Sebastopol Apple Growers Union

National Labor Relations Board - Board Decisions

Aug 27, 1957

118 N.L.R.B. 1181 (N.L.R.B. 1957)

SEBASTOPOL APPLE GROWERS UNION 1181
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 its business operations described in section I, above, have a close,
intimate, and substantial relation to trade , traffic , and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. International Union of Operating Engineers, Local 94-94A, AFL-CIO, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. All service employees at the Respondent's •Hempstead branch, including field
and shop servicemen A and B, the branch service instructor, and the janitor utility
clerk, but excluding office clerical employees, guards, professional employees, and
all supervisors as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
3. The Union was on December 12, 1956, and at all times thereafter has been,
and now is, the exclusive representative of all employees in the aforesaid unit
for the purposes of collective bargaining, within the meaning of Section 9 (a) of
the Act.
4. By refusing on and after January 25, 1957, to bargain collectively with the
Union, as the exclusive representative of its employees in the aforesaid unit, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
5. By the aforesaid refusal to bargain collectively, the Respondent interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act, and thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
.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 omitted from publication.]
Sebastopol Apple Growers Union and General Truck Drivers,
Warehousemen and Helpers Union , Local No. 980, AFL-CIO
Sebastopol Apple Growers Union and General Truck Drivers,
Warehousemen and Helpers Union , Local No. 980, AFL-CIO,
Petitioner. Cases Nos. 20-CA-1035 and 20-RC-2637. August 27,
1957
DECISION AND ORDER
On March 7, 1956, Trial Examiner James R. Hemingway issued his
Intermediate Report in the above-entitled. proceedings, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. The Intermediate Report also
embodied the Trial Examiner's findings with respect to the rep-
resentation case. Thereafter, the Respondent filed exceptions and a
supporting brief.
118 NLRB No. 162.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board' has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the supporting brief, and the entire rec-
ord in this case, and adopts the Trial Examiner's findings,2 conclusions,
and recommendations.
1. The Respondent alleges bias and prejudice on the part of the Trial
Examiner. We have carefully scrutinized the entire record and find
no support for these allegations.
2. On June 7, 19571 the Respondent and the Union jointly requested
permission for withdrawal of the pending representation case on the
ground that for the past. 2 years, a collective-bargaining agreement
has been in effect between them and that no further issues exist with
respect to that case. We shall grant the request.
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 the Respondent, Sebastopol Apple
Growers Union, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in General Truck Drivers, Ware-
housemen and Helpers Union, Local No. 980, AFL-CIO, or any other
labor organization of its employees by discriminating in regard to their
hire or tenure of employment or any term or condition of employment.
(b) Requiring applicants for employment to answer any question
concerning their union membership.
(c) By threats of reprisal, unlawful interrogation, or in any other
manner interfering with, restraining, or coercing its employees in
the exercise of their right to self-organization, to form, join, or assist
the aforesaid labor organization or any other labor organization, to
bargain collectively 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, or to refrain from any or all such
activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the Act.
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Chairman Leedom and Members Murdock and Bean].
awe note the following inadvertencies in the Intermediate Report, which, however, do
not affect the Trial Examiner ' s conclusions or our agreement with them. The Inter-
mediate Report states at one point that many union advocates were known to the
Respondent before October 14, 1955 ; the date should be October 14, 1954. At footnote 43,
the Trial Examiner states the Respondent's inventory as of June 30, 1952 ; this date
should be June 30, 1954. Further, in the same footnote there is reference to a difference
of 39,970 cases ; the figure :thould be 39,770.
SEBASTOPOL APPLE GROWERS UNION 1183
2. Take the following affirmative action, which the Boai•d finds will
effectuate the policies of the Act :
(a) Make whole Orice Storey, Gloria Pate DeFont, Elsie
Dickerson, and each of the employees whose names are listed in Ap-
pendix B attached to the Intermediate Report for any loss they may
have suffered as a result of the Respondent's discrimination against
them, in the manner set forth in the section of the Intermediate Re-
port entitled "The Remedy."
(b) Preserve and make available to the Board or its agents, upon
request, for examination or copying, all personnel payroll records,
timecards, social-security payment records, employees' income tax
report records, and all other records and reports necessary to analyze
the amount of back pay due under the terms of this Order.
(c) Post at its plant at Sebastopol, California, copies of the
notice a attached to the Intermediate Report and marked "Appendix
C," to which shall be attached copies of the list attached to the Inter-
mediate Report and marked "Appendix B." Copies of such notice
and list to be furnished by the Regional Director for the Twentieth
Region, shall, after being duly signed by an authorized representative
of the Respondent, be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for a period of 60 consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices and lists are not
altered, defaced, or covered by any 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 Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the joint request of the Petitioner and
Employer to withdraw the petition in Case No. 20-RC-2637 be, and
it hereby is, granted.
3This notice, however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "Reconuneudatioils of a Trial Examiner" and substituting
in lien thereof the words "A Decision and Order." 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."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint, in the case first above named, duly issued on June 13, 1955, alleges
a violation by the Respondent, Sebastopol Apple Growers Union, of Section 8 (a) (1)
and (3) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act. The Respondent's answer, filed on June 28, 1955, denies the commission of
such unfair labor practices. On July 14, 1955, the National Labor Relations Board,
herein called the Board, ordered that a hearing be held on challenged ballots, report
on challenged ballots, and exceptions thereto in the above-entitled representation
case. By order of the Regional Director of the Board, Twentieth Region, the two
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cases were consolidated for hearing. As the Board did not direct that a report be
issued in the representation case, I have not taken up the issues in that case except
to the extent that they are required to be decided in the complaint case. It will be
found, however, that most of the issues raised in the representation case are decided
herein.
Pursuant to notice, a hearing was held before the duly designated Trial Examiner
at Santa Rosa, California (with the exception of 1 day's hearing in San Francisco)
commencing on July 19 and concluding on October 17, 1955. At the close of the
hearing, the General Counsel argued orally. Time was set for the filing of briefs
and the time was several times extended. On December 23, 1955, briefs were
received from the General Counsel and the Respondent.
From my observation of the witnesses, and upon the entire record in the case, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a cooperative California corporation engaged in the business of
packing, canning, and shipping apples and apple products. The Respondent's prin-
cipal plant and offices are located at Molino Station, Sebastopol, California. During
its fiscal year ending May 31, 1954, the Respondent purchased raw materials, sup-
plies, and equipment valued in excess of $400,000. During the same period of time,
the Respondent sold finished products valued in excess of $1,000,000, of which
amount approximately $380,000 represented shipments made by the Respondent from
its plant at Sebastopol, California, to places located outside the State of California.,
No issue was raised on jurisdiction. I find the Respondent to be engaged in com-
merce within the meaning of Section 2 (6) and (7) of the Act and I find that it will
effectuate the policies of the Act to assert jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
General Truck Drivers, Warehousemen and Helpers Union, Local No. 980,
AFL-CIO 2 affiliated with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen •and Helpers of America, AFL-CIO, herein called the Union, is
a labor organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The issues involved
The complaint, including amendments thereto made at the hearing, alleges nu-
merous instances of interference, restraint, and coercion in violation of Section 8
(a) (1) of the Act. The violations of Section 8 (a) (3) stated in the complaint
are alleged to consist of discrimination in the termination of employment of nu-
merous employees. Three of such employees, Orice Storey, Gloria Pate, and Elsie
Dickerson, are alleged to have been discharged on September 25, October 18, and
October 26, respectively in the year 1954. But some 146 employees are contended
to have been laid off on October 15, 1954, in an attempt to prevent the Union from
organizing the Respondent's employees and to defeat the Union in a Board-conducted
election held on October 19, 1954. This list includes both union and nonunion
employees. Those of this group who had indicated adherence to the Union are
contended to have been discharged for the additional reason that they had, or the
Respondent believed they had, joined or assisted the Union or engaged in other
concerted activities for the purpose of collective bargaining or other mutual aid or
protection. The Respondent contends that the terminations of October 15 were
made pursuant to normal seasonal practices. At the election of October 19, the
Respondent challenged 100 ballots, most of which were cast by employees whose
employment was terminated on October 15, 1954. Whether or not such ballots are
to be counted will depend in large measure upon the resolution of the issue con-
cerning discrimination under the alleged violation of Section 8 (a) (3) of the Act.
1 Sales of canned goods in the period from June 1, 1954, through April 30, 1955,
amounted to approximately $1,480,000. In addition thereto the Respondent shipped
about 5,770 tons of fresh packed apples having a farm value of about $380,000, and sent
to dryers about 866 tons having a value of about $38,000. Presumably the same propor-
tion of out-of-State shipments continued.
2 The complaint was issued before the AFL-CIO merger. The name is herewith
amended to show the designation of the new parent organization.
SEBASTOPOL APPLE GROWERS UNION 1185
B. Background events and alleged interference, restraint, and coercion
As all of the events related herein occurred during 1954, it will be understood
that all dates herein referred to without year were in 1954 unless otherwise stated.
. The Respondent's 1954 canning season opened on July 15 when the day shift
began operating. The night shift started on July 20. On July 28, that year, Angelo
Bertolucci, president of the Union and Roy Rhodes, the Union's business manager
and secretary-treasurer, went to the Respondent's office and asked to speak with
Elmo Martini, who had become the Respondent's general manager the first of the
year. Martini had known both of them for some time. Rhodes, according to
Martini, had been business agent "at one of my former plants." He greeted them
with "What the hell are you doing here, Roy and Ange?" Rhodes said that the
Union had quite a few people signed up, that they wanted to be organized. Martini
told them to come back in about 2 years. Rhodes asked if Martini would mind if he
talked with the employees. Martini, who understood that Rhodes wanted to go
into the plant to sign up employees, refused permission to do so but told Rhodes
that he could do whatever he wanted to outside of the premises. Rhodes said that, as
the Respondent was having a meeting of the board of directors that night, he would
like Martini to bring the matter before that board to see what they thought about
the Union's request to organize. Martini agreed to do so. Martini and the two
union representatives then went to a nearby store for a cola drink where they en-
gaged only in social conversation.
At the meeting of the board of directors that night, Martini reported the visit
of Rhodes and Bertolucci. The minutes of the meeting record that "considerable
discussion was held in this regard," but the minutes do not detail the discussion
and none of those present who testified could remember the nature of it other than
Martini's report of the visit and questions which the directors asked of Martini about
the visit. However, the minutes mentioned that "Briggs [Director Ezra Briggs, who
was also chairman of the board of directors of the Sebastopol Co-operative Cannery]
suggested that the manager contact Mr. Jack Rossi . . . who was an expert on mat-
ters of this type to find out what favorable action we could take to discourage the
AFL from causing any disturbance among our employees."
During, or for the week ending July 31, the Respondent raised its rates of pay
over and above the usual 5-cent annual increase given at the opening of the plant.
,On about August 4, after Bertolucci was informed by employees of the wage in-
crease, Rhodes telephoned Martini to learn the answer to his request to speak to
the employees, and in the conversation Rhodes asked if Martini had given the em-
ployees a raise. Martini answered that he had. Martini gave conflicting testimony
about the date when the Respondent decided to give the increase. It is clear that it
was made effective for work performed in the week ending July 31, and checks in pay-
ment therefor would normally have been given to the employees on the Wednesday
following the end of the week, i. e., on August 4, 1954. When originally asked about
the date of the granting of the increase, Martini testified that the date when the in-
crease was granted "was immediately after the checks were issued to the people"
for the pay period ending July 24 and after some of the women on the night shift
called his attention to the fact that they had not received an increase. Checks for
the pay period ending on July 24 would normally have been issued on Wednesday,
July 28. At the time he gave this testimony, Martini testified that the payday was
either Monday or Tuesday. In his later testimony he set the date of the grant of the
increase as July 26 or 27, which would have been before, rather than after the pay-
checks were issued for the week ending July 24. In view of his earlier testimony and
of the improbability that he would have given an unusual general increase without
approval of the board of directors, I find that the increase was not given before the
night shift received their paychecks on the night of July 28 for the preceding week.
The result was an increase in rate from 85 to 95 cents an hour for the day shift
and from 95 cents to $1 an hour for the night shift. The complaint did not allege
and so I do not find that the grant of this increase was an unfair labor practice.
But timing of the increase in pay does indicate an attempt by the Respondent to
eliminate one reason for the desire of its employees for union representation.
C. Interference, restraint, and coercion
The General Counsel adduced evidence of statements made by various supervisors
of the Respondent, some tending to prove specific allegations of the complaint, some
apparently to show knowledge by the Respondent of the identity of employees favor-
ing the Union, and others evidently intended only to disclose a general attitude on
the part of the Respondent toward the Union. To the extent that the evidence per-
450553-58-vol. 11.8-76
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formed any of such functions, I shall relate it, without separation, as nearly as possible
in chronological order. However, only as specifically stated hereinafter do I find
such statements to constitute interference, restraint, or coercion in violation of
Section 8 (a) (1) of the Act.
Gloria Pate had been employed by Respondent during a period extending from
July 15 to October 18, 1954. During a few earlier seasons she had worked at an-
other cannery, Manzana, under the supervision of Darrel Beavers. Beavers had
become the Respondent's superintendent before Pate was hired there, but he left
the Respondent's employ early in August 1954. Shortly before he left, he asked
Pate to come to his office during her recess period. When she came, Beavers told
her that he wanted to talk to her about the Union, that the Union was going to be
starting up there soon, and that Pate was supposed to have had something to do with
the Union at Manzana. He said he did not know or want to know if she had or
not, that that was her business, but that "they asked me here if you had anything
to do with the Union and I told them so ... because I don't want you to lose your job
and I know that you would lose your job if I had told them yes." 3 Beavers went on
to say that he thought she woud be blackballed if she returned to Manzana "because
of the Union before." He said he did not want her to tell him anything about the
Union but advised her not to get out in front and start anything when the Union
came out there (to the Respondent's) because it would "be bad on" him and that
Pate would get fired. He told her not to say anything to anyone and that he was
telling her for her own good. Although the tenor of Beavers' remarks indicated an
intention on his part to be personally neutral in the matter of the Union, he was,
at the time, in a position authoritatively to express the views of the Respondent.
His statement that Pate would be discharged if her connection with the Union were
revealed to the Respondent, or if she got out in front and started anything when
the Union came out there, would clearly have a coercive tendency, and I find that,
by Beavers' statement, the Respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act. The
meaning of Beavers' statement that Pate would be blackballed at Manzana is not en-
tirely clear. The word "blackball" presumably could mean that the Respondent
would notify Manzana of Pate's activity on behalf of the Union so that Manzana
would not reemploy her. But it could mean merely that Manzana would refuse
her employment because of her union connections even though the Respondent
had no part in the blackball. Beavers did not expressly say that the Respondent
would blackball Pate, and the expression "because of the Union before" suggests
that he thought Manzana would deny her employment because of her union activities
while she was still working at Manzana. She testified that she had in fact been
active in the Union at the latter place. In view of the quoted words, I deduce that
the latter was Beavers' meaning. Although in the related conversation Beavers dis-
claimed knowledge of Pate's union activities at Manzana, there is reason to believe
that he suspected, if he did not in fact know, that she had been active in the Union
there. I find that Beavers did not threaten that the Respondent would blackball Pate
but merely expressed his opinion of the attitude Manzana would adopt.
Orice Storey, whose discharge on September 25 will be hereinafter related, testi-
fied that when she was leaving work after the day shift on August 4 she saw Superin-
tendent Leonard Duckworth (Beavers' successor) and Charles Williams, night
foreman of the cannery, walking behind two men in a direction away from the
plant toward the highway. The two men being followed, one of whom was
Bertolucci, were passing out authorization cards and literature for the Union. She
testified that when the two union men reached the highway, Duckworth and Wil-
liams came back and stopped at the car which her husband was driving and in
which she and employee Marjory Byrd were riding, that Duckworth handed her two
union application cards and said, "As you leave, hit that man [indicating one of the
union representatives] with these," and that Williams said to her husband, Clarence
Storey, who was also an employee, "As you leave do us a good turn and run over
that man." Clarence Storey's testimony about the incident differed only slightly.
He testified that as he was driving out of the parking lot on August 4 he stopped
the car when he came to the point where Williams and Duckworth were, that Duck-
worth handed his wife the two cards but that he did not hear Duckworth say
anything. He testified, however, that Williams said to him, "Storey, do your
country a good deed and run over that guy." Bertolucci testified that, the first
time he was at the cannery to distribute literature, he was at the cannery door with
2 girls and a man when Williams came to him after about 10 minutes and said
that they were on company property, that the company did not allow that (or did
3 The quotation is from Pate's testimony. Beavers did not testify.
SEBASTOPOL APPLE GROWERS UNION 1187
not like to have them doing that there) and to get back to the highway. Bertolucci
testified that the union representatives then all went back on the highway. Duck-
worth and Williams denied the incident as related by the Storeys but made no
reference to the incident related by Bertolucci. I find the incident to be substan-
tially as testified by the two Storeys but find that the evidence is only illustrative of
the attitude of the Respondent toward the Union and is not an unfair labor practice
in itself.
According to Gloria Pate 4 and Gloria Lindsay,5 who were employed by the
Respondent in 1954 before it reduced to a single shift, Martini was accustomed to
stop at the spot where they were working to chat with them. Lindsay testified
that another employee, Mary Castino, was present but did not participate in the
conversations testified to. On one occasion, the date of which Lindsay fixed as
just after they had received their union pledge cards,8 which would mean shortly
after August 4, Martini asked them, according to Pate's testimony, which was
similar to that of Lindsay, what they thought about the Union (Lindsay testified
and Martini denied that he asked if they "were for the Union") and they replied
that they thought it was "a pretty good deal." Martini then, according to Pate,
told them they did not know what they were getting into, that the Union was not
as good as they thought it would be, that they might receive more money (i. e.,
higher wages) but that they would have to pay out so much (i. e., in dues and
initiation fees) that it would not matter much one way or the other. He told them,
according to both Lindsay and Pate, that each year the employees were given an
increase of 5 cents an hour. Pate commented that "next year we'll 'be making a
whole dollar an hour," and that Martini replied that "that's right .. . maybe even
more" and that he told them to think it over. Martini denied having made the
statements attributed to him by Lindsay but did not deny Pate's testimony of what
he said. I find the conversation to be substantially as testified by Pate. Except for
the opening question asked by Martini, his statements were permissible opinions and
argument. The question (what they thought about the Union), on its face, carried
no implied threat. Except for subsequent events, it might be considered harmless.
But Lindsay and Pate were among those whose employment was terminated in the
layoff shortly before the Board-ordered election. Although, at the time he ques-
tioned them, Martini may have entertained no ulterior motive in asking Pate and
Lindsay what they thought about the Union, the evidence hereinafter related of
discrimination against known union advocates is such that all questioning of employees
about the Union assumes the appearance of a composite effort by the Respondent
to identify union advocates for discriminatory purposes. In view of this, Martini's
questioning cannot be passed off as an isolated instance, of interrogation.?
Accordingly, I find that by such questioning the Respondent interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
Lindsay testified to another conversation with Martini in September. Pate testi-
fied to substantially the same statements of Martini but at a different date. Since
both girls testified to the presence of the other, I infer that they were testifying to
the same occasion but were unable accurately to fix the time. Lindsay testified
that, in the September conversation, Martini said that "if the plant would go Union
that he'd close it down, that he'd lose too much money if it went Union, that he'd
closed 8 his plant here in Santa Rosa on account of the Union." Pate testified
4 When Pate testified, she went by her married name, Gloria DeFont. I have used
her maiden name because in the testimony, exhibits, and Respondent's personnel records
she was so called and it will avoid confusion to use that, name throughout.
6 Pate and Lindsay were both on what was called the union committee, the function of
which was to promote interest in the Union. Edna Hardin, the 1954 day-shift floorlady
testified that, when talk of the Union first started, she learned that Pate, Lindsay, and
a third employee were agitators for the Union and so reported to Superintendent
Duckworth.
6Pate testified that Martini frequently spoke to them at their places of work after
they bad received their pledge cards but she was not so certain of the time of the con-
versation here related. Sometimes, according to Pate, Martini would tell them that
their friends (referring to the union organizers) were outside and would ask what their
friends had to say to them.
0 N. L. R. B. v. Syracuse Color Press, Inc., 209 F. 2d 596 (C. A. 2) ; N. L. R. B. v.
Late Chevrolet Company, Inc., 211 F. 2d 653 (C. A. 8).
8 The reporter failed to hear the final letter and reported this word as "close," but, on
cross-examination, Lindsay removed any doubt by quoting Martini as saying that he
1 ].4^ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Martini made the statement about closing the plant in the conversation about
the annual wage increase as related above. She testified, "We asked him if he was
going to close down the plant, and he said that he'd closed down his plant in Santa'
Rosa and he would do the same at Molino if. we was to go Union." Martini denied
saying anything to either Pate or Lindsay about closing down the plant if. it went
Union or saying that he would or had to close down in Santa Rosa. I am not
satisfied that, in making his denial, Martini's memory was directed to the conver-
sation that he actually had with the two girls. Before he was asked if he had made
certain statements, he was first told by Respondent's counsel that Lindsay had
testified that Martini made the statement in October, whereas in fact Lindsay had
put it in September, and he was told by counsel that Lindsay had testified that he
said "if the plant would go Union you would lose too much money and you would
close down in Santa Rosa." [Emphasis supplied.] That was not quite the same
as saying that he had closed the plant in Santa Rosa as both Lindsay and Pate
quoted him as saying, and as the transcript of Lindsay's testimony on cross-exami-
nation shows. Although Martini's denial may (in his own mind) have been
intended to go to the incident as such rather than to Lindsay's account thereof,
this is not the form of his testimony, and he did not deny Pate's testimony of the
statement. Martini had been connected with other plants than that of the Re-
spondent-plants located in and about Santa Rosa, among them one plant in Santa
Rosa which was "union" and which had closed down in 1951 or 1952. 1 believe
that Martini did make the statement approximately as Lindsay and Pate testified.
Although, as quoted by Lindsay, Martini said that he would lose too much money
if the plant went union and that he would close down, his statement as made is not
the equivalent of saying that if operation of the plant became unprofitable (after
the Union became the representative of the employees) he would close it down.
As made, his statement assumes as a foregone conclusion that the plant could not
profitably be operated if the Union became the employees' bargaining representative
and therefore he was saying that he would close down as soon as the representative
status of the Union was certified-not after attempting to operate at a profit fol-
lowing such certification. In effect, therefore, the statement about closing the plant
was coercive and I find that by it the Respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act.
Mary Russell, an employee of the Respondent in 1954, testified that in August
or early September, near the benches outside the women's lounge in the plant, Ella
Herrerias, the night floorlady, and concededly a supervisor, in the presence of a
group of employees, said that if any of them talked union or signed pledge cards
they would immediately lose their jobs; also, that if any of them attended union
meetings there would be someone there from the company who would come back
with their names, which would get to Martini, and that they would lose their jobs.
Herrerias denied having made this statement and denied having spoken with Russell
at all. There was nothing in Russell's testimony to indicate that Herrerias' state-
ment was directed to her individually. In evaluating the denials of Herrerias, I
have taken into account her demeanor on the witness stand, her evasiveness at
critical points on cross-examination, conflicts in her own testimony, and her apparent
disposition to mislead, as well as the testimony of numerous witnesses which amply
portrays Herrerias as committed to a course of opposition to the Union.9 Russell,
on the other hand, impressed me as an honest witness. Although in some instances
I have questioned the accuracy of her memory of exact words quoted by her as used
by supervisors, I credit her testimony as to the substance of what Herrerias said,
and I find that it constituted interference, restraint, and coercion by the Respondent
in violation of Section 8 (a) (1) of the Act.
Eva Lee, also an employee in 1954, quoted Herrerias as making similar statements
at about the same period of time, at about 4 p. m., one day outside the women's
lounge near the time clock. According to Lee, Herrerias said, in the presence of a
group of women who were talking about the Union, "Don't get my girls all excited
about the Union because . . . if you do . . . you are going to get blackballed from
would close the apple plant "like he did close down his plant in Santa Rosa." Pate also
used the words "he'd closed." The Trial Examiner heard the word as "closed" and,
over objection of the Respondent. ordered the error in the transcript corrected.
U Edna Hardin, day-shift floorlady in 1954, testified that Herrerias told her in
September 1954 that she (Herrerias) had just got rid of three agitators, which Hardin
tool: to mean (correctly, I find) union agitators. Hardin was not employed by the
Respondent at the time of the hearing. From Hardin's testimony and all the evidence,
I judge Hardin to be not favorable toward the Union but inclined to be neutral.
SEBASTOPOL APPLE GROWERS UNION 1189
every job around here." Lee also quoted Herrerias as telling employees that they
would be laid off if they did not quit talking about the Union. A few days later,
in the women's restroom at the time of change of shift, according to Lee, the women
were talking about the Union, and Herrerias said, "If you girls think I am tough now,
wait; if the Union gets in, I'll show you how tough I can be." 10 1 find that Herrerias
made such statements substantially as quoted by Lee and find that by such state-
ments the Respondent interfered with, restrained, and coerced its employees in
violation of Section 8 (a) (1) of the Act.
Eloyce Mounger, nee McPhee, testified that early in September 1954 (while she
was employed at the Respondent's) she went to Martini, apparently on the plant
grounds, and told him that she was going to be married in October but was returning
to school and wanted to work part time, after school hours. According to Mounger's
testimony, Martini asked her if she was "getting a fair deal working," that she said,
"yes," and that he then said, "You know that if the union gets in that you can't
work part time under the union, you could work only full time" and "then he said
that the unions had tried to get in a couple of years before but hadn't succeeded,
and if he could keep them out-or keep them from getting in this year, they couldn't
try again for 5 years, and he said that under the union the conditions in the cannery
would be more strict." He then told her to see the floorlady about part-time work.
Martini denied that there was such a conversation with Mounger. I believe and find
that Mounger, then McPhee, did speak to Martini concerning part-time work as she
testified. I also find that Martini made some reference to working conditions in a
plant where a union was a bargaining representative, but I am not convinced that
Mounger quoted him accurately. Her testimony sounds like a garbled version of
what Martini may have said. Martini may have mentioned the effect of the 1-year
rule, i. e., Section 9 (c) (3) of the Act, on the Union's efforts to win recognition,
but I deem it improbable that Martini said that if the Union did not get in that
year it could not try again for 5 years. I find that Mounger's accuracy is questionable
in several respects. Because of the doubt raised concerning such parts of her testi-
mony, I am deterred from finding that Martini made the specific statement about
keeping the Union from getting in that year, although it appears more probable
that he said that than that he said that the Union could not try again for 5 years.
In the latter part of September, Martini handed Lindsay and Pate a newspaper
clipping concerning financial difficulties or irregularities of a local of the same
international union as that with which the Union here was affiliated. He asked, "Now,
what do you think of the Union?" Then asked them to show the clipping to the
officials of the Union and let him know what they said about it. Later he returned
to Lindsay to learn their response. I find no unfair labor practices in this incident.
Also in the month of September 1954, during a morning break (rest period), a
group of women employees, which included Russell, heretofore mentioned, and
Lila Layman, were standing in the doorway of the plant. One of the women asked
Martini, who was there, why "he wouldn't go union." Russell and Layman quoted
Martini's answer to this question but they differed slightly as to his words. Accord-
ing to Layman's testimony Martini answered "that he would close the plant down
rather than to see it go union, because he couldn't afford to pay union wages."
Russell testified that Martini said "that he would shut the plant down definitely
before going union, and he said `I would not pay union wages."' Martini testified
that he did not recall such an incident as related by Russell and that he did not
make such a statement as counsel indicated Russell had testified about. He was
not asked about Layman's testimony concerning the incident. I find that such an
incident did occur and that Martini made a statement substantially as quoted by
Layman. But even the difference in meaning imparted by the use of "could" as
quoted by Layman in the phrase "couldn't afford to pay union wages" instead of
"would" as quoted by Russell ("wouldn't pay union wages") does not prevent the
statement from carrying a threat. In fact, as in Martini's statement to Pate and
Lindsay, it indicated an intention to close the plant without awaiting the results of
negotiations on wages, in the event that the Union should be designated bargaining
agent by a majority of the employees. I find, therefore, that by such threat the
Respondent interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
At lunch time on Wednesday, September 22, 1954, while employees were sitting
in their cars on the Respondent's parking lot, Grami and other union representa-
tives were on the highway with a sound truck. Over the loudspeaker, the latter urged
10 Lee gave slightly different wording, in quoting Herrerias, on direct and cross-
examination, without changing the substance of Herrerias' statement. The quotation
above is taken from her testimony on cross-examination.
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees to get a committee of 6 or 7 employees together and ask Martini if
he would meet with union representatives with respect to the holding of an immediate
election.ll Orice Storey, Lila Layman, and Mary Russell, who were on the Union's
organizing committee , stopped along the way and got some other women to go in
with them to present the request to Martini . Learning that Martini was then in the
office in the cannery (the main office being in a separate building), Layman went
up the steps to the balcony where the office was located and knocked on the door.
Superintendent Duckworth came and told Layman that Martini was busy. She
went back downstairs and waited with the group of women. The time came for
them to punch the time clock and return to their stations. Floorlady Hardin asked
why they did not punch in, and they told her they were waiting to speak with Martini.
Hardin went up and told Martini that Mrs. Storey wanted to speak with him. In a
little while he came down to where the group of women , variously estimated by the
witnesses as between 25 and 75, were standing . Storey and Layman asked Martini
to meet with the union representative in regard to an immediate election . Martini
said definitely that he would not, that since the matter was in the hands of the Board
he had nothing to talk with them about , that the Board would soon render a
decision. Thereupon the women returned to work. Storey's timecard for that
date shows that she punched the clock at 12:02 p.m. She was supposed to be at
her post at 12.
At about 3:30 p. m. the.same day, September 22, 1954, Superintendent Duckworth
went to Layman and Storey as they were working and told them that Martini wanted
to speak with them in the office. They went there and Martini said he knew Storey
and was getting to know Layman , that he had watched Storey and knew her to be
a good worker, that he was disappointed in her and did not think she would be taken
in by "those union guys." 12 Martini asked Storey why she was "doing it ." Storey
answered , "For money," and asked if he thought 95 cents an hour was adequate pay
for what they were doing. There followed a lengthy talk in which Martini presented
arguments against the Union and advised them to think the matter over carefully
before they got involved in something that would not do themselves or anyone else
any good. According to Martini, he told them that he admired the way they fought
for what they thought was right "but [asked] if they wouldn't do me a favor and cease
from having conversations of that type in the building proper where it would disrupt
my employees and affect the production of the plant." Storey quoted Martini as
saying that he had talked to her husband that day and told him "that I will not
have you talking up this union thing on cannery property ." 13 Layman testified
that Martini told them they could talk union on their own time. I deduce from the
the testimony of the three that Martini did not object to their talking about the
Union on the parking lot but that he was prohibiting such talk within the cannery
building. Except for facts hereinafter related, it might be supposed that Martini
was thinking of limiting his admonition to refraining from union talk while at work
in the cannery or while persons to whom they might be speaking were at work, but
in view of the circumstances surrounding the discharge of Orice Storey, hereinafter
related , I find that Martini spoke literally when he warned them not to talk union
in the building proper even if they might be speaking to someone who was not
working. However , there is no evidence that a rule had been promulgated for all
employees that they should not engage in talk about the Union in the cannery
even while they were working. Floorlady Hardin testified that she had changed the
work station of one girl who complained to her that certain women were always
trying to get her to join the Union , but Hardin apparently did not punish those who
had done the soliciting , although it was presumably done while they were working.
Martini did not finish speaking to Storey and Layman on September 22 until about
4:20 p . m., 20 minutes after the end of their shift, and they were paid overtime
therefor. As the women employees had rest periods during their working hours
and as they would then have time of their own to speak with anyone else who was
not working, a prohibition against talking about the Union in the cannery building,
even if promulgated as a general rule, would have limited their right to carry on
discussions that would,in, no way interfere with their work or that of others,14 and
"The petition for certification had been filed on August 17 and the representation
hearing had been held on September 19. The decision of the Board was being awaited
when the incident here described took place.
The findings here made are taken partly from the testimony of Orice Storey, partly
from that of Layman, and partly from that of Martini.
"It is not unlikely that Storey understood this to be the word used, whereas Martini
actually said "proper" rather than "property."
14V14 .lliam son-Dickie Mannfaettiring Company, 115 NLRB 356.
SEBASTOPOL APPLE GROWERS UNION 1191
as Martini applied such prohibition only to certain employees, I conclude that the
prohibition constituted an unwarranted limitation on their freedom of speech, and con-
stituted interference, restraint and coercion of the Respondent's employees in the
exercise of the rights guaranteed to the employees in Section 7 of the Act.
According to Clarence Storey, he had been summoned to the cannery office by
Manager Martini on the same day, just before the noon incident above related.15
In the office, Martini said to Storey, as quoted by the latter, "I understand you're
going for the Union." Storey said he was. Martini asked if he knew what he was
getting into. Storey said that he wanted more pay and Martini told him he would not
get as much money as he was then, that the women would get only 90 cents an hour,16
and that he (Storey) would be assessed for accidents that happened as far east as
New York. Martini told Storey that he did not want him talking union on company
time but that he could do as he pleased on his own time.
Ernestine Hack and Erma Bate, who had worked near each other in 1954, testified
to incidents involving Floorlady Herrerias, but their memories of the time when
they occurred sometimes differed. Although both Hack and Bate had signed
union-authorization cards, there is no evidence that Herrerias knew this, at least not
before Bate gave Herrerias a list of union members, as hereinafter related, and I
deduce from all the evidence that Herrerias had cause for believing that Bate and
Hack were not union minded. Between October 5 and 10, according to Bate's testi-
mony, Herrerias said to Bate, within the hearing of Hack, "If this place goes Union,
we are going to close it down, already six weeks of apples went to the co-op cannery
[Sebastopol Co-operative Cannery] on account of the Union." Herrerias denied
having made the quoted statement. Hack quoted Herrerias as saying that "we
lost six weeks of apples to the Co-op and if the place went union we'd close down."
I believe that Bate inferred from what Herrerias said that the transfer of apples to the
Co-op was on account of the Union and that Herrerias did not say so in so many
words, but otherwise I credit Bate's testimony and I find that Herrerias made a state-
ment substantially as quoted by Hack and Bate and I find that thereby the Respond-
ent interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Bate testified that a few days before the layoff, which occurred on October 15, 1954,
Herrerias told her in Hack's presence that she was making up a list and that those
who would "stick" with her would be assured of a job, whereas otherwise they
would be blackballed "from here down south." Hack testified to a similar state-
ment by Herrerias but fixed the time as about mid-September. According to Hack,
who.testified that Bate was present, Herrerias said that anyone that joined the Union
would be blackballed all the way down the line and further said that there would
be some weeding out done. I believe and find that the testimony of Bate and Hack
referred to the same incident, that it occurred in October 1954, and that Herrerias
made the statements, in substance, as testified by Bate and Hack. By such state-
ments of Herrerias, the Respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
The evidence indicates that many of the union advocates among the employees
were known to the Respondent's supervisors before October 14, 1955. Evidence was
adduced by the General Counsel tending to establish that Herrerias enlisted the as-
sistance of certain employees in ascertaining the identity of those employees who
favored the Union. Bate testified that, on about October 8, Herrerias came to where
15 Storey testified that he was supposed to punch the time clock at 11 : 45 a. M. after
his lunch time and that he was just about to do so when Superintendent Duckworth
interrupted and took him to the office. He testified that lie was pretty sure lie had not
punched in until after he came down, at which time he saw his wife and the other
women at the bottom of the stairs. His timecard for that date bore the after-lunch
punch-in time of 11:40 a. m. I do not deem this discrepancy of great importance,
although it would have placed some of the blame for late starting that noon on Martini,
if he had been closeted with Clarence Storey that day, because Storey was the one to
start the machinery and the flow-of apples in the flume before the women could do their
work.- Except for the timecard. evidence, the fact that Martini spoke to Clarence Storey
in the cannery office, in Duckworth's presence, as testified by Storey, was not disputed.
It is probable that Storey had finished punching in when Duckworth told him that
Martini wanted to speak to him.
10I do not construe this to be a threat unilaterally to reduce pay if the Union became
the bargaining agent. It was based rather on Martini's understanding of union rates.
Orice. Storey quoted Martini as saying that the Union had just signed a contract at
Watsonville, a town about 150 miles south of Santa Rosa, calling for 90-cents-an-hour pay.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she was working as a sorter and asked her to go up on the slicer to see what she could
find out about the Union. Bate shook her head. Herrerias denied that she asked
Bate to work on the slicer to find out about the Union. Hack testified about this inci-
dent saying that about mid-September Herrerias asked Bate to go up on the slicer as
relief and Bate went; that, about 2 weeks later Herrerias again asked Bate to go up
on the slicer and Bate shook her head, "No." Two explanations of the difference in
testimony suggest themselves-either Hack did not hear as well as Bate or Bate
inferred that Herrerias wanted her to go to the slicer for the purpose she testified to.
I am inclined to the latter explanation, because if Hack were close enough to hear part
of what Herrerias said, I would suppose that she could have heard everything that was
said. I base no finding of unfair labor practice on this incident.
An instance of Herrerias' interest in the identity of prounion employees was related
by Pauline Ploxa. Ploxa had, before September 10, 1954, been employed by the
Sebastopol Co-operative Cannery, hereinafter called the Co-op, before it laid off
some of its employees about that date. On September 13, Ploxa and her friend,
Dora Rawles, were employed by the Respondent. Because Herrerias either flatly
contradicted Ploxa or gave a different version of the incidents to which Ploxa testified,
I shall relate both versions of such incidents before resolving the conflict. Ploxa
testified that about 2 or 3 weeks after she was hired (which would fix the time as be-
tween September 27 and October 4, she telephoned Herrerias and asked if there was
going to be any trouble at the cannery "between the workers and the cannery or the
Union." It is not clear why Ploxa thought there might be trouble at that particular
time unless it was because of the discharge, orr September 25, of Orice Storey, an
outstanding union advocate.17 Ploxa testified that she asked Herrerias if it was safe
for her and Rawles to come to work and spoke about "the picket line," 18 and that
Herrerias replied, "Don't be afraid, Martini is going to get the sheriff from Santa
Rosa and have everything under control," and then added, "It will be best for you
girls to keep away from the union meeting, because Mr. Martini is going to shut the
place down if you go to those meetings." On Tuesday night, October 12, 1954, ac-
cording to Ploxa, who speaks Spanish as well as English, Herrerias came to where she
was working and spoke to Ploxa in Spanish, saying, "Pauline, will you go to the union
meeting for me as a friend, and because we both speak Spanish, and tell me who
from here will be there?" Ploxa testified that she asked Herrerias, "Why, what are
you going to do if I tell you?" and that Herrerias answered, "I want to get their names
at least, and give them to Mr. Martini so he can fire them." Ploxa testified that she
told Herrerias that she did not know the names of all the women and that Herrerias
said Ploxa should go and take notice of the ones who were at the meeting and then
come back and point them out to Herrerias. Ploxa went to the union meeting on the
afternoon of October 13. At the plant that night, she testified, Herrerias came to
her and told her, in Spanish, to go to the bathroom. After first protesting, according
to Ploxa, she went there and Herrerias came and asked her who was at the union
meeting. When Ploxa testified that she did not know the women, Herrerias opened
the door and told Ploxa to point out the women that she saw. Ploxa pointed to Clara
Davello as one who had been at the meeting. Herrerias said, "Oh, I don't worry
about her, she hates the Union." Ploxa testified that a woman named Mary
Chapita 19 walked by and that she told Herrerias that that woman was at the meeting
and that Herrerias replied that that was all she wanted to know. Ploxa testified
that she then told Herrerias that a union man would be at the plant the next day to
give out "the buttons" and that Herrerias patted Ploxa and said, "For that, you will
have a job with the company."
Herrerias admitted that she sometimes spoke Spanish with Ploxa and admitted
having had conversations with Ploxa but of somewhat different content. With
respect to the telephone conversation to which Ploxa testified, Herrerias testified
that Ploxa had called her to say that she and Rawles would not be at work and
that when she thanked Ploxa and started to hang up, Ploxa said, "I have something
I want to tell you," and that Ploxa then proceeded to tell Herrerias about Mary
Seidel, an employee of the Respondent who had come from the Co-op, saying
17 Storey's discharge will be related hereinafter. Other events during the period of time
set by Ploxa Include : September 19, the Board hearing in the representation case ; October
4, the Board's Decision and Direction of Election.
18 There was no evidence that a picket line had been established or was even contem-
plated.
19 This is the spelling of the official reporter. It sounded like "Chiquita" to me and
also apparently to Respondent's counsel because he used that spelling and pronunciation
later in questioning Ilerrerlas. If this is correct, Ploxa may have been using It as a
nickname, as it is Spanish for "little girl."
SEBASTOPOL APPLE GROWERS UNION 1193
that she was a troublemaker. Herrerias testified that she told Ploxa that she did not
know who Seidel was and that Ploxa then described her and told Herrerias that
Seidel was "very strong union" and to be careful of her. Herrerias testified that
she replied that she was not interested, that the woman was doing her work and
that as long as she was doing her work it did not make any difference to her.20 She
denied that she had told Ploxa that it was best to keep away from union meetings 21
With respect to the other incident to which Ploxa testified, Herrerias testified that on
October 12 while she was making her rounds, Ploxa was sitting at the slicing machine
staring off into space, that she asked Ploxa "What is new?" or "What is on your
mind?" and that Ploxa said there was a [union] meeting the next day and she did
not know whether or not she should go. Herrerias testified that she asked Ploxa
"Why not?" and that Ploxa then said, "Well, I don't know. On second thought
I believe I will go. I will see who is there and I will let you know." Herrerias
testified that she told Ploxa she was not interested.22 The next day or so, according
to Herrerias, she stopped to speak with Ploxa and asked, "What is new?" Ploxa
replied in Spanish, "Don't say anything because I don't want Mrs. Rawles to under-
stand." Herrerias testified that she told Ploxa, "I don't know what you are talking
about," and that that was all, that she did not tell Ploxa to go to the ladies' room,
that she never spoke to Ploxa off the platform, and that she did not know any
Mary Chapita.23
Before making resolutions of credibility, two further incidents mentioned by
Ploxa will be related. Ploxa testified that on October 14 as she was coming to the
plant for the night shift, Bill Grami, the Union's organizer, was handing out union
buttons, that she got one but put it in her pocket and did not wear it, that, when
she got to her station, Herrerias asked her and Rawles where their buttons were, and
that they replied that they were in their pockets. She testified that Herrerias turned
and went to the office, which was on a balcony, that Mrs. Herrerias with a pad of
paper and a pencil in her hand, stood on the balcony next to a laboratory employee,
Mary McGuire, looking down at the women-"looking at them and writing." The
suggested inference to be drawn from this testimony apparently is that Herrerias
was writing down the names of employees who were wearing union buttons. Dora
Rawles corroborated Ploxa's testimony that Herrerias questioned them about where
their buttons were. Herrerias denied both the questioning and Ploxa's testimony
of her making notes on the balcony.
A resolution of credibility as between Ploxa and Herrerias is not without dif-
ficulties because I have reason to believe that, although there was a factual founda-
tion for Ploxa's testimony, Ploxa may have changed or embellished the facts in some
of the incidents for personal reasons of her own. For example, on October 13, no
employee named Mary Chapita or Chiquita was listed on the payroll.24 Mary
2- Seidel was laid off when the night shift was terminated on Otober 15. Ploxa was
scheduled to be retained but told Martini that she could not work days. Ploxa had signed
a union pledge card on September 3 while she was still working at the Co-op. There is
no evidence that Seidel had ever signed one. Also there is no evidence that Herrerias knew
that Ploxa had signed one at the Co-op. If Herrerias made the reply, as testified by her, I
find that it was intended to mislead and that Herrerias was not, in fact, disinterested.
211 do not believe that Herrerias made this statement in manner and form as testified by
Ploxa.
22 In Herrerias ' affidavit executed on February 9, 1954, appears the following : " Ploxa
and I are both Spanish, from the same hometown, and we spoke in Spanish together. I
recall that one afternoon she was kind of quiet and I asked her, 'What's on your mind?'
Ploxa said, 'There is a union meeting tomorrow and I don't know whether to go to it or
not.' I asked her why didn't she go, and she said maybe she would. Ploxa said , 'I'll let
you know who is there.' I said that if she wanted to tell me anything it would be all
right."
23 Herrerias' affidavit reads : "So then, either the day of the meeting or the day after, I
stopped where Ploxa was working and I asked, 'What's new?' I don't recall her answer,
but It was not much. Then I"said, 'Was there a big crowd?' or something like that. Ploxa
switched to Spanish and said, 'I don't want the girl next to me ( meaning Dora Rawles)
to know what we are talking about.' But Ploxa didn't volunteer any information then,
and I didn 't ask for any. We did go off in a discussion, but not about anything in
particular. I asked Ploxa who was at the meeting, but she didn't tell me and I didn't
press her."
2' Ploxa's demeanor on the witness stand gave me the impression that she mentally
groped for a name before she came up with "Chapita" or "Chiquita ." I conclude that she
either failed to remember the name of a real employee or fabricated the name to avoid using
Seidel's name, and I am inclined to believe it was the latter.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seidel was listed. If Ploxa did tell Herrerias that Seidel was "very strong union,"
the information appears to have been false so far as the evidence shows. No evi-
dence was adduced by the General Counsel to identify Chapita or Chiquita as an
employee or to prove that Seidel, if she was the same as Chapita or Chiquita, was
ever interested in the Union. The evidence creates an impression that Ploxa
was playing both ends against the middle-that she was trying to appear to the
union side to be prounion and as not giving away union secrets but at the same time
trying to make Herrerias believe she was siding against the Union. Herrerias was
not always frank in her testimony and much of her testimony I do not credit. But
on the other hand, certain portions of her testimony appear to be sufficiently probable
as to be credible, at least in essence, if not detail, especially since they are in some
respects similar to the account given in Herrerias' affidavit.
From my observation of the witnesses and my analysis of the testimony and of
all the evidence, I conclude that part of the testimony of each witness was true
and I make the following findings: Ploxa, early in October, sought to give Herrerias
the impression that she was not union minded by intimating in the telephone con-
versation she had with Herrerias at about that time that she was afraid of violence,
probably from union activity (although she reversed it in her testimony), and by
warning Herrerias about Seidel. If Herrerias ever expressed disinterest, I find that
it was feigned. Thereafter, Ploxa gave Herrerias the opportunity to suggest that
she attend the union meeting of October 13 to identify employees who were at that
meeting. I also find that Herrerias did, on October 14, ask Ploxa whom she had seen
at the meeting and that Ploxa identified Clara Davello among others. The evidence
indicates that Herrerias was friendly toward Davello. Although Davello had signed
a union pledge card, there is some reason to infer that she was thought by the
Union not to be a strong adherent. I find that Herrerias did respond to Ploxa's
identification of Davello as Ploxa testified, although I am not satisfied that the
incident took place in the ladies' room, or, if it did, that Herrerias was the one to
suggest that as a place from which to identify those who had been at the union
meeting. But regardless of doubts regarding details, I am satisfied and find that
Herrerias was not disinterested in the matter of union connections of employees;
rather, she was quite receptive to information along that line. I find that her con-
versation with Ploxa on October 14 was not as limited as she would have it believed.
I draw no inference with respect to the incident Ploxa testified about when Herrerias
was on the balcony, even if it occurred.25 An inference that Herrerias was writing
down names of employees who were wearing union buttons is not warranted by the
evidence. Even if Herrerias had been writing names of employees at that time and
place, she might have innocently required assistance with names of employees
whom she knew only by appearance. The evidence discloses that only 25 of 92
women on the night-shift payroll had signed union pledge cards,26 and apparently
few on that shift wore union buttons on October 14. Herrerias admitted to having
seen but two, both by women who were among those laid off on October 15, although
she testified that the layoff list had already been made up before she saw those
women wearing buttons. The sum of the evidence convinces me that Herrerias
learned the identity of many of the union-minded employees, but I doubt that
she received much assistance from seeing union buttons on night-shift employees.
Rawles confirmed Ploxa's testimony respecting Herrerias' question about their
union buttons. I believe it possible, however, that Ploxa and Rawles may have
misconstrued the meaning of Herrerias' query. On the night of October 13, Ploxa
had told Herrerias that a man from the Union would be passing out buttons, inti-
mating that Herrerias could thereby learn the identity of union members. When
few union buttons appeared on the night shift on October 14, a question, "Where
are your union buttons?" could be interpreted to mean, "Where are all the buttons
you said I would .see?" Since Ploxa had given Herrerias reason to believe that she
and Rawles were not prounion, it is improbable that Herrerias would have been
expecting them to be wearing buttons themselves. In view of the doubt in meaning,
I do not find that Herrerias asked the question with reference to personal union
buttons of Ploxa and Rawles.
Marie Tripp testified that at 7 p. m. on October 19, after the election, she
encountered Martini at a place called Molino Corners, a filling station, and that
Martini had asked her bow she had voted in the election and if the election suited
her. Martini denied that he had asked the first question but admitted asking the
second one. No testimony was given as to how the conversation started and there
25 If there was such an incident, I believe that Ploxa was mistaken about the identity
of the woman who was with Herrerias on the balcony.
20 Of the 25, several had signed only at places of former employment.
SEBASTOPOL APPLE GROWERS UNION 1195
is nothing in the testimony of either Martini or Tripp to fortify the testimony of one
or the other. It appeared to me that each of the two witnesses was testifying about
the incident according to what he believed to be the truth. For all that appears
from Tripp's testimony, "How did you vote?" were Martini's first words to her, as
Tripp understood them, without any greeting or preliminary statements. But if
that were the case, it might easily be that Tripp misunderstood the first word and
that Martini actually may have said, "Hi"! or "Hello" followed by "Did you vote?"
There was no showing that Martini had knowledge that Tripp had in fact voted and
it does not seem probable that, without knowing that she had, he would ask her
how she had voted. Martini gave a fuller account of the conversation than did
Tripp except that he did not testify whether or not Tripp replied to his question of
whether or not the election returns suited her. Tripp told Martini that she had been
laid off and needed the work. He took her address and telephone number and turned
it in to the office. He told Tripp, he testified, that undoubtedly someone would leave
before the end of the season and she could get back on. Tripp quoted Martini as
saying, "Give me your name and phone number and we'll give you a call in a few
days to-come back to work." She never got the call. Consistent with my previous
finding, 'I find that whether or not Tripp be. deemed an employee or merely an
applicant for employment, by Martini's questions as to how the election returns suited
her, a question in form designed to learn Tripp's attitude toward the Union, the
Respondent interfered with, restrained, and coerced employees in the exercise of
the rights guaranteed in Section 7 of the Act.
Lila Layman and Mary Russell, two of the employees who had been on the union
committee and who had been laid off by the Respondent on October 15, returned
to the Respondent's plant and spoke with Martini in the warehouse one morning
sometime between October 26 and November 3, 1954. They told him they were
looking for work and asked if he needed help. He told them that he did not need
any help but that they should leave their names and if someone left they could
replace them. Martini took their names and turned them in to the office. Both
Russell and Layman testified that Martini said that those who had been laid off
would be called back if there was a vacancy. According to Russell, Martini said
they would be recalled before putting on new help. According to Layman he said
they would be recalled in order of seniority. Martini did not specifically deny this,
but may be presumed to have denied it as he made a blanket denial and gave his
own account of the conversation, which did not include that part. It is not logical
that Martini would say that the employees laid off would be recalled either in order of
seniority or before new employees and yet would still tell them to turn in their own
names for employment; for if the Respondent were going to rehire laid-off employees
in order of seniority or before new employees, it would not need to take Russell's
or Layman's name, for theirs would come up with all the rest. I infer that, if
Martini made reference to any order or sequence of reemployment, his remarks
were confined to those who had specifically asked for work and left their names.
Both Russell and Layman quoted Martini as making comments, in the same
conversation, about unions which Martini denied. Their testimony was, in substance,
that Martini said that unions were no good in canneries but were all right in big
industries like the automobile industry. Since such a statement would be a privileged
statement of opinion, it is unnecessary to decide whether or not Martini said it.
Both Layman and Russell quoted Martini as making a statement of reproval about
their union connections. As put by Russell, Martini said that they both "should
have thought it over seriously before jumping into this union deal." Layman testified
that Martini "told me that I should have thought it over before I got myself involved
in something I would have been sorry for." I find that Martini made some such
statement, indicating knowledge of their union advocacy and reproof thereof. I am
not persuaded, however, that Martini made the statement as a threat since it was
not connected with any statement indicating that that was the reason for not reemploy-
ing them and the evidence does not establish that a vacancy actually existed at that
moment.
D. Evidence of Respondent's identification of union advocates
As will be related hereinafter, the Respondent terminated its night shift and laid
off a substantial number of employees from both day and night shifts on October 15.
According to Respondent's supervisors, a meeting to select employees for the purpose
of retention after October 15 was held on the afternoon of October 14. At this
time, if the Respondent had been so disposed, it could have identified day shift union
supporters from their union buttons, as a majority on that shift were wearing them
that day.
Erma Bate, previously mentioned, testified that she attended the union meeting
which was held at the union hall on October 13 and that after that meeting she
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
took from a desk, behind which Grami had been sitting during the meeting, a typed
list of names and addresses of employees of the Respondent who had signed union
pledge cards. (Grami testified that usually five such lists were made up at a time.)
This list, Bate testified, she put in her purse and later put it in the glove compartment
of her car; then she went home and left the union button she had received at the
meeting before she went to work. On October 14, at about 8:30 p. m., according to
Bate, Herrerias came to her and asked what was new and if she had heard anything.
Bate testified that she told Herrerias that she had something for her, and that
Herrerias said, "Good." Bate further testified that she went to her car and got
the list of names (which for purposes of identification will hereafter be referred to
as the purloined list), returned, and gave it to Herrerias, no one else being present.
Herrerias replied, according to Bate, "Thanks very much. I can't tell you how
much l appreciate this, and Mr. Martini."
Herrerias admitted that she had had possession of the purloined list and that she
had turned it over to Superintendent Duckworth, but she testified that she did- not
receive it until October 16, the day after the layoff, when Bate, unsolicited and
uninvited, brought it to her home. She further testified that she delivered it to
Duckworth that Saturday night. It is undisputed that Duckworth retained the list
until the following Tuesday, October 19, the day of the Board-conducted election,
and that he then told Herrerias it was on the desk in his office and that she could
take it back.
Bate testified that she was at Herrerias' house on October 16, but her account of
how she happened to be there and of what happened after she got there differs from
that of Herrerias. In order to understand Bate's explanation it is necessary to go
back to the afternoon of Friday, October 15, when the layoff was announced in
the warehouse shortly after 4 o'clock. According to Bate, she left the plant in a
huff that evening after the warehouse meeting, not waiting to finish the night shift,
because, when the retention list was read, she did not hear her name 27 She testified
that she went home and refused to answer telephone calls which came from the
plant by way of her neighbors' telephones. According to Ernestine Hack, a friend
of Bate, and a credible witness, Herrerias came to Hack after the layoff meeting and
asked where Bate was. Hack told Herrerias that Bate was mad because her name
was not on the list and that she "took off." Hack testified that Herrerias got the name
and telephone number of Bate's neighbor and tried to reach Bate but was unsuccess-
ful. Herrerias then gave Hack permission to use the office telephone to try to reach
Bate, as Hack suggested that Bate might speak with her although refusing to speak
to Herrerias because of pique. Hack telephoned a neighbor of Bate's but was given
the message that Bate was not home yet. Hack quoted Herrerias as saying that she
was worried about "this union deal." Hack commented that there was going to be
a union meeting that night and Herrerias said, according to Hack, "Yes, that's one
of . what I'm afraid of."' After the end of the shift, according to Hack, Herrerias
gave to Hack a slip of paper on which she had written her name and telephone num-
ber and asked Hack to have Bate telephone her. Heck testified that she gave Bate
the message the next morning. Bate testified that she telephoned Herrerias on Sat-
urday morning, October 16, as requested, and that Herrerias asked why Bate had not
come to her when she thought her name was not on the list. Bate testified that Her-
rerias then asked her to come to her house. Bate testified that she did go there and
that, when she arrived, Herrerias asked her why she had not come to the office.
"I was so worried about you," Bate quoted Herrerias as saying, "your name was on
the list. Did you know you could get me into an awful lot of trouble if you wanted
to, because I confided in you an awful lot." Bate further testified that Herrerias
said that Martini did not trust her (Bate) because Bate's husband was such a strong
union man, but that she (Herrerias) would fix it up so that Bate could go back to
work.
Herrerias did not refute Hack's testimony of an attempt by Herrerias to reach
Bate by telephone the night before. She made no mention of it at all. Yet she
testified that Bate came to her house unexpectedly about noon on Saturday. October
16, laid the purloined list on the kitchen table, refused a cup of coffee, which Her-
rerias offered, and left with practically no conversation,28 and in any event none
21 Ernestine Hack, a friend of Bate, testified that she, likewise, did not hear Rate's name
read.
23 The first time Herrerias was on the stand, called by the General Counsel, although
she was not a friendly witness, she testified that when Bate walked in through the back
door she was surprised to see Bate and asked her what she wanted and that Bate said "that
here was the list that I had asked her for, and I said that I didn't know anything about
the list and don't leave it here, and she said, `I don't want it either,' that there was no
further conversation other than that she had asked Bate if she would like a cup of coffee
SEBASTOPOL APPLE GROWERS UNION 1 1.97
about Bate's failure to work on the night of October 15, nothing about Herrerias'
effort to reach Bate by telephone, and nothing about Bate's returning to work the
following Monday or fixing things up so that she could come back to work. I am
convinced that Herrerias' testimony was not, in its entirety, the truth or the whole
truth about this incident.
The fact that I find part of Herrerias' testimony to be incredible makes it difficult
to believe her testimony that the list was delivered by Bate on October 16. On the
other hand, other facts make it conceivable that the list was in fact delivered by
Bate to Herrerias on that date. In the first place, certain aspects of Bate's testimony
need an explanation, According to her testimony, she took the union list after the
union meeting on October 13 and put it in the pocket of her car. But she testified
that that meeting started at 1:30 or 2:30 p. m. and that she returned home before
going to work that evening. From this it appears that the meeting was in the after-
noon and that Bate had the list in her car during the night shift that began at 4 p. m.
on October 13. Yet her testimony was that she delivered the purloined list to Her-
rerias at about 8:30 p. m. on October 14. She gave no explanation of why she
would give it to Herrerias on October 14 but not on October 13, especially if she
took the list for the purpose of giving it to Herrerias. The fact that Bate's neighbor
reported to Hack, in the telephone call on Friday night, October 15, that Bate was
"not home yet" suggests that this may have been a fact rather than that the neighbor
was telling a falsehood to accommodate Bate. If Bate was not home, it is not im-
probable that she, like many other laid-off employees, went to the union hall on the
evening of October 15 to report the fact of their layoff to the Union, and she could
have acquired the purloined list that evening.
Bate testified that she did not remember if she attended any other union meeting
between October 13 and the date of the election. If she had been at the union hall
on the evening of October 15, there are two possible explanations of why Bate
would, even though laid off, have delivered the list to Herrerias on October 16-she
could have been using it to induce the Respondent to reemploy her or, if Bate had
been a stauncher union advocate than she seemed, she could have been putting the
list in the Respondent's possession in the expectation that a revelation thereof, with
testimony of an earlier delivery, would make it appear that the Respondent had used
the list in making its selection of employees for the layoff. The former seems more
probable, but I am not finding either explanation to be fact. I mention them merely
to show that it would not be incredible to believe that Bate did in fact deliver the
list to Herrerias on October 16.
A further consideration is that, if Bate had delivered the purloined list to Herrerias
before the day of the layoff and if this came to Duckworth's attention, as it must
have if it had been used in selection of employees for retention or layoff at the
meeting held for that purpose on October 14, it is doubtful that Bate's name would
have been left off of the retention list. But the evidence convinces me that it was
left off and that she was in fact rehired on Monday, October 18. True, Hack testi-
fied that, after the layoff meeting on October 15, Herrerias showed her Bate's name
on "the list," but Hack was unable to say that it was the same list as the one which
had been read at the layoff meeting, and she had already testified that she had not
heard Bate's name read at the meeting.
Bate's testimony of her conversation with Herrerias on Saturday would explain
why her name was not read for retention even if Herrerias had intended to retain
Bate. There is evidence that Herrerias had, like other supervisors, made up a list
of employees she wanted to retain and Bate's name may have been on it, but I find
that it was not included in the final list prepared for reading at the layoff meeting
on Friday evening, October 15. Bate's timecard for the week ending October 16
carries a false, but unexplained, note that Bate went home ill on October 15. Certain
and that Bate had said "No, she had to leave," and that she did leave. Later, when
called as a witness for the Respondent, Herrerias denied Bate's testimony of the conversa-
tion at her house on October 16 and testified : "We had no conversation of any description.
She just came in, dropped the list. I asked her, 'Would you have a cup of coffee,' because
I was in the kitchen. She said, 'No, I am in a hurry,' and that was all that was said."
On cross-examination by the General Counsel, Ierrerias this time gave the following version
of the conversation after Bate entered the back door : "I said, 'Well, what are you doing
around here?' and with that she took the paper and threw it on the kitchen table, and
I said to her, 'What is that?' She said, 'That is the list of the girls.' I said, 'Well,
why are you bringing it to me?' She said, 'There it is, you can have it.' I said,
'why don't you take it?' She said, 'I don't want it. Do what you want with it.' I said
to her, 'Well, will you have a cup of coffee?' She said, 'No, I am in a hurry because
my son is waiting for me,' and that is all there was."
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other notations on the same card had been erased . One exhibit , prepared by the
Respondent but introduced by the General Counsel (General Counsel 's Exhibit
No. 41e ), is a list of night -shift employees as of October 15 , 1954, showing which
employees were to be transferred to the day shift , which ones worked on the night
shift October 15, and which ones "walked off," that is , failed to complete the shift
after having punched in . On this list, Bate is shown as having walked off and at
not having been transferred to the day shift. And an exhibit introduced by the
General Counsel , which had been delivered to him by the Respondent as a list of
those whose names were read for retention at the layoff meeting, did not contain
Bate's name.
Although it is difficult to credit testimony , in part, of a witness who had been
discredited on other testimony , Herrerias ' testimony of the date of receipt of the
purloined list, not inconsistent with her own affidavit ( made at a time when Herrerias
apparently desired to unburden herself with respect to this list ) strikes me as not
improbable . But even if Herrerias were not to be credited on the date of delivery
of the purloined list, I am doubtful enough of the accuracy of the evidence of an
earlier delivery to refrain from relying on such evidence as an element in deciding
whether or not the Respondent made a discriminatory selection of employees for
retention and layoff. The evidence with respect to the Respondent 's receipt of the
purloined list does establish, however, by either account , that the Respondent was
interested in learning the identity of prounion employees even after the layoff.
Numerous items of evidence disclose that the Respondent was aware of union
interest among the employees , of the identity of many employees who were in-
terested, and particularly of the identity of active union advocates among the em-
ployees . Manager Martini was accustomed to banter with some of the employees
about their union connections . Instances of this and of his conversations about the
Union have already been related. To show that the Respondent was aware of the
identity of other union advocates , the following incidents are related:
During late August and the month of September , union representatives would
appear on the highway near the plant at noon and at the time for change of shifts
and address the employees over a loudspeaker . Manager Martini would frequently
make remarks to Clarence Storey , the day-shift apple dumper , at his place of work,
such as, "Storey , you're slipping . Your boys aren't out there yet ," and "Storey, I
hear your boys out there . I hear them talking." On one occasion in September,
both Storey and his wife , Orice , who was then working on the sorting belt near
him, invited Floorlady Hardin to come to a union meeting . Hardin declined. Men-
tion has already been made of conversations about the Union which Martini had
with Gloria Pate and Gloria Lindsay. One day, early in October, when Lindsay,
whose regular job was on the peeler or on the trim line, was working in the can car
(a railroad car containing new empty cans ) as relief for one of the other girls (Ruth
Clark, or Shirley Veach, or another girl) Martini came and asked her what she
was doing there. She said she was there as relief , and, according to Lindsay , Martini
said, "Well, what are you trying to do, change them over to the Union?" When
she denied this, Martini said in a manner which Lindsay described as "wisecracks,"
"I bet you are campaigning for them . I ought to put you over with Mr. Storey,
you two could have a ball." Martini denied making such statements but I am con-
vinced that Martini denied making some statements merely because , at the time,
they seemed unimportant and, by the time of the hearing, he had no recollection of
them. As the statements were banter , I do not find any unfair labor practice.
On one occasion around the first of October when Marie Tripp was working in
the can car with Ruth Clark and Shirley Veach, according to Tripp, Martini said
something about it would be nice if we could get Storey over to the can car because
then he would be away from his Job and Martini could fire him. Martini denied
making this statement too. I believe that Tripp did hear some statement made
concerning Storey, but I received the impression that Tripp had not clearly heard
Martini and may have taken the statement out of context or filled in what she did
not hear with what she supposed he had said . She gave no circumstances to indicate
how such a statement came to be made. So , as the evidence stands, it came out
of the blue . It seems improbable to me that Martini in all seriousness would make
such a statement to employees and certainly not unless he had good reason to believe
that the employees to whom he was speaking were antiunion . Under the circum-
stances , I am not disposed to base a finding on this portion of Tripp's testimony.29
Tripp testified that on October 14, the day the union buttons were handed out and
were first worn in the plant she was working in the can car with Ruth Clark and
sa Tripp later told Storey about this, and Storey, as a consequence, remained closer to
his station than before.
SEBASTOPOL APPLE GROWERS UNION 1199
Shirley Veach, that she, herself, was wearing her union button on the collar of her
blouse. Clark and Veach were wearing union buttons on the seats of their blue
jeans 30 William McGuire, the Respondent's sales manager and recording secretary
for the board of directors, stopped at the can car and asked where the girls' buttons
were and they showed him. Then one of the girls asked where his was and he
raised the bottom of his shirt (which he wore outside his pants) and showed a union
button on his pants near his hip pocket. I do not credit McGuire's denial.31 How-
ever, I draw no inferences adverse to the Respondent from the above incident (which
I interpret to be an attempt by McGuire to be facetious) except to the extent that
it has a bearing on McGuire's credibility.
Ernestine Albini was employed in the Respondent's office in 1954, as a relief
switchboard operator and office clerical worker. She testified that, a couple of
days before the layoff, McGuire was about to check a list of names with the payroll
clerk, Lloyd Marsland, and that McGuire remarked that he would like to know who
was for the Union so that they could make up another list. McGuire denied this.
As I do not find McGuire's testimony reliable on critical matters, I do not credit his
denial. Although I find indications of confusion with regard to details of other
matters in Albini's testimony,32 I believe it was honest confusion and that she did
not deliberately fabricate the testimony above related. I therefore credit it.
Floorlady Hardin at one point testified that the only employees who had talked
to her about the Union were Zelma Brines and Joanne Chames. She told them
that she thought that the Union was not good for them in a seasonal industry.
But when testifying that these were the only employees who had talked to her
about the Union she apparently did not have in mind the invitation to attend a
union meeting which had been extended to her by Clarence and Orice Storey. When
asked, she acknowledged that they had invited her. Knowledge by the Respondent
of union attitude of employees is also illustrated by Hardin's testimony that, when
union talk first started, she learned that employees Fanny Garrison, Gloria Pate,
and Gloria Lindsay were agitators for the Union. She reported this to Superintendent
Duckworth, who told her to watch them.
E. The October layoff
1. The evidence
Following a meeting of the board of directors on October 12,33 at which the
manager was directed to terminate the night shift which was to operate beginning
Monday, October 18, he consulted with Sales Manager McGuire to determine
what previous orders of supplies could be canceled. McGuire caused to be pre-
pared a list of the names of the current day- and night-shift employees for use by
Superintendent Duckworth. The latter instructed each of the supervisors to make
up a list of employees he wished to retain. Floorlady Hardin of the day shift had
been replaced during an absence on account of illness, but during the week of
October 11 to 16 she was working in the cannery office. She did not participate in
ao Veach had not signed a pledge card for the Union.
31 McGuire denied wearing a union button, and claimed that in October 1954 he had for
a couple of days worn only an "I like Ike" button which he had gotten from an employee
named Arnold Grant. The latter testified credibly on rebuttal that he had worked at
the Respondent's plant in 1952 and 1953, but not in 1954, that he had a number of election
buttons in 1952, but that he did not give any to McGuire either then or when he was at
the plant once or twice when he stopped there in 1954.
012 It appeared to me that Albini was confused about the time when she typed an exhibit
showing the names of employees retained after the layoff. She identified it as the very list
which she had typed before the October 15 layoff. At that time she would not have put
on it the heading, reading in the past tense, that it was a list of names of employees
read by McGuire at the October 15 layoff. This does not mean that Albini had not
typed a list of such names to be read by McGuire, but I believe General Counsel's Exhibit
No. 36 was a copy made sometime after October 15 rather than the identical list.
as The date is taken from the minutes. The regular monthly meeting would normally
have been held on October 13. The advancement of the date, witnesses for the Respond-
ent testified, was to permit a man named Hallberg (who operates O. A. Hallberg Cannery
at Graton, a little way north of Sebastopol, and who was president of the Apple Growers
Council) to attend the meeting to learn if the Respondent was going to continue as a
member of the Apple Growers Council ; because Hallberg was, according to the Respond-
ent's witnesses, leaving for the East the next morning, the meeting date was advanced.
The minutes themselves give no impression of the need for advancement of the meeting
date.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the selection of female employees on the day shift and there is no evidence that her
successor was requested to do so.
On Thursday afternoon, October 14,34 Superintendent Duckworth met with
night-shift Floorlady Herrerias and night-shift Foreman Williams in a small storeroom
on the cannery balcony near the laboratory and cannery office. Laboratory tech-
nician Esther Doty was working there at the time, but she was permitted to remain.
During the meeting, Warehouse Foreman John Aguire came in for about 5 minutes
to leave his list of employees to be retained. Sales Manager McGuire and a fore-
man named Schuster were present for a short time also but did not participate
in the actual selection of employees.
Pursuant to directions from Manager Martini, a notice was posted, and employees
were also verbally notified, that a meeting would be held in the warehouse at the
end of the day shift on Friday, October 15, and that employees of both shifts should
attend. This was the first such meeting ever to be held. At the appointed time
the employees assembled in the warehouse. Martini told them that because of
shortage of space in the warehouse, one shift would be laid off and that, as much
as possible, the people would be laid off in the order of seniority. Paul "Tony"
Bondi, chairman of the board of directors of the Respondent, told employees that
there was very little space left in the warehouse, that the Respondent was sorry that
they had to lay off a shift, that there were not too many apples to come in from the
growers and there were not too many left in cold storage, that as in the past 2 years
the employees were invited to the dinner at the end of the season . McGuire told the
employees that those who would not be working could turn their caps and aprons
in and they would be paid for them. He then read a list of those who were to report
for work on Monday, October 18.
The list of employees to be retained, as read at the layoff meeting of October
15, although prepared and supplied by the Respondent (and introduced in evidence
as General Counsel's Exhibit No. 36) was claimed by the Respondent at the hearing
to be not an accurate copy. At the hearing, the Respondent introduced in evidence
another list of names (as Respondent 's Exhibit No. 13) which it claimed was "the
list" read at the layoff meeting. (This list contained, among others, Bate's name.)
But this list does not jibe with the evidence as closely as does the list originally
furnished to the Board (General Counsel's Exhibit No. 36). For example, there
was evidence that some of the women whose names were read for retention (accord-
ing to their own testimony) were unable to work on the day shift and so did not
work after October 15, 1954. Their names were on General Counsel's Exhibit
No. 36 but were not on Respondent's Exhibit No. 13. Among such names were
those of Ploxa, Rawles, Joanne Chames, and Ensebia Carrera. Such testimony
suggests that Respondent's Exhibit No. 13 was a list of employees working after
October 18 and made up at some date after October 15 rather than the original list
read on the latter date.
The Respondent's exhibit contained the name of Arthur Heflin, who testified
that his name was not read at the layoff meeting and hence his name ought not to
appear on such a list. He further testified that Superintendent Duckworth rehired
him right after the union election on October 19. Heflin's name (contrary to its
appearance on the Respondent's exhibit) was not on the list furnished to the Board
and introduced as a General Counsel's Exhibit No. 36; so Heflin's testimony
supports the General Counsel's exhibit as the correct list. The name of Beulah
Cassidy, shown on General Counsel's Exhibit No. 36, was stricken in pencil from
Respondent's Exhibit No. 13. McGuire testified he had stricken the name because
it had been copied into Respondent's Exhibit No. 13 through error, yet the records
of the Respondent show Cassidy as employed to the end of the season. Thelma
Ziegenbein's name was on the General Counsel's exhibit but not on the Respondent's
exhibit; yet she also is shown by the records to have been employed until the end
of the season on December 11, 1954. The same is true of Cornelia Jones, Helen
Smoker, and, with the exception of the date of final employment, of Frances Connors,
Elsie Dickerson, and Evelyn Cuttress.
Edna Hardin (the day-shift floorlady until she became ill) testified that, after
she returned from an absence because of illness, she worked in the cannery office
34 McGuire testified that he gave Duckworth the list of day and night shift employees
on the day after the directors' meeting and the list of employees to be retained, herein
called the retention list, was returned to him the following morning, but he testified that
his discussion with Martini about cancelation of orders was on Wednesday morning, Oc-
tober 1.3, that he gave Duckworth the list of employees that afternoon and received it
back with alterations on Thursday morning. Other supervisors set the time of the meeting
to select employees for the single shift on Thursday afternoon, October 14. I conclude
that McGuire was mistaken that he received the list back on Thursday morning.
SEBASTOPOL APPLE GROWERS UNION 1201
from October 11, 1954, for 3 weeks. She testified that she attended the layoff
meeting on October 15 but her name was not read for retention, that after the
meeting she spoke with Superintendent Duckworth about it, and he told her she
could return to work on Monday, October 18. Hardin's name was not on General
Counsel's Exhibit No. 36 but was on Respondent's Exhibit No. 13. Although some
of the evidence suggests that General Counsel's Exhibit No. 36, prepared by the
Respondent, may have varied from the original list read by McGuire at the layoff
meeting, I find that it is more accurate than Respondent's Exhibit No. 13, and that it
is substantially accurate; so I rely on it in making my concluding findings.
After the meeting on October 15, the majority of the night-shift employees re-
turned to work. However, between 20 and 30 of them, who had punched in before
the meeting, but whose names (with one exception) had not been read by McGuire as.
retained, left and did not work on the night shift that night.35 The disputed facts
about the layoff will be related hereinafter in connection with conclusions to be
drawn respecting the reason for the layoff. Employees who worked after the
layoff apparently received an increase in pay, for although the rate for the day-shift
women had previously been 95 cents an hour, personnel records show pay at the
rate of $1 an hour after that date.
2. Concluding findings regarding the layoff
It is the General Counsel's contention that the layoff was accelerated by the Re-
spondent so as to affect the result of the Tuesday, October 19, election but that, even
if the layoff had been dictated by economic necessity in the ordinary conduct of the
Respondent's business (which he contends is disproved), the selection of employees
was discriminatory and that by means of such discriminatory selection the Respond-
ent contrived to lay off a large enough number of union sympathizers to affect the
result of the election.
(a) The necessity for the layoff
The Respondent gave as the reason for the layoff that its warehouses were almost
full and that the supply of canning apples after October 15 would not be enough to
warrant more than one shift. The production of canned goods with 1 shift op-
erating, the Respondent explained, was not expected to exceed the capacity of the
Respondent's warehouses because sales would remove canned goods from the ware-
houses at about the rate of production on 1 shift.
The General Counsel attacks the claim that the Respondent was short of space
to house its production, even at the rate that could have been produced by two
shifts after October 15, 1954. But he does not even concede that a shortage of apples
after that date came about in the ordinary course of the Respondent's business,
because, he asserts, the Respondent diverted a huge supply of its own apples to another
cannery-the Co-op-to be canned for the Respondent, and the General Counsel
contends that the Respondent was motivated in doing this, not by economic considera-
tions, but by a purpose of putting itself in a position to lay off some of its own em-
ployees before the union election (a layoff earlier than normally would have been
the case) so as to affect the result of that election.
The Respondent admits that the Co-op canned a large quantity of applesauce
for it from apples supplied by the Respondent, but it contends that this was necessary
because a high percentage of apples received from growers in 1954 was unsaleable
as fresh fruit, that this created such a large supply of cannery apples that production,
even with two shifts, could not use the supply fast enough to keep the apples from
overflowing the cold-storage facilities, and that the apples were beginning to rot.
A vast amount of evidence was introduced, both in documentary form and through
testimony of witnesses, in order to establish the respective claims of the parties.
Much of the testimony is conflicting and cannot be accepted as reliable. But it may
be taken as uncontroverted that the 1954 Sonoma County apple crop was a large
one, almost 12 percent larger than in 1953, yet less than half as much of the crop of
early apples was fit for sale as fresh fruit. The late apples were of better quality,
the percentage of tons usable for sale as fresh fruit being up some 50 percent over
the 1953 crop, but the proportion used for canning was also greater, the proportion
of late apples used for canning being up about 23 percent over the 1953 crop. When
35 The Respondent contended that these employees quit and were not therefore laid
or. The General Counsel contends that there was confusion and misunderstanding about
the question of whether or not they were to work that night and that, if they were not
actually laid off, they were constructively laid off.. This issue will be dealt with later
herein.
450553-58-vol. 118-77
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apples are delivered to the Respondent by growers, they are classified either as can-
nery apples or as fresh fruit. Cannery apples are those which because of kind, size,
or lack of quality are unfit for sale as fresh fruit. Cannery apples go direct into
the cannery or go into cold storage (if there is room there) for future use in the
cannery. Apples classified as fresh fruit go first to a packing shed, where the market-
grade apples are separated from the unmarketable apples. Those which are eliminated
as not of market grade are called culls. Culls include not only those apples which
are blemished or damaged but also perfectly good apples that are either too large
or too small for market trade. The bloom on the apple, which helps to preserve it,
is wiped off in the packing shed whether the apple is marketable as fresh fruit or is a
cull. Also the culls receive a certain amount of bruising in the handling and boxing.
The result is that culls will not keep as long as orchard-run apples (cannery apples)
which never go to the packing shed but go direct to the cannery or to cold storage
for future use in the cannery. Even in cold storage, the period during which an apple
will keep will depend, in part at least, on its condition when it goes into cold storage.
I deduce that culls normally do not last as long there as orchard-run apples. In earlier
years, according to Former Superintendent George Silva, he had kept Gravenstein
apples in cold storage for as long as 3 months and late apples as long as 5 or 6 months.
I assume that the maximum time was for orchard-run apples. The maximum period
that culls would last in cold storage he did not state. Although witnesses for the
Respondent testified that culls would not hold up in cold storage, I do not accept such
testimony as fixing the length of time which they would hold up. I infer that in years
before 1954 culls had been kept in cold storage for a period of time the duration
of which is not precisely fixed, but which would be long enough to permit their use
in the cannery, a month or two at least.
During the 1954 season, the Respondent began to put apples in cold storage from
the outset. Even fresh apples, as marketable apples are called, went into cold stor-
age because the market early in the season was not favorable for quick disposition.
This was also a condition that was frequently encountered in earlier years at the
beginning of the season.
The peak of the harvest of Gravenstein apples (early apples which compose the
greater part of the crop in Sonoma County in which Sebastopol is located) comes in
mid-August, and at that time the Respondent fills its cold-storage plant and ware-
houses and then puts the excess on or under its porches and even in the open. Each
year during the peak of the Gravenstein season, the early apples come in faster than
they can be used in the cannery, and, with storage rooms full, some of the apples
are left in the open until they can be run off in the cannery. Some of the apples
which are piled in boxes in the open, especially those in the top boxes, if not cov-
ered, will get sunburned, and the sunburned part of the apple will be cut off by the
trimmers in the cannery along with blemishes, wormholes, etc. Silva, who had been
the Respondent's superintendent between the spring of 1952 and the spring of 1954,
testified that about one-sixth of a sunburned apple might have to be cut away.
It takes about 2 weeks to use up the overflow of apples in the open after the peak of
the harvest. This appears to have been true in 1954 also.
According to the Respondent's witnesses, the Respondent became concerned about
the prospect of spoilage of apples late in August. One of these witnesses was Ezra
Briggs, a director of the Respondent and also chairman of the board of directors of
the Co-op. According to Briggs, he told Manager Martini on about August 27, 1954,
that the culls were increasing and that they should either be canned or sent to a
drier. He testified that Martini answered that he thought the crop was at the peak
and that he could handle it. Briggs testified that on about September 5 to 10 he again
raised the subject of disposing of the culls and that Martini agreed that the overflow
was beginning to spoil and said he would find some place to put them. Briggs
told Martini, he testified, that the Co-op would can them for him or would take them
to a drier and that Martini replied that he would hunt up a place right away. Briggs
testified that at a special directors' meeting, the pileup and spoilage was mentioned
but no action was taken on it-it was just left up to Martini and the cannery com-
mittee (which had authority only to make recommendations to Martini).
Evidence as to a decision by the Respondent to authorize Martini to send apples to
the Co-op to be processed (which it was conceded he would need) was vague.
Martini, himself, did not testify that he made the decision, but on Monday, September
1.3, shipments of apples from the Respondent to the Co-op for canning began.36 It will
ae About 74 or .75 tons of apples (according to one of the Respondents' exhibits) had been
sent, by the,Respondent to the Co-op for canning in July 1954 because the Respondent
had an order for 15,000 cases of applesauce in a small sized (8 oz.) can which the Re-
spondent was not equipped to seal. The General Counsel does not contend that this ship-
ment was made for any reason other than the one given.
SEBASTOPOL APPLE GROWERS UNION 1203
be remembered that the Co-op had just laid off one shift as of Friday , September
10. Between September 13 and October 15, the Respondent delivered 1,358 tons
of apples to the Co-op for canning for the Respondent , allegedly for the sole pur-
pose of avoiding spoilage of apples. Manager Martini and Rollo Winkler, vice
chairman of the board of directors , testified that in 1954 the spoilage amounted to
700 tons of apples as compared with 25 or 50 tons in 1953, and Martini testified
that the spoiled apples were dumped in the fields or in a trench and covered up.
Martini had not mentioned such spoilage or disposition in an affidavit he had made
some time before the hearing. Where :Martini and Winkler got the 700-ton figure
does not appear. do Winkler's case , it sounded like hearsay . No records were of-
fered to substantiate this testimony of the disposal of 700 tons of waste. I find it
impossible to believe that such loss in fact was suffered . Records which were pro-
duced at the hearing accounted for the use of the entire tonnage of apples received
by the Respondent in 1954. None of it was shown as waste.37 Winkler testified that
concentrate is made from peelings and cores. Apples too small to peel are sold
for juice. The only part thrown away is that which rots. I infer that a certain amount
of waste may remain after the making of concentrate . Perhaps this waste was in-
cluded in the 700-ton figure.
Winkler's testimony did not appear Zoo consistent to me, and his testimony tended
to be given without accurate basis in a number of instances. He testified that the
apples began piling up outdoors in the latter part of August and that they were there
long enough to begin to rot-3 or 4 weeks. I believe his estimate of time to be
exaggerated, but assuming for the sake of argument that they were outdoors for 4
weeks, that would mean that they were there at the latest until late September. De-
liveries to the Co-op started on September 13. Therefore, deliveries would have
been made to the Co-op only until about September 28 instead of until October 15.
Winkler testified that the "decision to turn the night shift loose was made after we
had worked this surplus fruit out of the way and the remainder of our fruit was left
in cold storage where we could handle it." But the decision to lay off one shift
was made on October 12, and the evidence clearly shows that apples were taken
to the Co-op from the cold-storage plant before that date as well as after.
If the testimony of John Gregori, a member of the Respondent, is accurate as to
date, he hauled about 500 tons of the Respondent's apples which had begun to
spoil to dryers in the latter part of August. Because Gregori was only a member
and not an officer or director of the Respondent , I make no finding with respect to
the testimony of Marie Tripp that Gregori made a statement in the nature of an
admission . Records in evidence show that a total of 848 . 9 tons of apples went from
the Respondent to dryers before October 15 and 18.18 after that date. The total
amount sent to dryers in 1954 is a smaller quantity than in either of the next 2 pre-
ceding years . Yet the evidence shows that it is fruit too poor to can which goes to
the dryers . If so many bad apples were in the crop , the proportion sent to dryers
would be expected to be greater . Although Respondent 's witnesses testified that the
dryers could not take more apples from the Respondent in 1954, I am not con-
vinced that this testimony was true. It does not appear why the dryers would be
able to take less tonnage from the Respondent in 1954 than in prior years.
Apples used in the cannery are started on their way by being dumped onto a
conveyor by an employee called the dumper . The apples then cross rollers where
employees called sorters pick off the rotten apples and any that would not peel.
The remaining apples go over an eliminator belt where small apples , called juice
apples, are removed. The rest of the apples then go into a flume into the cannery.
Clarence Storey , the day-shift dumper during the 1953 and 1954 seasons ( until the
October 15 layoff ) testified that he saw no more rotten apples in 1954 than in 1953.
He also testified that he kept a record of rotten and spoiled apples removed at his
station for the Respondent 's records . If his testimony was not accurate , the Re-
See the following tabulation :
Total tonnage received ----------------------------------------- 16,741. 04
Packed as fresh fruit --------------------------------- 4,648.48
Sold to other processors_ -- 1,121.51
[I infer that these outlets were S & W5', Blaufus, Macomber,
Russell Taylor]
Dryers------ ---------------------------------------- 867.08
Co-op (for canning) ---------------------------------- 1,432.80
H. H. Rider ( juice apples ) ---------------------------- 205.92
Cannery -------------------------------------------- 8,465.25
Total ------------------------------------------ 16, 741 . 04 16,741.04
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent needed only to produce the records, but it did not do so. I infer that all
but a negligible quantity of the apples unfit for use in the cannery were used for
juice, cider, concentrate, or drying, and that such apples are accounted for in the
Respondent's records accordingly.
I am not convinced that the need for getting the assistance of the Co-op be-
ginning on September 13 was as pressing as was represented, if at all. According
to Martini's testimony, the overflow of apples in the yard would have been worked
off in 2 or 3 weeks from the peak of the Gravenstein period, which came around
August 20 to 23; so, according to him, the overflow would have been gone by
September 10. That would leave only the apples in cold storage to be disposed of.
There are indications in the testimony of the Respondent's witnesses that they
tended to shade their testimony and to exaggerate the need for disposal of the
apples even from cold storage.38 Briggs also testified that Gravenstein apples from
cold storage as well as from the open yard went to the Co-op because they were
spoiling-"a bruised apple in cold storage don't hold up." I cannot conceive of
the removal of apples from cold storage by the Respondent for shipment to the
Co-op for canning unless the situation was truly desperate or unless the Respondent
had an ulterior motive in disposing of its apples in that way, for it would greatly
increase the cost to the Respondent to have the Co-op process the apples for it.
Not only would the Respondent have to pay a processing fee to the Co-op but it
would have to pay to ship the apples to the Co-op and would have to pay to have
the canned goods shipped back to it.39
Gravenstein apples in cold storage in former years had held up for canning for
as long as 3 months. The only plausible explanation offered for the inability to
keep them in cold storage for as long a time in 1954 was that the culls were more
bruised than in former years. This occurred, according to the Respondent's
witness, Briggs, because of the large crop, and the fact that the culls had to be
run through the packing shed faster and so got rougher handling.448 Even granting,
for the sake of argument, that this could have happened, I am not convinced that
removal of apples from storage, not only on September 13, but fora solid month
thereafter until October 15, was dictated by a desperate need. Although apples
begin to go into cold storage at the beginning of the season, in the latter part of
July, those apples would not be the ones that would be expected to be still in cold
storage on September 13, for the Respondent's cannery, with 2 shifts operating,
could use from 60 to 100 tons a day, so the apples would be going out of cold
storage at a steady rate for cannery use until the peak of the Gravenstein season
brought apples in too fast; so the first apples in would not be the last ones out.
It is doubtful that the cannery apples in cold storage in mid-September had been
there longer than 5 or 6 weeks. If apples in the open would hold up until they
were worked off in 2 or 3 weeks, as had been true in former years and as I infer
from the testimony could have been done in 1954, I am convinced that the apples
in cold storage were not in desperate condition on September 13 or thereafter.
The Respondent, in presenting a picture of apples spoiling in cold storage made
no effort to differentiate between culls and orchard-run apples, although the latter
were capable of being kept longer than culls because the bloom had not, been removed
from them.
The Respondent, according to its own evidence, decided on October 12 that its
warehouses were filling up with canned goods and that, because of that and a
prospective shortage of apples 41 it was necessary to lay off one shift. But if such
18 Briggs put the peak of the Gravenstein season as on September 10, 3 weeks later
than Martini did. It is difficult to understand why the Co-op would be laying off
employees right at the peak of the season, if September 10 were the peak. I do not
credit this testimony of Briggs.
as Counsel for the General Counsel, in his brief, points to figures tending to show that
it cost the Respondent more to have the apples processed by the Co-op than the average
price for which the Respondent sold the product.
4" Alfred W. Cook, supervising agricultural inspector for Sonoma County, who was at
the Respondent's plant every day for several hours in the 1954 packing season,, confirmed
that there was a large cull-out because of sunburn or sunscald, but he testified that the
machines in the packing shed were slowed down to give the workers time to remove
culls. This would indicate that the culls would not be handled any more roughly because
of haste, since the machines were paced to the workers' speed.
11 Martini testified that lie estimated the remaining quantity of apples to be received
from growers after October 15 to be about 250 tons. So from October 18 to December 11,
SEBASTOPOL APPLE GROWERS UNION 1205
facts were known on October 12, why should the Respondent continue to send
apples out of cold storage to the Co-op for canning on October 13, 14, and 15,
thus, in effect, running 3 shifts for an additional 3 days instead of immediately dis-
continuing the Co-op shipments? In those 3 days the Respondent shipped about
136 tons of apples to the Co-op.42 It is difficult to believe that the apples shipped
to the Co-op on those 3 days would not have lasted until used up in the Respondent's
own cannery even if such apples had not been of the most lasting quality. The
apples remaining in cold storage after October 15 would have had to remain in
cold storage longer when only 1 shift was using them than if there had been 2
shifts using them, and that apparently was not cause for concern.
It is also difficult to believe that the rapid filling of the warehouses with canned
goods resulting from the utilization of the Co-op's facilities as well as its own was
something that just dawned on the Respondent on October 12. It was a condition
that any management must reasonably be expected to have foreseen. Knowing that
the warehouses would take no more canned goods if 3 shifts were used, counting
the Co-op's processing as the equivalent of 1 shift (evidence is lacking of the rate
of production by the Co-op), the Respondent might be expected to eliminate the
costliest shift (the Co-op) first so as to permit sales and shipments to catch up to some
extent with manufacture. But this was not done. The supply for the third shift
(the Co-op) was continued until the very day of the layoff of the Respondent's
night shift. No evidence was adduced to disclose when the apples delivered to
the Co-op were canned and returned to the Respondent. When asked when the
Co-op finished delivering the canned product to the Respondent, Martini was unable
to answer with any degree of certainty. The bulk, he testified, came back upon pack-
ing, but when that may have been is not specifically shown. If it did not come
back in 1954, Martini agreed, it came back early in 1955. By use of figures in evi-
dence, I conclude that the Co-op canned and returned to the Respondent about 25,000
cases of applesauce after October 15, 1954.43 If the apples delivered to the Co-op
could not, in such a substantial amount, be packed until after October 15, I can
see no rational or credible explanation for sending the apples to the Co-op for can-
ning that was to be done after October 15 when the Respondent could have retained
its own second shift and canned the sauce itself just as fast and cheaper. And, it:
may be asked, where were the apples which were waiting to be canned at the
Co-op? Did the Co-op set them aside in cold storage, in warehouses, or in the
open? The fact that the Respondent sent to the Co-op apples that could not be
packed for some time after October 15 but laid off its own employees to reduce its
own production after that date is a potent argument in support of the General
Counsel's contention that the apples were sent to the Co-op so that the Respondent
could effect a layoff before the date of the union election and thus affect the result
of that election. And this conclusion would be warranted even without evidence
adduced by the General Counsel of a verbal admission by the Respondent's superin-
tendent. Frank Unciano, a nonunion employee, testified credibly that outside the
warehouse, about 3 weeks before the layoff of October 15, he asked Superintendent
Duckworth why they were sending off the apples to the Co-op and that Duckworth
replied that "he was trying to finish all the apples as fast as they could, because
they were afraid the Union was going to get in.... " He also testified that Duck-
worth said "he don't want to do business with the unions, he don't want to sign
when the cannery closed for the season, the single shift would have been using those
plus what was in cold storage. From figures in evidence, I would estimate that at least
550 tons of apples came from growers after October 15.
42 This would produce approximately 6,800 cases of applesauce in No. 303 cans.
4a The Respondent had an inventory of 27,392 cases of No. 303 applesauce on June 30,
1952. As the canning season did not begin until mid-July 1954, the inventory apparently
was part of the 1953 pack. By October 15, 1954, the Respondent itself produced 155,830
cases of No. 303 applesauce. That made a total of 183,222 cases. Up to October 15,
1954, the Respondent had shipped out 55,953 cases of No. 303 applesauce., If the Co-op
had not packed any for the Respondent, the Respondent's inventory on October 15 would
have been 183,222 less 55,983, or 127,239. But its inventory was actually 167,009 cases
of No. 303 applesauce on that date. Since the Co-op canned only No. 303 cans with
applesauce for the Respondent from the apples delivered to it after September 13, 1954,
I conclude that the difference between 167,009 and 127,239 represented the number of
cases processed by the Co-op for the Respondent before October 15, 1954. This difference
is 39 ,970. As the Co-op produced a total of 65,322 cases of No. 303 applesauce for the
Respondent from the apples delivered between September 13 and October 15, I conclude
that the difference between 39.970 and 65,322 represents what was delivered by the.
Co-op to the Respondent after October 15, 1954. This amount is 25,552 cases.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or whatever happens. . . Although Duckworth denied that he had made
such statements, I do not credit his denial, and I find that Duckworth made such
statements as testified by Unciano.
I am not persuaded that the apples shipped to the Co-op from cold storage were
only such apples as could not be used up in time to keep them from spoiling if they
were used by two shifts in the Respondent's cannery. I have already shown that
the Co-op did not can all such apples by October 15. According to the Respondent's
figures. it had an inventory of 1,396.15 tons of cannery apples on October 15. With
only 1 shift, those apples would have had to wait twice as long to be processed
as they would have with 2 shifts. There is no evidence to show that only early
apples were delivered to the Co-op or that no early apples remained in cold storage
after October 15. And as previously stated no differentiation was made between culls
and orchard-run apples. Martini testified that the picking of Gravenstein apples
began about mid-July and ended about August 20 to 25, but that the cannery con-
tinued to use Gravensteins through the month of September. I infer therefore
that the Gravenstein apples were used up or transferred to the Co-op by the end
of September. Late apples began to come in during September, after the Gravenstein
peak, and culls from late apples would have been coming from the packing sheds
throughout that month. The amount of culls from apples other than Gravensteins
was small in comparison with those from Gravensteins, according to records intro-
duced in evidence by the Respondent. Yet if Director Ezra Briggs were to be
credited, the culls, even at this date were of such poor quality that they could not
be put in cold storage because their condition was too poor and therefore they had
to be sent to the Co-op lest they become worthless. One wonders what disposition
was made of the culls after October 15, if they were of such poor quality up to that
date. Briggs' testimony would require the conclusion that, of the apples coming in
up to October 15, the culls were too poor to be put in cold storage whereas the
culls of those coming in after October 15 were of a quality to keep in cold storage
long enough to be worked out on one shift. His testimony taxes credulity. I can-
not believe that the improvement in quality came about so suddenly; and if it did
not come about so suddenly, many of the apples sent to the Co-op, if they came
direct from the packing sheds without going into cold storage, must have been late
apples that could have been kept in cold storage for at least another month or two.
Although it is possible to believe that good business judgment coud have dictated
the delivery of some apples of an overly large crop to the Co-op for processing to
avoid spoilage, I cannot believe, in view of the cost involved, that good judgment
dictated the delivery of such large quantities of apples (much of which was not in
danger of spoiling) to the Co-op for processing unless the Respondent had an ulterior
motive. Martini testified that there had been an overflow of apples into the yard
during the peak of the Gravenstein season in each of the three seasons from 1952
to 1954. But only in 1954 were any apples processed for the Respondent at another
cannery to avoid spoilage. Martini testified that it might have been wisest to send
the overflow to another cannery in the other years, too, but that at such time the other
canneries were in the same fix the Respondent was in. I infer that, when apples
were sent to the Co-op beginning on September 13, 1954, the rush of Gravensteins
was past and the overflow of apples in the yard (i. e., those stacked in the open)
had been pretty well worked off in the Respondent's own cannery; for if the peak
of the harvest had not well passed, the Co-op would still have been hard pressed to
process its own apples and could not have accepted work for the Respondent. I am
assuming that the Co-op did not run a third shift in order to process the Respondent's
apples, for it would not make sense to deliver apples to the Co-op for processing
by a third shift inasmuch as the Respondent could have run a third shift, itself,
cheaper than paying the Co-op to process the apples if a third shift had been a
feasible solution. I conclude on all the evidence that the Respondent's witnesses
exaggerated the seriousness of the situation 44
From the foregoing it may be concluded that, if the Respondent was running
short of warehouse space on October 12, when it decided to lay off its night shift,
it needlessly brought the situation on itself by its diversion of apples to the Co-op
in pursuance of an illegal object. However, close scrutiny of evidence refutes the
Respondent's claim of a shortage of warehouse space on October 12 or 15, 1954.
In 1953 the Respondent had a number of scattered packing sheds and warehouses
in which it stored canned goods. The cannery building itself had a warehouse
41 In 1954 the Respondent had about 870 tons more Gravenstein culls than in 1953.
The Respondent , with 2 shifts, could ran off that amount within about 2 weeks of
canning. A total of 1,432. 8 tons of the Respondent ' s apples were processed by the
Co-op for the Respondent in 1954, 1,357 tons after September 13.
SEBASTOPOL APPLE GROWERS UNION 1207
which Martini testified was classed as a 100,000-case warehouse. It had a capacity,
however, of nearly 114,000 cases. This was the only actual warehouse the Re-
spondent had before 1954, although the Respondent in prior years had made use
of some of the packing sheds for warehouse purposes. The packing sheds were not
insulated, however, and cans stood a chance of getting rusty in damp weather. In
1952 there was some such damage. This, Martini testified, was the reason for not
using the packing sheds for warehouse purposes in 1954. That reason had not been
given by him in his affidavit, where he mentioned only the high handling costs and
the weakened condition of the floor of one shed. In 1953, in addition to the cannery
warehouse, the Respondent used a partially enclosed porch attached to its cold-
storage building (where 70,000 cases were stored), a porch on the cannery building
(which took about 6,000 cases), and it installed a heater in one cold-storage room
so that after that room was empty of apples it could be dried in a couple of days
and used for warehouse purposes. This cold-storage room had a capacity of close
to 140,000 cases. Thus, without use of packing sheds or uninsulated warehouses
(other than the porches), the Respondent, in 1953, had room for around 330,000
cases of canned goods. According to the Respondent's inventory, it had 252,166
cases on hand on October 15, 1954. Thus with no more than its 1953 capacity and
without use of the packing sheds, it still had space for about 78,000 cases, and taking
into account that at that time of the year the Respondent's shipments were about
4,000 cases a day and that each shift produced between 1,700 and 3,000 cases a
day, according to Martini's testimony, the Respondent in all probability had suffi-
cient warehouse capacity for the production by 2 shifts after October 15, 1954.
But even if it would not have had enough room with only its 1953 warehouse
capacity, it had adequate space in 1954, because early in the 1954 season, the
Respondent finished and used a new, insulated warehouse with a capacity of 180,000
cases. If this were added to its 1953 warehousing capacity, the total 1954 capacity
would have been 510,000 cases without use of packing sheds. Its total production,
including all that was processed by others for it, in the 1954 season, was 494,657
cases. Therefore, if the Respondent made no shipments, there would have been
sufficient warehouse capacity for its full production; but before October 15, 1954,
it had shipped a total of about 145,124 cases and, by December 11, 1954, when
the cannery closed, a total of 217,660 cases had been shipped.45 It would appear,
therefore, that the Respondent would not have had need for space for its full year's
production and therefore there would have been an overabundance of space all
through the 1954 season.
With respect to the 1 cold-storage room (there being 2 such rooms, of equal
size) in which a heater had been installed in 1953 and which was used for ware-
house purposes in that year, Martini testified that it was not used in 1954 'because
there were apples in there and because it would take about 10 days to 2 weeks to
dry it out after it had been emptied. Former Superintendent Silva, who supervised
the installation of the heater in 1953, testified that, without the heater, the cold-
storage room would have to be aired out for a week before using it as a warehouse,
but that, with the heater, it could be dried out in not more than a couple of days.
I conclude that inability to dry the cold-storage room out soon enough to avoid
laying off one shift was not a contributing cause for the layoff. No evidence was
offered to show that more or less than one cold-storage room was actually needed
for fresh or cannery apples after October 15. Martini did testify that there were
apples in both rooms from July 1954 to January 1955, but he also testified that in
1954 one cold-storage room was "finally" used for warehousing canned goods. The
two statements are not quite consistent. Furthermore, Martini did not say that
apples in the 2 cold-storage rooms could not have been consolidated in 1. I infer
from other facts in evidence that they could have been, if storage space for canned
goods had been needed. There was testimony that most of the fresh fruit had been
shipped by mid-September.46 So presumably the fresh fruit in cold storage after
that date was in small amounts. The evidence also shows that, after delivery of
1,350 tons of apples to the Co-op between September 13 and October 15, the Re-
spondent had an inventory remaining of 1,396.15 tons of cannery apples in cold
storage. The proportion of apples sent to the Co-op from cold storage is not shown,
but on the basis of a justifiable conclusion that the overflow of apples in the yard
45 The net reduction of inventory would be smaller by 39,595 cases, on hand on June 30
from the prior season.
4U Briggs testified that on September 1.0 one cold-storage room was filled with culls
and one with fresh apples to be shipped, but he also testified that most of the fresh fruit
had been shipped out of cold storage by mid-September.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was eliminated by mid-September,47 most of the apples sent to the Co-op must have
come from 1 of the Respondent's 2 cold-storage rooms. If one room had not been
completely emptied -by October 15, it must have been so nearly empty that it could
have been readied by the time that the remaining space in the warehouses and
porches was filled.
I find the testimony of available storage space on October 15 as given by the Re-
spondent's witnesses to be misleading. Warehouse Foreman John Aguire testified
that on October 15 both warehouses were filled and that any room after that was
made by what was removed for shipping but he did not say that no other space was
available elsewhere than in the two warehouses. Toni Bondi, chairman of the board
of directors, testified that on October 12 there was still room for an estimated 15,000
to 20,000 cases in the new warehouse. Manager Martini testified that both ware-
houses were filled early in October and that afterwards they filled in from wherever
cases were removed for shipping. Martini did testify that "some" of the canned
goods were moved to the cold-storage porch, which they began to use early in
October, but he did not testify that it was used to capacity. This porch had a po-
tential capacity of 50,000 to 70,000 cases, depending on whether Martini's or Silva's
estimate is taken, but little mention of it was made by the Respondent's witnesses.
By the testimony of those of the Respondent's own supervisory staff who testified,
the warehouses had a capacity of 280,000 cases. I find this to be a conservative
estimate. Even without the use of the porches, this would have more than held the
252,166 cases which are shown by the Respondent as on hand on October 15 in its
inventory. It does not appear, therefore, that, in any event, the cold-storage room
was the only remaining available space on October 15, as the figures would indicate
that there was easily room for 28,000 cases in the warehouses before resort would
have needed to be made of either the porches or the cold-storage room 48 In 1952
and 1953 with a smaller tonnage of apples, the Respondent did not terminate its
night shift until November 6 and November 20, respectively. In view of the pre-
ponderance of the evidence, I find that lack of warehouse space on or after October
15 was not a reason for the reduction in production rate. This being the case, the
question is one only of the sufficiency of apples for a second shift. Even without the
apples which had been sent to the Co-op, enough apples remained so that there
would have been no pressing necessity for laying off the second shift before the elec-
tion. The fact that the Respondent, under such circumstances, hastened to make
the layoff before the election, warrants the conclusion, especially in the light of all
the evidence, that the Respondent desired to lay off a substantial number of its em-
ployees before the election for the express purpose of affecting the result thereof. By
such conduct, I find that the Respondent discriminated in regard to the hire and
tenure of those of its employees whom it laid off on October 15, 1954, in violation
of Section 8 (a) (3) and (1) of the Act.
(b) Selection of employees for layoff
In 1951 the Respondent had only one shift. In each of the years 1952 and 1953,
when the Respondent terminated the night shift, it laid off the staff of that shift, keep-
ing only such night-shift employees as could be used on the day shift, without laying
off any of the day-shift crew. Although Manager Martini testified that some em-
ployees of each shift were retained on the single shift in earlier years, I find that his
testimony was misleq..ding.49 Former Superintendent Silva testified that in 1952 and
1953 only the night crew was laid off when the night shift was terminated and that
none from the day shift was affected. Floorlady Herrerias testified that of the night-
shift crew in 1953 only she and Mary McGuire, who was a laboratory employee and
the mother of Sales Manager McGuire, were transferred to the day shift. Carmelita
4', In addition to evidence of this previously stated, there is testimony by Bondi, chair-
man of the board of directors, that in mid-September Martini told him they had just
begun to run apples from cold storage.
98 Dora Rawles testified that on October 15, after the warehouse meeting at which
employees were notified of the layoff, she. Pauline Ploxa, and Ida Fishelson went to
Martini to tell him their names were on the list to work but that they could not work
days because they had children. Rawles quoted Fishelson as saying, in this conversation,
that she had a warehouse in Santa Rosa that the Respondent could rent, and Rawles
quoted Martini as replying that "there's more to it than that." Martini did not remember
and so denied that any employee had offered a warehouse. But even if Martini had
made the quoted statement, I do not view it as necessarily an admission against interest
and I base no conclusion thereon.
40 Although Martini had just become manager in 1954, he had been a member of the
Respondent since 1940 and would have had some knowledge of operations in earlier years.
SEBASTOPOL APPLE GROWERS UNION 1209
Montafi, who had been day-shift floorlady in 1953, testified that Herrerias gave her
a list of the women from the night shift that she wanted to retain and, if there was
any room for them on the day shift, she would put them on. When the termina-
tion of the night shift was directed in October 1954, however, the Respondent laid
off employees from each shift. The supervisors (not including the day-shift floorlady)
were directed to make up a list of the employees they wished to retain from both
shifts.
If credit could be given to the testimony of the supervisors who made their se-
lections of workers, the selection was on the basis of ability and, where that was
equal, on seniority. However, I find that such testimony was not the whole truth.
In some instances , perhaps, ability and length of service during that season were
considered. But the evidence indicated a definite tendency to make an employee's
attitude toward the Union a criterion, and in the case of active prounionism, the
principal criterion in selecting employees for layoffs. In the first place, Superintendent
Duckworth, night-shift Foreman Williams, and night-shift Floorlady Herrerias were
the supervisors who made final determination of the employees to be retained. Each
of these three had evidenced strong antipathy for the Union. Warehouse Foreman
Aguire and Head Mechanic Steve Struempf (whom I find to be a supervisor) each
turned in to Duckworth a list of names of employees they wanted to retain, but
they did not remain in the conference long and did not make final determination.
Although the Union was not well represented among the male employees, most of
whom worked under Aguire or Struempf, the majority of male union advocates were
among those laid off, too. Edna Hardin, who had been the day-shift floorlady for
most of the 1954 season up to October was, at the time of the meeting to select em-
ployees for the layoff, working in the office of the cannery on the balcony quite close
to the storeroom where the meeting of supervisors was held. But not only was
Hardin not invited to attend the meeting, she was not even consulted about the
ability of the respective day-shift employees. As the day shift had only a temporary
floorlady on Thursday and Friday, October 14 and 15,50 Hardin was the one best
qualified to determine the merits of the respective day-shift workers. Although she
was not in favor of the Union, Hardin appeared disposed to be neutral.
Evidence that the selection of employees for layoff was made on the basis of
known or suspected union sympathy appears not only from the deviation from past
practice but also from the disproportionate number of union sympathizers, as
compared to nonunion employees laid off, from the selection for layoff of almost all
of the employees who were on the union committee, and from the fact that, where
the evidence reveals knowledge by the Respondent before October 15 that an
employee was outspokenly prounion, such employee was, almost without exception,
laid off. Herrerias denied the correctness of an affidavit which she had made in
February 1955, in which she deposed that Duckworth had informed her on Monday
(October 11, 1954) that the plant was going to one shift on Friday (October 15),
that she would then be the day-shift floorlady, and that she should make up a list
of which workers she wanted. In her affidavit, which she sought to discredit at
the hearing, she quoted Duckworth as saying: "'Pick out your best workers and
get as many as possible who are nonunion'-or words to that effect. He may
have said to get rid of the prounion people, or the `trouble-makers'.... ' In her
testimony, Herrerias said that Duckworth "only said to me to pick out my best
workers and anybody that was giving me trouble." Asked by Respondent's counsel
if any employees had given her trouble, Herrerias answered "a few," but the only
one she named as giving her trouble was Pauline Ploxa, who had had a fight with
another girl and had to be separated from her. But Ploxa, as previously related
herein, had given Herrerias reason to believe that she was not prounion and it is
significant that although she was the only one whom Herrerias could name as a
troublemaker, other than in the sense of union advocate, Ploxa's name was on the
list for retention after the layoff as read at the meeting of October 15, 1954. Even
if Duckworth used the expression "troublemakers" or those "who had given
trouble," as she testified, instead of "prounion employees" in instructing Herrerias
whom to eliminate, I conclude that Herrerias correctly understood Duckworth to
mean "outspoken union sympathizers," and I find that Herrerias made up her list
accordingly to eliminate such employees.
so Hardin's successor as floorlady, when Hardin was ill, remained only a short time.
On Thursday, October 14, Eva Lee, a prounion employee, was asked by Head Mechanic
Steve Struempf to be temporary floorlady on the day shift. Lee was among those laid off
on October 15, 2 days after being appointed floorlady, although she had been hired on
July 20, near the beginning of the season. I draw no inference that the Respondent
favored a union employee by making her a floorlady for 2 days before terminating her
employment.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If the Respondent had possession of the purloined list of union applicants before
the supervisors met in the store.oom on the cannery balcony on October 14 to make
up the list of employees to be retained, it would have been able to identify most
of the union applicants. Some who had signed cards for the Union were not on
the list, however, perhaps because they had either signed their pledge cards too
recently or had signed at another plant and had not yet been transferred by the Union
to the list of Respondent's employees. But even by the testimony of Erma Bate, who
gave the list to Herrerias, she gave it to Herrerias on the night of October 14 after
the retention list had apparently been made up by the Respondent. Of course, the
list of those to be retained might have been altered before Friday afternoon, if the
Respondent had received it before then and if it had desired to eliminate all known
union advocates on the basis of the information given on the purloined list. But,
as previously stated, I do not rely on-evidence that the purloined list was delivered
to Herrerias on October 14, in drawing my conclusions. However, even if the
Respondent had a list of union applicants, I would not expect that it would eliminate
all of them. Such a course would not have been essential, wise, or even desirable
from the Respondent's point of view. If the Respondent's purpose was to cause
the Union to lose the election, it was not essential to lay off all union advocates-it
was sufficient to lay off only enough to assure a majority vote against the Union;
it would not have been wise to lay off all union employees because the layoff would
have been too obviously an antiunion move; and it' would not have been desirable
because some of those laid off would be numbered among the Respondent's best
workers. Actually, 20 of the women and 2 of the men (of those still employed
on October 14) whose names were on the purloined list were designated for retention,
according to General Counsel's Exhibit No. 36.51 In all, 84 women employees,
still employed on October 14, were named on the purloined list. The Respondent
therefore retained less than one-fourth of these. Only 5 men were named on the
purloined list and 2 of these were retained. One of the two (Jose Garcia) had been
employed since March 1954, before the season commenced. The other (Ray
Panelli) had been employed on July 13, 1953, the season before and was the only
truckdriver shown on the employment list.
There were 27 women and 2 men named as on the Union's organizing committee.
Of these, four women were listed for retention. Neither of the male committeemen
was retained. One of the four women shown by General Counsel's Exhibit No. 36
as expected to be retained was Gloria Pate, who was told on October 18 that she
was not supposed to be on the list, and she was dismissed. Erma Bate, one of the
women named as on the committee, but who delivered the purloined list to Herrerias,
was not on the retention list but was reemployed on October 18.
Of the 17 women and 8 men who had signed union authorization cards (while
employed by the Respondent) but whose names were not on the purloined union list,
only 2 women (Elizabeth Augustine and Josephine Geist) and 1 man (Wayne Smith)
were listed for retention. Five of the seventeen women whose names were not on
the purloined list had been hired in October.52 Three of the sixteen women in
this group who were laid off were, however, reemployed, I on October 18 (Edyth
Wasin), 1 on October 20 (Oma Bridges) and 1 on October 28 (Julia Row). One of
the seven men in this group who had not been listed for retention, was nevertheless
in the Respondent's employ on and after October 18 (Willy Augustin), and another
man in this group was rehired on October 20 (Arthur Heflin). The latter had first
been employed on October 4. Leonard Lee was one of the seven in this group who
was laid off. Both he and his wife were on the union committee. He had been
employed on July 23, 1954, and he was not reemployed.
(1) Employees ineligible to vote
As of October 14, 1954, there were 186 nonsupervisory women and 67 nonsuper-
visory men listed as on the payroll.53 In determining the effect of the layoff on the
61 Two of these twenty women did not work continuously up to October 15 and did not
return thereafter. One of the twenty women (Pate) was told her name was not supposed
to be on the list and her employment was terminated on October 18, the day before the
election. Most of the 20 had been hired early in the season, 14 of them in July 1954.
This is not taken to mean that the Respondent was following strict seniority because
33 other employees who were hired just as early in the season were laid off.
52 The majority of the employees hired after October 2, the date of eligibility to vote in
the union election, were laid off, although some of them were later reemployed.
13 Although certain exhibits show a hale employee named Fay Neel with a hiring date
of June 7, 1954, the evidence shows that he did not work for the Respondent after
July 31 until lie was hired on October 16 as a watchman. Another employee, Henry
SEBASTOPOL APPLE GROWERS UNION 1211
October 19 election, the employees hired after the date of eligibility to vote may be
eliminated from consideration. Since 18 women and 3 men were hired after October
2 (the eligibility date), that many could not have voted anyway. But the statistics
on even these are interesting, for of the 18 ineligible women, 12 were not listed for
retention, but 6 were. Some of the six did not in fact work after October 15,
probably, as in the case of Patricia Zimpher, because they could not work days.
Of the 12 who were laid off, 7 had signed union cards, 5 had not. One of the latter
five laid off had the same surname as a union applicant whose name was on the
purloined list and who was laid off. Of the 6 women who had been hired after the
eligibility date but who were listed for retention, 5 had not signed union cards
while one had. None of the three ineligible men was on the retention list. But of
the ineligibles who were laid off on October 15, 2 women and 2 men were again
employed by the Respondent before October 25. Neither of the 2 women reemployed
had signed a union card. Only one of the 2 men reemployed had signed a union card
(Arthur Heflin), but his name was not on the purloined union list. The name of
only one of the entire ineligible group appeared on the purloined union list (Lois
Thornton). She was laid off and was not reemployed.
(2) Employees eligible to vote
The number of employees eligible to vote on October 19 who were in the Respond-
ent's employ as of October 14 was 168 women and 64 men. Of these, 97 54 women
and 11 men had signed union cards. Of the eligible-voter group, 72 women and
37 men were listed for retention. Considering, first, the proportion of these who
had signed union application cards, the evidence shows that of the 72 women listed
for retention, 22 had signed union cards while in the Respondent's employ, 3 had
signed earlier at other canneries, and 1 for whom no card was introduced in evidence
was listed on the purloined union list and so is presumed to have signed a card.
This makes a total of 26 women who had at some time evidenced approval of the
Union who were to be retained. As against the 26 out of a total of 97 union-minded
women (or approximately 28 percent), 45 out of 72 nonunion women (or about
72 percent) were listed for retention. There is evidence, however, that the Re-
spondent's supervisors had reason to believe that some of those here counted among
the union-minded women were actually nonunion minded, and that some of those
laid off who were in fact nonunion were or may have been thought to be union
minded. For example, Herrerias had been told by Ploxa that Mary Seidel was
strong for the Union. Seidel did not sign a union pledge card, but she was among.
those not listed for retention. According to the witness, Ploxa, Herrerias believed'
that Clara Davello (who had signed a union pledge card) was antiunion. Davello
was listed by the Respondent for retention. Herrerias had been given reason to
believe that Ploxa and Rawles were nonunion. Perhaps they were. But since they
had signed pledge cards while working at the Co-op before their employment by the
Respondent, I have classed them here as union minded. They were both listed
by the Respondent for retention. By Herrerias' own testimony, she believed Louise
Chapson to be nonunion minded until she saw her name on the purloined union list
on Saturday, October 16. Chapson was listed by the Respondent for retention. On
the basis of the Respondent's belief, therefore, the difference between the foregoing
percentages would be increased.
Another instance of the influence of the Respondent's belief of the attitude of
employees toward the Union on the continuance of their employment is illustrated by
the following facts: Of those whose names were not listed for retention, several were
nevertheless in the Respondent's employ at the time of the election on October 19
and must be presumed to have been rehired. The Respondent did not officially keep
records of employee status or case histories. If an employee did not work for
several days, for whatever reason, the Respondent might make a penciled notation,
"Quit," but it did not state or attempt to state on its records the reason for or fact of
termination otherwise. Even the notation "quit" was of a mere presumption which
was disregarded if the employee returned. The personnel payroll records, therefore,
did not show who had been laid off. There were 13 women and 5 men not on the
retention list, not shown as rehired, but nevertheless shown by the Respondent as
in its employ on October 19. Of the 13 women, 7 had not signed union pledge
cards and 6 had. Of the 5 amen, 1 had signed a union pledge card and 4 had not.
Thus, 11 nonunion and 6 union employees were, in effect, reinstated or continued
Narron, was not on the retention list but he was given a job as watchman as of the
night of October 15. Neel was not shown on the October 2 eligibility list. Narron was.
I count Narron but not Neel among the 67.
"A few of these had signed their cards while elsewhere employed.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in employ although not on the retention list. But, again, if the Respondent's basis
for belief were taken into account, this difference would increase. The Respondent
contended that it did not have the purloined union list in its possession until October
16, but even this date was before any of such reinstatements were made, and if the
Respondent had relied on this list as evidence of identity of prounion employees,
only 1 of the 5 men and 4 of the 13 women so reinstated or retained would appear
to have been prounion. The names of the other 13 so reinstated did not appear on
the purloined list. But 1 of the 4 women whose names were on the purloined list
who was reinstated was Erma Bate, who had, herself, delivered the purloined list
to Herrerias.55
The General Counsel contends that the Respondent not only had the purloined
union list on October 14, when it made up its retention list, but used it in its selection
of employees so as to lay off a majority of union employees. If the purloined list
had been so used, some of those on the purloined list were still retained as the
following results indicate:
Women Men
The total number of employees named on the purloined union list----- 84 5
On Respondent's retention list of above number____________________ 56 19 2
However, I am not fully satisfied that the retention list, General Counsel's Exhibit
No. 36, was in fact, made up with the assistance of the purloined union list. I be-
lieve that the fact that the Respondent succeeded in laying off a much greater per-
centage of union than nonunion employees may be attributable, to a large degree,
to the fact that it made its selection of female employees to be retained mostly from
the night shift. An exhaustive study of the evidence convinces me that the Respondent
abandoned its past practice of laying off all the night-shift employees when termi-
nating that shift in 1954 so that it could make a selection of a greater percentage
of nonunion employees for retention. This would have been feasible from the
Respondent's point of view, first, because the greater percentage of the union em-
ployees was on the day shift and they could be identified by their union buttons and,
second, because Herrerias, through her methods of surveillance, was in a good
position to know who was and who was not for the Union on the night shift. The
following figures 57 reveal the effect of the Respondent's selection:
NUMBER AND APPROXIMATE PERCENTAGE OF EMPLOYEES
AFFECTED
On payroll October 14
Total
number
Pro-
union
Non-
union
On retention list October 15
Total
number
Pro-
union
Non-
union
Women:
Day---------------------------------- 86 73 13 25 17 8
Night--------------------------------- 82 23 59 46 9 37
Men:
Day- ------------------------------- 37 8 29 26 3 23
Night--------------------------------- 27 3 24 11 0 11
Total------------------------------- 232 107 125 108 29 79
From the foregoing it will be seen that the proportion of all nonunion employees on
the retention list in each case exceeds the proportion of all the union employees re-
tained. The total result is a substantial proportionate increase in nonunion em-
ployees. It is seen that almost twice as many women were selected for retention
from the night shift as from the day shift, but the opposite is true of the men, for
more than twice as many men were taken from the day shift as from the night
shift, Such a pattern appears deliberately designed to affect the result of the union
election.
The only two men on the union organizing committee were Clarence Storey, the
day-shift dumper, and Leonard Lee, a day-shift stacker. No stackers were listed on
55 The other three were Ruth Clark, Pastoria Hall, and Etta Urton.
5o This includes Gloria Pate, who was laid off on October 18, the day before the election.
57 See Appendix A hereto attached for names and other data employed here.
SEBASTOPOL APPLE GROWERS UNION 1213
the retention list. Salvador Chicano , the night-shift dumper, was retained. Al-
though not listed for retention , Joe Bertoni , a night-shift stacker, apparently continued
to work. Both Chicano and Bertoni were nonunion. Another stacker laid off was
Arthur Heflin, hired too late to be eligible to vote in the union election on October 19.
But immediately after the election Heflin was rehired. On the basis of seniority Storey
had a few days more than Chicano. Lee had 2 months more than either Bertoni
or Heflin. Although Heflin had signed a union pledge card about a week before
the layoff, his name was not on the purloined union list and there is no evidence to
inicate that the Respondent knew he was prounion. Yet during the week after the
layoff, between October 20 and 23, the Respondent hired 6 women, none of whom
had previously been employed by the Respondent , and in the week after that,
October 25 to 30, it hired 4 more women and 1 man none of whom had been
employed before. Another new woman was hired on November 6.
Twenty-two of the employees whose names were not read on the retention list
(excluding two watchmen) were either treated by the Respondent as retained or
were rehired at some date between October 18 and 30. A twenty-third was out be-
cause of an accident and returned on November 8. Among the 22 were several stu-
dents who worked only on weekends and 2 employees who had been out because of
illness. Of the 22, 9 had signed union pledge cards before the layoff while 13 had
not, but only 3 of the 9 were on the purloined union list and there is no evidence
that the Respondent had reason to believe that the 6 who had signed pledge cards but
whose names were not on the purloined union list (which Superintendent Duckworth
admittedly had possession of before any of these were rehired) were prounion.
The method used by the Respondent in making its selection of employees for re-
tention and the result effected of retaining a greater proportion of nonunion employees,
in the background of the antiunion attitude of the Respondent, evidences a clearly
designed , discriminatory selection of employees for retention.58
Although the Respondent claimed that the selection of employees was made by
picking the best workers, its evidence of what kinds of things were taken into account
were not shown except in a few cases where criticism of 1 or 2 of those laid off was
made or where a few retained were described as good workers.59 But even in such
instances , it appeared to me that the strongest criticism had its source in antiunion
bias. This was especially noticeable in the case of Clarence Storey, who was a fast
worker and appears to have been deemed a good worker until he became active
in the Union's organizational drive. The only material criticism made by the Re-
spondent before Martini warned him against talking about the Union on employer's
time was that he sometimes dumped so fast that he got more than enough apples in
the flume, with the result that the water in the flume would run over onto the feet
of the women on the peeler line, and, according to Respondent's evidence , he was on
a few occasions asked to slow down. He was never criticized for dumping
too slowly. Sometimes , after filling the flume, Storey would take a moment 's break
and go for a drink. Duckworth testified that several times during the season he had
warned Storey against leaving his post. Storey denied this and I credit his denial.
Criticism of his leaving his post, I am convinced , was not made until the Respondent
had reason to believe that Storey was active on behalf of the Union. After that, as I
view the evidence , the Respondent appeared to be suspicious of him every time he was
away from his post, even if he went only to the tell the forklift operator to bring him
more apples . If Storey was warned about leaving his post for any reason , it was not
until September 25 when his wife was discharged. Absent antiunion bias, it seems im-
probable that Storey would have been laid off. No comparison of working abilities
of Storey , the day-shift dumper, and Chicano, the night-shift dumper, was offered.
Whether or not Chicano was related to Virginia Chicano, whose name will be
mentioned hereinafter, is not certain.
Most of the women 's jobs were interchangeable , no special skill being required.
Perhaps speed and thoroughness could differentiate some women from others, but
there was no evidence to identify employees by such criteria, and as Hardin, who
had been the day-shift floorlady, was not asked for an opinion of the women on the
day shift , the inference is that such criteria were not used.
58Montgomery Ward d Co. v. N. L. R. R.. 1.07 F. 2d 555 (C. A. 7) ; Wright dt McGill
Company, 102 NLRB 1035: Carolina Mills. Inc.. 92 NLRB 1141, enfd. 190 F. 2d 675
(C. A. 4) ; TV. C. labors Company, 89 NLRB 538. enfd. 196 F. 2d 272 (C. A. 5) ; Granite
State Ifachine, Company, 80 NLRB 79, 99; Differen tial Steel Car Co. , 75 NLRB 714,
enfd . 179 F. 2d 241 (C. A. 6) ; Sandy Rill. Iron t Brans 117orks, 69 NLRB 355, enfd.
165 F . 2d 660 (C. A. 2).
59 See E . II. Moore, Inc.. 40 NLRB 1058, 1075, 1077.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I conclude and find, on all the evidence, that, regardless of whether or not a lay-
off on October 15 might have been justified on economic grounds, the Respondent's
selection of employees to be laid off or retained was discriminatory.
I also find evidence of discrimination in rehiring after the layoff. Although
Martini told several of the women who had been laid off and were seeking reemploy-
ment that they should leave their names, addresses, and telephone numbers and that,
if a vacancy arose, they would be called, they were not recalled. Yet between
October 20 and November 6, 1954, the Respondent hired 12 new women and 1 new
man. Martini had personally taken the name of Marie Tripp on October 19, right
after the election, but she was not recalled. Mary Russell and Lila Layman applied
for work between October 26 and November 3 and Martini took their names, too,
but they were not recalled, although 1 or 2 vacancies must have arisen thereafter
for 2 new women were hired, 1 October 27 and 1 on November 6. All the new
female employees were hired as trimmers, jobs for which those laid off were
qualified. Further data on hiring and rehiring will be set forth hereafter in con-
nection with the discharge of Gloria Pate.
F. The new application form
In the course of the hearing , the General Counsel, upon motion granted , amended
his complaint by adding as an allegation of the violation of Section 8 (a) (1) of
the Act, the adoption by the Respondent , before the commencement of the 1955
season, of a new form of application blank for use by applicants for employment.
Before 1955 the Respondent had used a very short form of application blank, ask-
ing for name , address , name of spouse , social-security number , sex, date of birth,
name and address and telephone number of person to notify in case of accident,
that person 's relationship , a line for signature , a couple of lines for "Reason for
leaving" and "Recommendation ." This was all contained on a half page of ap-
proximately 51/2 x 81/2 inches. The new form covered both sides of a full-sized
sheet measuring about 81/2 x 101/2 inches. The new questionnaire calls for detailed
information about the applicant and his educational and employment history. From
the nature of the detailed information sought, as well as the fact that it asks for the
expected salary and the applicant 's salary in past positions, I conclude that the
form was originally designed for use by applicants for permanent salaried positions
rather than for seasonal , wage-paying , manual jobs. Among the questions is:
25. To [sic] what Trade, Professional or other organizations are you a member:
(Do not name any organization which would reveal your race, religion , color,
or ancestral origin.)
At the conclusion of the form , the applicant is required to agree to abide by all
present and subsequently issued rules of the company , to authorize past employers to
furnish all information "they may have concerning" the applicant , to authorize an
investigation of all statements in the application , and to "understand " that, in the
event of his employment , he will be subject to dismissal if any of the information
given is false or if he has failed to give any material information requested . Martini
testified that he adopted the new form after he had remarked in May 1955 at an
apple industry meeting that he was about out of employment application forms and
was considering having a new form printed which would be " a little more complete,"
and after a later meeting , when W. M. Caldwell, of the California Association of
Employers , informed him of a form that was used "generally throughout the
industry."
When such a form is used for the purpose for which it appears to be designed,
i. e., by applicants for salaried positions , question 25 of the application form could
be relevant and would not be likely to be thought to call for union affiliations. But
applicants for hourly paid manual work would not be likely to belong to the same
type of trade or professional organizations as salaried workers. To the type of
worker employed by the Respondent , the question could easily be interpreted as
asking for union affiliation , especially since union affiliation is not specifically ex-
cluded in the parenthetical statement under the question . The Respondent did not
explain why it would wish to know about the trade or professional organizations to
which a future apple dumper or peeler, for example , belonged. There is no evidence
that the Respondent took special steps to see that this question was either answered
or left unanswered , but in view of the penalty of discharge suggested ( at the close
of the form ) for failing to give material information requested , it must be assumed
that the Respondent expected the question to be answered. Perhaps , standing by
itself, the use of such a questionnaire by an employer who had no antiunion back-
ground would not suffice to establish interference , restraint , or coercion . Indeed, it
SEBASTOPOL APPLE GROWERS UNION 1215
has been held that use of such a form, standing by itself, is not a basis for a finding
of an unfair labor practice.60 But although the use of a questionnaire containing a
question about union membership may not be per se interference, restraint, and
coercion prohibited by provisions of Section 8 (a) (1) of the Act, such practice may
take on a coercive character in a background of hostility to a union. As stated by
the court in N. L. R. B. v. Syracuse Color Press Inc.61
The type of interrogation here finds no specific authorization in the provisions
of Section 8 (c) of the Act. It is afforded constitutional protection only to
the point that it is free from the character of coercion. . When that limit
is passed, jurisdictional precedents are unanimous that a violation of Section 8
(a) (1) may be found.
Here, the time, the place, the personnel involved, the information sought,
and the employer's conceded preference, all must be considered in determining
whether or not the actual or likely effect of the interrogations upon the em-
ployees constitutes interference, restraint or coercion.
The mere fact that the question which may call for an answer concerning union mem-
bership does not include the words "union membership" or the equivalent does not
absolve the employer from coercive influence of the question if an employee might
reasonably be expected to disclose his union membership in answer to the question.62
Evidence in the record indicates that the application form put to use in 1955 by the
Respondent was used by a number of other employers as well. Such evidence
does not, however, justify its use by the Respondent on the facts here present. For
all that appears, the other employers may use it for the purpose for which it was
obviously intended-applicants for salaried positions, where, standing by itself, it
would not be so likely to be interpreted to call for revelation of union membership,
especially in the absence of a background of hostility toward a union. But in the
background here, which is not only hostile to the Union but contains concrete proof
that the Respondent was disposed to discriminate against union advocates, the con-
straint imposed (upon both applicants for employment and employees alike who
have good cause to believe that the Respondent has such hostility and discriminating
disposition) by a question concerning organizational membership is apparent. In
a case such as this, it suffices that the question has such effect or tendency, without
a finding that the Respondent specifically intended to produce such effect. But con-
sidering the failure of the Respondent to reemploy such employees as Pate, Tripp,
Russell, and Layman, among others, who it knew were prounion, before giving
employment to new employees as it did, the evidence of the Respondent's disposi-
tion and effort to avoid a union majority, the generally hostile attitude of the Re-
spondent toward the Union, and the lack of any other reasonable explanation for
adopting an application form which was not apparently needed and certainly was
not designed for the type of employees for which it was put to use, I believe that an
inference is warranted that the Respondent here used such form for coercive purposes,
with the expectation that applicants would reveal their union membership. I find,
therefore, that by the use of such application form, the Respondent interfered with,
restrained, and coerced its employees and applicants for employment in the exercise
of the rights guaranteed in Section 7 of the Act.
G. Discriminatory Discharges
1. Orice Storey
First employed in September 1953, Orice Storey worked until the end of that
season. Just before the end of the season, the floorlady told Storey, along with the
other women, that she would like to have her back the next season. About July
1, 1954, the Respondent sent post card notices to its 1953 employees asking them
if they intended to return and if so to report on July 9 to receive assignments. Storey
received such a card and reported on that day, filling out certain forms. She started
working on July 16. Her floorlady, Edna Hardin, who was not in the employ of the
Respondent at the time of the hearing, testified that early in the season Storey was
sorting apples but because she was a fast trimmer she was brought inside and put
on the trim line.
On August 4, as previously related, Superintendent Duckworth and Foreman Wil-
liams spoke to Storey and her husband as they were driving out of the parking lot
11 N. L. R. B. v. Ozark Dam Constructors , 190 F. 2d 222, 227 (C. A. 8).
61209 F. 2d 596 (C. A. 2), cert. denied 347 U. S. 966.
02 Cen -Tcnnial Cotton Gin Company, 90 NLRB 345, affd ., 193 F. 2d 502 (C. A. 5).
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and handed them blank application cards for the Union with the suggestion that they
throw the cards at the union organizer . Instead of following the suggestion , Storey
and her husband signed the cards and mailed them to the Union.
Storey and her husband were put on the day- shift organizing committee by a union
representative , and Storey thereafter passed out pledge cards in and about the can-
nery to other employees during the lunch time and before and after work. The or-
ganizing committee held meetings and reported to the union representative the
number of cards passed out and the progress of organization.
On one occasion early in the season , as previously related, Storey invited Floorlady
Hardin to a union meeting. Hardin refused. Storey quoted her as saying that
she would like to but that if she did there would be too much "yak, yak."
On about September 23 the incident occurred which was previously related. At a
suggestion from a union representative speaking over an amplifier from a truck on
the highway, Storey got some other women together and went to the cannery to ask
Martini, who was then in the cannery office,63 to agree to an immediate election,
instead of waiting for a Board-ordered one.64 The incident which followed, and
which has already been related, delayed the commencement of work a few minutes
after the regular noon hour. Storey testified that when the 12 o'clock whistle blew,
there was a rush to the time clock and some of the women had started back to their
work positions before Martini came down. She testified that she, herself, was on
her way to her position and turned back to speak with Martini when he came down
from the cannery office. Her time card was punched at 12:02 p. m. that day.
Later that afternoon Martini summoned Storey and another woman to the office
and spoke with them for about 50 minutes. In this conversation Martini warned them
not to talk union within the cannery proper, but he did not limit the prohibition to
working time and he promulgated no general rule.
On Saturday, September 25, 1954, the day shift worked from 7 a. m. until noon.
Storey had a cold on Friday, September 24, and Saturday, September 25, but she
worked most of the time, occasionally asking Floorlady Hardin for aspirin. On
Friday afternoon, Hardin sent Storey to the women' s lounge.65 On Saturday Storey
asked Hardin for aspirin at about 11 a. m. Later, according to Hardin, Storey said
that the aspirin did not help and that she would like to check out and go to her car.
Hardin consented. Storey punched out at 11:24 a. m. and, according to her testi-
mony, when she got to the car, it was so hot [from the sun] that she rolled the
windows down, opened a door and walked back to the cannery to wait for the
car to cool off. She stood inside the cannery door near the time clock. She testified
that she did not go to the women's lounge because the night-shift women were ar-
riving and, when she looked in, she saw that the lounge was full of night-shift
women.
Although there was supposed to be a rule that employees were not to congregate
inside the cannery when waiting for the change of shifts, the rule appears not to have
been enforced except early in the season, for there is ample evidence that a number
of night-shift women usually waited near the time clock until time to start the night
shift. While standing near the time clock, Storey conversed with a few of the
women sitting on one of the benches near the door to the women's lounge. Storey
testified that they called her over to ask her the time and place of the union meeting
the next week. Storey told them and invited them to come. Another woman said
she had heard that Storey was on the union committee and asked how she could
get on it. Storey told her to call Angelo Bertolucci. The woman then told Storey
that Martini, who was on the balcony, was looking at them.
A number of witnesses testified concerning what occurred following the fore-
going, which was based on Storey's testimony, as she was the sole witness as to
what occurred near the time clock up to that point. As there is some conflict as to
what occurred next, I have pieced the story together from the testimony of several
witnesses, using such portions as appeared to be based on reliable memory. Storey
testified that, at this point, a night-shift employee by the name of Virginia Chicano
sat down near where Storey was standing, asked how the Union was going and
13 This was the office used principally by Duckworth, although it was available to
other supervisors. The Respondent's main office was at one end of the cold-storage
building porch.
w The representation hearing had been held on September 19. The Board order that
an election be held was issued on October 4, but the date was not fixed until later.
ec Storey testified that this was at about 3 p. m. and that she was there until work
stopped because of a breakdown. But her timecard shows that she punched out that
afternoon at 1 : 44 o'clock. Her husband punched out at 1 : 42 p. m. I deduce that if
she went to the lounge, it was before she punched out.
SEBASTOPOL APPLE GROWERS UNION 1217
engaged Storey in a brief conversation.66 At about this time, Martini sent Superin-
tendent Duckworth down to learn what Storey was doing where she was. Duck-
worth went down and reported back that Storey had checked out ill. Martini told
Duckworth to see if Storey had punched out. Duckworth got the attention of
Floorlady Hardin and motioned her over. Hardin came to the stairs leading to
the balcony that runs outside of the cannery office and laboratory. Duckworth met
her on the stairs and asked her if Storey had checked out. Hardin said she would
check Storey's timecard. She went to the rack and looked at the card and told
Duckworth, who had followed her, that Storey had punched out. Duckworth went
back and reported this to Martini who told Duckworth to ask Storey to leave.
Chicano went upstairs and told Duckworth that Storey had asked her to join the
Union.67 Duckworth went down again and told Storey to wait outside. Storey
asked why, and if, she was in the way. Duckworth said she definitely was in the
way and again asked her to go outside. Storey said it was pretty hot outside.
Duckworth went back to the balcony and told Martini that Storey would not leave.
Martini told him to go down and see that she left and never came back.68 Duck-
worth again returned and told Storey more emphatically to leave.69 She left by the
back door and waited in the car for her husband to finish his shift. As Storey's
husband worked just outside the back door, on the south side of the building, I infer
that she passed that way to let him know what had happened.
Shortly after Storey left, Martini and Duckworth went out the same door by
which Storey had left, and Martini called her husband, Clarence, out to a point
about 25 feet from his post and asked if he knew what his wife was doing. Martini
and Clarence Storey gave different versions of the ensuing conversation. Each will
be given before making findings of fact. According to the account of Clarence
Storey, when he replied that he did not know, Martini said she was trying to form
a committee on the night shift and that he wanted Clarence to go fire his wife,
"get her out of here." Clarence replied that that was Martini's job, that if he
wanted to fire her that was for him to do. Duckworth came then and said that
he had two witnesses that she was trying to form a committee on the night shift.
Just then Chairman Bondi came and said that if Duckworth had two witnesses that
was enough, that he would sign her check. Clarence told Martini that his wife had
punched out and was on her own time and that "you told us two days ago that we
could do what we wanted on our own time." He quoted Martini as saying, "I forbid
talking union on cannery property, on cannery property," and also as saying "Why
don't they get their - committees and get it over with. . You know I am the
boss, I am the manager, I run this cannery. Why in the - don't you get
Bertolucci and Rhodes to shut the - - place down."
According to Martini's account, he told Clarence Storey that he had just dis-
charged his wife and that the next time he had a complaint from any one of "my
people" that Clarence Storey had left his post, he would fire him also, "and I walked
away." Martini and Duckworth denied that the conversation was as quoted by
Clarence Storey, but Duckworth testified that Martini did use strong language.
Martini, Duckworth, and Bondi all denied that Bondi was present. Bondi testified
that Duckworth came to him just outside the office and asked 'him to sign the check
for Orice Storey because Martini had left. He did so.
I infer, that, although Duckworth told Clarence Storey at about 11:55 a. M. that
he would have his wife's pay ready for her in a short while, the Storeys did not
wait for it that day but got the check on Monday. Clarence Storey told his wife
that he "guessed they fired" her. Later, Orice Storey called Floorlady Hardin to
ask if she had been discharged. Hardin replied that she did not know, but that
Duckworth had removed Storey's card from the rack.
60 Chicano testified that Storey solicited her to join the Union, but I find that Chicano
confused the above conversation with one she had with Storey after the latter's discharge.
In 1955 Chicano was made an assistant floorlady.
97 A comparison of the testimony of Duckworth and Chicano on this incident indicates
some elaboration by Duckworth. Storey testified convincingly on rebuttal that she had
not asked Chicano to join the Union until after her discharge although she admitted
that on the occasion above related she had talked to Chicano about the Union.
68 This last finding is based on Martini's testimony. Duckworth testified that Martini
told him to discharge Storey.
69 Duckworth testified that he discharged her, but he (lid not say what words he used.
He apparently did not give Storey the impression at that time that lie had discharged her.
450553-58-vol. 118-78
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the conflict in the evidence, I conclude that the conversation
between Clarence Storey and Martini was one accompanied by considerable emotion
and that the speed with which words flew and actions occurred would make it
difficult to remember the order in which words were spoken or movements occurred
as well as difficult to remember the exact words spoken, but I find that, in substance,
Martini did speak substantially as quoted by Clarence Storey although Martini no
doubt added a warning to Clarence Storey as he testified. Bondi was in the environs
at the time of the incident but I am inclined to believe that Bondi did not make the
statement about two witnesses being enough. On the other hand, I do not believe
Storey's testimony of this was a fabrication. He no doubt saw Bondi in the yard
at about the time mentioned and, by a vagary of memory attributed to Bondi words
that he heard spoken, probably by Martini since it was to him that Duckworth
said he had two witnesses.
Orice Storey returned to the plant on October 18 with Marjorie Byrd, an employee
who had been laid off on October 15. Clarence came and joined them, and they
approached Martini, who was standing between the cannery and the warehouse
with the superintendent of the packing-house, identified only as Loui. Orice Storey
spoke to Martini asking if she had been discharged. As Clarence Storey had already
been given his wife's paycheck, I infer that she knew the answer to her own question
and that her question was asked merely as an introduction to her succeeding questions.
There is a conflict as to what was said in the ensuing conversation. Orice Storey
testified that Martini answered, "Yes, Ma'am, you are fired and that's final," that she
asked if her work had been satisfactory, and Martini said, "Yes, you were a good
worker, but I cannot have you talking up this union thing and agitating among the
other girls and forming committees. . You are fired and that's final and your
husband has your check," that she asked if Martini knew she was on the committee
from the day shift, and that Martini, replied "he didn't give a damn what committer
I was on," and that he then added again, "You are fired and that's final," and that
Martini then walked away. Martini testified that Orice Storey merely asked why
she was discharged and that he told her she knew why and walked away. He denied
Storey's testimony quoting him as saying that he couldn't have her talking up this
union thing and agitating and that he "didn't give a damn what committee she was
on." Martini testified that he did not recall that Byrd was present, but he did not
testify with respect to the packing shed superintendent's presence. Clarence Storey
and Byrd gave credible accounts that Orice Storey asked Martini if she was dis-
charged, that Martini answered, "Yes," that Orice Storey asked why, and that
Martini said "for trying to form a committee on the night shift." Clarence Storey
also corroborated his wife on her testimony regarding her question as to whether
Martini knew that she was on the committee and Martini's reply. There was,
however, enough difference in the testimony of Byrd and the two Storeys to con-
vince me that they were testifying on the basis of their own memories.
Although the explanation does not appear to have been advanced before the hear-
ing, the Respondent, at the hearing, justified the discharge of Orice Storey on the
ground that Storey had gathered a group of women to talk to in a dangerous location
because a forklift was operating in that locality, raising heavy tanks.
The first time Martini was on the witness stand he gave as the reason for Storey's
discharge that Storey called together a congregation of women and stood in an alley-
way and that he had told her on a previous occasion (September 22, the day he
spoke to Storey and Layman in the cannery office about union talk in the cannery)
that he wanted no more occurrences of that, and that since she had done it again, he
discharged her. In his testimony of his conversation with Storey and Layman on
September 22, Martini did say that he told Storey that he "did not want another
occurrence, such occurrence as had just happened that day . . ." but explained the
"occurrence" that he had reference to as "that group of women she had there, when
she called me down and told me they were going to walk out if I didn't meet with
the Union officials." He did not testify that, in his conversation with Storey and
Layman, he warned them of any danger and neither did they. At another point,
while still testifying as a witness called by the General Counsel under section 43b
of the Federal Rules of Civil Procedure, Martini testified that he called Storey in
(on September 22) "to tell her about the incident downstairs, where she had a group
of people there, and I told her I didn't want her to do it in the plant." He did not
exclude the area under the balcony or any other locality in the plant where the
forklift would not be operating. He did not limit the time to the time when the
plant was operating. Even if the forklift had been operating at the end of the lunch
period on September 22 and a hazard had existed on that occasion, 70 I am not satisfied
70 The only witness who appeared to me to have a definite recollection of the forklift
that noon was Lila Layman, who testified that it went through the door while they
SEBASTOPOL APPLE GROWERS UNION 1219
that they had anything to do with Storey's discharge, for I do not believe that
Martini really thought that Storey had "gathered" the women around her on Septem-
ber 25 just before she was discharged. Martini reluctantly admitted that he had
seen women sitting or standing in the area near the time clock but testified that he
did not know if they were going off shift or on. He may not have known it, but
he most likely believed that they, or most of them, were night-shift women. There is
considerable evidence that it was a practice for about 10 or 12 night-shift women
to stand or sit near the time clock before the change of shift. I am satisfied and
find that Martini was not ignorant of the practice, and that he did believe Storey
was speaking with night-shift women. This is evident from what Martini later told
Clarence Storey. Furthermore, the evidence of Martini's annoyance with Storey
for her organizational activities and all the other evidence leading up to Storey's
discharge justifies a conclusion that Martini did not really believe Storey had, her-
self, congregated that group of night-shift women near the time clock on September
25. And if he had thought that any danger arose from their being where they were,
the natural and logical thing for him to do would have been to ask Duckworth to
remove all the women. But there is no evidence that he did so. In fact, the evidence
indicates that it was only Storey that he asked Duckworth to send out. Perhaps a
reason not involving union activity might have existed to justify a request that only
Storey leave, but if there was one, I am convinced that it was not the one which
motivated Martini either in causing Storey to be sent from the building or in dis-
charging her. The fact that Storey might have been feigning illness in order to
leave work and organize night-shift employees was not relied on by Martini or
the Respondent as a justification for her discharge either at the time of her discharge
or thereafter.71 All the evidence leads to the conclusion that Martini was concerned
only with the fact that union talk was going on in the cannery building after he had
told Storey that he prohibited that, without limiting the prohibition to working time.
That Martini knew the night-shift employees with whom Storey was speaking were
not yet on duty and that he ascertained that Storey herself had punched out before
he discharged her establishes the fact that he believed he could at all times prohibit
union talk in the building, whether or not the employees were on duty.
Two women who were in the Respondent's employ on September 25, Joanne
Chames Schwartz and Eloyce McPhee Mounger 72 testified that on the day Orice
Storey was discharged, they were in the Respondent's main office for some purpose
which they could not remember and, according to Mounger, while they were there,
Martini entered in a rush, slammed the door and, walking toward one of the men
in the office, screamed, "That damn Storey woman . she's always talking about
the Union . . . I am going to get rid of her . . . I'd rather see the place closed
down than see it go union." Schwartz's account varied slightly but she, too, quoted
Martini as saying that he was going to get rid of Storey because she talked too much
about the Union. Schwartz testified that 10 minutes after the foregoing incident,
she asked Floorlady Hardin in the cannery if Storey had been discharged and that
Hardin had told her she had, that when Schwartz asked why, Hardin replied that
they could not "have that kind of people around that talk about the Union all the
the time." According to Hardin, Schwartz (whom she called Chames) came to
her on September 25, while she was checking timecards at the rack and said that she
and McPhee (Mounger) had been in the office and had heard something about Mrs.
Storey being discharged and asked her (Hardin) if Storey had been discharged
and that she (Hardin) replied that Storey must have been discharged because her
card was missing from the rack. Hardin denied making the last statement quoted
by Chames above but testified that Chames kept on talking after she told her that
Storey's card was missing, but that she was busy and did not notice and did not
recall saying any more. As Hardin had no part in discharging Storey, I do not
deem it important to make a finding on the single conflict. Because Mounger and
Schwartz were vague about the reason for their presence in the main office, I
questioned them some about the time and the reason for their presence. On con-
sideration of the entire record, however, I find that their inability to recall the reason
were there and that they had to get out of the way. But she did not say, and was not
asked, if the forklift was going in or out of the door or whether or not it was carrying
any kind of load. The operator may have been just going to lunch for all that appears.
Martini testified that nothing heavy was over the heads of the women where they were
standing.
'n As this was not relied upon, I do not feel called upon to decide whether or not the
Respondent might have been justified in discharging Storey for such a reason.
72Before the time they testified each had been married. The middle names shown
above are their maiden names.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for being there does not impair their credibility and I find that they gave a sub-
stantially accurate account of what Martini said.
On all the evidence, I conclude and find that Orice Storey was discharged because
of her activities on behalf of the Union, activities which were protected under Section
7 of the Act, in violation of Section 8 (a) (3) of the Act.
2. Discharge of Gloria Pate
Gloria Pate was employed by the Respondent on July 15, 1954.73 Despite the
advice of Superintendent Beavers, late in July, as previously related, she signed a,
union pledge card on August 4 and was on the day-shift committee for the Union.
According to Pate, Beavers told her in the same conversation that "they" (which I
take to be the Respondent' s management ) had asked him if Pate had anything to do
with the Union (inferentially at her former place of employment where she had been
active on behalf of the Union) and that he had told them she had not, because he
did not want her to lose her job. It does not appear whether or not this had anything,
to do with the fact that Pate's name was on the retention list as read on October 15.
I infer that it did not, because Floorlady Hardin reported to Superintendent Duck-
worth, when union talk first started, that Pate, among several that she named, was
an agitator for the Union. Furthermore, Martini must have been aware of Pate's
attitude toward the Union because he had spoken to Pate, and her friend Lindsay
about it on several occasions, as previously related.
At the meeting in the warehouse when the layoff was announced, Pate heard her
own name read but did not hear that of her friend, Gloria Lindsay, who was out
sick that day. This testimony conforms to the retention list in evidence, General
Counsel's Exhibit No. 36, which I have found to be the list actually read at that
meeting, and with the testimony of Mary Castino.
On Monday, October 18, the next working day, Pate came to work in her working
clothes, punched her timecard, donned her apron and gloves, and went to her
station . Pate testified that she was wearing several union buttons in plain view.
About 10 minutes after she had started to work, Foreman Williams approached her
and asked her what she was doing there. When she told him she was working,
he told her she was not supposed to be there. Williams testified that he did this
because Herrerias had told him Pate was not on the list to be working. Pate told
Williams (as Pate testified) that her name was on the list to report to work and.
(as Williams testified) that she had a timecard and had punched in. Williams dis-
puted her statement that she was on the list and said he would check. He went
up to the cannery office to look at the list and, on coming down, stopped to speak
with Superintendent Duckworth. From this point, Pate's and Williams' testimony
were in conflict. Because Pate's testimony is more consistent with facts and logical
inferences, I credit her testimony and find that Williams returned to her and told'.
Pate he was sorry, that her name was on the list but that it was a mistake and
she would have to go home. Pate told Williams that, if she punched out and went
home, the Respondent would have to pay her for reporting to work. Williams said
they would pay her for 2 hours.74
Pate then went to the main plant office (attached to the cold-storage building)
and asked if Martini had come in yet. Told he had not, she telephoned her friend,.
Gloria Lindsay, to come for her because Lindsay, who had been told by Pate that
she had been laid off, was not working and had borrowed Pate's car. Then Pate
waited for Martini and, when he came, she told him that she had been laid off and
asked why.75 Martini said he did not know and asked if her name was on the re-
tention list. She said it was and that she came to work and had been told they
had made a mistake and she told Martini that they were hiring other people "right
now." Martini said he had nothing to do with the list and that the Respondent was:
laying off in accordance with seniority. Pate told him that people who had worked
73 For convenience I use the name she went by while employed. She testified under
her married name, DeFont.
7A Williams testified that, when he looked, he did not find Pate's name on the list and
did not find a timecard for her, that he so told Pate and that when Pate had said he
would have to pay her for a couple of hours he told her that she would have to take
that up with management. I do not credit this testimony insofar as it differs from Pate's.
75Lindsay, who arrived at about the seine time, attempted to testify about the con-
versation. Because she was not present at the layoff meeting and thought that the.
names read there were names of people laid off rather than people retained, she became
confused as to whether Pate had said her name was or was not on the list, and I
disregard her testimony.
SEBASTOPOL APPLE GROWERS UNION 1221
there for 3 or 4 years had been laid off. Martini said that earlier years did not
count, that it was just the current year that counted. Pate said that she had come to
work on the first day 76 that year. According to Pate, Martini said, "I don't know,
I just don't know." Martini denied that the conversation was as related by Pate
and testified that she just said she had been laid off and needed the money, that he
told her he had nothing to do with the list and that she should apply at the office and
there might be a vacancy and she could get back on at a later time.77 Although
Martini may have made such statements also, I find that the conversation occurred
substantially as testified by Pate. Errol Wilson, the Respondent's accountant, testi-
fied that he had a conversation with Pate on Friday, October 15, right after the lay-
off meeting, in which he quoted her as asking him why she was laid off. Wilson
testified that he told her he had nothing to do with the list and that she should see
Superintendent Duckworth. Wilson appeared sure of parts of his testimony about
this but not of other parts. It is conceivable that he was present when Pate spoke
with Martini on Monday or that she spoke with him on Monday while waiting for
Martini. I am convinced that Wilson was mistaken about the date of such a con-
versation. If it occurred at all, I believe, it must have been on October 18. Mary
Castino, an employee retained at the time of the layoff, testified that she heard Pate's
name read at the layoff meeting, and that she left the meeting with Pate, was with
her until they went to their respective cars in the parking lot, and at no time saw
Wilson, and that Wilson did not speak to either of them. Castino's appearance, de-
meanor, and manner of testifying impressed me very favorably and I credit her
testimony. Pate also denied having spoken to Wilson on October 15 after the lay-
off meeting. Pate's testimony throughout was given in a forthright manner, incon-
sistent with fabrication or concealment, and I credit her denial that she spoke with
Wilson at that time.
Sometime following the date of the election, Pate telephoned about her pay for
Monday, October 18, and the Respondent mailed her a check for 2 hours' pay.
In drawing conclusions as to the reason for the termination of employment of
Gloria Pate (DeFont), I have considered the fact that, from October 16 to 19, 1954,
the purloined union list was in the possession of Superintendent Duckworth. Pate's
name was on that list: Although I believe that the Respondent was fully aware of
Pate's union advocacy before the date of the layoff, it is certain that if the Respondent
had had any doubt of her union affiliation before that time, it had none at the time
of Pate's termination on October 18.
Erma Bate, who delivered the purloined union list to Herrerias, I have already
found was reemployed on October 18. In addition to Bate, a number of others
were shown to have been reemployed on that date. In a list furnished by the
Respondent to the Board before the hearing (General Counsel's Exhibit No. 42),
the Respondent listed the following employees as rehired on October 18: Mary
Caddell,78 Cornelia (Connie) Jones,79 Stella Vessels, Theresa Hofland, Edith Wasin,
7° A skeleton crew had worked earlier than July 15, 1954, the date of Pate's hiring
but very few production employees (as of October 15) had an earlier employment date.
I infer that production started on July 15, 1954.
Such promises had been made to other laid-off employees as well, including Marie
Tripp, but, although the Respondent, between October 20 and November 6, hired
12 women and 1 man who had not previously been employed by the Respondent, it did
not recall, Pate or Tripp. Martini had, himself, taken Tripp's name and address for
such purpose.
78 Caddell's name was on the retention list. Even the retention list offered by the
Respondent contained her name. No attempt was made to explain why she was shown
as reemployed on October 18. Caddell, one of the women who had come to the Re-
spondent after having been laid off temporarily at the Co-op, testified that a few days
after the October 15 layoff she told Herrerias that she had heard rumors that all who
signed pledge cards were laid off and that she wanted Herrerias to know that she had
signed one, and that if it made any difference, perhaps there was a mistake in her being
there. She quoted Herrerias as replying that Caddell had nothing to worry about, that
she did not know who signed pledge cards, and that it made no difference to her
whether or not Caddell was "union or not union," that she kept her girls from the way
they worked. Obviously, part of Herrerias' statement to Caddell was untrue, since
Herrerias at that time did know who had signed pledge cards. Caddell may be assumed
not to have continued her interest in the Union since she worked during the 1955
season even after the Union had posted a picket line.
78 Jones' name was on the retention list introduced in evidence by the General Counsel
but not on that introduced by the Respondent. Jones had been employed first on
October 4, 1954, after the eligibility date.
1222 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
and Etta Urton. Employment dates of these women are as follows: Caddell, Sep-
tember 13; Jones, October 4; Vessels, September 17; Hofland, September 13; Wasin,
August 9; Urton, July 20. All of these except Urton were shown to have the job
classification of "trimmers." Urton's job was classified as "inspection," the same
as Pate's. Urton's timecard for October 18 shows that she started work at 10 a. m.,
almost 2 hours after Pate was released, but she was nevertheless paid for a full
day. One might infer that Urton was rehired to take Pate's place. But in the
testimony of several witnesses, the inspectors (who were working in the week after
the layoff) were named, and Urton was not named as one of them. Because of this
and because of the evidence that none of the women's jobs involved special skill and
that women could be transferred from one job to another, the inference is that Urton
was not given work as an inspector and did not replace Pate. The Respondent did
not offer any excuse for not using Pate on another job. Of the six women just
named, only the names of Caddell and Urton appeared on the purloined union list.
Although Urton had, on August 19, 1954, signed a pledge card for the Union, she
was not, like Pate, on the union committee, and presumably, was not as active as
Pate in the Union. Her personnel payroll record shows that she worked many
short weeks.
Of the other 26 women named as on the union committee in addition to Pate, the
only ones retained or reemployed were Erma Bate, who had delivered the purloined
union list to Herrerias, Mary Castino and Clara Davello, both inspectors, Ruthie
Deal, and Ernestine Hack.80
I have previously stated that, in addition to those shown as rehired on the
exhibit just referred to (General Counsel's Exhibit No. 42e), the evidence shows
that a number of employees whose names were not on that exhibit were employed,
although their names were not on the retention list heretofore found to be a copy
of the one read at the layoff meeting. Some in this category with their employ-
ment dates are: Marcia Freyling, July 22; Pastoria Hall, July 20; Renee Napier,
October 1; Catherine Perry, August 2; Sylvia Peterson, July i9; Jessie Smith,
September 17; Willy Augustin, July 23; Joe Bertoni, September 28; Robert DeVilbiss,
July 19; Lloyd Mills, October 11 (4 days before the layoff).
Although Foreman Williams claimed he did not find Pate's name on the re-
tention list which he looked at (contrary to Pate's credited testimony of his ad-
mission to her), I cannot believe that the Respondent would have paid Pate for
2 hours' time for October 18, as it did, unless it had been responsible for her being
at work on that date. It is not impossible to believe that Pate's name was inad-
vertently included on the retention list. But even if her name had been on there as
a result of the Respondent's subjective mistake in intention, Pate was properly at
work on October 18 and no evidence was adduced to justify a "correction" of the
error by discharging Pate when, at the very same time, the Respondent was in the
act of reemploying a number of laid-off employees. There is not a jot of evidence
that Pate's work was unsatisfactory, and she had been at work from the first day
of production that season. None of those reemployed had equal seniority with
Pate. At the hearing, the Respondent's witnesses discounted seniority as a basis for
retention. However, it should be noted that the Respondent represented to the em-
ployees at the layoff meeting that the layoffs were made on the basis of seniority,
and it mailed a letter signed by Manager Martini to each laid-off employee with
his final paycheck containing the statement, "In fairness to all of our employees,
we have kept on our payroll those of you that had the earliest employment date"
(General Counsel's Exhibit No. 25). Weighing all the evidence, I infer and find
that, in terminating Pate's employment on October 18, the Respondent was moti-
vated by a desire to rid itself of the more active and outspoken proponents of the
so Bate, Castino, Daveilo, and hack had worked on the night shift. Each has been
mentioned previously herein. There is no clear evidence that they, or any of them,
were known by Herrerias to be union organizers or advocates before the layoff list was
prepared. Evidence on Deal's employment record shows some conflicts. According to
Gloria Pate (DeFont), Gloria Lindsay and Deal were with her while she was speaking
with Martini. Documents prepared by the Respondent but offered in evidence by the
General Counsel present confusing information. General Counsel's Exhibit No. 42e
shows Deal as last having worked on October 15 and as being rehired on October 23.
General Counsel's Exhibit No. 40 shows her as having last worked on October 18 and
quit. General Counsel's Exhibit No. 40g, which is it list of employees as of October 19.
does not contain Deal's name. General Counsel's Exhibit No. 19 indicates that Deal
was stated by the Respondent to have been absent for 2 days with Respondent's per-
mission. Deal's ballot at the union election was challenged by the Respondent but the
challenge was later withdrawn.
SEBASTOPOL APPLE GROWERS UNION 1223
Union, of which Pate was one. I conclude, therefore, that in terminating Pate's
employ on October 18, 1954, the Respondent discriminated in regard to her hire
and tenure of employment in violation of Section 8 (a) (3) of the Act.
3. The discharge of Elsie Dickerson
Elsie Dickerson, who had worked for the Respondent in 1953, was again em-
ployed by the Respondent in 1954. Her starting date in 1954 was July 19. On
the day shift throughout, she was first put on the job of trimming. During Septem-
ber she was transferred to the slicer for a day or two at a time and finally was kept
there steadily. She signed a union pledge card on August 4, 1954, and attended
union meetings but was not on the union committee. On October 14, when other
union employees wore union buttons. Dickerson did, too. She was not, however,
laid off on October 15, and on October 18, the next workday, she returned to her
job on the slicer without being assigned to it by Herrerias.
On October 19, the day of the union election, just before quitting time (5 p. m.),
Herrerias called out Dickerson's name. Dickerson went to Herrerias, who told her
that Manager Martini wanted her in his office. When Dickerson went to Martini
he told her, "They want you over there," pointing to the packing shed where the
election was being held. Dickerson apparently was wanted as an observer for the
Union, because she acted as one although she had had no earlier notice that she
would serve.
On October 23, Dickerson asked permission of Herrerias, who had become day-
shift floorlady after the layoff, to change positions with an employee named Ruth
Deal (previously mentioned in the discussion of Pate's discharge) and Herrerias
granted it. Deal's job description was shown as "can car," but I infer that, when
she was reemployed on October 23, she was given a job on the trim line. Deal was
listed on an exhibit as on the union committee. On Monday, October 25, Dickerson
again exchanged with Deal after lunch until about 3 p. in. This time she did not
ask Herrerias for permission to make the change. Whether or not Deal did does
not appear, but the Respondent makes no claim that Dickerson's failure to get
permission to transfer was in any part a cause for her discharge. At about 2:30
p. m., Dickerson, while on the trim line on October 25, finding work somewhat
slack because few apples were in the flume, picked up an apple that had been
peeled and cored, used her coring knife to put two 'bisecting cylindrical holes
horizontally through the apple, placed a core in one of the holes, protruding about
an inch, and placed it back in the flume. Dickerson spoke of this as "decorating"
an apple. This apple was removed further down the line either by an inspector
named Virginia Chicano, who has already been mentioned in connection. with the
case of Orice Storey, or by Herrerias.
At 3 p. m., Dickerson went back on her regular job on the slicer. When she came
down at quitting time, Floorlady Herrerias came to her, put her arm around Dicker-
son, and said, according to Dickerson, "I have something to do that I don't like to
do, I have to let you go." When Dickerson asked why, Herrerias replied, "You
were seen making holes in an apple and you put a core in it and put it in the water
and it got to the office." Dickerson acknowledged making holes in the apple and
told Herrerias that she had expected to be discharged. She testified that she had
expected it because she had been picked as an observer in the election. Dickerson
denied that she had fixed more than one apple as above described.
Herrerias' account of Dickerson's discharge in her testimony and in her affidavit
differed. But in both she averred that she saw a number of such apples. Herrerias
was not sure of dates and it is somewhat difficult to follow an orderly sequence of
events in her testimony. By drawing inferences from her testimony, I judge that she
was referring to the dates I have already identified as the two on which Dickerson
,and Deal changed jobs. With a substitution of dates for her indefinite references
to time, her testimony was that on October 23 she saw apples (apparently like the
one fixed by Dickerson) coming from the direction of the trim line to the position
of the inspectors (whose job it was to catch any imperfect, or imperfectly trimmed,
apples, or any foreign matter) and she asked "the inspector" (who, I infer, was
Virginia Chicano, although at that time there were three others) if many apples of
that kind were coming down, and the inspector replied that quite a few were; so,
according to Herrerias, "I just walked up and looked at it" (italics supplied) and
then began to investigate. She went behind the peeler line, she testified, because
it was raised above the trimmers and she could look down at the trimmers, and from
there she watched Dickerson and saw her "do that" to two apples. Herrerias did
not speak to Dickerson, however. On Monday, October 25, Herrerias testified, she
again saw apples in the same condition come down the line and asked Chicano to
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
put aside all apples in that condition-Herrerias thought Chicano had 2 or 3. She
asked Chicano, she testified, how many there were and Chicano said that "they
weren't as bad as the first." Then, she testified, "I took the apple (italics supplied)
and showed Mr. Duckworth [the superintendent] and he told me to let her go," and
I said, "No, we will wait until the day is over." She let Dickerson finish the shift
and then told her that she was discharged. Although Herrerias testified to apples
"in that condition" in the plural, it is significant that she twice used the singular.
Although she testified that on the first day she, herself, saw such apples in the flume,
and although she asked Chicano if many apples were coming down "like that," and
although she was told that there were quite a few, she testified that she went up
and looked at "it." This also is inconsistent with Chicano's testimony, as will be
shown later. If there were any other such apples, I would have to conclude from
Herrerias' testimony that the inspector must have removed them from sight or found
them unobjectionable and let them go through. Again, although Herrerias gave the
impression that on October 25 there was more than one apple with extra core holes,
she testified that she took "the apple" to Duckworth. In her affidavit, made in Feb-
ruary 1955,81 Herrerias averred that she had seen Dickerson double-core 2 apples,
putting a core back in 1 of the holes, on the first day and that she did not see her do
it on the second day but assumed that she had done it because it only happened
when Dickerson was on the trim line. In her testimony, she said that when she dis-
charged Dickerson, she explained to her that she was discharging her because "you
are making holes in the apples and throwing them down in the water." In her
affidavit she averred that she had told Dickerson she was releasing her "because she'd
cored the apple and put a core in it." [Italics supplied.]
Chicano, 1 of the 4 inspectors, testified on direct examination for the Respondent
that she saw 2 or 3 dozen great big apples with cores sticking in the side come
down toward her, that she put about 5 or 6 in a box which Herrerias came by and
took away without saying anything that Chicano could hear. Chicano also contra-
dicted Herrerias by testifying that she did not say anything to Herrerias. On cross-
examination, Chicano testified that the 2 or 3 dozen such apples were divided between
the 2 days (October 23 and 25) and that she did not have room to put all such apples
aside, so she removed the core and let the apples go through the slicer, except for
5 or 6 on the first day and 3 or 4 on the second day which she put in a box.
The four inspectors are arranged on the line in pairs side by side. The only other
one to testify was Mary Castino who was called by the General Counsel and who
testified that she saw one apple come through with holes through it and a core stick-
ing out, that she saw someone, Herrerias, she was pretty sure, pick it up and walk
around back of the trimming table. She testified that she had seen nothing else
unusual about the apples coming through in the 2 or 3 days preceding this. If apples
of the sort had come through in such large quantities as testified by Chicano, it is
inconceivable that all of them would have gone to Chicano and that the other in-
spectors would not have seen them. Chicano was apparently strongly antiunion.
Castino had been a union employee. Each, therefore, might have some bias in
the matter. But Castino made a more favorable impression on me than Chicano
from the standpoint of credibility and showed no evidence of bias as did Chicano.
Chicano's exaggeration was obvious. I find that Castino's testimony is reliable,
whereas Chicano's is not. In her affidavit, Herrerias avers that she spoke to Clara
Davello, another of the inspectors, in addition to Chicano. But in her testimony she
did not mention speaking to Davello, and Davello was not called as a witness.
Castino, the inspector called by the General Counsel, testified that around Hal-
loween time in 1954, a number of apples carved with pumpkin faces came down
the line and that, if those apples were not too badly carved up, she would trim
them up and send them through. Castino also described another apple which came
down the flume in about November 1954. This one had a glove finger sticking out
of the core hole. At that time Edna Hardin, the former floorlady of the day shift
was working beside Castino. The latter testified that Hardin picked it up and handed
it to Chicano but that nothing was said. The record is replete with instances of a
variety of objects floated in the flume by employees to provide a laugh. Hardin
testified to an instance when she removed something from the water that she believed
Chairman Tony Bondi had put there. It was apparently placed there to cause some
excitement. Bondi was present when the excitement occurred, but he testified that
he did not put the object in the flume and that he sent someone into the cannery
to remove it. As Hardin testified that she removed it, Bondi's emissary presumably
was quite tardy.
81 The affidavit is erroneously dated in 1954, which would be before the events
herein related took place.
SEBASTOPOL APPLE GROWERS UNION 1225
Superintendent Duckworth testified that "Dickerson actually sabotaged our product"
and that for that reason she was discharged. He testified that he made the decision
to discharge her "after she had been warned not to plug those apples" and, when
she did it again , he discharged her. Duckworth was not clear as to whether the
events leading to Dickerson's discharge occurred on 1 or 2 days or how many
times Herrerias spoke with him, but then he testified that Herrerias first came to
him in the morning and told him that someone "had been plugging these apples,"
showing him the apples (in his affidavit he said that Herrerias showed him "an
apple"); that he told Herrerias to find out who was doing it, and that a couple of
hours later Herrerias returned to him with more such apples (in his affidavit he
said "another apple") and told him that she had seen Dickerson plugging the apples;
that he told Herrerias to warn Dickerson not to do it-"a little horseplay is all right,
but something like this could materially affect the quality of our product, so I
asked her to tell Dickerson not to do it." It was either the same day or a subsequent
day that Herrerias came to him again, he testified, showed him two more such apples
and said it happened again (this third occasion was not mentioned at all in Duck-
worth's affidavit). Then, Duckworth testified, he told Herrerias to discharge Dick-
erson, but Herrerias said, "You better wait until the end of the day, it might look
better, if you don't want to disrupt the crews." Duckworth said that he concurred
in this. For the purpose of comparison with their testimony and the accounts given
by each other in both testimony and affidavit form, and as an aid to understanding
the credibility conflict, I set forth here the portions of Duckworth' s and Herrerias'
affidavits dealing with Dickerson's discharge.
Duckworth's affidavit, made on March 18, 1955, contains the following account
of Dickerson's discharge:
The decision to discharge Elsie Dickerson was made by me on the afternoon
the discharge took place. During that morning Floorlady Herrerias brought
me an apple which had been plugged. By that I mean that after the apple core
had been removed a hole had been cut in the side of the apple, and an apple
core placed in this hole. I asked Floorlady Herrerias who had done it and she
told me that Dickerson had. I asked Herrerias if she had seen Dickerson plug
the apple and Herrerias replied that she had not but that the girl in the trimming
line had seen Dickerson do it. Herrerias also told me that she had questioned
Dickerson about the matter, and Dickerson had admitted that she had done it.
In addition Herrerias told me that Dickerson had done this before, and recom-
mended that Dickerson be discharged. I had not known that Dickerson had
plugged an apple before. I told Herrerias to give Dickerson another chance.
About an hour later that same morning Herrerias brought another apple which
had been plugged and said Dickerson had done it again . I did not ask her
if she had seen Dickerson do it on this occasion, but told her to discharge
Dickerson at the end of the shift. Herrerias discharged Dickerson that after-
noon at the end of the shift, when her time card shows it was punched out.
It will be observed that, in his affidavit, Duckworth avers that he told Herrerias to
give Dickerson another chance but says nothing about having told Herrerias to warn
Dickerson not to do it again, as appears in his testimony. Herrerias admitted on the
witness stand that she had not spoken to Dickerson at all about the incident before
she discharged her.
Herrerias' affidavit, with respect to Dickerson, reads as follows:
After the layoff on October 15, 1954 I became day shift floor lady. Elsie
Dickerson worked under me then. I discharged Mrs. Dickerson. I don't recall
the date I discharged her, nor do I recall the day of the week. Mrs. Dickerson
was very, very talkative and disturbed other employees. She was working on
the seed teller, the slicer, when I first noticed this. Then Mrs. Dickerson asked
me if she could go back behind the lines, that is, to go on the trim belt one
afternoon, and I let her. That afternoon I noticed apples in the water, in the
trough, that had been double cored and then had a core shoved in one of the
two core holes. That first afternoon I noticed at least 5 or 6 such apples.
When I noticed the apples that were fixed this way they were coming through
the squirrel cage. I removed two such apples and showed them to the in-
spectors, the women who work on the second trim belt, and asked them if
there were many such apples coming through. I asked Mrs. Chicano, I know.
Mrs. Davello, Mrs. Mahoney and one other woman were also on that belt. I
also asked Mrs. Davello, but I don't recall asking the others. They replied that
they had taken out a few such apples. I took one of the two such apples and
showed it to Mr. Duckworth, and I said , "Mrs. Dickerson is doing this to the
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apples. I've been watching her." I don't recall what Mr. Duckworth replied;
he may have said to keep watching her. Before going to Mr. Duckworth with
the apple I went back up the line to try and find out who was cutting up the
apples this way. I went to a position behind the peelers. The peelers are
elevated above the first trim belt. Mrs. Dickerson was on the first trim belt.
From that position I observed the employees who were on the trim belt. There
were four women on the belt, as I recall. I watched Mrs. Dickerson; she was
talking away with the other women on the belt, Isabelle Ameral, Mrs. Albini, and
Gertrude Jones, she was next to Mrs. Ameral, as I recall, and I saw her pick
up an apple, bore a hole in it with her knife, put a core in the apple, and
then put it in the trough. I saw Mrs. Dickerson do it to two apples that first
afternoon. I did not speak to Mrs. Dickerson about it. That first afternoon
I did ask Mrs. Chicano and Mrs. Davello to be sure and catch any apples
fixed the way I saw Mrs. Dickerson fixing them. Mr. Duckworth was the only
person I told that Mrs. Dickerson was doing this, as I recall, although I may
have mentioned it to Mr. Williams, the manager; I did not tell the inspectors
who was doing it.
The next day, I don't recall whether it was in the morning or afternoon, with-
out asking my permission, Mrs. Dickerson went back to the trim belt. I saw
Mrs. Dickerson on the trim belt after lunch. I didn't say anything to Mrs.
Dickerson. I did go to Mrs. Chicano, and probably Mrs. Davello too, and ask
them to watch and see if any more of those double cored apples came through.
Then later, I went back to Mrs. Chicano and she showed me an apple she had
put to one side. The apple was double cored and had a core in it. I asked
Mrs. Chicano if there had been very many and she said not as many as the day
before. I took the apple and showed it to Mr. Duckworth, and asked him what
I should do. Mr. Duckworth said, "Let her go." He wanted me to let her go
then and there, but I didn't want there to be any disturbance and so I said we'd
better wait until the end of the day and he agreed. I can't recall whether it was
morning or afternoon that I spoke with Mr. Duckworth about Mrs. Dickerson
on this second day. I did not mark Mrs. Dickerson's time card until closing
time that day; I marked it "released." I did not speak to Mrs. Dickerson before
I spoke to Mr. Duckworth. So then at quitting time I told Mrs. Dickerson
that I was sorry but I'd have to release her. She was on her way over to time
out when I told her. She said, "Why?" and I said because she'd cored the apple
and put a core in it. Mrs. Dickerson said, "I was only playing. I didn't mean
any harm by it." She turned to a friend and said something like, "What do
you know, I just got fired for playing with an apple or putting an extra core
in the apple" and that she had done it before.
I had not seen Mrs. Dickerson double core an apple and put a core in it the
second day, the day I discharged her. I assumed that she had done it because
I had seen her do it the day before and because it hadn't happened when she
was not on the belt.
The several disparate accounts convince me that Duckworth and Herrerias
attempted to bolster their stories by multiplying the number of "plugged" apples,
the number of times on which Dickerson made such apples, and the number of times
that Herrerias spoke with Duckworth about the matter, as well as by Duckworth's
testimony about telling Herrerias to warn Dickerson. I am also convinced that
Chicano adapted her testimony to the same end. I find, therefore, that Dickerson
was never warned against making holes in apples or plugging them and that Herrerias
discharged her for the only known instance of it as testified by Dickerson.
That Dickerson was playing when she should have been working and that an
employer has a right to discharge an employee for playing on the job is not contro-
verted by the General Counsel, I take it. But the question is, absent an animus
against the Union, would the Respondent have discharged Dickerson for what she
did? Herrerias admitted that she had seen "decorated" apples, that is, apples with
faces carved in them and offered no criticism of employees who had carved them,
but she testified that such apples had been perched up in front of the employees and
had not been put back in the flume. (This, of course, is contrary to the testimony
of Castino.) From this, I infer that the Respondent was not perturbed by the fact
that an occasional apple, out of the tons of apples that went through the cannery,
met an end which was inconsistent with its normal destiny. If the Respondent
was perturbed at all, I infer, it was because the carved apple was put back
in the flume, with or without a core in it. Herrerias testified that she had
never seen unusual objects in the flume. This, I find it difficult to believe in
view of the testimony of the variety and number of objects that were either acci-
dentally or intentionally set afloat in the flume, especially since Herrerias gave every
SEBASTOPOL APPLE GROWERS UNION 1227
evidence of being an observant person, as a competent floorlady would need to be,
and because she was quick enough to see the apple carved by Dickerson on the one
occasion. If, for the sake of argument, it be assumed that Herrerias had, in fact,
not watched the flume close enough to notice such objects, even though such objects
might endanger the quality of the product if they should succeed in passing through
to the slicer or chopper, the question is raised as to whether or not the Respondent
acted as it normally did. Would the Respondent have discharged any employee
for carving an apple either with or without replacing the core, without prior warning,
regardless of the union interest of such employee? Although such a discharge would
appear unduly harsh in a case of an act that does not require an on-the-spot dis-
charge, the Respondent may not be found to have discriminated against the dis-
charged employee if it was accustomed to making discharges on slight provocation
and without prior warning. In determining what course the Respondent would
follow, I have considered, among other things, the following: Duckworth appeared
to feel that a little horseplay was all right, but that sabotaging the product was not.
In view of this testimony and of the extensive amount of horseplay or practical
joking and of decorating or making doll apples, that went on, I deduce that playing,
alone, in small doses was unobjectionable. The loss of an apple also appears to
have been regarded as of small consequence since the makers of decorated apples
or doll apples were apparently not reprimanded. Hence, if Dickerson's conduct was
of serious consequences it was solely because she made an additional core hole in
an apple and put a core back in that hole. Now, if this were actually believed by
the Respondent to be a danger to its product, then why, without warning Dickerson
against it (as was admitted by Herrerias to be the case), did the Respondent not
discharge Dickerson on the spot instead of running the risk that Dickerson would
do the same thing again before the day was over? Duckworth's explanation was
that Dickerson would not have been likely to do it again because she was being
closely watched. This explanation lacks conviction, however, since Herrerias did
not let Dickerson know that she was watching her. Furthermore, the floorlady could
not be expected to spend all her time in the one spot watching Dickerson and neglect-
ing her customary supervisory duties. I infer that if any danger existed, the Respond-
ent considered it extremely slight. Even if, as Herrerias would have it believed,
Dickerson was not discharged on the first day on which she was observed making
a "plugged" apple, Herrerias was taking a chance on a repetition which she herself
did not expect to observe, for Herrerias was obliged to rely on the inspectors to
catch other such apples just as they had caught the one Dickerson is known to have
made. This scarcely looks like a case of imminent danger or "sabotage." There
is evidence that occasionally the machine which was supposed to core the apples
would fail to remove the core of an apple. If the core in such case were not removed
by one of the peelers or trimmers, it would certainly have been caught by the
inspectors. Although, at the hearing, the Respondent's witnesses sought to portray
Dickerson's act as a grave danger on the assumption that the core in her apple might
have passed the inspectors, Martini, in an affidavit made before the hearing, stated
that it was "inconceivable" that plugged apples could have gotten past the inspectors.
And if the core had got past the inspectors and gone through the slicer, there was
a shaker screen that would have removed seeds and small particles. Also there
were women to remove specks when applesauce was being made. On one occasion
in September 1954, the shaker screen was found not to be coarse enough to remove
many small chips. There were employees there to remove them but they were
finding difficulty in removing all of them. Martini preferred to continue running,
anyway, for a couple of weeks until a new screen was obtained. Such indifferent
concern to the fact that parts of the apple were getting into the product when they
should not is inconsistent with labeling Dickerson's act as a sabotage of product.
In view of such evidence, I am convinced that Dickerson's playful act would, in
itself, not have prompted the Respondent to discharge her, especially without warn-
ing, since this was apparently the first instance of a discharge for such cause. On
the other hand, the Respondent was antipathetic to the Union and was shown to
have a disposition to discharge prominent union employees for slight cause, as is
evident from Hardin's testimony concerning an admission of such conduct by
Herrerias in the case of three employees whom she discharged in September 1954
and from the discharges of Storey and Pate as herein related, not to mention the
discriminatory elimination of a disproportionate number of union employees in the
October 15 layoff. I am persuaded by all the evidence, and therefore find, that the Re-
spondent made use of slight cause to discharge Dickerson (for which it would not
normally have discharged an employee) because she was a prominent union supporter,
as was known to the Respondent from the fact that she had been called by Herrerias
and Martini to serve, and did serve, as a union observer at the time of the union election
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
less than a week before the discharge 82 By discharging Dickerson, the Respondent
discriminated in regard to her hire and tenure of employment in violation of Section
8 (a) (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
As I have found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act.
Since I have found that the Respondent discriminated in regard to the hire and
tenure of employment of certain of its employees, by its acceleration of the time
for termination of the night shift for unlawful purposes, the remedy should embrace
all those who were affected by the early termination of the night shift, whether such
employees were prounion or not and whether the persons affected were only em-
ployees not on the retention list or whether they also were those who worked on
the night shift and could not work on the day shift even if the Respondent had them
on its retention list and had offered to give them work on the day shift.
In determining what employees should be included in the remedy, I shall have
to pass on an issue raised by the Respondent's contention that certain persons quit
on October 15 before the layoff became effective.
The Respondent contended that a number of employees had clocked in on the
night shift on October 15, attended the layoff meeting in the warehouse, and then
left without finishing the shift, and that, by leaving then, they had quit and were
not laid off. Evidence as to these employees, whether or not they were all present
on October 15, and their reasons for failure to return to work on the night shift if
they were, is not altogether clear. The evidence suggests in some instances that
employees who were either laid off or who, although on the list to be retained, could'
not switch from the night 'to the day schedule for family reasons, failed to work after
the layoff meeting because they considered it not worth their while in view of the.
fact that they would be through for the season in a short while anyway. Although
it is not a matter of evidence, it is a reasonable inference that some employees who,
knew they were being laid off may have left in 'order to get ahead of an anticipated
-rush for jobs at other canneries. Some apparently felt aggrieved at not being retained
for work after October 15 and left in disgust. Some may have left because they
misunderstood that, even though they were not retained, they were expected to,
finish out the night shift that night.
A basis for such a misunderstanding as that which was last mentioned is apparent
from the evidence. Duckworth testified that all night-shift employees were notified
to work that night after the meeting, but the manner in which they were notified
does not appear to have been adequate to assure notice to all and to avoid misunder-
standing. Duckworth testified that he told some employees himself and told Floor-
lady Herrerias and Foreman Williams to notify "the people who were to work on
the night shift to be sure to return that night." Williams testified that he told the
night-shift employees that "we would run a night shift as soon as the meeting was
over in the warehouse." But Williams could not say for sure that he had notified
each and every employee who came to work on the night shift, and, from the testi-
mony, I infer that the notification was a rather haphazard one, so there is a reason-
able chance that some failed to receive notice. To assure complete notification,
an announcement should have been made at the warehouse meeting. This not only
was not done, so far as the evidence shows, but what was said at that meeting could
have left night-shift employees in some doubt or confusion. Just before reading a
list of the employees to be retained, McGuire made a statement that those who were
not retained could turn in their caps and aprons and get a refund. He apparently
did not add that they should not turn them in before the completion of the night
shift. Those not listed for retention, therefore, may reasonably have understood that a
night shift would operate that night, but that only those whose names were read by
McGuire for retention were to work on it.
12 See N. L. R. B. v. Homedate Tractor t6 Equipment Co., 211 F. 2d 309 (C. A. 9) ;
N. L. P. B. v. Dant to Russell, Ltd., 207 F. 2d 165 (C. A. 9).
SEBASTOPOL APPLE GROWERS UNION 1229
In its exceptions to the Regional Director 's report on challenged ballots, the Re-
spondent listed the names of 20 employees who, allegedly "severed their employ-
ment with the Employer by not reporting for work on the night shift on October 15."
The argument made by the Respondent in such exceptions appears to limit its
objection to those of the employees who punched in for work on the night shift on
October 15 but who left without completing the shift . At the hearing, however,
the Respondent deleted the name of Ensebia Carrera, one of the 20 named in such
exceptions but added 10 more names , thereby increasing its list to 29 names of
employees who allegedly quit. But the additions were not confined to employees
who had punched in on the night shift on October 15. Included were some who
had not come to work at all. The Respondent produced timecards for October 15
for some 'of the 29 employees . These cards showed that some of the 29 had punched
in before the warehouse meeting and had either punched out at the end of it at
4:30 p. m. or had not punched out at all.83 One of the employees whose name was
added at the hearing was Anna Hance , a day-shift employee . On Friday , October
15, 1954, she punched in at 6:35 a . m. and punched out at 10:57 a. in. A penciled
notation at the top of her card said "Quit " but the handwriting was unidentified, so
there was no evidence as to when it was put on there or by whom . I give it no
credit as a record.84 So far as appears from the credited evidence , Hance may have
gone home ill or been temporarily laid off. She was shown as again working on
October 30 , 1954. However, testimony was given concerning several of the others.
The names of employees Pauline Ploxa , Dora Rawles, and Josephine Geist, among
others, were added at the hearing to the Respondent 's list of employees who allegedly
had quit. All were shown by the General Counsel's Exhibit No. 36 as listed for
retention , except that Geist was spelled Gust . Ploxa and Rawles went to Manager
Martini after the warehouse meeting, told him their names were on the list to be
retained but said they could not work days. They asked Martini if they had to work
that night . He told them that they did not have to but , as they were there, they
might as well . They went home without finishing the shift.
One of the employees listed by the Respondent as having quit was Susie Coats. Her
timecard showed that she had not worked after October 12 . She testified that she had
been home sick and was still out sick on October 15 , and that when another employee
told her she was dropped she did not return although she had expected to return
to work the next day.
I note that some other employees , not listed as having quit, also did not work on
October 15, but were not included on Respondent 's list of quits . For all that appears,
Julia Ann Row had not worked between October 6 and 28 but she was not shown
as having quit and the records contained no explanation of her absence. The case
of Erma Bate has been previously related. She had left in a huff after the warehouse
meeting because her name was not on the list, but she was back at work on October 18
with the Respondent 's approval . Stella Vessels did not work from after noon on
October 13 until sometime in the following week, during which she worked 40 hours.
Edyth Wasin had not worked after October 11 until Monday, October 18. Edna
McCar1 did not work at all in the week ending October 16. Ruth Albertoni was
shown by the Respondent 's records as not having worked after September 27 and a
handwritten notation "Quit" appeared on her card , but a challenge of her ballot by
the Respondent was withdrawn when she was later shown to have been sick. It is
needless to list all such cases. I am satisfied that Coats did not quit and that insuffi-
cient evidence of an intention to quit was shown in other instances where the
employee did not work on October 15.
Assuming , for the sake of argument, that more than the few whose timecards are
in evidence as above stated came to work on the night shift on October 15 but left
without finishing the shift , should they as a matter of either fact or law be said
'Virginia Brott, Elizaheth Cooley , Kathleen Hontar , Norma Aforien, Bernice Nunes,
Richard Brener , Evelyn Schrum , among others.
Albert Rahm , whose timecard was produced , punched in at 4:56 p. m. (long after
the warehouse meeting was over and others had punched out) and had punched out at
5 : 31 p . m. There is no evidence as to why he punched out at that time . So far as
appears , he may have been told by a supervisor to leave.
81 The evidence indicates that the Respondent frequently indulged in presumptions that
employees had quit where the employee was absent for an excusable reason and that in
such cases, when the employee returned , the Respondent would put him on again and the
supervisor would make out a timecard for him if none had been prepared in advance by
the office . The Respondent takes the position that it did not refuse to take back employees
who had been out because of illness. In several instances the word "quit " was written
on a timecard or payroll record when the employee actually was out sick.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to have quit? Duckworth gave testimony which, if believed, might prove one
employee's intent to quit. He testified that he asked an employee named Richard
Breuer where he was going, as Breuer was leaving, and that Breuer replied, "If I'm not
going to work any more this year I may as well just quit right now." In his pre-
hearing affidavit, Duckworth stated:
After it [the warehouse meeting] was over I went into the cannery and I saw
a number of the employees walking out. I asked Mrs. Herrerias what they
were doing, and she said they did not want to finish work. I did not talk to
any of the employees myself.
The evidence indicates that the warehouse meeting lasted until about 4:30 p. M.
Breuer's timecard was punched out at 4:17 p. m. If he left at that time, it is
unlikely that Duckworth even saw him. I find that Duckworth's testimony about
Breuer is not reliable enough on which to base a finding. The Respondent, itself,
adduced evidence that employers try to avoid giving advance notice to employees
that they will be laid off at a certain future time because it is the nature of employees
not to remain until that time arrives. I see no reason to differentiate Breuer's case
from that of any of the others who punched in and then left on October 15 before
the night shift ended. I find that they had no intention to quit independently of
the layoff.85
Since I have found that the Respondent terminated the night shift on October
15, in advance of the customary time, for discriminatory reasons by means of
diverting its supply of apples to the Co-op, all those who lost work with the Respondent
after October 15 because there was no night shift on which to work and because
they either were told they were not to be on the day shift thereafter or, because
they could not work days were the objects of the Respondent's discriminatory act.
Ploxa and Rawles were, in effect, given permission not to work the last shift. If
the others who were present on the night of October 15 and did not finish the night
shift because they were being laid off anyway did not actually have their employ-
ment terminated by Respondent at the time they left, they were constructively termi
nated by the Respondent's announcement of discriminatory layoffs.86
Absent the unlawful variance from its normal, nondiscriminatory practice of
laying off the night crew first, those who worked on the night shift in 1954 would
have been continued until such date as, in the usual course of events, the Re-
spondent would have terminated the night shift in 1954. It may be argued that this
is impossible now to determine. But although it is not determinable with scien-
tific exactitude, a reasonable approximation can be computed by determining the
length of time the night shift would have been employed to can some 1,300 tons of
apples, the amount unnecessarily transferred to the Co-op. Taking into account
that the day shift was continued until December 11, 1954, to can approximately
1,940 tons of apples (the amount in inventory on October 15 plus the amount
delivered by growers to the Respondent after that date by my calculations) I figure
that the night shift, working on the same days and at the same rate of production
as the day shift would have had enough apples (had the Respondent not transferred
them to the Co-op for discriminatory purposes) to keep it employed until approxi-
mately November 27, 1954. I shall therefore recommend that the Respondent
make whole those of the night shift who were actually or constructively laid off
on October 15, 1954, or who were unable to continue on days thereafter, for any
loss occasioned by the discrimination against them, by paying to each of them an
amount equivalent to that which, but for the discrimination, he normally would
have earned in the Respondent's employ from October 15 until November 27, 1954,
or until the date of their reemployment by the Respondent if that was sooner, and
that the Respondent make whole those of the day shift who were laid off on October
15, for any loss suffered as a result of the discrimination against them by paying
to each of them an amount equivalent to that which he would normally have
earned from October 15 until December 11, 1954, the end of the canning season.
or until the date of their reemployment by the Respondent if that was sooner, less,
in each case, whether day- or night-shift employee, his net earnings elsewhere
during the period indicated.87 A list of all such employees entitled to back pay will
" Hunt Heater Corporation, 108 NLRB 1353.
se,lo.R. N. Fournier, Rome Lincoln-Mercury Corp., 80 NLRB 397 ; Hunt Heater Corpora-
tion, supra; Ndrlo Offset Printing Corporation, 113 NLRB, 841.
8-Crossett Lumber Company, 8 NLRB 440, 447-498: Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7. If applicable in any instance involved herein, the net earnings
shall be computed on a quarterly basis in accordance with the Board's established practices
described in F. W. Woolworth Company, 90 NLRB 289, 291-4.
SEBASTOPOL APPLE GROWERS UNION 1231
be found in Appendix B, hereto attached and made a part hereof. I exclude from
such list those who were shown to be on the list for retention and who did not work
thereafter unless evidence was adduced to show that they would have worked on
the night shift but could not have worked on the day shift. Thus Josephine Geist
is not included, because it does not appear that she could not work on the day
shift.
I shall further recommend that the Respondent make whole Orice Storey, Gloria
Pate, and Elsie Dickerson for any loss suffered as a result of the discrimination
against them by paying to each of them a sum of money equivalent to that which
each would have earned in the Respondent's employ between the date of her dis-
charge and December 11, 1954,88 less her net earnings 89 during such period. To
implement the effectuation of this recommendation I shall recommend that the
Respondent preserve and make available to the Board, upon request, its personnel
payroll records, timecards, and other records containing information on rates of
pay, earnings, and other pertinent data.
As the unfair labor practices committed by the Respondent indicate a disposition
to interfere with the basic rights of employees guaranteed in the Act and as I find
that a danger exists that the Respondent in the future may continue, although not
necessarily by the same means, to defeat self-organization of its employees, I shall
recommend that it cease and desist not only from the acts herein found to violate
the Act but from infringing in any manner upon the rights guaranteed in Section
7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. General Truck Drivers, Warehousemen and Helpers Union, Local No. 980,
AFL-CIO, is,a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Orice
Storey, Gloria Pate (DeFont), Elsie Dickerson, and all employees listed in Appendix
B hereto attached, thereby discouraging membership in the aforesaid labor organi-
zation, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
3. By 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 and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
88 The dates of discharge are : Storey, September 25, 1954; Pate, October 18, 1954;
Dickerson, October 25, 1954.
89 See footnote 87.
APPENDIX A
WOMEN
Name ,d S a 8 d q a+
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o
-3
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t a
A w 65 Z
q
Z
D N
Albertoni, Ruth --------- Aug. 9 ___ x x x ----- ----- S
Albini, Dora ------------- July 15 x --- x x _____ x x
Allen, Lois -------------- Sept. 13 ___ x _ x
Allen, Marceline---____-_ Sept. 28 x x x _____ ___ -----
Allman, Mildred --------- Sept. 2 _-_ x _____ _____ _____ x ____ Sick on 10/12 (last date worked).
Ameral, Isabelle --------- July 16 x -_- x x ----- x I x
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WOMEN-Continued
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Ameral, Lina------------ July 9 x --- x x x ----- -----
Ames, Nora ------------- Aug. 2 x ___ x x s ----- -----
Anderson, Caroline--____ Sept. 13 x _-_ x x ----- ----- -----
Angle, Marvel ----------- Oct. 5 x -__ x _____ _____ _____ _____
Antone, Bertha---------- Oct. 7 __- x _____ _____ _____ _____ _____
Antone, Eva------------ Sept. 13 x ___ x x _____ _____ -----
Armbrust, Joyce--------- July 20 ___ x _ x
Augustin, Elisabeth __-__ July 16 x x _____ _---_ x x
Awender, Karolina__---_ July 15 x x x ___ -----
A zovedo, Virginia-__-_--- Oct. 12 x ___ _____ _____ _____ _____ -----
Baker, Bonnie ----------- Sept. 23 ___ x _____ _____ _____ _____ -----
Bartlett, Marie ---------- July 15 ___ x _ x
Bate, Erma_____________ July 19 x x x x ----- x
Bertoli, Gereline--------- Aug. 24 __- x ----- ----- ----- x x
Bertozzi, Eleanor -------- July 20 _-- x _____ _____ _____ x -----
Bills, Julia_______________ July 21 x ___ x x ----- x x
Blair, Ethel_____________ July 22 _-_ x x x ----- ----- __---
Boner, Julia_____________ July 20 _-_ x ----- ----- x
Brennan, Ruth_--_--____ July 20 - x
Brickner, Bessie--___---_ July 20 x x ----- -----
Bridges, Leona ---------- Aug. 5 x x x x _____ ___--
Bridges, Oma------------ July 28 x ___ x _____ _____ _____ x Rehired 10/20.
Brines, Zelrna----------- July 17 x --- x x _____ _____ -----
Brock, Inez_____________ July 20 ___ x ____ ----- ----- x x
Brott, Virginia ---------- Oct. 8 ___ x ----- ----- ----- ----- -----
Brown, Gladys ---------- July 19 x -__ x x _____ x x
Browning, Billie --------- July 20 ___ x _____ _____ _____ _____ -----
Browning, Doris --------- July 20 --_ x ----- ----- ----- ----- -----
Buhrman, Nina- --------- Aug. 2 x -__ x x x ----- S
Butler, Dolores ---------- July 20 -__ x _ x
Byrd, Marjorie-_____---_ July 16 x -__ x x x ----- __---
Caddell, Mary ----------- Sept. 13 -__ x x x ----- x x
Cameron, Harriet ------- July 31 x -__ x x ----- x x
Carrera, Ensebia-------- Sept. 13 ___ x _ Could not work days.
Cassidy, Beulah-____--_ July 20 x _____ _____ ___ x x
Castino, Mary_--_____--_ July 28 x x x x x x
Chames, Joanne___--____ July 26 x x x x Could not work for lack of ride.
Chapman, Alta-__-______ Aug. 25 x x x x
Chapson, Louise-___--__ July 20 x x x x x
Chicano, Virginia-___-___ July 15 x __ ___ _____ x x
Cihos, Mary------------- Sept. 8 x x x --- -----
Clark, Ruth_____________ July 17 x ___ .x x ----- ----- x
Coate, Natalie ----------- Sept. 10 x _-_ x _____ _____ _____ -----
Coats, Susie ------------- Sept. 28 -__ x x x ----- _____ ----- Sick 10/12-10/15 incl.
Coffey, Marie ------------ July 20 x -__ x ----- ----- ----- ----
Collins, Marie ------------ Sept . 28 x --- ----- ----- ----- ----- x Rehired 10/2C.
Conners, Frances -------- July 20 x _ x
Cooley, Elizabeth--_----_ Oct. 11 x ----- ----- ----- --- -----
Crump, Gatha----------- Oct. 11 x _-_ x x ----- ----- --- -
Cuttress, Evelyn -------- July 20 x -__ x x ----- x x Worked until 10/23.
Cuttress, Valeria--------- July 20 x --- x x _____ x x
Dahl, Evelyn ------------ Sept. 29 x --_ x x ----- ----- --- -
Davello, Clara ----------- Aug. 27 -_- x x x a x x Sick on 10/15.
Davis. June-------------- Sent. 10 -- x ---- ----- ----- ----- -----
SEBASTOPOL APPLE GROWERS UNION
WOMEN-Continued
1233
ame d
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ra
°
G o
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D N
Deal, Ruth -------------- Aug. 9 x -_ x x x x x Abs.10/18-10/23 w./permiss.
)eWitt, Bettie ----------- Sept. 27 __- x _____ _____ _____ x x
Dickerson, Elsie --------- July 19 x -__ x x _____ x x Discharged 10/25.
Doty, Esther ------------ July 6 x --- ----- ----- ----- x x
)rake, Frances ---------- July 26 ___ x _____ _____ _____ x x
Edwards, Helene -------- July 22 ___ x ----- ----- ----- ----- -----
Filers, Myrtis------------ Sept. 7 x __- x x x _____ _
Ellis, Mary-------------- Sept. 6 x ___ x x x ____ __-__
Elmore, Hazel ----------- Sept. 29 x ___ _____ _____ _____ x x
Elmore, Jean____________ June 7 x ___ _____ _____ _____ x x
Elvy, Cora-------------- July 20 --- x ----- ----- ----- x x
enton, Violet___________ Aug. 30 x ___ x x _____ _____ _____
!ishelson ,Ida----------- July 20 --- x - x
Fletcher, Esther--___-___ July 20 x x x x ----- -----
Floyd, Elsie_____________ Sept. 18 x ___ x x ----- _____ -----
Prank, Charlotte-------- July 22 ___ x _____ _____ _____ x x
.'reyling, Delores -------- July 20 ___ x _ ____ _____ x x
'reyling, Marcia --------- July 22 ___ x _ Next wrkd. 10/22-Quit 11/20
t./school.
Gaither, Lula____________ July 20 x x x x
Gale, Maude_____________ July 20 x _____ __--- ____ x x
Garrison, Fannie-_______ July 15 x x x _ __
Geist, Josephine________ Oct. 8 x x __--_ _____ x
Geseck, Dorothy___-____ .Aug. 31 x ___ _____ _____ x
Gulledge, Daisy_________ July 15 -__ x _____ _____ _____ x x Sick on 10/15.
Tack, Ernestine_________ July 19 ___ x x x x x x
Tall, Pastoria____________ July 20 x ___ x x _ Rehired 10/18.
lance, Anna--__________ July 22 x x x _____ -____ x Rehired 10/30.
Elansen, Hazel___________ Sept. 18 x x _____ _____ _____ ___
Janson, Ruth ----------- Aug. 18 ___ x x x _____ _____ _____
larris, Mary_____________ Aug. 19 ___ x _ x
larrison, Lucille--____-_ Sept. 29 x x _
Rose ----------- Sept. 7 x __- x x _____ _____ _____
lerrall, Gail_____________ Oct. 12 x --_ x ----- -----
Eloffschneider, Elsie_____ Sept. 7 ___ x x _
Theresa -------- Sept. 13 ___ x _____ _____ _____ _____ x Rehired 10/18.
lontar, Ellen ------------ Aug. 5 _-_ x x x _____ _____ _____
lontar, Kathleen________ Aug. 5 ___ x x x _____ _____ -----
lope, Laura------------- Oct. 6 x --- x ----- ----- ----- -----
IOwes, Georgia ---------- Aug. 7 x _ x
lydera, Marie__-_-______ Aug. 4 x x x ___ _____
acobus, Vita ------------ Oct. 12 ___ x _ x
ohnsen, Irene______-____ Aug. 25 x x x _____ ___ _____
ohnson, Loner ---------- July 23 x -_- x x x _____ __--.
ohnson, Melba ---------- Oct. 9 ___ x _ x
ones, Cornelia----______ Oct. 4 ___ x _____ _____ _____ x x
ones, Gertrude___-______ July 17 x _ x x x x
King, Dolores----------- Sept. 14 x --- -----
Kounovsky, Evelyn ----- July 15 ___ x _ x
:muse, Viola___________ Aug. 7 x x x ----- -----
Layman, Lila____________ Aug. 6 x --- x x x _____ -----
Lee, Eva---------------- July 20 x ___ x x x ----- _____
.ndl,'v Renlah Ane. 10 x x x x _____ __--
F
450553-58-vol. 118-79
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W0MErr-Continued
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Lindsay, Gloria ---------- July 21 x ___ x x x ----- ----- Sick on 10/15.
Loeffler, Sandra ---------- July 28 x _ Last worked 10/2.
McAfee , Bernice --___-___ July 15 x ? x x x
McCarl, Edna---_--_____ Sept. 6 x x x _____ -- x Did not work week ending 10/16.
McCarthy, Dora --------- Sept. 29 x ___ _____ _____ _____ _____ -----
McCullough, Alice -------
cCullo
Sept. 28 x ___ _____ _____ _____ _____ x Sick 10/19-Next worked 10/20.
McDermott. Vita -------- Sept. 13 ___ x _____ _____ _____ x x
McGuire, Mary__________ July 19 ___ x _____ _____ _____ x x
McHugh, Elizabeth--____ Sept. 28 x ___ x x _____ _____ _____
McPhee, Eloyce--------- July 16 x __- x x _____ _____ -----
Mahoney, Goldie--------- July 22 ___ x _
Mary-_--__--___ Sept. 11 x x x -----
Maw, Goldie------------- Sept. 28 x __- x ----- _____ ----- -----
May, Mary--------------- Aug. 6 x --- x x ----- ----- -----
Mazzucchi, Nancy ------- Sept. 14 ___ x _____ _____ _____ _____ -----
Miller, Hazel_____________ July 20 x __- x x ----- ----- -----
Mizell, Barbara ---------- Aug. 31 ___ x _ x Did not work 10/14-10/20.
Monroe, Betty---------__ Oct. 6 x ----- --- ----- x
Morien, Norma--____-___ Oct. 7 x _____ _____ _____ ___ x Rehired 10/25.
Mynock. Ada ------------ Aug. 21 x ___ x x ----- ----- -----
Napier, Renee ----------- Oct. 1 ___ x ----- ----- ----- ----- x
Nelson, Irene ------------ Aug. 18 x --- ---- ----- x ---- -----
Nemet, Elisabeth -------- July 16 x ___ x x ----- x __-_-
Niemi, Selma ------------ Aug. 31 __. x x x ----- x x
Noble, Mary------------- July 20 -__ x ----- ----- ----- x x
Nunes, Bernice ---------- July 31 _-_ x x x x ----- _____
Offutt, Dorothy --------- July 16 x ___ x x x ----- -----
Pate, Gloria_____________ July 15 x -_- x x x x ----- Terminated 10/18.
Patterson, Marian ------- Aug. 4 ___ x _____ _____ _____ _____ -----
Perry, Catherine --------- Aug. 2 --- x ---- ----- ----- ----- x
Pesenti, Claudina-------- July 20 ___ x _____ _____ _____ x x
Peterson, Sylvia --------- July 19 ___ x _ Quit 11/1.3-school.
Pirolle, Esther-_____-____ July 21 x x ___
*Ploxa. Pauline ---------- Sept. 13 __- x x ----- ----- x _____ Could not work days.
Poncia, Anita____________ July 20 _
Pool, Lorraine-__________ Sept. 22 x x x ___
*Rawles, Dora ----------- Sept. 13 ___ x x ----- ----- x _____ Could not work days.
*Reardon, Darlene Oct. 12 x --- x ----- ----- ----- -----
*Reece, Gertrude________ Sept. 15 x --- x x ----- x x
Rettela, Gertrude ------- July 22 ___ x _____ ----- ----- x x
Reynolds, Rosette_______ July 24 x _ Quit on 10/18.
Rocca, Pauline_-_-______ Sept . 28 x x x --- -----
Ross, Aloa Rae ---------- Oct. 2 x __- x _____ _____ _____ __--
Row, Julia Ann --------- July 22 _-- x x _____ _____ _____ x Sick 2 weeks-rehired 10/28.
Rufino, Margaret________ July 20 ___ x x x _____ _____ -----
Runyon, Lillian --------- Sept. 3 ___ x ----- ----- ----- ----- -----
Russell, Mary ------------ July 24 x ___ x x x ----- __--_
Sehef ber, Marie ---------- July 16 x ___ x x _ Out-Indus. accident-rehired
11/8.
Schoenthal, Elizabeth - July 17 x x x x x
Schrum, Evelyn------__ Aug. 23 x ----- ----- ----- ----- ---
Scott, Gertrude ---------- Aug. 24 x _-- x x _____ _____ _____
Scott. Merle______________ July 22 __- x ----- ----- _____ _---- -___
SEBASTOPOL APPLE GROWERS UNION
WOMEN-Continued
1235
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Seidel, Mary----------- Sept. 13 --- x ----- ---- ----- ---- -----
Shields, Viteria__________ July 16 x ___ x x ----- _____ -----
Smith, ,Jessie_--_________ Sept. 17 x ___ _____ _____ _____ _____ x Did not work between 10/15 and
10/20.
Smoker, Helen. _--------- July 20 ___ x ----- ----- ----- x x
Souza , Mathilda--------- Sept. 27 ___ x _____ _____ _____ _____ _____
Susoeff, Ruth_______-____ July 19 __. x _ x
Sweningson, Amy---____ Oct. 5 x x ___ -----
Taber, Marion----------- Sept. 1 _-_ x _____ _____ _____ _____ -----
*Tatum, Nancy-------- Oct. 12 x ___ x _____ ----- _____ ----
Thornton, Lois ---------- Oct. 5 x ___ x x _____ _____ -----
Thorp, llah-------------- July 20 ___ x ----- ----- ----- x x
Tripp, Marie_____________ Sept. 10 x __ x ----- ----- ----- -----
Urton, Etta_____________ July 20 x __- x x _____ _____ x Rehired 10/18.
Veach, Shirley ----------- July 21 x _ x
Vernon, Amy--._____--__ Sept. 13 x x x --- -----
Vessels, Stella ------------ Sept. 17 x _ Rehired 10/19.
Vogel, Anna------------- July 15 x x x
Wakeland, Geneva_______ July 20 x ---__ -___ _____ x x
Wasin, Edyth_-_-----____ Aug. 9 x x _____ _____ _____ x Rehired 10/18.
Wilder, Louise-__________ Sept. 14 x x x __
Wilson, Edith-__________ July 27 x _____ _____ _____ _____
Ziegenbein, Thelma_____ July 21 x ----- ----- ----- x
Zimpher, Patricia -------- Oct. 6 x _____ _____ _____ x ___ Could not work days.
MEN
Allman, Lyman--------- Sept. 1 --- x -
William-_(P)__ Sept. 9 -__ x _ x
Augustin, Willy___------- July 23 x x _____ _____ ___ x
Bate, John--------------- Sept. 14 --- x ----- ----- ---- ----- -----
Bennett, Laurie --------- July 14 ___ x _____ _____ _____ x x
Bertoni, Joe ------------- Sept. 28 ___ x ----- ----- ----- ----- x
Breuer, Richard --------- Sept. 28 ___ x _____ _____ _____ _____ -----
Burger, George---------- Sept. 21 x ___ _____ _____ _____ _____ -----
Chapman, Orland--(P)--! July 11 x - x
Chicano, Salvador-______- July 19 x _____ _____ _____ x x
Coffey, John------------- July 19 x - x ----- _____
Coppock, Irvin ---------- June 21 ___ x _____ _____ _____ x x
Correia, Frank ----------- July 11 ___ x _____ _____ _____ x x
Crownover, Lee --------- Aug. 30 x ___ _____ _____ _____ x x
Darden, David---------- July 29 __- x _____ _____ _____ _____ -----
Davis, George --_-------- Sept. 27 x ___ _____ _____ _____ ____ __ _
DeVilbiss, Robert ------- I July 19 x --- ----- ----- ----- ----- x
Donner, George -__----__ July 20 ___ x ----- a
Duncan, Worthy-----___- Sept. 24 x ___ -----
Elmore, Eugene --------- - July 17 x _ x x Did not work between 10/10 and
10/23.
Falorni, Adolfo-________ Aug. 16 x _ x x
Festa,Enrico_ Aug. 16 x -- - x x
Foster. Herman ---------- July 20 x x x
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEN-Continued
Name
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Foster, William---------- Sept. 23 ___ x _
Ernest July 13 x x _____ _____ _____ _____
Garcia, Jose------------- Mar. 29 x ___ x x x x
Gulledge, Alvin Martha-_ July 20 _ x x
Gulledge, Lonzo__--_-___ May 11 x ___ _____ _____ _____ x
Hall, Sidney_____________ Aug. 31 x ___ _____ _____ _____ x x
Heflin, Arthur___________ Oct. 4 x ___ x ----- _..___ ___ x Rehired 10/20.
Higgens, Edward-______ Sept.11 x ___ _____ _____ _____ x x In military service on 10/19.
Jiminez, John-_-_____-___ Feb. 18 x ___ _____ ____ _____ x x
Johnson, Raymnond(P) July 24 x ___ _____ _____ _____ x x
Johnson, Willie___________ Sept. 13 x _____ _____ _____ x x
Jungers, Oscar--_________ July 20 x ___ _____ _____ _____ x x
Kelleher, Gerald_________ Aug. 27 __ x _ ---- ----- ----- ----- ---- Quit 10/18.
Lee, Leonard-__-__-____ July 23 x x _____ x _____ ____-
Lee, Robert_____________ June 28 x ___ _____ _-___ _____ x x
Lewis, Victor----_--(P) Sept.41 x ___ _____ _____ _____ x x
Loeffler, Carl-___________ July 15 x ___ _____ _____ _____ x Quit 10/18.
McCall, Harry----------- Sept. 29 x --
Marra, Alvin-____-______ July 21 x _ ---- ----- ----- ----- -----
Masouka, Frank--___-___ July 8 x ___ _____ _____ _____ x x
Mills, Lloyd----__-(P) Oct. 11 x ___ _____ _____ ____ _____ x
Narron, Henry---_______ July 8 x _____ _____ _____ _____ x Became night watchman 10/15.
Oandason, Andy(P May 24 x _____ _____ _____ x
Panelli,Ray---____(P)_ July 131 x x x x x Discharged 10/20.
Papera, Oliver- Apr. 19 x ___ _____ _____ _____ x x
Phillips, Richard---_____ Sept. 24 x x _ __
Poggi, Joseph, Jr(P) Apr. 19 x _____ _____ _____ x
Pozzi, Charles ----------- Sept. 27 ___ x _____ _____ _____ _____ _____
Rahm, Albert ----------- June 21 ___ x x x _____ _____ -----
Reynolds, Richard_______ Aug. 11 _-_ x x x _
Rodrigues, Edward______ July 14 x ___ _____ _____ _____ x x
Rogers, Gerald---------- Sept. 29 ___ x ..... ..... . ..... ...... . .....
Smith, Joyce ---- --------- July 17 ___ x _____ _____ _____ _____ -----
Smith, Wayne ----------- Aug. 7 x ___ x ----- x
Snodgrass, Robert_(P) May 10 x ___ _____ _____ _____ x x
Storey, Clarence-________ July 15 x x x x ----- -_---
Sweningson, Rudolph___ Oct. 5 x ___
.
x _____ _____ _____ -----
Tallman, Lester ---- (P)__ 1952 ----- x
.
___ _____ _____ _____ x x
Todd, Gerald ------------ Aug. 21 x ___ _____ _____ _____ x x
Tsurumoto, George_(P)__ July 15, -__ x ----- ----- - ----- x
.
x
Unciano, Froilan__-_____ Aug. 24 x ___
-
_____ _____ _____
--
___ _____
Weare, William---------- July 20 x
-
___ _____ _____
-
_____ ----- -----
Wood, Robert ------------ July 20 ___ x __-__- ----- ----- x x
Yeager, Kenneth -------- Sept. 2 x ___ _____ _____ _____ x x
S-Sick on and after 10/19.
*Union card signed at place of employment before hire by Respondent.
I Date hired in 1953.
(P) Hired as more or less permanent employees for year-round work.
SEBASTOPOL APPLE GROWERS UNION
APPENDIX B
DAY SHIFT
WOMEN
1237
Allen, Marceline Freyling, Marcia Miller, Hazel
Ameral, Lina Garrison, Fannie Mynock, Ada
Ames, Nora Hall, Pastoria Nelson, Irene
Anderson, Caroline Hance, Anna Offutt, Dorothy
Angle, Marvel Hanson, Hazel Pool, Lorraine
Antone, Eva Herrall, Gail Reardon, Darlene
Awender, Karolina Harrison, Lucille Rocca, Pauline
Azevedo, Virginia Hayden, Rose Ross, Aloa
Bridges, Leona Hope, Laura Russell, Mary
Bridges, Oma Hydera, Marie Scheffler, Marie
Brines, Zelma Johnson, Lenor Scott, Gertrude
Buhrman, Nina Kruse, Viola Shields, Viteria
Byrd, Marjorie Layman, Lila Smith, Jessie
Cihos, Mary Lee, Eva Sweningson, Amy
Clark, Ruth Lindley, Beulah Tatum, Nancy
Coate, Natalie Lindsay, Gloria Thornton, Lois
Coffey, Marie McCarl, Edna Tripp, Marie
Collins, Marie McCarthy, Dora Urton, Etta
Crump, Gatha McCullough, Alice Vernon, Amy
Dahl, Evelyn McHugh, Elizabeth Vessels, Stella
Eilers, Myrtis McPhee, Eloyce Vogel, Anna
Ellis, Mary Marguez, Mary Wasin, Edyth
Fenton, Violet Maw, Goldie Wilder, Louise
Floyd, Elsie May, Mary
MEN
Burger , George Fribourghouse, Ernest Storey, Clarence
Coffey, John Heflin, Arthur Sweningson, Rudolph
Davis, George Lee, Leonard Unciano, Froilan
DeVilbiss, Robert Mills, Lloyd Weare, William
Duncan , Worthy Phillips, Richard
NIGHT SHIFT
WOMEN
Albertoni, Ruth Fletcher, Esther Perry, Catherine
Antone, Bertha Gaither, Lula Peterson, Sylvia
Baker, Bonnie Hanson, Ruth Pirolle, Esther
Bate, Erma Hoffschneider, Elsie Ploxa, Pauline
Blair, Ethel Hofland , Theresa Rawles, Dora
Brickner, Bessie Hontar, Ellen Row, Julia
Brott , Virginia Hontar, Kathleen Rufino, Margaret
Browning, Billie Johnson, Irene Runyon , Lillian
Browning, Doris King, Dolores Schrum, Evelyn
Carrera, Ensebia Mazzucchi , Nancy Scott, Merle
Coats, Susie Morien , Norma Seidel, Mary
Cooley, Elizabeth Napier, Renee Souza , Mathilda
Davis, June Nunes, Bernice Taber, Marion
Edwards, Helene Patterson, Marian Wilson, Edith
The following, all on the retention list, are excluded from this Appendix for
reasons shown: -
1. Betty Monroe-Although added to complaint on motion by General
Counsel, no evidence was adduced that she could not work days.
2. Josephine Geist-No evidence that she could not work days although she
is named in amendment to complaint.
3. Patricia Zimpher-Not named in complaint, although there is evidence
that she could not work days.
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEN
Allman, Lyman Foster, William Rahm , Albert
Augustin , Willie Kelleher , Gerald Reynolds , Richard
Bate, John McCall , Harry Rogers, Gerald
Berton , Joe Marra , Alvin Smith, Joyce
Breuer, Richard Narron, Henry
Darden, David Pozzi , Charles
The following men named in the complaint are excluded from this Appendix
for the reasons shown : Fay Neel was not employed by the Respondent between
July 31 and October 15, 1954; so, instead of being laid off, he was just rehired at
the time of the layoff . Alvin Gulledge was identified as the same person as Martin
Gulledge, whose name was on the retention list and who continued to work on the
day shift . His name was stricken from the complaint on motion by the General
Counsel.
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in General Truck Drivers, Ware-
housemen and Helpers Union, Local No . 980, AFL-CIO, or any other labor
organization of our employees by discharging , laying off, refusing to reemploy,
or in any other manner discriminating in regard to the hire, tenure of em-
ployment , or any other term or condition thereof, of any of our employees
or any applicant for employment.,
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of the right to self-organization , to form labor organi-
zations, to join or assist General Truck Drivers, Warehousemen and Helpers
Union , Local No. 980 , AFL-CIO, or any other labor organization , to bargain
collectively through representatives of their own choosing , and to engage in
concerted activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities, except to the extent
that such right may be affected by a valid agreement requiring membership
in a labor organization as a condition of employment , as authorized in Section
8 (a) (3) of the Act.
WE WILL make whole the following employees for any loss suffered as a
result of the discrimination against them:
1. Orice Storey
2. Gloria Pate DeFont
3. Elsie Dickerson
4. All employees named in Appendix B of the Intermediate Report of
the Trial Examiner, a copy of which is attached hereto and made a part hereof.
All our employees are free to become or remain members of the above -named labor
organization , or any other labor organization , or to refrain from such membership
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment , as authorized
in Section 8 (a) (3) of the Act . We will not discriminate in regard to hire or tenure
of employment or any term or condition of employment against any employee because
of membership or nonmembership in or activity on behalf of any such labor
organization.
SEBASTOPOL APPLE GROWERS UNION,
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.