Northwest Oyster Farms, Inc.

National Labor Relations Board - Board Decisions

Nov 20, 1968

173 N.L.R.B. 872 (N.L.R.B. 1968)

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Northwest Oyster Farms, Inc. and Shoalwater Bay
Oyster Workers Local Union 14, affiliated with
Seafarers ' International Union of North America,
AFL-CIO. Case 19-CA-3925
November 20, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On September 16, 1968, Trial Examiner Herman
Corenman issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner further found that the Respondent had not
engaged in certain other unfair labor practices alleged
in the complaint and recommended the dismissal of
these allegations. Thereafter, the Respondent filed ex-
ceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to -a three-
member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no pre-
judicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Exam-
iner's Decision, the exceptions, and the entire record
in this case,' and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner
as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby adopts as its Order the Recom-
mended Order of the Trial Examiner, and orders that
the Respondent, Northwest Oyster Farms, Inc.,
Nahcotta, Washington, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified:
1. Add the following as paragraph 2(c) and reletter
the following paragraphs accordingly.
(c) Notify the above-named employees, if pre-
sently serving in the Armed Forces of the United
States, of their right to full reinstatement, upon appli-
cation, in accordance with the Selective Service Act
and the Universal Military Training and Service Act,
as amended, after discharge from the Armed Forces.
2. Add the following as the third indented para-
graph of the Appendix attached to the Trial Exam-
iner's Decision:
WE WILL notify the above-named employees, if
presently serving in the Armed Forces of the
United States, of their right to full reinstatement,
upon application, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
IT IS FURTHER ORDERED that those portions of
the complaint as to which no violations have been
found are hereby dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN CORENMAN, Trial Examiner Upon charges
filed by Shoalwater Bay Oyster Workers Local Union 14,
affiliated with Seafarers' International Union of North
America, AFL-CIO (herein called the Union), on February 5,
1968, the General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region 19 (Seattle,
Washington), issued a complaint on April 17, 1968, against
Northwest Oyster Farms, Inc., herein referred to as Respon-
dent, alleging that Respondent had engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1), (3), and (5) and Section 2(6) and (7) of the Act
Copies of the charge, complaint, and notice of hearing before a
Trial Examiner were duly served on the Respondent At the
hearing the Trial Examiner granted counsel for the General
Counsel's motion to strike all 8(a)(5) allegations from the
complaint The issues presented by the complaint and Respon-
dent's answer thereto are. (1) whether the Respondent is
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act, and (2) whether the Respondent violated
Section 8(a)(1) and (3) in connection with an alleged failure to
fully reinstate three striking employees after the strike's
termination
Pursuant to notice, a hearing was held at South Bend,
Washington, on July 23, 1968, before me. The General
Counsel, the Union, and the Respondent appeared by counsel,
and were afforded full opportunity to be heard, to examine
and cross-examine witnesses , to introduce evidence upon the
issues in the case, and to submit briefs. No briefs have been
submitted by any of the parties.
I THE BUSINESS OF THE RESPONDENT
The Respondent, Northwest Oyster Farms, Inc., a Wash-
ington corporation, with its principal place of business at
i On October 3, 1968 , the Respondent filed with the Board a motion to
reopen the record to adduce additional testimony that after the hearing
Earl Seeker had quit the employment of the Respondent to accept
other work , and that Jess Martin had refused an offer of reinstatement
because of his employment elsewhere As the matters raised by the
Respondent's motion pertain to compliance with the Order contained
herein , the motion to reopen the record is denied
173 NLRB No 130
NORTHWEST OYSTER FARMS, INC 873
Nahcotta, Washington, is engaged in the growing, harvesting,
processing and marketing of smoked fresh oysters and canned
oysters It's gross volume of sales in 1967 approximated
$350,000, the major part of which was sold to a cooperative
called the United Oyster Producers Association, of which
Respondent is a member Sales of United Oyster Producers
Association in interstate commerce exceeded $1,000,000 in
1967. In addition to the fresh oysters marketed through the
above-named cooperative, Respondent smokes and cans spe-
cialty products under the brand name "Jolly Roger," which it
distributes through a wholly owned subsidiary based at Seattle.
Sales of the Jolly Roger brand in 1967 totalled approximately
$90,000 of which more than $50,000 was sold to military
installations
I find upon the basis of the foregoing that the Respondent
is, and has been, engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectuate the
policies of the Act to entertain jurisdiction in the present case.
Siemons Mailing Service, 122 NLRB 81, Edward P. Tepper
d/b/a Shoenberg Farms, 132 NLRB 1331.
II. THE LABOR ORGANIZATION INVOLVED
Shoalwater Bay Oyster Workers Local Union 14, affiliated
with Seafarers ' International of North America , AFL-CIO,
herein called the Union , is a labor organization within the
meaning of the Act.
III THE UNFAIR LABOR PRACTICES
A Background
Respondent's business operations may be divided into four
phases, (1) Oyster Farming involving the leasing of oyster
lands, planting the oyster seed and raising and harvesting, the
oysters, (2) processing operations consisting of shucking the
oysters and preparing them for sale, (3) smoking and otherwise
processing the oysters, and (4) sales and distribution.
Respondent has had collective-bargaining relations with the
Union since 1961 After the expiration in July 1967 of their
current contract, the Union struck the oyster industry,
including the employer, on October 3, 1967, over a dispute on
terms for a renewal contract. The strike ended on or about
November 2, 1967, at which time the Union offered to return
to work. No contention is made otherwise, and I find that the
strike was economic.
The issue to determine is whether the Respondent fully
reinstated or offered full reinstatement to the following named
individuals on the termination of the strike. Jess Martin, Art
Clark, and Earl Seeker, and if not, whether such failure
violated Section 8(a)(1) and (3) of the Act.
B Earl Seeker
Earl Seeker had been in the employ of the Respondent
since September 16, 1966. He has worked in the oyster
industry since 1936, previously having worked for another
oyster company 17i% years in oyster farming. General Manager
Wiegardt hired Seeker for general "bed work" in Respondent's
oyster farming operations His first few weeks with the
Respondent were spent on a boat by himself in "rolling," an
operation designed to harden the ground in an effort to kill the
shrimp which are harmful to oyster growth. Thereafter, he ran
a dredge till the spring of 1967 when he returned to "rolling."
In the summer he worked on the "strings," and in the last 2
months prior to the commencement of the strike on October 3,
1967, he worked on the boats, repaired boats, repaired skiffs
and engaged in general all around "farm work." Seeker was
hired by Wiegardt at a salary of $500 a month About 6 to 7
months later his salary was increased to $550 per month.
Seeker, in addition to being employed by the Respondent, was
also the business representative of the Union. He participated
in contract negotiations that led to the strike and also in post
strike negotiations, and in the conduct of the strike Wiegardt
testified that when the strike started (October 3, 1967) he first
noticed a condition developing where the shell strings had just
begun to fall down on the racks, and were dropping into the
mud. This, according to Wiegardt, was caused by torridoes
(some form of marine animal) getting into the racks and
weakening the structure Wiegardt, testified he had intended to
pull the strings off before the condition became acute, but the
strike came at the time the first of the strings were beginning
to go down. At first, according to Wiegardt, there were three
to four thousand strings involved, but as time went on and into
November 1967, eight or nine thousand strings became
involved in the breaking down and dropping into the mud.
Wiegardt valued the strings at $1.50 apiece
During the course of the strike, it appears without dispute,
that Wiegardt had requested Seeker's permission for a crew to
go out and salvage the strings Subsequent to a union meeting
on the subject, Seeker denied permission for such a crew.
Seeker told Wiegardt this would not be permitted.while the
strike was in progress.
The strike ended on November 2, 1967. In a conversation
between Seeker and Wiegardt relative to returning the people
to work, Wiegardt, as he tesifies, told Seeker that it was his
opinion that the strike did not constitute a termination of
employment or a layoff of any kind, and that he would hire
back the people in an orderly fashion according to the way the
work was laid out.
During the strike, according to the uncontradicted testi-
mony of Seeker, Wiegardt told Seeker that his job was
terminated and that he would have to negotiate for a new job
On the day following the termination of the strike, in reply to
a question by Seeker as "to what was on the agenda the next
day," Wiegardt replied "you s in your mess,"I and
that he would give Seeker tide work when it was available
Wiegardt testified that after the strike ended he had a
conversation with Seeker in which he told hum there was no
chance of his continuing his present job, that Wiegardt had to
revise his plans and the best he could do was to hire Seeker at
an hourly rate. Seeker was returned to work on the dredge on
November 7, 1967, in "oyster farm" work but at the reduced
rate of $2 48 per hour and on March 26, 1968, his rate was
raised to $2 78 per hour as "boat man."
Weigardt, in summarizing the reasons why Seeker was
returned to work at the reduced rate of pay, testified as
follows;
(1) The number one reason, we didn't have the money to
continue the job. We were not in a position to do anything
except to do just very essential work and to hang on to
what we had.
i The quote is from Seeker 's testimony , and I find the remark was
made by Wiegardt as testified
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) The second reason was that in sequence to the
particular job, he was hired in an orderly fashion when the
work became available so that he had presented himself as
available for work after the strike, and we took that job
opportunity as the first opportunity to return him to work
In response to further interrogation by his counsel, Wiegardt
testified that there was no job available in the capacity Seeker
had been performing, although he did have an opening for a
foreman who could take the responsibility for a crew salvaging
the shell strings, but this was out of the question.
Seeker's Status as Employee or Supervisor
Although Respondent's counsel has not articulated his
defenses to the General Counsel's complaint alleging the
Respondent's failure to fully reinstate Seeker after the strike's
termination, except for the general denial in the Respondent's
answer, it is presumed from the tenor of Mr Wiegardt's
testimony that among other defenses, a contention is made
that Seeker was a supervisor within the meaning of Section
2(11) of the Act and because of that not protected from
employer discrimination for engaging in strike activity Al-
abama Marble Company, 83 NLRB 1047, N L.R.B v. Edward
G Budd Mfg Co., 169 F 2d 571 (C.A 6) For this reason, it is
essential to consider Seeker's status as employee or supervisor
In support of Respondent's position, Wiegardt testified that at
the time he first employed Seeker in September 1966, he
worked under Van Dorien's supervision, however, when
Seeker's salary was increased from $500 to $550 per month
"he was accepted as a full fledged member of the management
team and from that time on he was answerable to himself and
me " Wiegardt testified further in support of this position that
in early July 1967, a crew consisting of himself, Gerald
Andrews, Seeker and a group of youths were engaged in seed
rack construction According to Wiegardt, after the crew had
worked for several weeks on rack construction, it became
necessary for himself and Andrews and a portion of the
youthful crew to leave for Dabob Bay, at which time, Wregardt
testified, he left the rack building operation in charge of
Seeker, who remained with a group of five or six boys, ages
16-18, some of whom had experience from the year before
With respect to the rolling operation, Wiegardt testified that
Seeker performed this operation alone in a boat, taking
instruction either from Wiegardt or from Dave Van Dorien.
Relative to his status as supervisor or employee, Seeker
testified that when he was first employed, he was told by Mr.
Wiegardt that Dave Van Dorien was his foreman and that this
instruction was never changed He testified that his numerous
duties in oyster farming required him to work with a number
of employees With respect to building racks for shell strings,
Seeker testified that in the crew were his foreman, Dave Van
Dorien, himself, Musik, Art Clark, Stevens, Morgan. Seeker
denied that he was responsible for budding and setting out the
racks or in running the crew that was so engaged, including the
school boys Seeker testified that orders concerning the
number of racks to be built and their placement were given by
Mr. Wiegardt to Mr Andrews, that Mr. Wiegardt was personally
present at times as well as Foreman Dave Van Dorien, and that
Seeker himself was not present all of the time Seeker likewise
testified that he exercised no supervision over the high school
boys working on the same job, that he never interviewed for
hire or hired any of the students, and never fired or
recommended for firing any of them Seeker specifically
denied that at the time Wiegardt and Andrews left for the
Dabob operation in July 1967, that he was left in charge of the
crew or that he exercised any supervision over it. Seeker
testified further he had no authority to hire or fire or
recommend such action, and that he had made it clear to Mr.
Wiegardt when he first went to work that he was "no pusher "
In corroboration of Seeker, Art Clark testified that he had
worked with Seeker and a number of youths on rack building;
that he had no knowledge that Seeker was in charge of rack
building, that everyone seemed to know what to do and that at
times Foreman Dave Van Dorein was present Clark also
testified that Seeker at no time gave him any instructions on
how to perform the job of rack building and that he never saw
Seeker supervise any of the high school boys in the crew.
Likewise in connection with the towing of scows or spotting
them while running the boat, he did not take directions from
Earl Seeker but from Foreman Dave Van Dorein Seeker's
testimony as to his lack of supervisory status is also supported
by Jess Martin who testified that he was never advised by Mr.
Wiegardt or anyone else that Seeker was a supervisor or
foreman, and that he knew Dave Van Dorein to be the
foreman.
Conclusionaiy Finding re Seeker's Status as
Supervisor or Employee
On the basis of the entire record, I find that Seeker was not
a supervisor within the meaning of Section 2(11) of the Act. I
find that Seeker was not invested with, nor did he exercise any
of the authority set forth in Section 2(11) of the Act It is
clear from the record that Seeker's status was that of an
employee fully experienced in the many skills related to oyster
farming, such as "rolling," boat operation, dredge operation,
rack building and boat and equipment repair In all of these
operations, he worked alone or with others, taking his orders
from his foreman, Dave Van Dorien or from Mr Wiegardt. Mr.
Wiegardt testifies that for a time in July 1967, Seeker was in
charge of a crew of five or six high school boys in construction
and setting out of seed racks This is denied by Seeker who is
corroborated by Clark who also had worked in the crew. In
any event, I find that this temporary assignment in July 1967
which Wiegardt testifies he gave to Seeker, is insufficient to
deprive Seeker of his employee status I find that the
relationship between Seeker and the high school boys with
whom he worked in July 1967 was that of a senior
experienced employee to a group of lesser skilled or inexperi-
enced employees Assuming that Seeker may have given some
advice or instruction to the high school youths at the time he
worked with them, although he denies any supervision, this
temporary relationship did not make him a supervisor in the
sense of having managerial position or authority The fact that
an employee may devote his time to instructing other workers
does not, by itself, make him a supervisor. NL.R.B v
Valentine Sugars, Inc., 211 F 2d 317, (C A 5, 1954).
Additionally an employee who works as a leadman, performing
routine minor supervisory duties, but having no real super-
visory authority, does not qualify as a supervisor, and the
Board with court approval has held employees were not
supervisors where, in addition to their regular duties, they
instructed other employees in routine matters and took charge
in their departments for brief periods when foremen were
absent NL.R.B. v. Swift & Co , 240 F 2d 65 (C A 9, 1957).
Reexamining the status of Seeker in the instant case, the
evidence points only to this one occasion in July 1967 where,
NORTHWEST OYSTER FARMS, INC
according to Wiegardt, he left Seeker for a time in charge of a
group of five or six high school students The evidence is clear,
that Seeker was engaged in the same manual work as the rest
of the crew, and even if he had been left temporarily in charge
of this crew, as Wiegardt testified, this one occasion where he
may have given instruction to less experienced workers did not
invest Seeker with genuine supervisory authority and did not
deprive him of his Section 7 guarantees as an employee
N L R B v Valentine Sugars Inc and N L R B v Swift & Co
supra Red Stan Express Lines v NL R B, 196 F 2d 78 (C A
2)
Analysis of Wiegardt s Reasons for His Failure
to Fully Reinstate Seeker
It is well settled that at the conclusion of a strike, and a
union's unconditional offer to return to work, an employer has
a duty to offer reinstatement to employees with all rights,
privileges, and seniority, and working conditions previously
enjoyed including their former rates of pay John Kinkel &
Son, 157 NLRB 744, Ripley Mfg Co , 144 NLRB 1 132
The reasons advanced by Wiegardt, I find, do not stand up
under scrutiny and are insufficient to justify his failure to fully
reinstate Seeker at his previous salary Wiegardt's own testi
mony discloses that within a week after the termination of the
strike, operations were back to normal Indeed, the evidence
shows that a greater burden of work was incurred after the
strike in connection with the salvaging of the shell strings
which Wiegardt testified were falling into the mud Wiegardt's
testimony in justification of his refusal to consider Seeker for
that crew, namely, that he did have an opening for a foreman
who could take responsibility for a crew salvaging the shell
strings, but that was out of the question insofar as Seeker was
concerned, rings hollow in the face of other testimony by
Wiegardt that he assigned, among others, David Van Dorien to
help him lay out the shell string recovery operation notwith
standing the fact that Van Dorien refused to serve as a foreman
with the termination of the strike Wiegardt's assigned reason
number (1) for reinstating Seeker at a reduced wage rate,
namely, that he "didn't have the money to continue the lob"
is unsupported by any factual evidence in the record
Additionally, so far as the evidence shows, Seeker was the only
employee who was returned at a substantially reduced pay
rate The legitimacy of Wiegardt's reason is further refuted by
the fact that Musik, a less senior employee than Seeker, was
returned to work as a deck hand on the dredge, as was Seeker,
at a substantially increased salary of $500 per month It is well
settled that by virtue of Section 2(3) of the Act, an individual
whose work ceases due to a labor dispute remains an
employee, and that an employer refusing to fully reinstate a
striker must show that the action was due to legitimate and
substantial business justification The burden of proving such
justification is upon the employer, and an act (failure to fully
reinstate an employee) so destructive of employee rights,
without legitimate business justification, is an unfair labor
practice without reference to intent or improper motivation
2 There is in fact no proof that Seeker engaged in any illegal or
unprotected strike activity and an employers suspicions are insufficient
to justify discrimination N L R B v Burnup & Sims Inc 379 U S 21
3 Although Wiegardt in reciting his reasons for refusing to fully
reinstate Seeker at his previous salary did not proffer as one of the
reasons a contention that Seeker was physically unable to perform his
875
NL R B v Fleetwood Trailer Co , 389 U S 375, The Laidlaw
Corporation, 171 NLRB No 175 I find that the Respondent's
offer of employment to Seeker at a substantially reduced wage
rate was wholly unrelated to any of its economic needs, could
only penalize Seeker for engaging in concerted activity, was
inherently destructive of employee interests, and thus was
irresponsive to the requirements of the statute NLRB v
Erie Resistor Corporation, 373 US 221, NL R B v Great
Dane Trailers, 388 U S 26 I find, moreover, that the
Respondent's reinstatement of Seeker at a reduced pay rate
was a reprisal, motivated by Wiegardt's anger at Seeker, as the
business representative of the Union, in among other things,
refusing to permit a crew to work during the strike to salvage
the shell strings that Wiegardt testified were falling into mud
Moreover, it is reasonable to infer from the evidence, and I
find, that Wiegardt was incensed at Seeker, and held him
responsible for his leadership in enforcing a strike which Wie
gardt characterized as a "bitter strike" and held him responsible
for anonymous telephone threats, allegedly made to a foreman
and his family who had been crossing the picket line 2 Thus, even
before the strike ended, Wiegardt told Seeker his job had been
terminated and that he would have to negotiate for a new job,
and with the end of the strike, when Seeker inquired concerning
work, Wiegardt's hostile response was "you s in your
mess " In these circumstance, I find not only was there no valid
reason why Seeker should not have been offered full reinstate
ment, but additionally that such failure to fully reinstate Seeker
was intended as a reprisal for Seeker's leadership in the strike
The Respondent's aforesaid conduct was a violation of Section
8(a) (3) and (1) of the Act 3
C Arthur Roy Clark
Arthur Roy Clark had been employed by the Respondent
since 1966 in oyster farming, also known as bed work His
foreman was David Van Doreen He participated in the October
3 to November 2 strike and was on the picket line
Clark presented himself for employment the day after the
strike terminated Wiegardt told Clark there was a pressing
need for oyster openers to bring in ready cash Clark with
some reluctance agreed to take the oyster opening job on a
temporary basis on Wiegardt's promise that he would later be
transferred to his regular job performing "bed work " He
continued on the oyster opening job until February 1968
when he was returned to bed crew work
Clark's prestrike job was in the main devoted to oyster
farming at an hourly rate of $2 35'% The oyster opening job
was paid at piece work rates I find upon the testimony of
both Clark and Wiegardt, which are in substantial agreement
concerning this question, that Clark's piece rate earnings at
oyster opening approximated his hourly wage on the bed crew
job, that Clark was a thoroughly experienced oyster opener,
and that from time to time both before and after the strike he
was moved temporarily from bed work to oyster opening
In view of the fact that there was a business necessity to
move Clark temporarily to the oyster opening job, that in fact
job Wiegardt did testify that in July 1967 he gave Seeker two weeks
time off at Seeker s request because he was nervous and not feeling well
Seeker returned to his regular job on August 14, 1967, and continued
working at his job until the October 3 strike I find that Seekers
emotional or physical distress in July 1967 would not justify a refusal
to fully reinstate him after the strike
876 DECISIONS OF NATIONAL
both before and after the strike, Clark was occasionally moved
from bed work to oyster opening, and he is capable of earning
approximately the same total wages at oyster opening piece
work as he is on the bed crew hourly rate-I find that Clark
was, for all intents and purposes, reinstated to his job or
substantially equivalent employment, without prejudice to his
rights
Accordingly, I find no merit to the General Counsel's
allegation in the complaint that the Respondent refused to
fully reinstate Clark, and I would dismiss that allegation of the
complaint
D Jess Martin 4
Martin had been employed by the Respondent since
September 1967 in oyster farming work under the supervision
of Foreman Dave Van Doreen He joined the Union about 2
weeks before the start of the strike During the first week of
the strike, he worked on a boat in Dabob Bay In the following
week, while the strike was still in progress, he was requested by
foreman Jerry Andrews to work as a deck hand on the dredge
Although Martin at first agreed to work, he abruptly changed
his mind and did not report for work, but joined in the strike
and picketed the Respondent With the termination of the
strike, Martin was not recalled to work, this notwithstanding
the Union's previous offer to return to work and Further fact
that Martin reported in person at the Respondents place of
business two or three days after the strike's end Wiegardt's
testimony concerning his reason for refusing to recall is as
follows
It was my understanding that Jess had indicated his
willingness to return to Dabob Bay and had told Gerald
Andrews that he was ready and willing and available to go
At the last minute he decided that the strike took
precedence and that he was not available for work I felt
under the circumstances that it would be better if he came
to us after the strike and explained his availability for work
In essence, Wiegard's testimony discloses no legitimate reason
for refusing to recall Martin Indeed, it constitutes an
admission that reinstatement was denied to Martin because he
joined the strike after he had promised to work
The evidence shows, without dispute, and I find, that the
Respondent's failure to reinstate Martin at the strike's end
violated Section 8(a)(1) and (3) of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the business operations of
the Respondent as described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several states and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce
V THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and (3)
4 At the hearing upon motion of the General Counsel the
complaint was amended to show Martin by his correct name Jess
Martin
LABOR RELATIONS BOARD
of the Act, I will recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the
policies of the Act
Having found that Respondent violated Section 8(a)(1) and
(3) of the Act by refusing to fully reinstate Jess Martin and
Earl Seeker, I will order Respondent to offer them immediate
and full reinstatement of their former or substantially equiva-
lent jobs, without prejudice to their seniority, wage rates,5 or
other rights and privileges, and make them whole for any loss
of earnings they may have suffered as a result of the
discriminatory refusal to reinstate them, by payment to each
of them of a sum of money equal to that which he normally
would have earned as wages from November 7, 1967, to the
date of Respondent's offer of full reinstatement, less his net
earnings during such period, with backpay and interest thereon
to be computed in the manner prescribed by the Board in F W
Woolworth Co , 90 NLRB 289, and Isis Plumbing & Heating
Co 138 NLRB 716
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following
CONCLUSIONS OF LAW
1 Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the meaning of
Section 2(5) of the Act
3 By failing and refusing to fully reinstate Earl Seeker to
his job with all its rights and privileges, including Seeker's
previous salary rate, and by refusing to reinstate Jess Martin to
his job with all rights and privileges, Respondent has discrimi
nated with respect to their hire, tenure, and terms and
conditions of employment, thereby discouraging membership
in the Union, and has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a) (3) of the Act,
and by the aforesaid conduct has coerced and restrained
employees in their Section 7 rights to engage in concerted
activity for their mutual aid and protection, and has engaged
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 affecting and
have affected commerce within the meaning of Section 2(6)
and (7) of the Act
5 Respondent did not engage in any unfair labor practices
alleged in the complaint which are not specifically found
herein
Upon the foregoing findings and conclusions and the entire
record, and pursuant to Section 10(c) of the Act, I hereby
issue the following
RECOMMENDED ORDER
The Respondent, Northwest Oyster Farms, Inc , its officers,
agents, successors , and assigns, shall
1 Cease and desist from
(a) Discouraging membership in or activities on behalf of
Shoalwater Bay Oyster Workers Local Union 14, affiliated
with Seafarer ' s International Union of North America, AFL-
CIO, or any other labor organization , by terminating the
5 I have already found that Seeker s former position to which he is
ordered reinstated carried a salary of $ 550 per month
NORTHWEST OYSTER FARMS, INC
employee status of strikers or failing or refusing to reinstate
them to their regular positions with their full seniority, wage
rights, and other rights and privileges, at the conclusion of a
strike, or by discriminating against them in any other manner
with respect to their hire, tenure, or any terms or conditions of
employment
(b) In any like or related manner interfering with, re-
straining or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act.
(a) Offer to Jess Martin and Earl Seeker immediate and full
reinstatement to their former or substantially equivalent
positions held immediately prior to the strike, without
prejudice to the wage or salary rates paid therefor or other
rights or privileges, and make them whole for any loss of
earnings they have suffered as a result of the discrimination
practiced against them in the manner set forth in the section of
this Decision entitled "The Remedy "
(b) Preserve and, upon request, make available to the Board
and its agents, for examination and copying, all payroll
records, social security payment records, timecards personnel
records and reports, and all other necessary records in
determining the amount due as backpay.
(c) Post at its plant and at its principal place of business in
Nahcotta, Washington, copies of the attached notice marked
"Appendix."6 Copies of said notice, on forms provided by the
Regional Director for Region 19, after being duly signed by
Respondent, shall be posted immediately upon receipt thereof,
and be maintained by him for 60 consectuive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 19, in writing,
within 20 days from the date of this Decision, what steps have
been taken to comply herewith 7
6 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order " shall be substituted for the
words "the Recommended Order of a Trial Examiner " in the notice. In
the further event that the Board 's ')rder is enforced by a decree of a
United State Court of Appeals , the words "a Decree of the United
877
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order "
' In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify the Regional
Director for Region 19, in writing , within 10 days from the date of this
Order, what steps it has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that.
WE WILL NOT discourage membership in or activities
on behalf of Shoalwater Bay Oyster Workers Local Union
14, affiliated with Seafarer' International Union of North
America, AFL-CIO, or any other labor organization by
failing or refusing to fully reinstate strikers to their jobs,
with full wage or salary rights and other rights and
privileges, or by discriminating against them in any like or
related manner with respect to their hire, tenure, or any
term or condition of employment
WE WILL offer to Earl Seeker and Jess Martin immediate
and full reinstatement to their former or substantially
equivalent positions held immediately prior to the strike,
without prejudice to wage or salary rates or other rights or
privileges, and will make them whole for any loss of earnings
suffered as a result of the discrimination against them.
NORTHWEST OYSTER
FARMS INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced, or
covered by any other material.
If employees have any question concerning this notice or
compliance with its provisions, they may communicate direct-
ly with the Board's Regional Office, 327 Logan Building, 500
Union Street, Seattle, Washington 98101, Telephone
583-4532.