Pacific Olive Co.

National Labor Relations Board - Board Decisions

Dec 16, 1942

46 N.L.R.B. 1 (N.L.R.B. 1942)

In the Matter of E. VAN DELLEN, R. N. BALL AND A. W. STRICKER,
DOING BUSINESS AS PACIFIC OLIVE` COMPANY and CANNERY & DRIED
FRUIT WORKERS UNION LOCAL No. 22642, A. F. L.
Case No. C-2328.-Decided December 16, 1942
Jurisdiction : olive packing and olive oil processing industry.
Unfair Labor Practices
In General: activities of employee who, contrary to employer's contention, had
not actually been divested of supervisory authority and who was considered
by employees to act in a supervisory capacity, held attributable to employer.
Interference, Restraint, and Coercion: notifying employees that they could secure
union wages without membership in a union, and the granting thereof, after
the union had a, majority and was attempting to bargain with respondent;
threats to close plant before it would recognize union; inducing employees
to withdraw from union.
Collective Bargaining: majority established by membership cards-refusal to
bargain collectively by : bargaining directly with employees ; attempting to
impose preference as to employee representatives ; and after tacitly recognizing
union's majority, demanding that union prove its majority when employer
had unlawfully induced withdrawals from union.
Remedial Orders : cease and desist unfair labor practices; to bargain collec-
tively upon request.
Unit - Appropriate for Collective Bargaining : production and maintenance
employees, exclusive of supervisors.
DECISION
AND
ORDER
On September 12, 1942, the Trial Examiner issued his Intermediate
Report 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 out in the copy of the Intermediate Report
attached hereto. Thereafter the respondent filed exceptions to the
Intermediate Report. The Board has considered the rulings of the
Trial Examiner 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 the entire record in the case, and hereby adopts the findings, con-
46 N. L. R. B., No.1
504086-43-vol. 46--1 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clusions, and recommendations of the Trial Examiner with the ad-
ditions noted below :
The Trial Examiner found that the respondent had engaged in unfair
labor practices, , inter alia, by virtue of certain acts committed by
Charles Link, a supervisory employee. The respondent while ad-
mitting that Link at one time had been a supervisor, contended that
Link was divested of his supervisory duties during the fall of 1941.
Although it is established that in the fall of 1941 respondent E. Van
Dellen announced to the employees that he would take over Link's
duties, the respondent did nothing actually to divest Link of his
supervisory status. On the contrary, the following incidents which
occurred subsequent to the alleged demotion indicate that Link's
authority continued unaltered : (1) Link effectively countermanded
the order of Superintendent Douglas Stuart in the ditch digging in-
cident. Thus, E. C. Stockbridge by complying with Link's orders
disregarded the previous orders of Stuart with impunity, while the
employment of Lester Dishong was terminated as a result of his re-
fusal to comply with the order by Link; 1 (2) Link reported A. P.
Walker to the management because of Walker's refusal to follow
Link's instructions; (3) Link called the meeting of employees in the
plant on March 14 during working hours, which was also attended by
another supervisor, during the course of which the plant was partially
shut down; (4) Link's promises of wage increases without, union
representation at the meeting on March 14 were effectuated *by' the
respondent; and (5) the lists showing the Wage increases were de-
livered by the respondent to Link, and -upon Link's instructions were
then shown to the employees. Furthermore, a number 'of employees
testified that they continued to take orders from Link after the fall
of 1941, and Link himself admitted to Stockbridge on March 11, 1942,
'that he was a foreman. Moreover, only the names of Link and Irene
Elam, admittedly a supervisor, were omitted from the lists of em-
ployees granted wage increases on March 14, 1942, although Link and
Elam both received wage increases at that time. Upon the entire
record we find, as did the Trial Examiner, that Link was a supervisory
employee and that his anti-union activities are imputable to the
respondent.
ORDER
Upon the entire record 'in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders'that the respondent, E. Van Dellen, R. N. Ball,
1 Whether Disliong voluntarily quit his job or was discharged fs immaterial . The sig-
nificant fact is that the respondent, although contending at the hearing that Link was not
then a supervisor, did not repudiate Link' s assumption of supervisory authority on this
occasion
PACIFIC OLIVE COMPANY 3
and A. W. Stricker, individually and as co-partners doing. business
under the name ,and style of Pacific Olive Company,,. Visalia, Cali-
fornia, their agents, successors , and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Cannery and Dried Fruit
Workers Union, Local No. 22642, affiliated with the American Federa-
tion of Labor, as the exclusive representative of all . its production
and maintenance employees, exclusive of supervisors;
(b) In any other manner interfering with, restraining, and co-
ercing its employees in the exercise of the right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activity for the purposes of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies, of the Act :
(a) Upon request bargain collectively with Cannery and Dried
Fruit Workers Union, Local No. 22642, affiliated with the American
.Federation of Labor, as the exclusive bargaining representative of the
employees in the unit found appropriate;
(b) Post immediately in conspicuous places at its plant in Visalia,
California, and maintain for a period of at least sixty (60) consecutive
days from the date of posting, notices to its employees stating:
(1) that the respondent will not engage in the conduct from which
it is ordered to cease and desist in paragraphs 1 (a) and _(b) of this
Order; and (2) that the respondent will take the affirmative action
set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Twentieth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
INTERMEDIATE REPORT
air. William B. Esterman, for the Board.
Mr. Arthur C. Shepard, of Fresno, California, for the respondents.
STATEMENT OF THE CASE
Upon an amended charge duly filed June 24, 1942, by Cannery & Dried Fruit
Workers Union, Local No. 22642, (A. F. L ),'herein called the Union, the National
Labor Relations Board, herein called the Board, by the Regional Director for
the Twentieth Region (San Francisco, California) issued its complaint dated
July 3, 1942, against E. Van Dellen, R. N. Ball, and A. W. Stricker,,doing business
as Pacific Olive Company,' herein collectively called the respondent, alleging that
1So entitled in the charge and complaint The, correct name is "Cannery and Diied
Fruit Worlens Union, Local No 22642, A I+ L." •t
' So entitled in the caption of the complaint In the body of the complaint, however,
these persons are referred to as "co-partners, doing business under the name and style
of Pacific Olive Company," and this description is admitted in the answer as correct.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent had engaged'in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8 (1) and -(5) and Section 2 (6)
and (7) of the National:Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint and notice of hearing were duly served upon the
respondent and the Union.
With reference to the unfair labor practices, the complaint alleged in sub-
stance that the respondent (1) since about February 21, 1942, refused to bargain
• collectively with the Union which at all times since that date has been the
exclusive representative of the respondent's employees in a unit appropriate for
collective bargaining;' (2) urged, persuaded, threatened, and warned its em-
ployees not to join or assist the Union, to withdraw from the Union and to
abandon their efforts to organize and bargain through the Union ; and (3) by
the foregoing acts interfered with, restrained, and coerced its employees,in the
exercise of the rights guaranteed in Section 7 of the Act.
The respondent filed an answer on July 16, 1942, in which it admitted certain
allegations .of the complaint but denied that it had engaged in any unfair labor
practices. It admitted the appropriateness of the unit alleged in the complaint,
but denied that the Union represeited a majority of the employees in said unit.
Pursuant to notice, a hearing was held on July 20, 21, and 22, 1942, at,Visalia,
California, before the undersigned, the Trial Examiner duly designated by the
Chief Trial Examiner • The Board and the respondent were represented by
counsel and participated in the hearing., Full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties. At the commencement of the hearing Board's
counsel moved to strike certain portions of the answer, wherein the integrity of
the Board and its agents was attacked. The respondent's counsel acquiesced in
the motion; which was granted. At the close of the hearing Board's counsel
moved to amend the pleadings to conform to the proof with respect to such matters
as names, dates and clerical errors. There was no objection ; the motion is now
granted. At the conclusion of the hearing all parties were given an opportunity
to present oral argument before and to file briefs with the undersigned. No oral
arguments were presented but after the close of the hearing the respondent filed
a brief with the undersigned. `
Upon the entire record in the case and 'from his observation of the, witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a partnership composed of E. Van Dellen, R. N. Ball and
A. W. Stricker, doing business under the name and style of Pacific Olive Company,
having its office and place of business at Visalia, California. It is engaged in
the business of processing olive oil and packing olives. During the fiscal year
ending June 30, 1942, the respondent's total sales were approximately $200,000,
of which products to the value-of, over $20,000 were 'shipped to States outside
the State of California. The respondent in its answer and at the hearing ad-
mitted that it was engaged in commerce within the meaning of the Act.
3 The unit alleged to be appropriate consists of all production and maintenance employees
of the respondent, excluding supervisory employees
' Counsel who drew the respondent 's answer was not the one who represented the
respondent at the hearing.
I
PACIFIC OLIVE 'COMPANY 5
II. THE ORGANIZATION INVOLVED
Cannery and Dried Fruit Workers Union. Local No. 22642, is a labor organiza-
tion,, affiliated with the American Federation, of Labor, admitting to membership
employees of the respondent.
III THE UNFAIR LABOR PRACTICES
A. Sequence of events
The respondent's business was established in September 1940. Although itsr
business is somewhat seasonal, it normally employs about 30 production and
maintenance employees in its plant, including both men and women. Prior to
February 1942, there'was no history of collective bargaining in the plant. The
respondent at that time was paying a basic wage scale of 40 cents an hour to
women employees and 50 cents to men employees This basic scale was lower
than the scale of wages paid by other competing processors and packers in the
region around Visalia.'
In February 1942, John Medina, State organizer for the National Council of
Cannery and Process Workers, affiliated with the American Federation of Labor,
.tarted organizational work among the employees in the respondent's plant. By
February 19, a number of the employees had signed applications to join the
Union. On that day, Medina, accompanied by Harry Jones, vice president of
,he local, called at the office of the respondent and told all three partners e that
he was in Visalia to organize the olive workers and asked them how they felt
about having a union in the plant Stricker responded that the employees did
not need a union to better their working conditions, but that if the employees
wanted a union, it was agreeable to the respondent. Medina then requested
permission to go into the plant to invite the employees to a mass meeting to be
held that same evening by the Union at the Labor Temple in Visalia. This per-
Inission was refused as it would interrupt the operations of the plant, but the
partners agreed to have the supervisors accompany Medina and Jones through
the plant and notify the employees of the meeting. This was done. During the
conference, Partner Ball asked Medina what the union wage scale for the em-
ployees would be When Medina answered that the basic union wage scale was
581/ cents an hour for women and 701/z cents an hour for men, all three partners
stated that such a scale was impossible in their plant because all of their prod-
ucts for the season had been contracted for on the basis of the current wage
scale. They requested Medina to defer negotiations fo ra wage increase until
September when the season would be over. Medina declined to agree to this
request, and the conference ended.
The meeting at the Labor Temple that night was, attended by most of'the re-
spondent's production and maintenance employees At the conclusion of the
meeting a majority of the respondent's employees had signed applications to
join the Union.
On February 20, Medina, Jones, and C. C. Fuller, secretary of the Visalia
Central Labor Council, called on the partners Medina stated that the Union
had secured signed application cards from a majority of the employees of the
respondent He produced the cards. The partnets did not ask to check the
5 This finding is based upon the testimony of R. N. Ball, one of the partners, that the
Lindsay Ripe Olive Company, located at Lindsay, eight miles from Visalia, controlled 25
percent of the olive packing and processing business in the Visalia region and that the
packers and processors were influenced by the Lindsay Company wage scale and upon a
stipulation entered into at the hearing that the basic pay rate of the Lindsay Company.
in February 1942 was 48 cents for women and 60112 cents for men.
'All three partners actively participated in the management of the business.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signatures on the cards against the pay roll or against the employees' cancelled
pay checks, nor did they question the Union's majority.? Medina then requested
The partners to sign a written certification, which he, submitted to them,, to the
effect that the respondent recognized the Union as the bargaining agency of its
employees and that it would bargain with the Union. The partners asked for
time to consult an attorney and the meeting was then adjourned to February 23.
On February 23, the same individuals attended the adjourned meeting in the
respondent's office. Van Dellen objected to certain paragraphs in the certificate
of recognition, stating that he felt that any-negotiations carried on should be
with the employees and not with a representative of the Union who was un-
familiar with conditions in the plant. Medina assured the partners a,committee
representing the employees would be present when negotiations took place. - After
some discussion the respondent submitted a statement previously prepared by its
attorney as one it was willing to sign.
The statement is as follows :
February 21, 1942
It has been represented to the undersigned company, Pacific Olive Com-
pany, that more than 50% of its employees have designated the Cannery and
Dried Fruit Workers Union No. 22642 as their representative for the purpose
of Collective Bargaining with said Company.
It has also been represented to said Pacific Olive Company that the ma-
jority of the representatives of said union who will seek to negotiate with
said Company will be selected from the employees, of said Company.
Conditioned upon the continued existence of the situation so represented
to the Company, Pacific Olive Company, agrees to. recognize said Cannery
and Dried Fruit Workers Union No 22642 for the purpose of Collective
Bargaining. with its employees, and to Bargain Collectively with representa-
tives thereof who are selected as aforesaid.
This form was not satisfactory to the Union representatives After some
further discussion, the Union agreed to accept the first paragraph of the re-
spondent's proposed statement. Such statement was then typed and the three
partners signed it.' After securing the signatures Medina suggested that Feb-
ruary 25 be fixed as the date to start negotiations for an agreement concerning
wages, hours, and working conditions. The partners told Medina that February
2,5 was inconvenient but promised to notify the Union of a suitable date °
During the next week, the Union elected three employees of the respondent as
members of the Union negotiating committee."
On March 9 the Union sent a registered letter to the respondent stating that
"pursuant to the action of the negotiating committee" the Union desired to enter
into negotiations with the respondent, and suggested a meeting on March 13.
7 Although Van Dellen, when questioned about this meeting, testified that he told
Medina that the respondent "did not know" whether the Union had a majority, Ball
testified that at that time there was no argument about the cards Stricker did not
testify relative to this meeting but according to Medina's testimony, herein credited, Stricker
stated that he had heard that the Union had "signed up his employees", and asked if he
might examine the cards; and when he had done so remarked, "I guess they are all-here,
at least pretty nearly all of them are here." In view of the credible testimony of Medina
it is found that the respondent did not on February 20 question the Union's majority.
s According to Medina's testimony herein credited, Stricker at the time in a telephone
talk with the Board's Regional Director stated that the Union represented a majority
of the employees
9 As appears hereinafter,, the Union heard nothing from the respondent as to a suitable
date until March 12.
10 The employees elected were Mildred Grumbling, Pat Chester, and Estell Mantooth.
0
PACIFIC OLIVE COMPANY 7
The letter also enclosed the Union's contract proposals. On March 10, Grumbling,
Chester, and Mantooth, the negotiating committee previously elected by the Union,
called on the partners relative to a wage increase. Ball told the committee that
the respondent could not afford a wage increase at that time because of existing
contract commitments, but that the respondent would grant an increase when the
season was over." On March 12, the respondent, by letter, advised the Union
that March 13 was not convenient for it but suggested that the parties meet on
March 20.13
'
- Inasmuch as the events of March 14 and thereafter largely involve the activities
of Charles Link, alleged by the Board to be a supervisor, which claim is denied
by the respondent, it is essential that his status be now determined.
All three of the respondent's partners actively participated in the management
of the business. The production and maintenance employees consisted of approxi-
mately 18 women and 12 men. Douglas Stuart; superintendent of the plant, was
next in authority under the partners. Under Stuart, Irene Elam was forelady
over the women employees 13 Charles Link was admittedly a supervisor over the
men in the respondent's plant until September 1941 At that time the respondent
contends that he was demoted because of drinking, and that he was stripped of all
supervisory duties. It is conceded that Link was paid 90 cents an hour which
was 25 cents an, hour more than any other employee received, and that his pay
was not,reduced in September 1941. The respondent justified Link's pay rate by
insisting he was an excellent cooper and 90 cents an hour was the going rate
for coopers 14 Although the respondent insisted that its employees were advised
in September of Link's demotion and that he no longer had supervisory powers,
the record does not sustain this contention. Estell Mantooth testified that ' he
took orders from Link in February and March 1942, but that he did not know
if Link had supervision over other employees Pat Chester testified he worked
under Link when engaged in repairing barrels in February and March 1942.
He further testified that he was present in the fall of 1941 at a time when Link
was intoxicated on the job. According to his testimony, Van Dellen at that time
told the employees that he would take over Link's duties because of the latter's
condition. Chester testified further that he was never advised thereafter by the
management that Link was no longer a foreman and that he continued to take
orders from Link ; that, except for this one day in the fall of 1941, there was no
difference in the duties performed by Link. Chester also testified that employee
A P Walker was laying barrel heads on the top of the barrels about March 18
11 The olive season usually ended in September.
12 This letter is as follows
In reply to your, letter of March 9th requesting that we negotiate Friday, March 13,
we are rather surprised that you choose this date in view of the fact that we definitely
told you that on this date we were to have a conference with a representative of the War
Production Board and therefore would be unable to meet on this particular day.
This, as you will recall, also met with your approval,'since you felt that next week
would be a little better in; view, of the fact that you were expecting your attorney from
San Francisco.
How about 3: 00 o'clock p. In, next Friday, March 20th?
Yours very truly,
PACIFIC OLIVE COMPANY,
E VAN DELLEN.
13 The respondent concedes the supervisory status of Mrs Elam.
14 Neither forelady Elam nor Link was included in the pay raise schedules prepared by
the respondent and submitted to the employees for their approval on March 14 as will
hereafter appear. However, both received pay increases at that time. Mrs. Elam's
hourly pay was raised from 55 cents to 68 cents, Link's fiom 90 cents to $1 05 an hour.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contrary to Link's instructions ; that after some argument between Link -and
Walker, Link reported the facts to the office and Walker was discharged 15
E. C. Stockbridge testified that Link was a foreman and that he received part
of his 'orders from Link in the spring of 1942. Stockbridge' also, testified that
on Marcli 11 he suggested to Link that he might be elected as business agent
for the Union ; that in response to this suggestion Link stated that he was not
eligible for the position as he was a foreman Stockbridge further testified that.
about April 1 he and employee Lester Dishong were digging a ditch but' had
orders from Douglas Stuart to stop that work at 5 p. in. and clean up the grading
room. In the afternoon Link instructed them to continue at the ditch until it,
was finished. Dishong called Link's attention to the previous order of Stuart land
stated that he was going to obey Stuart's instructions. Although again warned
by Link to follow his instructions, Dishong nevertheless left the ditch at 5 p.,m.
and went to the grading room. Stockbridge remained at the ditch work. Link
came to the ditch after Dishong had left and remarked, "Well, he can go-but
tomorrow he won't be here to clean up that grading room." The next day•when
Stockbridge and Dishong started to work, Link told Dishong he-would have to-
do more work or he would be sent "to the office" and added "We don't need
you." An argument then followed as to the amount of work Dishong had been
doing. Finally Dishong went to the office and has not worked since 1B
Although Van Dellen testified that the respondent informed Link in the fall
of 1941 that he no longer had supervisory duties and that the other men em-
ployees were informed of that fact,'lie did not testify that he or anybody else
took over Link's supervisory duties. Nor does the respondent otherwise con-
tend this to be the fact. Under the circumstances the testimony of Mantooth,
Chester and' Stockbridge above detailed, most of which was unchallenged, is
credited. It is found that Charles Link continued to be a supervisor of the
respondent from the fall of 1941 until his discharge in May 1942.
The morning of March 14, during working hours, Link called a meeting of the
employees in the grading room on company time." The meeting lasted about
20 minutes and was attended by practiclly all employees, including Irene Elam,
admittedly respondent's forelady. Link presided and told the employees that
the meeting was for the purpose of deciding whether they wanted' the Union or
whether they should keep the Union out. He further stated that it was, possible
to obtain the union wage scale and not have the Union in the plant ; that this
had been accomplished in the Lindsay Ripe Olive Company plant. After some
discussion Link suggested that they decide by "yes" or "no" ballot whether
they wanted the Union in the plant. 'After some discussion such a vote was
taken by passing around blank pieces of paper. The result of the vote was at
least two to one against the Union.
The afternoon of March 14, Ball, after hearing the result of the employees'
vote on the Union, announced a wage increase effective March 18 for all employees.
Two lists of employees were typed, one of the men and the other of the women
11 Partner Ball testified that Walker was discharged only after the respondent had
checked the complaint by inquiring of other employees and ascertaining that Walker
was not "cooperating" with the rest of the employees, and particularly with Link. Van
Dellen testified that'at the time Walker decided to quit and it was unnecessary to discharge
him. It is unnecessary to resolve this conflict as it is clear that as a result of the Link
complaint Walker left the respondent's employ.
10 Van Dellen testified that at the time Dishong came to the office and stated he was
going to quit because he could not get along with Link.
11 At least one of the two conveyor belts in the plant was shut down . The employees
lost no pay for the time spent at the meeting.
PACIFIC OLIVE COMPANY
employees. After each name appeared the new hourly rate of pay. The new
schedule provided. 58 cents an hour for all the women employees, and a . minimum
of 71 cents for the men. On each announcement, below the list of names with
'hourly pay rate, appeared the following statement: "The above schedule repre-
sents the rates suggested by the employees.'8 The same afternoon Link, at the
.request of Ball, had the announcements shown to most of the employees who
signed the schedule listing their names.19
About 7: 30 p. m. on March 14, E. C. Stockbridge, night watchman, was on
duty in the plant Link, who worked days, appeared at the warehouse where
Stockbridge was making his rounds and called Stockbridge's attention to the vote
taken that day on the Union. Link commented on the fact that Stockbridge had
not voted. According to Stockbridge, whose uncontroverted testimony in this re-
.spect is credited, Link told him that the employees could get union wages and
there was no need to pay union fees. Link then added, "If you will kind of go
along with me and work this thing right you will have a job here for quite
awhile." Stockbridge asked him what he meant and Link replied, "Well, we
are trying to stop this union." '
As suggested by'the respondent, the representatives of the Union and the re-
spondent met on March 20. The meeting took place at the Johnson Hotel in
Visalia. The Union was represented by Medina, Gorman, Fuller, Organizer
Sweeney and Attorney I. S. Padway. The respondent was represented by Van
Dellen and Attorneys Caldwell and McMeekan z1 After the meeting had been
called to order, Padway submitted as a supplemental proposal a copy, of a con
tract covering rural dried fruit workers 22 After some discussion, Caldwell stated
that they could probably agree on it, but asked for time to study the proposed
contract and, talk it over with his client. After some further discussion the
meeting adjourned to 10 a. m., March 21, at the hotel.
Sometime during the working hours of March 21 u Link came to the ware-
house where Mantooth was working. Link had with him some plain sheets of
paper and asked Mantooth to write up a form for the employees to sign with-
drawing their pledge cards to the Union. Mantooth demurred at first but finally
agreed. He then wrote on the upper half of the paper the following, as dictated
by Link :
VISALIA, CALIF,
3-21-42.
We RePresent the employees of Pacific olive co.
We wish to withdraw our applications for membership in the Cannery &
Dried fruit Workers Local #22642, American Federation of Labor,and/or
affiliates :
18 So far as the record discloses , the-only scale suggested up to this time was that
.contained in the letter dated March 9 from the'Union.
11 Link was discharged in May 1942 , and was not a witness at the hearing . The above
findings as to Link's activities on March 14 are based on the uncontroverted testimony of
Grumbling, Chester, and Mantooth, as well as the admissions of Ball.
20 In addition to his duties as night watchman, Stockbridge also worked in the plant
one day a week repairing barrels Wand doing othertcommon labor. He did not work the day
of March 14.
McMeekan was the attorney for the California Association of Employers.
sx The contract submitted by Padway on March 20 contained some modifications in
working conditions not within the proposal submitted by the Union in the March 9 letter.
23 During the course of the March 20 meeting, according to the testimony of both
Medina and Jones , Sweeney, stated that he had heard rumors of a petition being circulated
in the respondent 's plant for the employees to withdraw their pledges to the Union. Sweeney
did not testify as to the incidents of the March 20 meeting. In view of what transpired the
next day, however, it is found that on March 20 such rumors were circulated.
u The record is not clear as to the hour . The respondent 's working day started at
7a in
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the withdrawal form had been drawn, Link and,Mantooth signed their
names to it and Mantooth , at Link's request , passed it , among the employees.
All the employees Mantooth approached signed the withdrawal form with the
exception of Bill Chester .2' Link asked Mantooth if any of the employees had
refused to sign the petition and Mantooth reported that Bill Chester hesitated
about signing . After this conversation Mantooth saw-Link talking to Chester.
Shortly afterwards Mantooth approached Chester a second time and asked him
if he had made up his mind about signing the withdrawal . Chester replied that
he had not really made up his mind but would do so. Chester then ' signed the
withdrawal." As a result of these efforts , 18 of the respondent 's employees
signed the petition on March 21 , including , in addition to Link, Irene Elam, fore-
lady. After the signatures had been obtained , Mantooth on March 21 , at Link's
direction , mailed the'original petition with the signatures thereon to the Union ri
When the adjourned meeting of representatives of the respondent and the
Union reconvened at 10 a. m. on the morning of March 21 , as agreed ,. Caldwell
announced that his client had informed him that "there was a petition being
circulated throughout the plant by the employees withdrawing their membership"
from the Union " and that the respondent would not negotiate a contract until the
Union had shown proof that it still represented a majority . Padway then an-
nounced that if that was the situation, there was no point in continuing the
discussion and the meeting broke up.
On Sunday, March 22, about noon, while Stockbridge was working , he had a
talk with Ball. According to Stockbridge, Ball came to him and inquired if
there were any union men around ; that he replield that he had not seen any
around and that they "had no business here"; and that Ball then said, "Just
the same, we [ the respondent ] have broke three of the union laws-." Ball
recalled this conversation with Stockbridge but testified that Stockbridge merely
inquired of Ball whether he wanted the Union in the plant and that in reply he
told Stockbridge it was up to the men. Ball was asked by counsel for the re-
spondent if he at that time had said anything to Stockbridge about being "put
in jail or anything like that." Ball replied, "If I did I don 't recall it ." In view
of what occurred later the same day between Link and Stockbridge , Ball's ex-
planation is not credited and it • is found that Ball made the statements on March
22 substantially as detailed by Stockbridge . About 5 or 6 o'clock that afternoon,
Link was at the plant . Stockbridge repeated to Link what Ball had previously,
told him about the respondents having violated some union laws and asked
Link's opinion . Link replied that the respondent partners would be sent to
jail if the withdrawal was not signed and suggested that Stockbridge sign the
withdrawal.
On May 16 Stockbridge went to the office of the respondent to apologize for a
previous complaint he had made relative to his long hours . After apologizing to
Ball for the complaint , Stockbridge said that he would continue to work for the
respondent as well as he had been doing but that he was 100 percent for the
Union. According to Stockbridge , Ball then stated that he did not care about
that but that the Union had done all to the respondent that it could do ; and that
the respondent would shut the plant down, before it would recognize the Union.
Ball testified that prior to this date Stockbridge had been against the Union and
26 Bill Chester was the son of Pat Chester , a member of the employee 's negotiating
committee
zs Although neither Link nor Bill Chester were witnesses, it is a reasonable inference,
in view of Link 's prior activity , and the undersigned finds, that Bill Chester signed the
withdrawal at the specific request of Link.
27 The findings as to Link ' s activities on March 21 are based on the unchallenged testi-
mony of Mantooth.
PACIFIC OLIVE COMPANY 11,
that when Stockbridge on this occasion said he was 100 percent for the Union,
Ball construed the statement as a "threat that he would cause us all the possible
trouble he could" ; that he then told Stockbridge the Union was doing all it could
to organize and "they couldn't do any more" ; that Stockbridge's help to the Union
made no difference to the respondent which was neutral . Ball further testified
in answer to a question as to whether he at the time said he would close the plant
before he would permit the Union to operate : "I may have made the statement,
I don't recall." Stockbridge is not now employed by the respondent. Although
a very voluble, witness, his credibility was in no way impugned, either as to the
above incident or as to his other testimony. In view of this fact and the admis-
sions of Ball above recounted, it is found that Ball on May 16 made the state-
ments substantially as testified to by stockbridge.
6
B. The appropriate unit
The complaint alleged that the appropriate unit consists of all production and
maintenance employees of the respondent , excluding supervisory employees. The
respondent in its answer admitted the appropriateness of this unit.
It is therefore found that at all times material herein all production and main-
tenance employees of the respondent, exclusive of supervisors, constituted and
that they now constitute a unit appropriate for the purposes of collective bargain-
ing with respect to rates of pay, wages, hours of employment, and other conditions
of employment, and that said unit insures to the employees of the respondent the
full benefit of their right to self-organization and to collective bargaining and
otherwise effectuates the policies of the Act.
C., Representation by the Union of a majority in the appropriate unit
The number of production and maintenance employees, exclusive of supervisors,
between February 11 and March 18, 1942, was 29. On February 19, the Union
had 19 signed membership,cards. On February 20, signatures of employees, were
obtained'to three additional cards, and on March 2, two more signatures were,
secured. On February 20 the Union representative told the respondent that the
Union represented a majority of the respondent's employees and at the same time
displayed ,the 19 cards. The respondent neither at that time nor at any other
time prior to March 21 questioned the Union's majority nor the genuineness of
the signatures on the cards.
The undersigned finds that on and at all times since February 19, 1942, the
Union.was the duly designated representative of a majority of.the employees in
the aforesaid appropriate unit, and that by virtue of Section 9 (a) of the Act was
the exclusive representative of all the employees in that unit for the purposes of
collective bargaining with the respondent in respect to rates of pay, wages, hours
of employment , and other conditions of employment.
D. Conclusions as to the unfair labor practices
On -February , 20, 1942, the respondent knew that it would have to meet the
Union's demand for a contract and a wage increase , as the exclusive ' representative
of the respondent 's employees . Thereafter the respondent 's activities show a
pattern of unlawful intimidation , coercion and discrimination- designed to under-
mine the prestige of the Union among the employees , eliminate the Union's
majority ,'and render ineffective its efforts to secure a contract..
Although the respondent did not question the Union 's majority, it delayed
negotiations on the Union's proposal . In the meanwhile , through its supervisor,
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Link, on March 14 it notified the, employees that they could secure 'union wages,
without joining the Uiiion. As a result of this' information and'at Link's sug
gestion,, a majority of the employees voted against the Union. The respondent
immediately followed up this anti-union expression by granting an increase in
pas, approximately equivalent to the increase the Union had demanded. The
same evening Link told employee Stockbridge, "we are trying to stop this union."
On March 20 the respondent delayed answering the Union's proposals until the
next day. On March 21• the respondent prepared and secured the signatures of a
majority of its employees to a written statement withdrawing their union applica-
'tibns. The same clay it notified the Union representatives that the respondent
would not negotiate a contract until the Union had "shown proof" that it still
represented a majority.
The Union's loss of majority under the circumstances was the result of the
respondent's'unfair labor practices and it is so found Neither the vote on March
14 nor the written, withdrawal of Marcli 21 represented the voluntaiy acts of the
employees,' since any change in the employees' attitude was the result of the
'coercive and intimidating practices of the respondent, as herein found.: Further,
the respondent on February 23 refused to accord to the Union the recognition to
which it was entitled and at the same time sought to limit the majority of the
Union's negotiating committee to the respondent's employees. This in itself
constituted a refusal to bargain within the meaning Of the Act.29 True, the
respondent immediately thereafter agreed to meet with the Union for the purposes
of negotiating at a later date to be set by it, but it at no time accorded the Union
the status to which-it was. entitled as a matter of right. The respondent fixed
March 20 as the date to begin negotiations, but prior to that date had started its
illegal plan to render ineffective the Union's influence among its employees. On
March 14, the respondent demonstrated that its expressed willingness to bargain
was not,made in good faith. On that date by ignoring the Union and dealing
directly with its employees, the respondent refused to bargain with the Union.30
The parties did meet on March 20 but adjourned to March 21 at the request of the
respondent. On March 21 the respondent questioned the Union's majority status
ind refused to continue the negotiations.
It is therefore found that on February 23, 1942, and at all times thereafter the
respondent refused to bargain with the Union as the exclusive representative
of its employees in the appropriate unit, and that by such refusal it has interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
'It is further found that by the above acts, and by the statements of Link to
Stockbridge on March 22 that the respondent's partners'would be imprisoned if
the employees did not sign the withdrawal statement, and by the Ball statement
to Stockbridge on May 16 that the respondent would close its plant rather than
deal with a union, the respondent has-interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the -respondent described in Section I above,
i 28 International Association of Machinists v. National Laboi Relations Board, 311 U S.
72.
2° New Era Die Company and International Association of Machinists, Lodge 243 (A. F.
of L ), 19 N. L. R. B. 227; Woodside Cotton Mills Company and Textile Workers Organizing
Committee, 21 N. L. R. B. 42.
$OAluminam Ore Company and Aluminum Administrative TVor7,ers Union Local No.
20661 (A. F. L.), 39 N. L. It. B. 236.
1
PACIFIC OLIVE COMPANY 13
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 ob-,
structing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in-certain unfair labor
practices, it will ibe recommended that the respondent cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondent refused to bargain collectively with the
Union as the exclusive representative of its employees in an appropriate unit. It
will therefore be recommended that the respondent on request bargain collectively
with the Union as the exclusive representative of its employees in the appropriate
unit in respect to rates of pay, hours of employment, and other conditions of
employment.
Because of the respondent's unlawful conduct, the undersigned is convinced that
the unfair labor practices found are persuasively related to the other unfair labor
practices proscribed and that a danger of their commission in the future is to be,
anticipated from the course of the respondent's conduct in the past." The pre-
ventive purpose of, the Act will be thwarted unless the recommendations herein
are coextensive with the threat. In order, therefore, to make effective the inter-
dependent guarantees of Section 7, to prevent a recurrence of unfair labor prac-
tices, and thereby minimize strife which burdens and obstructs commerce, and
thus effectuate the policies of the Act, the undersigned will recommend that the
respondent cease and desist from in any manner infringing the rights guaranteed
in Section 7 of the Act.
Upon the foregoing findings of fact and upon the entire record of the case, the
undersigned makes .the following:,
CONCLUSIONS OF LAW
1 Cannery and Dried Fruit Workers Union, Local No 22642, affiliated with the
American Federation of Labor, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. The production and maintenance employees of the respondent, excluding
supervisory employees, have at all times material herein constituted, and they
now constitute, a unit appropriate for the purposes of 'collective bargaining 'within
the meaning of Section 9 (b) of the Act.
3 Cannery and Dried Fruit Workers Union, Local No.` 22642, affiliated with
the American Federation of Labor, on or about February 19, 1942, was, and at
all, times 'thereafter has been, the 'exclusive representative of all employees in
such unit 'for the purpose of collective bargaining within the meaning of, Section
9 (a) of the Act. •
4. By refusing on February 23, 1942, and at all times thereafter to bargain
collectively with Cannery and, Dried Fruit Workers Union, 'Local No 22642,
affiliated with the American Federation of Labor, as the exclusive representative
of its employees in the appropriate unit, the respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (5) of the Act.
5. By' interfering with, restraining and coercing its 'employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
'unfair labor practices-within the meaning of Section 8 (1) of the Act.`
"See N. L. R B v Empress Publvsh¢ng Co, 312 U S. 426 ; Bethlehem Steed Co. v.
N- L. R. B-, 120 F.' (2d) 641 (App D. C.).
14 DECISIONS OF' NATIONAL LABOR RELATION'S BOARD
6 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law the
undersigned recommends that the respondent , E. Van Dellen , R. N. Ball, and
A. W. Stricker, co-partners, doing business under the name and style of Pacific
Olive Company , Visalia, California , and its officers , agents, successors , and assigns,
shall : -
1. Cease and desist from :
(a) Refusing to bargain collectively with Cannery and Dried Fruit Workers
Union, Local No. 22642, affiliated with the American Federation of Labor, as the
exclusive representative of all its production and maintenance employees ; exclusive
of supervisors;
(b) In any other manner interfering with, restraining , and coercing its employees
in the exercise of their right to self-organization, to form, join or assist 'labor
organizations, to bargain collectively through representatives of their own
choosing and to engage iii concerted activity for the purposes of collective bargain-
ing or mutual aid or protection, as guaranteed in Section 7 of the Act;,
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with Cannery and Dried Fruit Workers
Union, Local No. 22642, affiliated with the American Federation of Labor, as the
exclusive bargaining representative of the employees in the appropriate unit ;
(b) Post immediately in conspicuous places at its plant in Visalia , California,
and maintain for a period of at least sixty ( 60) consecutive days from the hate
of posting , notices to its employees stating: ( 1) that the respondent will not engage
in the conduct from which it is recommended that it cease and desist in paragraphs
1 (a) and ( b) of these recommendations ; and (2 ) that the respondent will take
the affirmative action - set forth in paragraph 2 (a) of these recommendations.
(c) Notify the Regional Director for the Twentieth Region in writing within
twenty (20) days from the date of the receipt of this Intermediate Report what
steps the respondent has taken to comply therewith.
.It is further recommended that unless on or before twenty ( 20) days, from the
date of the receipt of this Intermediate Report, the respondent notifies said
Regional Director in writing that it will comply = with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations,of the
National Labor Relations Board, Series 2-as amended-any party may within
thirty ( 30) days from the date of the entry of the order transferring the case
to -the -Board , pursuant , to Section 32 of Article ' II of said Rules and Regulations,
file with the Board, Shoreham Building, Washington , D. C., an original and four
copies of a statement in writing setting forth such exceptions to the Intermediate
Report or to any other part of the record or proceedings ( including rulings upon
all motions or objections ) as he relies upon, together with the original and four
copies of a brief in support thereof. As further provided in said Section 33,,
should any party desire permission to argue orally before the Board, request there-
for must be made in writing to the Board within twenty ( 20) days after the date
of the order transferring the case to the Board.
t J. J. FITZrATRICK,
Trial ,Examiner.
Dated September 12, 1942.