Olaa Sugar Co., Ltd.

National Labor Relations Board - Board Decisions

Sep 26, 1957

118 N.L.R.B. 1442 (N.L.R.B. 1957)

1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to cease performing services for their several employers in order that pressure to
accomplish that end be brought upon Southern . He suggests that picketing at
Southern's premises might be permissible but that by picketing the restaurants supplied
by Southern , the Respondents have departed from an appropriate site to a forbidden
one.3. Implicit in the General Counsel 's reasoning is the assumption that any picket
line maintained by a labor organization constitutes an inducement to members of
labor organizations not to cross it for any purpose.
Counsel for the Respondents has a different view of the matter . He asserts that
the picketing had for an objective only the apparent one of persuading customers
by a truthful presentation of facts to withhold their patronage from the picketed
restaurants.
The facts of the case are simple , are not disputed in any important respect, and
have been stated.
The restaurant operators either were notified beforehand or learned during the
week of August 13 that the picketing was not directed to their employees . All labor
organizations whose members worked in the restaurants or for suppliers to the
restaurants had been notified that this was purely and simply an appeal for a con-
sumer boycott4 None of the restaurant employees refused to perform services for
their employers and the few incidents of delay in receiving supplies are clearly attribut -
able to an assumption , not warranted in my opinion , that the picket line was to be
observed by them.
Because the Respondents openly stated the purpose of the picketing before it
started; because drivers who questioned the propriety of crossing the picket lines
quickly satisfied themselves that observance was not required ; because the hours of
picketing were coincident with the hours of meal service rather than with the hours
when employees report for work or the hours when supplies were received ; because
employee and supplier entrances , where they existed , were not picketed ; and because
the entire conduct of the Respondents in respect to the picketing is rationally con-
sistent with an object to induce a consumer boycott only , I find that no violation
of the Act , as alleged , is here presented . Because I do not find the evidence to sup-
port the General Counsel 's contention that the picketing constituted inducement
or encouragement of restaurant employees or of employees of restaurant suppliers,
the cases he relies on dealing with "common situs" situations have no bearing here
and are not discussed.
By reason of the conclusions reached above, it is recommended that the complaint
be dismissed.
8 General Drivers, Salesmen, Warehousemen & Helpers, Local Union 984, eto. (The Carat.
dine Company, Inc.), 116 NLRB 1559 and Local 657, international Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO ( Southwestern Motor
Transport, Inc.), 115 NLRB 981.
*I consider that the Respondents are not chargeable for the erroneous instruction given
Schaefer by someone purporting to speak for his union.
Olaa Sugar Company , Limited and Favorito P. Banez
ILWU Local 142 and Favorito P. Banez. Cases Nos.' 37-CA-84
and 37-CB-6. September 26,1957
SUPPLEMENTAL DECISION AND ORDER
On October 26,1955, the Board issued its Decision and Order herein,'
finding that the Complainant, Banez, was not an agricultural laborer
excluded from the coverage of the Act, finding further than Banez
was discriminatorily discharged under an illegal contract, and issuing
the usual remedial order for such unfair labor practices. On March
12, 1957, the United States Court of Appeals for the Ninth Circuit
1 114 NLRB 070.
118 NLRB No. 195.
OLAA SUGAR COMPANY, LIMITED 1443
remanded the case to the Board.2 Accepting the remand, the Board
on June 19, 1957, issued its notice, inviting the parties to file briefs
with respect to the issues encompassed by the remand. Thereafter the
General Counsel and the Respondents filed briefs, which the Board
has considered.
In its Decision and Order the Board held that none of Banez' work
was agricultural and that he was subject to the Act. The court of
appeals was of the opinion, however, that part of Banez' work was
agricultural, that he was engaged in agriculture when he drove to
and from Olaa-owned fields and that he was not so engaged when
driving to and from independent fields. The court was of the further
opinion, therefore, that a question arose as to the applicability of the
Board's Clinton Foods I doctrine under which the Board had held that
employees dividing their time between agricultural and nonagricul-
tural pursuits and spending a substantial part of their time in agri-
cultural duties should be,deemed within the exemption of agricultural
laborers from the coverage of the Act. Stating that it was solely
within the discretion of the Board whether to apply the Clinton Foods
doctrine to this case and whether to continue or abandon that doctrine,
the court remanded the case to the Board. In what appears to be
an addendum to the decision the court noted that after it had prepared
its decision the Board in H. A. Rider d Sons a had overruled Clinton,
but that "the occasion for remand remains notwithstanding the Rider
decision."
As set forth in the Rider case, the Board is of the opinion that the
Clinton Foods doctrine should no longer be followed, and we take
occasion in this case to explicate more fully our position regarding
employees who spend part of their time in agricultural duties
and part in nonagricultural. We now announce the rule that em-
ployees who perform any regular amount of nonagricultural work
are covered by the Act with respect to that portion of the work which
is nonagricultural.
The Act excludes from its coverage "any individual employed as an
agricultural laborer." The Board's annual appropriation rider directs
in effect that the Board, in determining whether an employee is an
agricultural laborer, shall be guided by the definition set forth in the
Fair Labor Standards Act, and that Act in turn defines "agriculture."
Neither Act specifies what result is to be reached when an employee's
time is divided between exempt and nonexempt work. Prior to Clin-
ton Foods the Board held that employees who divided their time be-
tween agricultural and nonagricultural work were covered by the Act,
a N. L. R. B. v. Olaa Sugar Company, Limited, 242 F. 2d 714.
3 108 NLRB 85.
4117 NLRB 517.
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without regard to the amount of division.' This is also the position
of the Department of Labor with respect to the Fair Labor Standards
Act.' Moreover, this position has received unanimous judicial sup-
port under the Fair Labor Standards Act, both in general and with
specific reference to agriculture.'
The court of appeals in this case stated that the Board was not
compelled to apply the rule under the Fair Labor Standards Act.
However, we believe that Congress intended the Board to apply the
law as established under that Act. Thus, Congress could have written
a separate definition for this Act, or it could have used the definition
of agriculture from some other statute such as the Social Security Act.
Congress' selection of the Fair Labor Standards Act as the guide for
Board determinations strongly suggests that Congress intended the
Board to follow the rules laid down by the courts, if not by the De-
partment of Labor, under that Act.
Moreover, considerations of comity between two agencies of the
Government make it desirable that the view of the agency most often
concerned with a problem be respected by the agency to which the
problem is relatively incidental.8 This is particularly true where
Congress has singled out the law creating the "primary" agency as
the guide to the other. The persons most intimately affected, em-
ployers and employees, will also benefit to the extent that only one
set of rules will govern their inclusion or exclusion from regulatory
statutes. Finally, the same principles of policy and statutory con-
struction which motivated judicial construction of the Fair Labor
Standards Act would appear to apply with equal force to the National
Labor Relations Act.
Accordingly, applying the rule here announced, we find Banez, as
he regularly performs nonagricultural work, is covered by the Act.
The court of appeals stated that if the Board should decide that
Banez was subject to the Act, then the Board's further determination
5 See e . g., San Fernando Heights Lemon Association , 72 NLRB 372 ; L. Maxey, Inc.,
78 NLRB 525.
8 Part 780 of Title 29 , Code of Federal Regulations , deals with the various exemptions in
the Fair Labor Standards Act relating to agriculture. Section 780.5 (b) provides : "Where
exempt and non-exempt work is involved , the general rule is that if in any workweek an
employee performs exempt work and other work which is covered and not exempt, the
wage and hour requirements do apply to him during that workweek [footnote, citing
cases).
7 See, for example, North Shore Corp. v. Barnett, 143 F. 2d 172, 175 (C. A. 5) ; Walling
v. W. D. Haden Co., 153 F. 2d 196, 199 (C. A. 5), cert. denied 328 U. S. 866 ; Mitchell v.
Stinson, 217 F. 2d 210, 217 (C. A. 1) ; McComb v. Del Valle, 80 F. Supp. 945, 951 (D.'C.,
P. R,) ; Shain v. Armour & Co., 50 F. Supp. 907, 911 (W. D. Ky.) ; Walling v. Desoto
Creamery Co., 51 F. Supp. 938, 943 (D. C., Minn.) ; Fleming v. Swift & Co., 41 F. Supp.
825, 831 (D. C., N. D. I11.), affd. 131 F. 2d 249 (C. A. 7) ; Walling v. Peacock Corp., 58 F.
Supp. 880, 883 (D. C., E. D. Wis.) ; Jordan v. Stark Bros., 45 F. Supp. 769, 771-772
(D. C., W. D. Ark.) ; Sykes Y. Lockmann, 156 Kans. 223, 132 P. 2d 620, 624, cert. denied
319 U. S. 753. See also Roland Co. v. Walling, 326 U. S. 657, 664; Walling v. Jackson-
ville Paper Co., 317 U. S. 564, 572; Southern California Freight Lines v. McKeown, 148
F. 2d 890 (C. A. 9).
8 See Imperial Garden Growers, 91 NLRB 1034, 1037.
OLAA SUGAR COMPANY, LIMITED 1445
that the Respondents were guilty of unfair labor practices must be
sustained. Accordingly, we now make the same unfair labor practice
findings which we made in our Decision and Order, and we shall issue
the same Order.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Olaa Sugar Company, Limited,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Performing or giving effect to paragraph 8 of section I of its
contract with ILWU Local 142, which discriminates between union
and nonunion employees of the Company.
(b) Encouraging membership in ILWU Local 142, or in any other
labor organization of its employees, by the execution or enforcement
of such a discriminatory provision.
(c) In any other manner, interfering with, restraining, or coercing
its employees in the exercise of their rights under Section 7 of the
Act, except to the extent that such right may be affected by an agree-
ment in conformity with Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Favorito P. Banez immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and make him whole
for any loss of earnings suffered as a result of the discrimination
against him, in the manner set forth in the section of the Intermediate
Report entitled "The Remedy."
(b) Preserve and make available to the Board or its agents, upon
request, for examination or copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary or useful to an analysis of the amount
of back pay due and the rights of employment under the terms of
this Order.
(c) Post at its office and mill at Olaa, Island of Hawaii, T. H.,
copies of the notice attached hereto as Appendix A.9 Copies of such
notice, to be furnished by the Regional Director for the Twentieth
Region, shall, after being duly signed by a representative of the
Company, be posted immediately upon receipt thereof and maintained
by it for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
9 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."
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reasonable steps shall be taken to insure that such notices are not
altered, defaced, or covered by other material."'
(d) Notify the Regional Director for the Twentieth Region in
writing, within ten (10) days from the date of this Order, what steps
the Company has taken to comply herewith.
Upon the same considerations, it is hereby ordered that ILWU
Local 142, its officers, representatives, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Performing or giving effect to paragraph 8 of section I of its
contract with the Company, which discriminates between union and
nonunion employees of the Company.
(b) Causing or attempting to cause the Company to discriminate
against any of its employees because such employees are not members
of the above-named labor organization.
(c) In any other manner restraining or coercing employees of the
Company in the exercise of their rights under Section 7 of the Act,
except to the extent that such right may be affected by an agreement
in conformity with Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole Favorito P. Banez for any loss of pay suffered by
reason of the discrimination against him in the manner set forth in
the section of the Intermediate Report entitled "The Remedy."
(b) Notify the Company, in writing, sending a copy to Favorito
P. Banez,.that the Union withdraws its objection to his employment
as a senior cane truckdriver, and requests the Company to offer Banez
immediate and full reinstatement to his former or an equivalent
position.
(c) Post at all its business offices in the Olaa area copies of the
notice attached hereto and marked "Appendix B." " Copies of such
notice, to be furnished by the Regional Director for the Twentieth
Region, shall, after being signed by a representative of said Union,
be posted by it immediately upon receipt thereof and maintained by
it for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to members are customarily posted.
Reasonable steps shall be taken to insure that such notices are not
altered, defaced, or covered by other material."
10 The record indicates that the employees live at different places throughout the area
owned or controlled by the Company. This provision of the Order requires that copies
of the notice be posted in all those places where such notices are customarily posted for
employees.
11 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."
1a The record indicates that notices to employees are posted by the Union throughout
the holdings of the Company in the Olaa area. This provision requires that copies of
this notice be posted in all those places where notices are customarily posted for employees.
OLAA SUGAR COMPANY, LIMITED 1447
(d) Mail to the Regional Director for the Twentieth Region signed
copies of the notice attached hereto marked "Appendix B" for post-
ing, the Company willing, at the Company's office and mill at Olaa,
Island of Hawaii, T. H., in places where notices to employees are
customarily posted. Copies of said notice, to be furnished by the
Regional Director for the Twentieth Region, shall, after being duly
signed as provided above, be returned forthwith to the Regional
Director for such posting.
(e) Notify the Regional Director for the Twentieth Region in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
MEMBERS RODGERS and JENKINS took no part in the consideration
of the above Supplemental Decision and Order.
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, as amended, we hereby notify you that:
WE WILL cease performing or giving effect to section I, para-
graph 8 of our current contract with ILWU Local 142, by which
the Union may initiate disciplinary action against or the dis-
charge of nonunion employees.
WE WILL NOT enter into, renew, or enforce any agreement with
said labor organization by which the Union may cause us to
discharge any nonunion employee, except to the extent that such
action is permitted under a union-security provision in conformity
with the Act, as amended.
WE WILL NOT encourage membership in said labor organization
under such -an agreement by hearing a grievance, or discharging
any nonunion employee, on the ground that the employee has dis-
rupted harmonious working relations, or in any other manner
discriminate in regard to hire or tenure of employment or any
terms or conditions of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed them
in Section 7 of the Act, 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 Sec-
tion 8 (a) (3) of the Act.
WE WILL offer Favorito P. Banez immediate and full reinstate-
ment to his former or substantially equivalent position without
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prejudice to his seniority or other rights and privileges, and make
him whole for any loss of pay suffered as a result of our dis-
crimination against him.
All our employees are free to become, to remain, or to refrain from
becoming, or remaining, members of the above-named Union or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of
the Act, as amended.
OLAA SUGAR COMPANY, LIMITED,
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.
APPENDIX B
NOTICE TO ALL OFFICERS, REPRESENTATIVES, AGENTS
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, as amended, we hereby notify you that :
WE WILL cease performing or giving effect to paragraph 8 of
section I of our contract with Olaa Sugar Company, Limited,
because of its discriminatory nature.
WE WILL NOT enter into, renew, or enforce any provisions of
our contract with the above-named Employer which permits us
to request disciplinary action against, or the discharge of, any,
nonunion employee, except to the extent that such action is per-
mitted under a union-security provision in conformity with the
Act, as amended.
WE WILL NOT cause or attempt to cause any employer to dis-
criminate against employees in regard to their hire or tenure of
employment, or any term or condition of employment, in viola-
tion of Section 8 (a) (3) of the Act, as amended.
WE WILL NOT in any other manner restrain or coerce employees
of any employer in the exercise of the rights guaranteed them in
Section 7 of the Act, except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized in Section 8
(a) (3) of the Act, as amended.
WE WILL notify the above-named Company, in writing, and
send Favorito P. Banez a copy, that we withdraw our objections
to his employment as a senior cane truckdriver, and request that
he be reinstated to his former or an equivalent position.
COMPLIANCE STATUS 1449
WE WILL make Favorito P. Banez whole for any loss of pay
suffered because of the discrimination against him.
ILWU LOCAL 142,
Labor Organization.
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.
Compliance Status of Cannery, Citrus Workers, Drivers, Ware-
housemen and Allied Employees Local Union No . 444, Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO. September 26, 1957
ADMINISTRATIVE DETERMINATION OF
COMPLIANCE STATUS
On July 8, 1957, Adams Packing Association, Inc., an employer in
interest in certain proceedings pending before the Board, filed a peti-
tion with the Board for a determination of the compliance of the
above-named Union. It alleges that the Union was not in compliance
with Section 9 (h) of the Act because one David Wingate, a business
representative of the Union, is designated as an "officer" under the
constitution of the Union's International and has failed to file the
required affidavits. It further alleges that Wingate is an officer of the
Union by virtue of the duties which he performs.
In support of its contention that Wingate, as business representative
of the Union, is an officer who is required to file the necessary affidavits,
the Petitioner relies upon provisions of the constitution of the Union's
International dealing with the qualifications and election of candidates
for certain offices and the duties of certain officers.' Of the various
constitutional provisions submitted by the Petitioner, the following are
particularly germane to the issue here presented :
ART. XXI, Sec. 2. The officers of the local union shall consist
of a President, Vice-President, Recording Secretary, Secretary-
Treasurer and three Trustees. These officers shall constitute the
Executive Board of the organization.
ART. XXI, Sec. 7. The Business Representative and assistants
of a local union may be elected or appointed in the manner pro-
vided by the local by-laws, the same as any other officer; but can
be removed at any time for incompetency, neglect of duty, or
1 The Union, so far as the record herein discloses , has no bylaws of its own.
118 NLRB No. 197.