Santa Cruz Fruit Packing Co.

National Labor Relations Board - Board Decisions

Apr 2, 1936

1 N.L.R.B. 454 (N.L.R.B. 1936)

In the Matter of SANTA CRUZ FRUIT PACKING COMPANY, A CORPO-
RATION and WEIGHERS, WAREHOUSEMEN AND CEREAL WORKERS,
LOCAL 38-44, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION
Case No. C-51.-Decided April 2, 1936
Canning and Packing Industry-Interference , Restraint or Coercion : expressed
opposition to labor organization , threats of retaliatory action ; denial of right of
employees to be represented by non-employee representatives-Strike: sym-
pathetic-Discrimination: lockout; contracting work out-Reinstatement
Ordered-Back Pay: awarded.
Mr. Bertram Edises for the Board.
Mr. Paul St . Sure and Mr. E. A. Moore, of Oakland , Cal., for
respondent.
Mr. Sam Kazel, of San Francisco , Cal., for the Union.
Hilda Droshnicop, of counsel to the Board. -
DECISION
STATEMENT OF CASE
On September 27, 1935, Weighers, Warehousemen and Cereal
Workers Local 38-44, hereinafter referred to as the union, filed with
the Regional Director for the Twentieth Region a charge that the
Santa Cruz Fruit Packing Company, of Oakland, California, herein-
after called respondent, had engaged and was engaging in unfair
labor practices forbidden by the National Labor Relations Act, ap-
proved July 5, 1935, hereinafter referred to as the Act. On Novem-
ber 2, 1935, the Board issued its complaint against respondent. The
complaint was signed by the Regional Director for the Twentieth
Region and alleged that respondent had committed unfair labor
practices affecting commerce within the meaning of Section 8, sub-
divisions (1) and (3) and Section 2, subdivisions (6) and (7) of the
Act. In respect to the unfair labor practices the complaint alleged
in substance :
(1) Respondent, on or about August 7, 1935, discharged and there-
after refused to reinstate: Ernie Reich, George Costa, Iva Roche
E. G. Resburg, Clifford Algrava, George M. Rose, Robert Anger,
Frank Phillips, Lester Scott, Pasqual Arieta, Connie Martin, Alfred
Pio, Frank Granad (Granada), Rufus Hughes, Nick De Carlo,
454
DECISIONS AND ORDERS 455
Kenneth Torenson, Manuel Blanco, Joe Pepitone, John Reckling,
August Sannebeck, Walter R. Bedford, Fred Venturi, Joe Carmo,
John Valin, F. Ellis, G. Olivera, L. H. Ledtke, Orville Gordon
(Gardner), Frank Freitas, Larry Doyle, Jack Baker, warehouse
workers employed by the respondent at its Oakland plant, because
they had joined and assisted the union.
d''(2) Respondent urged, persuaded and warned its warehouse em-
ployees at the Oakland plant to refrain from becoming or remaining
members of the union, threatened them with discharge if they became
or remained members thereof, and otherwise restrained and coerced
them from assisting it.
The complaint and accompanying notice of hearing were served on
respondent in accordance with Article V of the National Labor Re-
lations Board Rules and Regulations-Series 1. On November 8,
1935, respondent filed its answer to the complaint denying the alle-
gations of violation, denying that the acts alleged in the Board's
complaint, or any other acts in the course and conduct of its busi-
ness, occur or occurred in interstate and/or foreign commerce or con-
stitute a continuous flow of interstate and/or foreign commerce, and
denying that any of the acts alleged in the complaint, or any other
acts of respondent, constitute unfair labor practices affecting com-
merce within the meaning of Section 8, subdivisions (1) and (3) and
of Section 2, subdivisions (6) and (7) of the Act. Respondent's
answer alleged that the men named in the complaint failed and re-
fused to work their regular shifts on or about August 7, 1935, and that
other men were engaged to take their places in order that the busi-
ness of respondent might continue without interruption. Respond-
ent also alleged that it had offered to re-employ all the men named
in the complaint except those who had committed various acts of
intimidation and violence since the inception of the dispute.
On November 14, 1935, the Board issued its amended complaint
alleging that respondent is engaged in foreign as well as interstate
commerce.' It was stipulated at the hearing that respondent's answer
would apply to the complaint as so amended.
Pursuant to notice, a hearing was conducted by Roger John Tray-
nor, the duly designated Trial Examiner, on December 23 and De-
cember 24, 1935, January 2, January 3 and January 6, 1936, at Oak-
land, California. Respondent, appearing by Paul St. Sure and
E. A. Moore, the Board, appearing by its Regional Attorney, Ber-
tram Edises, and the union, appearing by Sam Kagel, participated
in the hearing. Full opportunity to be heard, cross-examine wit-
nesses and to produce evidence bearing upon the issues was afforded
to all parties.
97571-36-vol. i-30
456 NATIONAL LABOR RELATIONS BOARD
Before the introduction of testimony respondent objected to the
jurisdiction of the Board on constitutional grounds, and moved to
dismiss on the further ground that the facts stated in the complaint
were insufficient to furnish the basis of an action under the Act.
The motion to dismiss was denied without prejudice. Counsel then
stipulated that respondent's objections to the constitutionality of the
Act and the sufficiency of the complaint should be deemed to extend
to the entire proceeding and all evidence introduced therein. Fol-
lowing the Board's presentation of its case respondent offered no
testimony, but moved to dismiss on the grounds of its original mo-
tion, and on the additional grounds that the evidence failed to sup-
port the allegations of the complaint, that it was insufficient to sup-
port any findings in the premises, and that the evidence affirmatively
established- that respondent is not engaged in interstate or foreign
commerce. The Trial Examiner denied this motion. Respondent
and the Board waived oral argument at the close of the hearing, but
briefs were filed by respondent and the Board.
Upon the record thus made, the stenographic report of the
hearing and all the evidence, including oral testimony, documentary
and other evidence offered and received at the hearing, the Trial
Examiner, on January 30, 1935, filed an intermediate report, finding
in substance that respondent is engaged in interstate and foreign
commerce; that respondent had committed unfair- labor practices in
violation of Section 8, subdivisions (1) and (3) of the Act in in-
terfering with its employees' membership in the union, by discharg-
ing them for union activities and, by refusing to reinstate all the
warehousemen named in the complaint; and that such unfair labor
practices constitute unfair labor practices affecting commerce within
the meaning of Section 2, subdivisions (6) and (7) of the Act. The
Trial Examiner recommended that respondent cease and desist from
interfering with the union activities of its employees and that it
immediately reinstate all the men named in the complaint with all
privileges previously enjoyed and with back pay.
We find that the evidence supports the Trial Examiner's rulings,
findings and conclusions. Nothing in respondent's exceptions to the
intermediate report, which are discussed below, requires any ma-
terial alteration of such findings and conclusions.
Upon the record in this case, the stenographic report of the hear-
ing and all the evidence, including oral testimony, documentary and
other evidence offered and received at the hearing, the Board makes
the following :
DECISIONS AND ORDERS 457
FINDINGS OF FACT
I. THE SANTA CRUZ FRUIT PACKING COMPANY AND ITS RELATION TO
STOKELY BROS.
A. The Santa Cruz Fruit Packing Company
The Santa Cruz Fruit Packing Company is a California corpora-
tion which is among the four or five largest fruit and vegetable can-
ning concerns in the state. It operates two canneries, one at Oakland,
California and one at Seabright, near Santa Cruz, California.
Respondent is engaged at the Oakland plant, where the present
dispute arose, in canning, packing, warehousing and shipping fruits,
vegetables and agricultural commodities, the bulk of which are grown
in California. Tomatoes, and tomato products, peaches, apricots,
spinach, pears, asparagus, and pork and beans, are, in the order
named, the principal products canned and sold by respondents.
During 1935 the total pack of respondent amounted to approxi-
mately 1,699,270 cases of canned fruits and vegetables. This figure
includes approximately 105,814 cases carried over from 1934. Of the
9.02% of the total pack shipped to foreign countries, 7.02% was
sold under C. I. F. sales contracts (Canners' League Form) and 2%
was sold under F: O. B. San Francisco Bay Points sales contracts
(Canners' League Form). Approximately 473,620 cases of canned
goods were sent to the States of New York, Illinois, Kansas, Mis-
souri, Minnesota, Michigan, Ohio, Iowa, Massachusetts, Pennsyl-
vania, and to other points in the United States outside the State
of California, under F. O. B. San Francisco Bay Points sales con-
tracts (Canners' League Form). Goods thus transported to states
outside California comprised about 27.87% of the total pack. 11.78%
of the pack remained unsold in December, 1935. Respondent thus
shipped approximately 36.89% of its total pack, outside of Cali-
fornia in 1935. Peaches, pears, apricots, spinach and asparagus are
the chief products so shipped.
The three methods of transportation used by respondent are water,
rail and truck. Export shipments, the preponderant portion of
which are sent to the British Isles, go by water. The water route
is also the chief method of carriage to points within the United
States outside the State of California. Approximately 20 per cent
of respondent's products going to other states is shippeI by rail.
An undetermined amount of respondent's products is shipped by
truck directly to the point of destination.
There is a constant stream of loading and shipping of products out
of respondent's plant throughout the entire year. Approximately
three to four thousand cases are loaded daily into the various vehicles
458 NATIONAL LABOR RELATIONS BOARD
of conveyance. All such loading is a substantial and regular part
of the work of the warehousemen here involved. Where the ship-
ments are by rail or overland trucks, the men load directly into the
principal carriers. Where the shipments are by boat, the work of
respondent's warehousemen consists of loading the products onto
the trucks which transport the goods to the docks. The men here
involved thus actually start all the products of respondent upon the
course of transportation to their ultimate destination.
All of the aforesaid-constitutes a continuous flow of trade, traffic
and commerce among the several States and with foreign countries.
The warehousemen here involved are engaged in operations in the
course and conduct of such commerce and are an integral part of
such commerce.
B. Stokely Bros.
Stokely Bros. is an Indiana corporation owning a warehouse across
the street from respondent's plant and is respondent's principal cus-
tomer. Stokely's warehouse labor is managed and supervised by
Huddleson, the general manager of respondent, Williams, respond-
ent's assistant general manager and Remington, respondent's super-
intendent. These officers are paid by respondent; Morris, the fore-
man at Stokely, and Frates, the assistant foreman, are alone paid by
Stokely Bros. All the warehousemen at the Stokely warehouse are
paid by Santa Cruz with its own checks.
H. THE UNFAIR LABOR PRACTICES
A. The lockout
Employment at respondent's plant during the "peak" season
(which is June through September) ranges from 1200 to 1500 persons,
of whom approximately thirty are warehousemen. Employment in
the cannery proper is largely seasonal in nature, but certain em-
ployees, including the warehousemen, are retained in employment
throughout the year. The warehousemen receive from 35 to 40 cents
an hour, and in the busy season sometimes work 14 to 17 hours a
day.
Weighers, Warehousemen and Cereal Workers Local 38-44, Inter-
national Longshoremen's Association, is a labor organization affili-
ated with the American Federation of Labor and existing for the
purpose of negotiating with employers with respect to wages, rates
of pay, hours of employment, and conditions of work. Organization
of the Oakland plant started in July 1935 through the initiative of
"Bob" Anger, a warehouseman at respondent's plant and a former
union man . Anger had approached the union and been told that the
Santa Cruz men would be taken in if a sufficient number made appli-
DECISIONS AND ORDERS 459
cation. By the end of July all of the permanent warehousemen of
respondent except the foremen and straw bosses had made formal
application for membership. Organization work was not done dur-
ing working hours and the fact of union affiliation was not made
known to respondent until Monday, August 5th, when the men began
to wear their union buttons.
Late in the day on that Monday, Huddleson, the general manager
of respondent, did the unprecedented thing of calling all the ware-
housemen together for a meeting. He there announced that he had
heard that the men had joined a union; that he understood the union
rate to be 621/2 cents an hour; that he could not permit a union in
his plant because of competitive conditions; and that if they wanted
higher wages they should have approached him without joining a
union. He added that no one from the outside would tell him how to
run his business; that he could have the work contracted out for less
than he was then paying, and that the men could either go with the
union or with him. He gave them "a couple of days to think it
over". One of the warehousemen, in testifying to the inference
drawn by the nien from this speech, said that they gathered that
"they could either throw away their union buttons or get fired".
The presence in the plant of Gomez, a labor contractor who had
beeii seen inspecting the Santa Cruz and Stokely warehouses during
the same day, indicates that Huddleson had already begun prepara-
tions to carry out his threat. On the following day Morris, foreman
at the Stokely warehouse, pointed Gomez out to one of the ware-
housemen and said, "that is the guy that is going to take over the
contract".
Woods, the business agent of the union, who was notified by the
men of Huddleson's ultimatum interviewed Huddleson on Tuesday,
August 6. By that time Huddleson had received a draft copy of the
standard contract which the union had negotiated with other large
California canning firms for warehousing work, embodying suggested
terms of employment. The letter accompanying the tentative draft
stated, "We desire that you give this proposal serious consideration
and. we are prepared to meet with you within the next few days for
the purpose of discussing and arriving at a solution of an agree-
ment." In his conversation with Woods, Huddleson recapitulated
his position in substantially the same unequivocal terms saying that
he "didn't want anything to do with a union or any of its officials
;" that "you couldn't have union activities around the place-it
would cost too much money . . . ; . . . Canneries were no place for
a union-the hours wouldn't permit it and the wages wouldn't permit
it ... , ... if they wanted to organize they could go somewheres
else ..." Upon his reiteration of the threat that he would turn
the warehouse over to a contractor if the union came in, Woods re-
460 NATIONAL LABOR RELATIONS BOARD
quested the name of the contractor so that he could deal with him,
but Huddleson declined to furnish the information and refused to
state the reason.
The union meeting at which the men were to be initiated was to be
held at eight o'clock Wednesday night, August 7th. At eight-thirty
Wednesday morning Anger requested Torenson, the Santa Cruz
foreman, for permission for the day shift men to leave their work at
four-thirty in order to attend the meeting. This ample period was
necessary because most of the men lived a considerable distance from
the plant and the union hall, and wished to go home to prepare or
their initiation. Torenson thanked Anger for notifying him, saying,
"that would give him a chance to arrange his work". At about noon
Anger made the same request in respect to the night shift men and
received the same answer. Hughes, who was working near Anger at
the time, testified that he overheard these conversations; Pepitone,
another worker, also confirmed Anger's account; Rose and Resburg,
day warehousemen, agreed that they saw Anger speaking to Torenson
and were shortly thereafter told by Anger that Torenson had raised
no objection to their leaving at four-thirty that evening. Early in
the day after his encounter with Anger, Torenson asked Pio, Doyle
and Sonnebeck (night men employed on the pork and bean line)
if they were going to the meeting, and when they replied that they
were, said that he would arrange to have them replaced in the mean-
time. He specifically stated that they were to return to work that
night at the conclusion of the meeting.
During the afternoon a rumor spread through the plant that any
of the men who went to the meeting would be discharged. In re-
sponse to Anger's inquiry Torenson denied having made any such
statement. Hughes confirms Anger's account of this exchange with
the testimony that Torenson said that "Huddleson had told him to
issue no order to the effect that anyone going to the meeting would
be discharged". In spite of Torenson's denial, however, further evi-
dence of the fact that respondent had already formulated the design
to lock the men out if they persisted in their union activities is found
in the statement of Morris to one of the warehousemen, who replied
in the negative to an inquiry as to whether he had a union button.
Morris remarked, "Well, you are playing safe that day." He then
added, "if you want to go on stacking cans you'll have to ask Gomez".
At four-thirty, when the men went to turn in their time cards,
Torenson could not be found. They nevertheless departed, after
leaving their cards on his desk. Although this was unusual, there
is evidence that the men had left under these conditions before.
That evening when Reich, the assistant foreman in charge of the
night shift, arrived at the plant at about five-twenty, Gomez was
DECISIONS AND ORDERS 461
already in the office and six or seven men from his crew were in the
warehouse.' On discovering that Reich too was going to the meet-
ing, Torenson observed, "The old man gave us orders not to let any-
body go to work who is going to that meeting." 2 However, Costa
and Algrava, two other night shift men who were at the plant at
about the same time, were merely told by Torensen that there was
to be no night shift that day. When Algrava replied, "Good I want
to go the the meeting anyway", Torenson made no comment. The
testimony of Woods, business agent of the union, that the men at the
meeting considered themselves absent from work with respondent's
permission is borne out by the fact that the pork and bean gang
returned to work that same night pursuant to Torensen's instruc-
tions, while the day crew reported at the usual hour the following
morning.
The orderly procedure purrued by respondent's warehousemen in
availing themselves of their legal right to organize contrasts vividly
with the deliberately provocative tactics of respondent. In spite of
the fact that the men had been instructed by Torenson to go to
work immediately after the union initiation was concluded, respond-
ent threw a cordon of guards armed with sawed-off shot-guns around
the plant to confront its warehousemen on their return. When the
pork and bean crew appeared at the warehouse about ten-thirty
Wednesday night, they were met by guards with significantly ex-
posed guns and the threat, "We are going to have trouble around
there. You had better go home." In reply to their protest that he
had told them to return after the union initiation, Torenson said, "I
can't help it; that is orders." On Thursday morning the day crew
found the gates of the plant locked and the premises similarly
guarded. One of the men who found his way in, was asked whether
he had a "button", and when he responded that he had, was ejected
by a Gomez guard. All of the warehousemen who had joined the
union were thus locked out.
Respondent's contention that the men left the plant without per-
mission, thus forcing Huddleson .to take on a new force to complete
the work, finds no support in the record. The testimony of the Santa
Cruz men that Torenson gave them leave to go at four-thirty on
Wednesday stands uncontradicted. Nothing appears in the record
to offset the abundant evidence of Torensen's authority. The trans-
parency of respondent's claim in this connection is sharply exposed
by the fact that Orville Gardner, who on Tuesday had personally
I Thirteen of Gomez's men punched in by six o 'clock Wednesday night.
2 Although Reich then went to the meeting he did not repeat Torenson 's statement to
the men There is no evidence that Reich was instructed to inform them that their
leave had been rescinded , and his silence is plausibly explained by the fact that, since
Gomez was already in the warehouse a warning would have been of no avail.
462 NATIONAL LABOR RELATIONS BOARD
received Torenson's permission to take leave on Wednesday night
merely because work was slack, was excluded from the plant with the
others on Thursday. Respondent's contention lacks even the color
of plausibility when applied to the men at the Stokely warehouse
since they had completed their assignments at four-thirty. Re-
spondent's contention advanced somewhat diffidently that the men
struck, hardly merits consideration, so replete is the record with
evidence that the men took all reasonable precautions to safeguard
their jobs.
Respondent has interposed no claim that the men were generally
inefficient; Huddleson, on the contrary, repeatedly asserted in his
speech on Monday and in the course of the various negotiations fol-
lowing the lockout that their work was entirely satisfactory and
offered to take them back if they abandoned their union activities.
In addition, the men's temporary, absence while at the meeting on
Wednesday night involved no disturbance in the operations at the
plant. The day warehousemen had cleared the floor of cans for the
day's run during the morning. Only one man was needed to trundle
cans from the cannery to the warehouse and can stackers were avail-
able to take the place of the small night crew on the pork and bean
line.
B. The Union's attempts to secure reinstatement of the men
Immediately after the lockout occurred, the union made at least
four systematic attempts to have the men reinstated under conditions
similar to those which existed before the dispute began. Huddle-
son's and Gomez's reactions to the union's overtures indicate con-
clusively that the tactics of respondent were prompted originally by
a determination to break the union and that Huddleson's offers of
reinstatement were limited by the same design.
On Thursday morning, August 8th, after all of the men had been
locked out, Woods attempted, to see Huddleson. Huddleson could
not be found, but Woods was told by Gomez that the union was the
reason for the lockout of the men. Gomez unqualifiedly rejected
Woods' suggestion that he employ the men himself. Several days
later Anger and Woods again approached Huddleson but were cate-
gorically informed that he would never have anything to do with
the union. At a subsequent conference between Woods, Huddleson
and Jackson (of the Oakland Teamster's Union) Huddleson again
revealed his anti-union bias by declining to reinstate the men on the
ground that if he took them back the union might again make at-
tempts to negotiate with him. Huddleson's refusal to reinstate the
men at a later meeting with Woods, Jackson and Bridges (president
of local 38-79 I. L. A.) was also explicitly based upon- the fact that
DECISIONS AND ORDERS 463
the union might reopen the question of wages and working condi-
tions after the men had returned to work.
Respondent's "offers of reinstatement" were consistently vitiated
by vagueness and arbitrariness as well as the imposition of conditions
requiring complete capitulation by the union. Thus, Huddleson at
one point asserted that he would re-employ all but six of the men
who were out but when pressed for a more specific commitment as
to the time of reinstatement, countered with the statements, "when
I have an opportunity to do so" and "when it is convenient to do so".
The six men whom his "offer" did not cover were, he maintained,
disqualified for reinstatement by their "disorderly conduct" after
the lockout. The union's offer to arbitrate their cases was categori-
cally rejected.3 In a letter to Mr. Real and Mr. Spooner (of the
Central Labor Council of Alameda County) written August 31, 1935,
Huddleson again offered to reinstate all but six of the men, with
the same limitation : "we will reinstate the balance of these men
.. . with the understanding that the organizers . . . will stay away
from them and leave them alone .. ."
C. Status of the men at the Stokely warehouse as ennployees of
respondent
Paragraph 3 of respondent's answer admits by implication the
allegation in paragraph 3 of the Board's complaint that all of the
warehousemen here involved are employees of respondent. In its
brief, filed after the conclusion of the hearing, respondent for the
first time raised the objection that "a few . . . of the complainants
... were employees of Stokely Bros.... whose warehouse em-
ployees were paid by respondent's check and respondent was reim-
bursed therefor each week by Stokely Bros." The particular ware-
housemen adverted to are not named in respondent's brief or in any
evidence put in by respondent.
It is clear from the record that respondent habitually, and some-
times daily, detailed its warehousemen to Stokely when work at
respondent's plant was slack, and that when Santa Cruz required
additional hands the process was reversed. Thus, practically all of
the men involved in the present inquiry had at some time worked at
Stokely; Reich testified that the arrangement of the transfers was
part of his ordinary duties as assistant foreman at respondent's
plant. Gerald Olivera, Walter R. Bedford, John Valin, Fred Ven-
turi and F. Ellis had worked principally at Stokely; we therefore
infer that respondent's objection alludes to them.
while the answer alleges the violence of several of the men , respondent does not
name them and no evidence appears in the record through which they can be identified.
It is therefore unnecessary to discuss the bearing of violence committed by employees
during the dispute upon the question of reinstatement.
464 NATIONAL LABOR RELATIONS BOARD
Testimony introduced at the hearing establishes beyond dispute
the fact that the five warehousemen in question were employees of
respondent, and were so regarded by its chief officers and agents, al-
though the preponderant portion of their activities were in the
Stokely plant. Thus, Williams, assistant general manager of re-
spondent, when questioned as to the number of respondent's em-
ployees, included these five warehousemen in his reply. The ware-
housemen at both the Santa Cruz and Stokely plants always received
identical Santa Cruz checks. Williams admitted that Remington,
the general superintendent of respondent, was in charge of employ-
ment at both the Stokely and Santa Cruz warehouses; that Morris,
the foreman at Stokely who did the hiring and discharging, was
under Remington's direct supervision ; and that for all practical
purposes the warehouse labor of both plants was run as a unit. This
description of the unified management of the labor in both ware-
houses is unmistakably borne out by Huddleson's behavior in refer-
ence to the warehousemen at Stokely. On August 5th, the day on
which Huddleson called the men together for his speech, Morris
instructed the men to go over to Santa Cruz to hear him. Huddle-
son's declarations that he would not pay 621/2 cents an hour and
his threats that the men would be discharged if they persisted in
their union activities were directed to the Stokely as well as to the
Santa Cruz warehousemen. The Stokely warehousemen were locked
out under the same circumstances as the Santa Cruz, as Morris had
predicted, and though Gomez's contract with Huddleson nominally
covered only the Santa Cruz plant, Gomez in fact took over Stokely
as well as Santa Cruz after the lockout. Again, in all the negotia-
tions for reinstatement, Huddleson failed to distinguish between the
work at the Stokely and Santa Cruz warehouses, but offered to take
back both the Stokely and Santa Cruz men indiscriminately. In his
letter to Mr. Real and Mr. Spooner, the assumption that respondent's
agent controls the labor at both warehouses and considers himself
to be in a position to reinstate these men as well as those at Santa
Cruz is also clearly apparent.
. In view of respondent's habitual control and payment of these
warehousemen we find that respondent is an independent contractor
of warehouse labor for Stokely and that the five men here in question
are employees of respondent.
D. Concluding fandings of fact on the unfair labor practices
By discharging from employment on August 7, 1935, and by there-
after refusing to reinstate Ernie Reich, George Costa, Iva Roche,
E. G. Rosburg, Clifford Algrava, George M. Rose, Robert Anger,
Frank Phillips, Lester Scott, Pasqual Arieta, Connie Martin, Alfred
DECISIONS AND ORDERS 465
Pio, Frank Granad (Granada), Rufus Hughes, Nick De Carlo,
Kenneth Torenson, Manuel Blanco, Joe Pepitone, John Reckling,
August Samiebeck, Walter R. Bedford, Fred Venturi, Joe Carmo,
John Valin, F. Ellis, G. Olivera, L. H. Ledtke, Orville Gordon
(Gardner), Frank Freitas, Larry Doyle, and Jack Baker, and by
each of said discharges, respondent discriminated in regard to tenure
of employment and has thereby discouraged membership in the labor
organization known as the Weighers, Warehousemen and Cereal
Workers Local 38-44.
By such discrimination in regard to hire and tenure of employment
and terms and conditions of employment, respondent interfered with,
restrained and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
III. EFFECT OF UNFAIR LABOR PRACTICES UPON C01VIMERCE
It was found above that the men here involved actually start all the
products of respondent upon the course of transportation to their
ultimate destination. Interruption of the performance of their func-
tions involves necessarily an interruption of the steady and continuous
flow of commerce from respondent's plant. This inference is fully
borne out by the history of the present labor difficulty. When re-
spondent's warehousemen found themselves locked out on the morning
of August 8, 1935, they immediately formed a picket line, which was
maintained until September 27, 1935, with such effectiveness that
eventually the movement of trucks from warehouse to wharves ceased
entirely. The teamsters refused to haul Santa Cruz merchandise;
the warehousemen at the dock warehouses who Ordinarily unload the
canned foods from the cars prior to their reloading into the ships,
since they were members of the same union as the Santa Cruz ware-
housemen, also declined to handle Santa Cruz cargo. As members
of the sister union, I. L. A. 38-79, the stevedores who move the goods
from dock to ship also refused to move Santa Cruz cargo both at the
East Bay and San Francisco docks during the entire period that the
picket line was maintained. Other unions whose members refused to
move "hot" Santa Cruz cargo were those members of the Sailors who
comprised the crews of steam schooners and whose duties include the
handling of cargo.
Interference with the activities of employees in forming or joining
labor organizations results in strikes and other forms of industrial
unrest which in the canning industry have habitually had the effect
of impeding the movement of canned products into interstate and
-foreign commerce. Thus official statistics of the United States De-
partment of Labor on labor disputes in the canning and preserving
industries indicate that of the fifteen strikes and lockouts in the in-
466 NATIONAL LABOR RELATIONS BOARD
dustry in 1934 and the first half of 1935, eight were the outcome of
activities. Seven thousand four hundred and eighty four workers
were involved in these stoppages, 2,581 of them in disputes concerning
such union issues. Sixty seven thousand five hundred and ninety
seven man-days of potential productive activity were lost to the indus-
try, of which a total of 58,109 was owing to disputes in connection
with organization matters.
The aforesaid acts of respondent have led and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of
commerce.
IV. THE CONTRACT WITH GOMEZ
In accordance with its threat, respondent entered into an agreement
with Gomez covering all the warehouse work at the Santa Cruz plant.
The contract is dated August 1, 1935 and is Iiominally for a one year
period, with an option of renewal in the contractor. This contract
raises some question as to the nature of the appropriate order in this
case. The evidence permits no doubt that respondent's motive in
contracting out its warehouse work was prompted solely by a determi-
nation to eliminate the union from its plant at any cost. The decision
in this case does not in the least imply the validity under the Act of
such a contract entered into with such a motive. Circumstances
peculiar to the instant case make it unnecessary, however, to decide
the extent of the remedy which the Board may afford victims of
unfair labor practices in this type of situation. The record here be-
fore the Board contains irrefutable evidence that respondent did not
consider itself precluded by its contract with Gomez from reinstating
the men within the Period covered by the agreement. At his meeting
with Bridges, Woods and Jackson, Huddleson stated, "I am not in a
position to put the other men back in the warehouse, because I am
not going to tell this man that has a contract with us to go and let
his men go, and take the others back in their places . . . I will take
them back as I can work them in and as I see fit." It is apparent, in
view of the latter statement, that Huddleson could reinstate the men
if he wished to do so. It may plausibly be inferred that Huddleson's
offer, if it was to be meaningful under the circumstances, contemplated
action before the expiration of the contractual one or two year period.
This implication becomes more compelling in view of the fact that
Huddleson's refusal (later in the conversation) to arbitrate his dif-
ferences with the union with reference to reinstatement of the men
was due to his failure to receive assurance that the union would desist
from attempts to alter labor conditions in his warehouse after the men
returned to work, rather than to his obligations to Gomez. Huddle-
son's letter of August 31, 1935 to Mr. Real and Mr. Spooner of the
Central Labor Council of Alameda County establishes conclusively
DECISIONS AND ORDERS 467
the fact that respondent, regardless of its contractual relation to
Gomez, considers itself able to reinstate the men here involved. The
relevant portions of the letter read as follows :
"As explained to you, there are 38 men out at the present
time and I understand that practically all of them would like
to return to this plant under the same conditions under which
they were working before they left.
"This is to advise that, outside of 7 men whose conduct is
such that we do not wish to have them in the organization, Ave
will reinstate the balance of these men at the rate of 10 men
a week until we have them back at work in this organization
with the understanding that the organizers, who caused them
to make a demand on us for approximately 221/.¢ an hour more
than is given by other people in this industry, stay away from
them and leave them alone. In other words, when they come
back here, they are to come back under exactly the same condi-
tions that they were working under before they left."
We find that respondent in spite of its alleged contract with
Gomez is in a position to reinstate the warehousemen involved in
this case.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding the Board finds and concludes as a
matter of law:
(1) The Weighers, Warehousemen and Cereal Workers Local
38-44 is a labor organization within the meaning of Section 2, sub-
division (5) of the National Labor Relations Act.
(2) Respondent, by discriminating in regard to the tenure of eni-
ployment of Ernie Reich, George Costa, Iva Roche, E. G. 1^esburg,
Clifford Algrava, George M. Rose, Robert Anger, Frank Phillips,
Lester Scott, Pasqual Arieta, Connie Martin, Alfred Pio, Frank
Granad (Granada), Rufus Hughes, Nick De Carlo, Kenneth Toren-
son, Manuel Blanco, Joe Pepitone, John Reckling, August Saiine-
beck, Walter R. Bedford, Fred Venturi, Joe Carmo, John Valin,
F. Ellis, G. Olivera, L. H. Ledtke, Orville Gordon, (Gardner),
Frank Freitas, Larry Doyle, Jack Baker, and each of thein, has
engaged and is engaging in unfair labor practices within the mean-
ing of Section 8, subdivisions (1) and (3) of the Act.
(3) Such unfair labor practices are unfair labor practices affect-
ing commerce within the meaning of Section 2, subdivisions (6)
and (7) of the Act.
468 NATIONAL LABOR RELATIONS BOARD
ORDER
On the basis of the findings of fact and conclusions of law and
pursuant to Section 10, subdivision (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
respondent, Santa Cruz Fruit Packing Company, and its officers
and agents, shall:
1. Cease and desist :
(a) From discouraging membership in Weighers, Warehousemen
and Cereal Workers, Local 38-44, International Longshoremen's
Association, or in any other labor organization of its employees, by
discharging or threatening to discharge any of its employees for
joining Weighers, Warehousemen and Cereal Workers, Local 38-44,
International Longshoremen's Association, or any other labor organi-
zation of its employees ; and
(b) From in any other manner discriminating against any of its
employees in regard to hire or tenure of employment or any term
or condition of employment for joining Weighers, Warehousemen
and Cereal Workers, Local 38-44, International Longshoremen's
Association, or any other labor organization of its employees; and
(c) From in any other manner interfering with, restraining or
coercing its employees in the exercise of their rights to self-organi-
zation, to form, join or assist labor organizations, to bargain col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, as guaranteed in Section 7 of
the National Labor Relations Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Offer to Ernie Reich, George Costa, Iva Roche, E. G. Resburg,
Clifford Algrava, George M. Rose, Robert Anger, Frank Phillips,
Lester Scott, Pasqual Arieta, Connie Martin, Alfred Pio, Frank
Granad (Granada), Rufus Hughes, Nick De Carlo, Kenneth Toren-
son, Manuel Blanco, Joe Pepitone, John Reckling, August Sanne-
beck, Walter R. Bedford, Fred Venturi, Joe Carmo, John Valin,
F. Ellis, G. Olivera, L. H. Ledtke, Orville Gordon (Gardner),
Frank Freitas, Larry Doyle, and Jack Baker, immediate and full
reinstatement, respectively, to their former positions, without preju-
dice to any rights and privileges previously enjoyed;
(b) Make whole said Ernie Reich, George Costa, Iva Roche, E. G.
Resburg, Clifford Algrava, George M. Rose, Robert Anger, Frank
Phillips, Lester Scott, Pasqual Arieta, Connie Martin, Alfred Pio,
Frank Granad (Granada), Rufus Hughes, Nick De Carlo, Kenneth
Torenson, Manuel Blanco, Joe Pepitone, John Reckling, August
DECISIONS AND ORDERS 469
Sannebeck , Walter R. Bedford, Fred Venturi, Joe Carmo, John
Valin, F. Ellis, G. Olivera , L. H. Ledtke, Orville Gordon (Gard-
ner), Frank Freitas, Larry Doyle, and Jack Baker , for any loss of
pay they have suffered by reason of their discharge by payment to
each of them , respectively , of a sum of money equal to that which
each would normally have earned as wages during the period from
the date of his discharge to the date of such offer of reinstatement,
computed at the wage rate each was paid at the time of his dis-
charge, less the amount earned subsequent to his discharge;
(c) Post immediately notices to its employees in conspicuous
places in its various offices, stating ( 1) that respondent will cease
and desist in the manner aforesaid , and (2 ) that such notices will
remain posted for a period of at least thirty (30) consecutive days
from the date of posting.