Northern Fruit Co., Inc.

National Labor Relations Board - Board Decisions

May 25, 1954

108 N.L.R.B. 1017 (N.L.R.B. 1954)

NORTHERN FRUIT COMPANY, INC. 1017
NORTHERN FRUIT COMPANY, INC. and CANNERY, WARE-
HOUSEMEN, FOOD PROCESSORS, DRIVERS & HELPERS,
LOCAL UNION NO. 318. Case No. 19-CA-801. May 25, 1954
DECISION AND ORDER
On December 2, 1953, Trial Examiner Wallace E . Royster
issued his Intermediate Report in the above - entitled proceed-
ing, finding that the Respondent had engaged in and was engag-
ing in certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirmative
action, as set forth in the Intermediate Report attached hereto.
Thereafter , the Respondent filed exceptions to the Intermediate
Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and brief,
and the entire record in this case , and hereby adopts the find-
ings, conclusions , and recommendations of the Trial Examiner
only insofar as they are consistent with the Decision and Order.
1. We agree with the Trial Examiner that the Respondent
independently violated Section 8 ( a) (1) of the Act by the follow-
ing statements of Warehouse Foreman Fred Richmond: (1) Tell-
ing Alfred Zude in December 1952, that removal of the Union's
contract with the Respondent from the warehouse wall where
it was posted would cause " things to be different ," ( 2) warning
Adam Warnett in December 1952, that failure to take this
action would result in the Respondent making it "tough" on
employees , and (3 ) promising Zude in January 1953, full-time
employment if he abandoned his union membership.
2. The Trial Examiner also found that the series of layoffs
of Alfred Zude and Henry A. Berry during the slack season
of December 1952-February 1953 were motivated by antiunion
rather than economic considerations . While the findings of
statements violative of Section 8 (a) (1) are evidence in support
of the Trial Examiner ' s conclusion , the record reveals other
substantial evidence leading to a contrary result . This evidence
and the necessary background information may be summarized
as follows:
The Union was certified as the collective -bargaining repre-
sentative of these employees in October 1951. Thereafter the
parties entered into negotiations and a contract was concluded
in October of the following year . The first slack period after
the advent of the Union occured during the winter of 1951-52.
Despite alleged threats of discrimination because they had
joined the Union , no employees were laid off by the Respondent
during this season. Rather , the Respondent continued its prior
practice of full employment whether or not there was adequate
work for its staff. The Respondent is alleged to have promised
its employees a 10-cent an hour increase if they gave up the
108 NLRB No. 148.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. None of the employees gave up the Union. Nevertheless,
apparently with the consent of the Union, the employees were
granted a 20-cent an hour increase in May 1952. It was only
thereafter during a slack period in September of that year and
during the following slack winter season that any employees
were laid off because of lack of work. We note that Adam
Warnett , one of the union adherents who was laid off in Septem-
ber, was given other owrk at Respondent President Tedford's
ranch so that Warnett actually lost no pay. The record shows
that at the time of the 1952-53 winter layoff there was an actual
shortage of work. While it is true that the Respondent had
followed the practice of permitting its employees to play cards
when work was not available , a practice that continued after
the advent of the Union during the winter of 1951-52, this prac-
tice antedated the substantial increase in wages granted the
employees in May 1952. It might have been anticipated therefore
that the Respondent for economic reasons would discontinue its
previous practice of full employment, which may well have been
based on the lower wage scale then in existence . The record,
moreover , clearly reveals that the Respondent did not follow a
discriminatory layoff policy as between union and nonunion
adherents.
On the basis of the foregoing , we are unable to conclude that
there is a preponderance of evidence to support a finding that
the 1952-53 layoffs were violative of Section 8 (a) (3) of the
Act. Accordingly, we shall dismiss this portion of the com-
plaint.
THE REMEDY
In view of the foregoing , we are not persuaded that the
Respondent's conduct is indicative of a predilection to commit
other unfair labor practices in the future. We shall therefore
not adopt the Trial Examiner ' s recommended broad cease and
desist order , but shall order the Respondent to cease and de-
sist only from engaging in the unfair labor practices found and
any like or related conduct.
ORDER
U on the entire record in this case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent , Northern
Fruit Company Inc ., Wenatchee , Washington , its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Promising steady employment on condition of abandoning
union membership, telling employees that removal of the union
contract from the warehouse wall would cause things to be dif-
NORTHERN FRUIT COMPANY, INC. 1019
ferent , and that failure to do so would make it tough on the
employees.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the right to self-
organization , to join or assist Cannery, Warehousemen, Food
Processors , Drivers & Helpers, Local Union No. 318, or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing , and to engage in other con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all
such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the purposes of the Act:
(a) Post at its warehouse in Wenatchee, Washington, copies
of the notice attachedhereto andmarked "AppendixA." i Copies
of said notice, to be furnished by the Regional Director for
the Nineteenth Region, shall, after being duly signed by the
Respondent, be posted by it immediately upon receipt thereof
and be maintained by it for a period of sixty (60) consecutive
days thereafter in conspicuous places including all places
where notices to employees customarily are posted . Reasonable
steps shall be taken by the Respondent to insure that such
notices are not altered , defaced , or covered by other mate-
rial.
(b) Notify the Regional Director for the Nineteenth Re-
gion, in writing , within ten ( 10) days from the date of this
Order , what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is , dismissed insofar as it alleges that the Respondent,
in violation of Section 8 (a) (1) and(3) of the Act, discriminated
against Alfred Zude and Henry A. Berry.
Members Murdock and Peterson , concurring in partanddis-
s enting in part:
We agree with the majority that the Respondent independently
violated Section 8 ( a) (1) of the Act for the reasons stated
in the Intermediate Report. However, we disagree with the
majority's finding that the layoffs of Henry A. Berry and Alfred
Zude during the period December 1952-February 1953 were not
discriminatorily motivated. We would therefore adopt the Trial
Examiner's finding that these layoffs violated Section 8 (a) (1)
and (3) of the Act for the reasons set forth in the Intermediate
Report.
'In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT by means of promises of full-time em-
ployment, or by threats of punishment or offers of benefit,
request the removal of the union contract from the ware-
house wall, or in any like or related manner interfere with,
restrain , or coerce our employees in the exercise of the
right to self-organization , to form labor organizations, to
join or assist Cannery, Warehousemen, Food Processors,
Drivers & Helpers , Local Union No. 318, or any other
labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all
such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the National Labor Relations Act.
NORTHERN FRUIT COMPANY, INC.,
Employer.
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This proceeding brought under Section 10 (b) of the National Labor Relations Act, as
amended (61 Stat 136), was heard in Wenatchee and Seattle, Washington, on October 27
and 30, 1953, pursuant to due notice. The complaint, issued on June 29, 1953, by the General
Counsel of the National Labor Relations Board, i and based on charges duly filed and served
alleges in substance that the Respondent has engaged in unfair labor practices proscribed
by Section 8 (a) (3) and (1) of the Act, by stating to its employees an intention to get rid of
the Union one way or another, by promising employees more work opportunities if they
would withdraw from the Union or cease to designate the Union as collective-bargaining
'The General Counsel and his representative at the hearing are referred to herein as
the General Counsel and the National Labor Relations Board as the Board. The above-mined
Respondent is referred to herein as the Respondent and the charging Union as the Union.
The summary of the pleadings made herein includes amendments made at the hearing.
NORTHERN FRUIT COMPANY, INC. 1021
representative , by threatening employees to make it harder on them unless they withdrew from
the Union or denounced the contract between the Union and the Respondent , and by reducing
work opportunities of employees Al Zude and Henry A. Berry by means of temporary
layoffs and by employing them on other occasions for less than 8 hours a day It is alleged
that the Respondent 's conduct in these particulars was dictated by a purpose to retaliate and
to discriminate against employees because of their union membership and activity The
Respondent by its answer denies the commission of unfair labor practices as alleged.
The Respondent and the General Counsel were represented at the hearing by counsel
and were afforded full opportunity to participate in the hearing and to file briefs and pro-
posed findings of fact and conclusions of law . A brief has been received from counsel for
the Respondent.
The hearing closed on October 27 in Wenatchee with the understanding, stated on the
record , that the General Counsel might thereafter move for the admission of certain docu-
mentary evidence not then available to him The General Counsel made such a motion
to me in Seattle , Washington , on October 30. Upon representations of the General Counsel
that counsel for the Respondent did not desire to appear and was content to have his oppo-
sition to the introduction of certain documentary evidence voiced by the General Counsel,
I reopened the hearing , considered the General Counsel ' s offer and admitted a certain
exhibit to which it was stated the Respondent had no objection . I also reserved ruling on the
General Counsel's offer of his Exhibits Nos. 6A, C, and D. Upon consideration, the exhibits
are hereby admitted to evidence as it appears that they tend to indicate knowledge on the
part of the Respondent of opposition to the Union on the part of certain employees
Upon the entire record in the case and from my observation of the witnesses, I make
the following-
FINDING OF FACT
L THE BUSINESS OF THE RESPONDENT
The Respondent is a Washington corporation with its principal office and place of business
at Wenatchee, Washington, where it is engaged in the business of packing, warehousing,
storing, and shipping fresh fruit. The Respondent purchases fruit from growers in the
vicinity of Wenatchee, processes it, and ships it. The annual value of such shipments directly
to customers located outside the State of Washington is in excess of $ 500,000
IL THE ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
After an election in October 1951, the Union was certified as the bargaining representative
of a group of warehouse employees then numbering 8 Since that time by reason of quits
the unit has dwindled to 5. After bargaining, the Respondent and the Union entered into a
contract in October 1952 which was terminated in May of this year The employees in the
unit are those who have substantially full-time employment as warehousemen throughout
the year It is the contention of the General Counsel that following the advent of the Union
and particularly in the winter of 1952-53, the Respondent departed from its earlier practice
of providing full-time employment to such employees by laying them off for short periods
of time and on other occasions providing only a few hours work for them in any given day
This change from earlier practice is explained, the General Counsel asserts, by the Re-
spondent's purpose to retaliate against employees for having selected a bargaining repre-
sentative and to encourage them to abandon that representative
Adam Warnett who was hired as a warehouseman in September 1950, worked until his
resignation in December 1952. Warnett testified that in September 1951, shortly after the
Union had filed its petition, he with other warehouse employees, was called to the office
of Stanley Meredith, the Respondent's secretary-treasurer Still according to Warnett,
Meredith asked them how they thought they would benefit by belonging to a union. Respondent's
president, Rex Tedford, who also was present, asked if the men had ever thought that ad-
ditional help might be hired so that the men would not get the number of hours they were
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then working . A few days before the election which was held on October 11 of that year,
Meredith again called the employees to the office and said according to Warnett , that he
would like to have the problem settled without the interposition of the Union. Meredith
said that he was willing to adopt the terms and conditions in a contract of another employer
in Washington governing working conditions and wages and put those conditions and wages
into effect at the Respondent 's warehouse. Meredith went on to say that he would attempt
to get the employees a 10-cent an hour raise if the Union could be stopped . About 2 weeks
after the election , Meredith again spoke to the warehouse employees asking them if they
would consider making a contract directly with him leaving the Union out of it. In September
1952, Warnett was called again to Meredith ' s office where Meredith asked Warnett how he
felt about the Union , saying that a petition was to be filed to get another election and asking
if Warnett would be willing to sign such a petition . A little later in that month a decerti-
fication petition was circulated in the plant.
Henry A. Berry , a warehouseman who has been in Respondent 's employ since March
1946, was the Union's observer on the occasion of the 1951 election . According to Berry,
in September 1951, Meredith spoke to him separately asking Berry how he felt about the
Union and how he thought he would be benefited by joining it. A few days before the election
according to Berry, he and other warehouse employees were in President Tedford's office,
when Meredith said that he would go along with a contract which another employer in Wash-
ington had if the Union were not a party . Meredith also said that the Respondent along with
other warehouses in town would give a 10-cent hourly raise to the employees if the Union
was kept out . Sometime in the fall of 1952 , according to Berry , Meredith called him to
the office and said " Well, we would like to get this deal back to a big happy family like
it used to be." Meredith went on to say there was some sentiment for another election among
the employees and asked Berry if he would sign a petition designed to bring this about.
Alfred Zude was first employed , by the Respondent in 1940 and has worked for it sub-
stantially all of the time since . Zude corroborated the testimony of Berry and Warnett about
the interrogation by Meredith in September 1951 and the offer later in the fall of that year
to abide by the terms of another contract if the Union was not permitted to act as the em-
ployees' representative . Berry too, Zude testified , was asked by Meredith to support a
petition for a new election in the fall of 1952.
Stanley Meredith testified that when the Union filed its petition in September 1951, he
consulted counsel for advice concerning how he should conduct himself in this , to him,
unfamiliar situation . He was told , he testified , that he should do nothing to influence the
decision of the men Meredith testified that he told the men that if they thought they would
gain by it to go ahead and join the Union but to be sure that they were aware of what they
were doing . Meredith did not mention in his testimony any offer to increase wages if the
employees would forego the choice of a bargaining representative or deny that he had called
them to his office on the occasions mentioned by the General Counsel ' s witnesses I am
convinced that Warnett , Berry , and Zude testified truthfully and with substantial accuracy
concerning the inquiries made of them by Meredith and that Meredith did in fact offer an
increase in wages and to put into effect more favorable working conditions if the men would
abandon the Union . This conduct is not alleged to constitute an unfair labor practice as it
occurred more than 6 months before the filing of any charge . It is however , evident, that
the Respondent looked with misgiving upon the advent of the Union and attempted by promises
of benefit to sway the employees away from it. Opposition on the part of the Respondent
to the Union persisted at least until the fall of 1952. I credit the undenied testimony of
Warnett, Berry , and Zude that Meredith asked them to sign a decertification petition and
expressed the hope that the Union would no longer be a bargaining representative.
In early September 1952, Warnett, Berry, and Zude were notified that they were to take
a few days off without pay. Fred Richmond , the foreman who announced the layoff, said
to Warnett that he disliked this development and, when Warnett asked what the trouble
was, answered cryptically , "Well, you know ." Warnett actually lost no time for he was
given other employment during the following week Berry Most a week's pay. Zude was
off for 2 days . As this incident occured more than 6 months before the filing of any charge,
it has no significance here other than to mark the first occasion according to the testimony of
the General Counsel ' s witnesses , when the permanent warehouse employees were required
to take any time off from work without pay.
For the week ending December 12, 1952, Adam Warnett , Sewell Morgan, Russell Barnhart,
Berry , Zude, and C. W. Barnhart were working as warehousemen. All but the last were
NORTHERN FRUIT COMPANY, INC. 1023
last were laid off for a portion of that week. Barnhart, it was testified credibly, was working
on a flat monthly salary and was apparently on duty at the warehouse at all times during
the winter months. In addition to performing work of the same character as that done by the
other warehousemen, Barnhart had the responsibility for checking the progress of fruit
ripening Of the 6 warehouse employees last named, the 2 Barnharts and Morgan appear
not to have been members of the Union and Morgan, in September of that year, had cir-
culated a petition looking toward the Union's decertification During that week Warnett
upon being recalled to work, protested Respondent's practice of working the men on a part-
time basis and quit when no assurance was given him that the practice would be changed.
Thereafter, through January 27, 1953, on a number of days none of the crew, other than
C. W. Barnhart, worked at all. On still other days they worked less than 8 hours. On January
27 Morgan left the warehouse crew and did not return to that work until March In February,
also, on a number of days the crew either did not work or worked less than 8 hours. On some
occasions, the union members, Zude and Berry, worked more hours than the others. On
other occasions, the reverse w5s true. The evidence does not establish that Respondent dis-
criminated between union and nonunion workers in providing opportunities for employment.
Warnett testified that when the first layoff occurred in December, he and Zude were told
by Foreman Fred Richmond that he, Zude, and Berry had better have the contract removed
from the wall where it was posted. Richmond went on to say, according to Warnett, that Presi-
dent Tedford was "burned up about it" and "is going to make it tough on you if you didn't."
Zude corroborated the testimony of Warnett but did not refer to any remark of Richmond
purporting to quote Tedford. Berry was laid off at the same time but did not testify to
any remarks coming from Richmond in connection with the layoff
The work of the warehousemen is greatly increased during the early months of summer
when soft fruits (cherries, apricots, peaches, and prunes) are being handled. Because of
perishability such fruits must be graded, packed, and shipped as expeditiously as possible
with the result that the warehouse employees work extended hours It is the contention of the
General Counsel that for several weeks in the summer of 1953, because of their adherence
to the Union, Berry and Zude were not permitted to work overtime to the extent that the two
Barnharts, who opposed the Union, were. The hours worked in June, July, and August, 1953,
by C. W. Barnhart are not reflected in any exhibit. He worked on a salary basis and, per-
haps, his earnings were not related to the hours worked. The following table shows the hours
worked during the given weeks by:
Alfred Zude H. A. Berry Russell Barnhart
June 27 50 50 61
July 4 531 52' 69112
11 59 581 73
18 671 69 83
25 51 64 86`12
Aug. 1 571 59 81
Thereafter, all three worked substantially the same hours. Obviously, Barnhart worked
considerably more than Berry or Zude and, as his rate was the same as Zude's, earned
more wages than the latter. During the soft-fruit season, Berry operated a boxmaking
machine at a piece rate and a lidding machine at an hourly rate higher than that paid for
regular warehouse work. His earnings generally equalled or exceeded those of Russell
Barnhart even though working fewer hours.
Respondent's records covering previous seasons show as to the permanent warehousemen,
the following
Zude Berry C. W. Russell Joe Adam
Barnhart Barnhart Warnett Warnett
1951
Week
ending
June 23 54 51 60 55 551
30 61Z 66 751 72 692' 67 1
10Z4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zude Berry C. W. Russell Joe Adam
Barnhart Barnhart Warnett Warnett
1951
Week
ending
July 7 66 572 77 812 742 732
14 54 46 68 67 69 68
21 662 672 741, 792
1952
June 14 512 49 58 521
21 591 6112 732 721
28 62 582 60 762
July 5 332 38 43 50
12 591 67 70 74
19 84 89 89
26 61 562 762
It is evident that fewer hours of employment for Zude and Berry in comparison with other
warehousemen was not a situation developing suddenly in 1953. The same condition prevailed
in 1951 and 1952. I find no significant change in this respect in 1953 Zude testified that
on one Saturday in the summer of 1953 he applied for and was refused opportunity to work on
that evening. Foreman Richmond testified that during the early years of Zude's employment,
Zude consistently refused opportunities to work evenings in the rush season and that there-
after Richmond rarely has asked him to do so.
The payroll records do not demonstrate any discrimination against Berry and Zude in
the assignment of overtime work in 1953.
Zude testified that sometime in January 1953 Richmond told him that if he would get, out
of the Union he would be worked 52 days a week. This was during a period of frequent layoffs.
From late November until early March work at the warehouse is at its lowest point.
Little, if any, fruit is then received and shipments appear not to be heavy. In other years,
the members of the permanent warehouse crew were afforded steady employment even
though it meant that on some days they had not much to occupy them and filled out the hours
in playing cards I suppose that no employer desires to pay for unproductive time and pre-
fers, if practicable , to have on the payroll at any particular moment only those who are
performing work useful to him But there are situations where an employer in order to
have workers available when needed will retain them when they are not Thus an employer
faced with such a problem normally , I will assume , considers the cost of paying for un-
productive hours and weighs it against the possibility of losing experienced workers if he
does not do so. Of course other considerations , such as an implicit understanding that he
will provide continuous employment, may come into play The evidence here is that the
permanent warehouse employees until September 1952 suffered no temporary layoffs. When
the first layoff occured Warnett was immediately given other employment by 1 of Respondent's
officials, Zude was off for 2 days, Berry for 5, Morgan for the entire week, and Russell
Barnhart was not affected. Foreman Richmond said that the layoff was directed by someone
superior to him, either Meredith or Tedford Respondent's counsel points out in his brief
that the men worked less than the usual number of hours in the weeks ending November 14
and 28 It would seem that the Armistice Day and Thanksgiving holidays would explain
that Berry testified that he was laid off for 4 hours on November 26. As all worked the
same number of hours that week, it is probable that all were laid off at the same time. There
is no testimony concerning any statement by a representative of the Respondent to the men
at the time of this layoff. On December 2, also, the crew worked only 4 hours although Warnett
put in a total of 64 hours that week From December 10 on through February layoffs were
frequent For this period Zude worked about 347 hours, Berry and Russell Barnhart about
275, Berry having missed 1 day of work because of illness The testimony of Berry, Zude,
and Warnett that in previous years they had worked continuously is undisputed and credited
Had that practice been continued, Zude, Berry, and Russell Barnhart would have worked about
448 hours from December 10 through February.
Of course there is an explanation for this and Respondent's counsel says it is an innocent
one, that the Respondent in May 1952 had raised hourly wages from $ 1.25 to $ 1.45 and that
NORTHERN FRUIT COMPANY, INC. 1025
it could not at that rate keep men on the payroll wh&n there was little or nothing for them
to do In short , the layoffs were dictated by economic considerations . If this is true, it is
a complete defense to the allegations of discrimination in the complaint The suggested
explanation is so unexceptionable and has such an appeal to reason that one would expect to
hear Respondent 's witnesses testify clearly about it; but they did not
The sum of Meredith ' s testimony on this point is that who worked and for how long was
left to the judgment of Foreman Richmond . Despite leading questions from Respondent's
counsel, Meredith gave no forthright explanation of the new layoff practice and did not
testify that he instructed Richmond to start or continue the series of layoffs in December,
January , and February.
Foreman Fred Richmond ' s testimony is consistent with that of Meredith According to
Richmond the December layoffs and those that followed were made on his initiative and be-
cause there was insufficient work to occupy the crew . He denied that Zude and Berry were
treated differently than the other warehouse workers and the payroll records corroborate
him in this respect. I do not place C. W. Barnhart in the same category as the others As
a salaried worker and as the one who checked the ripening progress of the stored fruit it
is reasonable that he would be retained when hourly paid workers were laid off
Thus the testimony of both Meredith and Richmond is that the latter was responsible for
the layoffs inthe winter months of 1952 and 1953 and the question still remains , why? Richmond
said it was because there was no work for the men to do. Meredith said that he did not want
to pay men just for sitting around. But Warnett and Zude testified, and Richmond did not
contradict them, that on December 9 or 11 Richmond told them that if they and Berry (the
only union members ) would "get that contract off of the wall, things would be different."
Zude also testified , and again without dispute , that in January 1953 Richmond told him he
would be owrking 512 days a week if he would get out of the Union.
If the layoffs were made only for economic reasons, it is difficult to understand why
Richmond did not tell the employees just that. A possible explanation is that a lack of work
caused the layoffs but that Richmond , knowing, as he testified , that Meredith "wasn't in
love" with the Union, considered the opportunity a good one for impressing on the ware-
housemen the disadvantages of union membership . Another, which might be mentioned, is
that the contract which Richmond wanted removed presumably called for the payment of wages
somewhat higher than those in effect in prior years . Perhaps it could be said that Richmond
was not objecting to the contract as such but only to the higher wage scale . But other ware-
houses in the area , if not all them, were paying the same rate. I am convinced , however,
that the cost of maintaining a crew at times when there was not work for them does not
explain the layoffs This conviction stems from the remarks of Richmond concerning the
removal of the contract , his warning that Tedford was "burned up" and prepared to "make
it tough, and his offer to full employment to Zude if the latter would drop his union member-
ship. I find that the Respondent through Richmond by means of layoffs retaliated against
the warehouse employees because they had chosen a union to represent them and offered
the bribe of full-time employment to one of them if he would renounce his representative.
Economic conditions provided no more than a transparent cloak for this conduct
Considering Respondent ' s early opposition to the Union , its attempt to have the employees
deal directly with it even after the Union had won the election, and Richmond ' s unexplained
statements to the employees in December 1952 and January 1953 concerning the reasons
for the layoffs, I find that the General Counsel has sustained by a preponderance of the evi-
dence, the burden of establishing the allegation that the layoffs were discriminatorily moti-
vated I find that the layoffs beginning about December 9 or 11 , 1952, were motivated by the
fact that some of the employees were members of the Unioq
By telling employees that removal of the contract , which I equate with abandoning the Union,
would cause " things to be different " in regard to layoffs , by warning them that failure to
take this action would result in Respondent making it " tough" on them , by promising Zude
full-time employment if he would drop his union membership , and by a series of layoffs
in December 1952 and January and February 1953, the Respondent interfered with , restrained,
and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and thereby
violated Section 8 (a) (1) of the Act
By instituting a series of layoffs on December 9 or 11, 1952 , and continuing them through
February 1953 , because of the membership of some employees in the Union , the Respondent
has discouraged membership in the Union and, by such discrimination , has violated Section
8 (a) (3) of the Act.
339676 0 - 55 - 66
1 026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occuring in connection
with its operations 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 thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices , it will
be recommended that it cease and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. Having found that the Respondent discriminated
against employees because some of them were members of the Union by denying them full
employment, it will be recommended that Zude and Berry be made whole for any loss of
earnings suffered because of the layoff practice and that the Respondent cease and desist
from making layoffs for the purpose of discouraging union membership. Russell Barnhart
too lost earnings as a result of this discrimination but as no claim to be made whole is made
in his behalf no recommendation to that effect will be made.
Loss of earnings as to Zude and Berry shall be calculated by payment to them of that
sum of money they would have earned in full employment with the Respondent from December
9 or 11, 1952, through February 1953, less actual earnings in the employment afforded by
the Respondent and whatever amounts they may have earned as wages in other employment.
Back pay shall be computed on a quarterly basis in the manner established by the Board
in F. W. Woolworth Company, 90 NLRB 289. It will also be recommended that the Respondent
upon reasonable request make available to the Board or its agents , for examination and copy-
ing, all pertinent records necessary or convenient for a calculation of the amount of back
pay due.
Considering the character of the Respondent's urfair labor practices and the manifestations
of union animus recited in this report, it will be recommended that the Respondent cease
and desist from infringing in any manner upon the rights of employees guaranteed in Section
7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Cannery, Warehousemen, Food Processors, Drivers & Helpers, Local Union No. 318,
is a labor organization within the meaning of Section 2 ( 5) of the Act.
2. By failing to afford steady employment to its permanent warehouse workers for the
purpose of discouraging membership in the Union, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By such conduct and by stating that steady employment would be given if an employee
resigned union membership and that the situation regarding lyoffs would be different if
the Union ' s contract was canceled , the Respondent interfered with , restrained , and coerced
its employees in the exercise of rights guaranteed in Section 7 of the Act and engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
HUMBLE OIL & REFINING COMPANY and R. C. BIT TRICK,
Petitioner and BAYTOWN EMPLOYEES FEDERATION. Case
No. 39-RD-29. May 25, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Clarence L.
108 NLRB No. 138.