tions. About the same time Weston similarly told Owen and May that the respondent dealers "were going to go on through with the hearing," and there was no use of further negotiations, although he believed an agreement could be reached if the hearing was postponed. - Owen suggested that it should be possible to negotiate an agreement before the hearing. Weston replied that he had no time to meet as he would, be busy preparing for the hearing" There have been no further dealings between the Union and the respondents. It should be noted, however, that apart from their dealings with the Union each of the respondent dealers gave wage incleases to their employees about the time the Union began to organize the potato workers in January 1942, and further increases thereafter in April or May., All of them except the respondent Friedman, who had not yet resumed operations during the 1942-43 season, also have given wage increases since the opening of this season 'The wages now paid as a result of these increases approximate those contained in the proposed contract submitted by the Union on October 12.x5 34 The findings regarding the meetings and communications between the respondents and,the Union are based on the testimony of Owen and Organizer Hansen. 35 The proposed Union contract of February 1942 called with some exceptions for a wage rate of 65 and 75 cents per hour respectively for crew members and crew foremen. The proposed Union contract of October 12 called for a wage rate of 85 cents per hour for male employees except for working foremen and head grader men,with respect to whom it called for a wage rate of 90 cents per hour The increases given by the respondent dealers except to crew foremen and head grader min were as follows ld t d Rate at be- f Rate paid after increases eren eaName of respon ginning o - !911-42 season Jan or Feb Apr or May Fall of '42 Cents Cents Cents Cents Potato Growers -------------------------- 45 55 60 80 Wilson---------------------------------- 55 65 65 85 Taube------'---------------------------- 50 55 65 8Q Friedman------------------------------- 50 55 60 (I) Warehouse Company ------------------ 50, 55 60 so O'Neil ------------------- i 55 55 65 80 Stuart---------------------------------- 55 55 65 85 Holden---------------------------------- 50 55 60 80 i Not operating Each of the respondent dealers, except Friedman who was not operating, gave more than one increase in the fall of '42 The figures given for the fall of '42 represent the cumulative eflect of these increases. The rate paid crew foremen by the respondent dealers was in each instance five cents higher than that given in the table above. The Union's proposed contract of October 12 also contained a separate wage demand for female employees, but as the respondent dealers do not presently hire such employees this portion of the proposed contract is not in issue. ' J IDAHO POTATO GROWERS, INC. 1111 That 'the,,respondent dealers, who were presented by the Union'"with proposed' collective bargaining contracts • in February 1942, were unfriendly toward the Union became manifest soon after the Union's first meeting of the potato- workers' on January 16. • The meeting of January 24 at the Idaho Falls City Hall, , although ostensibly -under 'the sponsorship of farmers in the vicinity, received the cooperation of Manager Hansen, C'. R. Holden, L B. Holden, J. E. O'Neil, and Carl De Long, and pursuant to arrangements made, employees from each of the warehouses, involved in this proceeding attended. The express pur- pose of the meeting was to attempt a solution of the problems affecting these employees by a circumvention of the Union. The remarks of Metcalf as detailed above obviously were also for the purpose of hindering the Union's efforts. He expressly disparaged' the proposed contracts which had been submitted Like- wise the meeting called in'February-by Manager Hansen of employees in both the Idaho Falls and the Shelley warehouses of the Potato Growers was an attempt by that respondent to handle the situation by circumvention of the Union. - The opposition of the Grange ,and the farmers toward the Union constitutes no basis of defense for,the attitude of opposition'by the respondents. Moreover, the expressions of Manager Hansen and J. E O'Neil at the meeting of March 7, and the activities of Manager Hansen in meetings of .the Grange and other organizations were not designed to create understanding between the Unioh and the farmers, but were calculated to intensify the opposition of the farmers and the Grange to the Union. Thereafter, Weston's failure-to meet with Owen on March 26 or 27 after having indicated an intention to do so in his letter of 7 March 23 and his failure to communicate with Owen about April 1, regarding further negotiations as he had stated' in his letter of the preceding date, indi- cate a reluctance to deal with the Union. The unilateral' wage increases given the employees about that time and approximating the demands made by'the Union further indicate a reluctance' to deal with the Union. Weston's letter of October' 24, breaking off such' negotiations as had taken place during that' month, again reveals a desire to avoid dealing with the Union. Of a similar nature were his sthtements to Organizer Hansen, Owen and May about that time. The belated demand for proof of majority by certification or otherwise in the letter of October 24 was not a good reason for breaking off negotiations in view of the fail- ure of the respondents at an earlier date to specify, as they had indicated they would do, with respect to,which of the respondents the majority question was, raised. The additional unilateral wage increases after the opening of the potato season in thq fall of 1942; again approximating the Union's demands, and the fail- ure of the respondents at any time to make counter-proposals also indicate an effort ,to avoid dealing with the Union. Moreover, the sum total of the respond- ent's conduct reveals an unwillingness to deal with the Union. ' This was evi- denced at the March 2' meeting, at which time the respondents announced that, because' of farmer. opposition, they could not treat with the Union. Yet the rbspondents were quiescent to the antagonism of the farmers toward the Union, and several of them affirmatively encouraged it. The undersigned finds that the respondents Potato Growers,, Wilson, Taube, Friedman, Warehouse Company, Stuart and each of them refused ; to bargain collectively with the Union on or about March 2 and 26 and April 1, 1942, as the representative of their respective employees in the appropriate units in, respect to rates of pay, wages, hours of employment and other conditions of employment and have thereby interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed by Section 7, of the Act. The undersigned further finds that these respondents and also the respondents Holden and O'Neil 1112- DECISIONS OF NATIONAL LABOR RELATIONS BOARD refused similarly to bargain collectively with the Union on or about October 24; 1942, and thereafter.3B The undersigned further finds that by such refusal to, bargain, by Metcalf's remarks concerning the Union and the proposed, collective bargaining contracts submitted by it, by Manager Hansen's statement to Rash that he thought the latter was being misled by the Union, by his speech on March 7, his deprecation of the Union'and suggestion that the respondent Potato, Growers' employees form a labor organization of their own,. his actions and those of Foreman concerning the election of a grievance committee by the employees of respondent Potato Growers,,his speeches to the farmers at the Grange and other meetings as detailed above, and by the unilateral wage increases, the, respondent dealers have interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed by Section 7 of the Act. V. ADMINISTRATRIX'O'NEIL AS THE SUCCESSOR OF J. E O'NEIL; HOLDEN BROTHERS AS THE SUCCESSOR OF HOLDEN BROTHERS, INC. ; THE PARTICIPATION IN AND RESPONSI- BILITY OF THE TRAFFIC ASSOCIATION FOR THE UNFAIR LABOR PRACTICES As set forth above, J. E. O'Neil died during August 1942 and since that time Administratrix O'Neil, a respondent in this case, has continued to conduct the same business substantially -as conducted by J. E. O'Neil during his lifetime. While J. E. O'Neil was conducting the business he participated in the commis- sion of certain unfair labor practices detailed above He was one of those who, being represented by Weston, refused to bargain on or about March 2 and 26 and April 1, 1942. Moreover, he displayed his animus toward the Union by par- ticipating in the plans for and sending employees to the meeting of January 24, and by making a speech derogatory to the Union at the meeting of Mardi 7, 1942. Johnson, his warehouse foreman, also displayed animus, toward the Union by his remarks to Sorman in or about January 1942 as set forth above. Admire- istratrix O'Neil, as J. E. O'Neil's business successor, continued the unfair, labor practices by the refusal to bargain on or about October 24, 1942, and thereafter. Under the circumstances the undersigned fi_ids that Administratrix O'Neill, respondent herein, as J. E. O'Neil's business, successor, is responsible for the unfair labor practices committed by her as detailed above since her appointment as administratrix and it will be recommended that by reason thereof and the' unfair labor practices, which her predecessor J. E. O'Neil committed as detailed above during his lifetime, she take certain action which the undersigned finds _ will effectuate the policies of the Act, as discussed in "The Remedy" below. Holden, a partnership, similarly is a business successor to the Idaho opera- tions formerly conducted by Holden Brothers, Inc. The partnership is conduct- ing the same type of business, using` the same property, and employing a sub- stantial number of the same employees.37 Both the corporation before dissolu- tion and the successor partnership since its formation, have participated in unfair labor practices The corporation, by the activities of C. R. Holden, partici- pated in planning and' sending employees to the meeting of January 24. It also, being represented by Weston, participated in the refusal to bargain on or about 30 J E O'Neil, Holden Brothers, Inc , and Traffic Association also participated in the acts here considered. The question of the responsibility of Administiatrix O'Neil and' Holden. Brothers, respondents herein, for, the acts of J. E O'Neil and Holden Brothers, Inc, respectively, and the responsibility of the respondent Traffic Association is discussed in Section V, an(ra. There was considerable change in the personnel employed, by all of the respondent dealers at the opening of the present season. There is nothing to indicate 'but what the employee situation in this regard was the same with this respondent as with the other respondent dealers. IDAHO POTATO GROWERS, INC. 1113 March 2 and 2E and April 1, 1942. The partnership resumed these unfair labor practices by the refusal to bargain on or about October 24, 1942, and thereafter. The undersigned finds that the respondent Holden is responsible for the unfair labor practices, committed by it since its organization as a partnership, and it will be recommended that by reason thereof and the unfair labor practices Ys•- ommitted by Holden -Brothers, Inc., its business predecessor before its dissolu- tion, the respondent Holden take certain action which the undersigned finds will effectuate the policies •of the Act as discussed in "The Remedy" below. I . The Traffic Association through its Monday meetings constituted a forum in which the respondent, dealers discussed their labor and other problems. De Long mole than any other person presided at these meetings. It was at one of these meetings that plans were made to retain Weston to represent the respondent dealers in matters Involving the Union. The Traffic Association acted-as an intermediary through which a substantial number of, the dealers paid Weston's fee for this service. De Long also was present with representatives of some of the respondent dealers in planning the meeting of January 24 He participated in the meeting, of October 7, 1942, and his illness was given as one reason for not holding the planned meeting between representatives of the Union and the dealers on October 19, 1942. By the foregoing and other conduct the Traffic Association acted in the interest of the respondent dealers It was a participant in and responsible for refusing to bargain collectively and certain acts of interference, restraint and coercion. The uidersigned finds that the Traffic Association, acting in the interest of the respondent dealers, is an employer within the meaning of the Act"" Acting as agent and in the interest of the respondent dealers re- spondent Traffic Association refused to bargain collectively with the Union as the statutory representative of the employees in the appropriate units set forth above in respect to rates of pay, wages, hours of employment and other condi- tions of employment. The undersigned further finds that by such refusal to bargain collectively and other conduct detailed above the Traffic Association interfered with, restrained, and coerced the employees of the respective re- spondent dealers in the exercise of-rights guaranteed them by the Act. VI THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in'Sections IV-and V 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. ' VII THE REMEDY It is essential to an effectuation of the purposes and policies of the Act that the respondents , and each of them , cease and desist from the unfair labor practices in which they have engaged and for which they are responsible , and, as a means of avoiding the consequences of such unfair labor practices , that they take certain affirmative , action more particularly described below. The undersigned has found that the respondents , and each of them, interfered with, restrained , and coerced employees of the respective respondents in the exercise of the rights guaranteed them by the Act, or were responsible for such 3" Section 2 (2) of the Act provides : "The term employer includes any person acting in the interest of an employer , directly or indirectly . . 1114 DECISIONS • OF NATIONAL LABOR RELATIONS: BOARD interference, restraint, and coercion. It is plain that the respondents, and each of them, must cease and desist from interfering with, restraining and coercing these employees in the exercise of such-rights and the undersigned will so recom- mend. Moreover, since as the undersigned has found, the Traffic Association has engaged in and is responsible for certain unfair labor practices, the under- signed will for purposes of more completely and effectively remedying the situa- tion recommend that the Traffic Association cease and, desist from the unfair labor practices in which it'i as participated, or for which it is responsible. Since the undersigned has found that the respondent Taube terminated the employment' of and refused to reinstate Willard Moore, • and the respondent Potato Growers terminated the, employment of and refused to reinstate Milo Rash, because-of their, membership and activity on behalf of the Union, the un- dersigned will recommend -that'these respondents cease and desist from -such discrimination. Moore testified that he has other employment and does not desire'reinstatement. Under the circumstances the undersigned will not recom- mend that the respondent Taube offer Moore reinstatement but will, recommend that it make him whole for any loss of pay he has suffered by reason of this respondent's discrimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages from the date of the discrimination against him to the date he obtained his present employ- ment less his net earnings during such period 3U Rash, who no longer resides in Idaho Falls, indicated that he would not consider reinstatement because of civil service employment which his wife presently has. The undersigned, therefore, will not recommend that the respondent Potato Growers offer Rash reinstate- ment but will recommend that it make him whole for any loss of pay he may have suffered by reason of this respondent's discrimination against him, by pay- ment to him of a sum of money equal to the amount he would normally have earned as wages from the date of discrimination against him to the date his wife obtained her present civil service employment, less his net earnings during such period., - The undersigned has also found that each of the respondent dealers and the respondent Traffic Association as agent for and acting in their interest refused to bargain collectii e]y with the Union. Accordingly the undersigned will recom- mend that the respondents, and each of them, cease and desist from such unfair labor practices, , and' in effectuation of the policies of `the Act the respondent dealers and the respondent Traffic Association when acting as agent for and in their interest bargain collectively, upon request, with the Union, as the exclu- sive bargaining representative of the employees within the appropriate units. Upon the basis of the above findings of fact, and upon the entii e record in the , case, the undersigned makes the following : CONCLUSIONS OF LAW 1. Teamsters, Chauffeurs, Warehousemen' & Helpers, Local 983,• affiliated with the American Federation, of Labor, is a labor organization within the mean- ing of Section 2 (5) of the Act. "By "net earnings" is, meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for the respond- ent's unlawful discrimination against him and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber, and Sawmill Workers Union, Local 2590, 8 N L R B 440. Monies received for work peiformed upon Federal, State, county, mu- nicipal, or other work-relief projects 'shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B, 311 U. S. 7. IDAHO POTATO GROWERS, INC: 1115 2 -Idaho Traffic Association was and is an employer of the employees involved herein within the meaning of Section 2 (2) of the Act. ' 3 At all times material herein the employees of the respondent Potato Growers, on its cellar and warehouse crews at Idaho Falls and Shelley, of the respondent Taube on its cellar and warehouse crews at Idaho Falls and Shelley, of the respondent Wilson on his cellar and warehouse crews at Firth, and of the re- spondent Stuart on his cellar and warehouse crews at Shelley, and of all the other respondent dealers on their cellar and warehouse crews' at -Idaho Falls exclusive of office employees and supervisory employees of higher rank than cellar crew foreman constitute and constituted in the case of each of said re- spondents a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act 4 In or about February 1942 and at all times thereafter the Union has been the exclusive representative of the employees in such units for the purposes of collective bergaining within the meaning of Section 9 (a) of the Act. 5. By refusing on or about March 2 and 26 and April 1, 1942, and on or about October 24, 1942, and thereafter to bargain collectively with, the Union, as the exclusive representative of the employees in such units, the respondent Idaho Traffic Association as agent for and in the interest of the other respondents, and the other respondents, and each of them, have engaged in and are engaging in unfair labor practices within the meaning;of Section 8 (5) of the Act. 6 The respondent Taube by discriminating in regard to the hire and tenure of employment of Willard Moore, and the respondent Potato Growers by discrim- inating in regard to the hire and tenure of employment of Milo Rash, thereliy discouraging,membership in the Union, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 7. By interfering with, restraining, and coercing the employees of the respondent dealers in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondents, and each of them, have engaged in and are engaging in, unfair labor practices within the meaning of Section 8 (1) of the Act: 8 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 9 The respondent Taube has not engaged'in unfair labor practices within the meaning of Section 8 (3) of the Act respecting Jack C. Hendricksen, C. A. Falk, Clency L. Wadsworth, Mervin Crandall and Harold Goodell. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that : 1. Each of the respondents, Idaho Potato Growers, Inc. ; ' W. P. Wilson ; L. S: Taube, Ted Taube, and L B Holden, co-partners, doing business as L S. Taube & Company ; Meyer Friedman and Arthur E Friedman, co-partners, `doing business as S. Friedman & Sons: Idaho Falls Warehouse Company ; Rowenah O'Neil, administratrix of the Estate of J. E. O'Neil, deceased ; A. G. Stuart ; C R Holden and L. L. Holden, co-partners, doing business as Holden Brothers ; and Idaho Traffic Association, and their respective officers, partners, agents, successors, and assigns shall: a Cease and desist from : (1) Refusing to bargain collective with Teamsters, Chauffeurs, Warehousemen & Helpers, Local 983, affiliated with the American Federation of Labor, as the exclusive representative of their respective employees in the units described I 1116 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD above, except that the Idaho Traffic Association shall -so cease and desist when acting as agent for and in the interest of the other respondents; (2) In any other manner interfering with,, restraining, or coercing the em- ployees of the respondent dealers in the exercise of their rights of self-organiza- tion, to'form, join or assist labor organizations, to bargain collectively through representatives of their own- choosing, or to engage in concerted activities for .the purpose of collective bargaining or other mutual aid or protection, as guaran- teed in Section 7 of the Act. b. Take the following affirmative action, which the undersigned finds will effec- tuate the policies of the Act : (1) Upon request bargain collectively with Teamsters, Chauffeurs, Warehouse- men & Helpers, Local 983, affiliated with the American Federation of Labor, as the exclusive representative of all their respective employees in each of the units described above, except tbat'the Idaho Traffic Association shall take such action when acting as agent for and in the interest of the other respondents; (2) Post immediately in conspicuous places in the respective warehouses of the respondent dealers in Idaho Falls and Shelley, and in the place of business of the Idaho Traffic Association in Idaho Falls, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to employees of the ,respondent dealers, stating that the respondents, and each of them, will not engage in the conduct from which it is recommended that they, and each of them, cease and desist in paragraphs In, (1) and (2) -of these recommendations; and that they and each of them will take,the affirmative action set forth in paragraph 1b, (1) of these recommendations ; and said employees of the respondent dealers are free to become or remain members of Teamsters, Chauffeurs, Warehousemen & Helpers, Local 083, affiliated with the American Federation of Labor, or any other labor organization and that the respondents will not discriminate against any employee because of membership or activity in such labor organization ; (3) Notify the, Regional Director for the Nineteenth Region. in writing within ten (10) days from the date of receiving this Intermediate Report what steps the respondents, and each of them have taken to comply herewith. 2. The respondents; L. S. Taube, Ted Taube, and L. B Holden, co-partners, doing busiriess'as L. ,S. Taube & Company, their agents, successors and assigns, shall, in addition : a. Cease and desist from discouraging membership in'Teamsters, Chauffeurs, Warehousemen & Helpers, Local 983, affiliated with the American Federation of Labor, or any other labor organization of its employees, by discriminating in' regard to hire or tenure of employment, or any term or condition of employment. b Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act: (1) Make-whole Willard Moore for any loss of pay he may have suffered by - reason of this respondent's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages during ,the period from the date of. such discrimination to the date he obtained his present employment less his net earnings during such period ; (2) Post immediately in conspicuous places in their warehouses at Idaho -Falls and Shelley, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to their employees stating that they will not engage in the conduct from which it is-recommended that they cease and '-desist in paragraph 2 a of these recommendations and that they will take the affirmative action set forth in paragraph 2 b (1), of these recommendations; IDAHO POTATO GROWERS, INC. 1117 (3), Notify the Regional Director for the Nineteenth Region in writing within' ten (10) days from the date of receiving this Intermediate Report what steps this respondent has taken to comply with recommendations 2 a and b (1) and (2). 3 The respondent Idaho Potato Growers, Inc., its officers, agents, successors, and assigns shall, in addition: a. Cease and desist from discouraging membership in Teamsters, Chauffeurs, .,Warehousemen & Helpers, Local 983, affiliated with the American Federation of Labor, or any other labor organization of its employees, by discriminating in regard to hire or tenure of employment, or any term or condition of employment b Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (1) Make whole Milo Rash for any loss of pay he may have suffered by reason of this respondent's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from the date of the discrimination against him to the date his wife obtained her present civil service employment, less his net earnings during such period ; (2) Post immediately in conspicuous places in its warehouses at Idaho Falls ,and Shelley, and maintain for a period of at least sixty (60) consecutive days from the date of posting. notices to its employees stating that it will not engage in the conduct from which it is recommended that it cease and desist in para- graph 3 a of these recommendations and that it will take the affirmative action set forth in paragraph 3 b (1) of these recommendations; _ (3) Notify the Regional Director for the Nineteenth Region in writing within ten (10) days from the date of receiving this Intermediate Report what steps ,this respondent has taken to comply with recommendations 3 a and 3 b (1) and (2). _ It is further recommended that the complaint insofar as it alleges that the respondent Taube engaged in unfair labor practices within the meaning of Section 8 (3) of the Act, with respect to Jack C. Hendrickson, C. A. Falk, Ciency L. Wadsworth, Mervin Crandall and Harold Goodell, be dismissed It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, - the respondents notify said Regional Director in writing that they,will comply with the foregoing, recommendations, the National, Labor Relations Board issue an order, requiring the respondents 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, 'effective October 28, 1942, any party may within fifteen (15) 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, Wash- ington, D C,•an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he 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 parmission to argue orally before the Board, request, therefor must be made in writing to'the Board within ten (10) days after the, date of the order transferring the'- case to the Board. WIISsaia B BARTON, Trial Examiner. Dated January 9, 1943.