Superior Olive Products Co.

National Labor Relations Board - Board Decisions

Nov 30, 1942

45 N.L.R.B. 869 (N.L.R.B. 1942)

In the Matter of MICHELE PASTORE AND SISTO D. CROSINA, CO-PARTNERS,
DOING BUSINESS UNDER THE NAME AND STYLE OF SUPERIOR OLIVE PROD-
UCTS COMPANY and FRESNO LABOR COUNCIL
In the Matter Of MICHELE PASTORE AND SISTO D. CROSINA, CO-PARTNERS,
DOING BUSINESS UNDER THE NAME AND STYLE OF SUPERIOR OLIVE PROD-
UCTS COMPANY and CANNERY & DRIED FRUIT WORKERS UNION, LOCAL
22642, A. F. L.
Cases Nos. C-2318 and C-0319, respectively. Decided November 30,
1942
Jurisdiction : olive processing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: warnings and threats of supervisors ; dis-
paraging union.
Discrimination: discharge for union membership and activity; defense of alleged
interference with production rejected ; charges of, dismissed as to one person.
Collective Bargaining: majority established by signed applications-refusal to
accord recognition, though admitting union majority in appropriate unit ; loss
of union's majority among employees in an appropriate unit no defense, where
employer's unfair labor practices caused loss of majority.
Remedial Orders: cease and desist unfair labor practices; order to bargain,
collectively ; reinstatement and back pay awarded.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees at. respondents' Visalia plant, exclusive of supervisory employees.
DECISION
AND
ORDER
On August 29, 1942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondents'
had engaged in and were engaging in certain- unfair labor practices
and recommending that they cease and desist therefrom, and take the'
affirmative action as set out in the copy of the Intermediate Report
attached hereto. Thereafter the respondents filed exceptions to the
Intermediate Report and a brief in support thereof. The charging
labor organizations have not excepted to the, findings and recommen-
1In his Intermediate Report, the Trial Examiner referred to the co-partners collec-
tively as "the respondent." We shall adopt our usual practice of designating them
collectively as the respondents and of referring to them singly under their proper respective
surnames.
45 N. L. R B., No. 130.
869
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9
dations of the Trial Examiner. None of the parties requested oral
argument before the Board. The Board has considered the rulings of
the Trial Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed.2
The Board has considered the Intermediate Report, the respond-
ents' exceptions and brief, and the entire-record in the case and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner. We make the following findings in addition to those made
by the Trial Examiner:
The Trial Examiner found that the respondents discriminatorily
discharged McDoniel and Ripple on the morning of January 14, 1942.
We agree with the Trial Examiner's finding. The respondents' con-
tention that they were discharged by Plant.Foreman Bashor on the
evening of January 13, allegedly for cause, cannot be reconciled,with
certain facts which the record clearly discloses. Thus, on the evening
of January 13, when Bashor talked to Ripple in the office, Bashor
assured the latter that the respondents were intending to raise wages
and that Bashor would probably find repair work in the plant for`
Nipple during the summer months. When McDoniel and Hipple
left the plant shortly thereafter, they were on friendly terms with
Bashor and invited him to drink with them, as Bashor had done on
previous occasions. Bashor ' then learned from the night foreman
of a rumor that employees at the plant were threatening a work
stoppage to secure wage increases. Thereupon, Bashor questioned
every employee on the night shift. About midnight Bashor called
Crosina by long distance ' telephone and reported the events of the
evening to him. On the morning of January 14, McDoniel and Rip-
ple reported for work as usual, as Bashor admits he expected them
to do. When the men found other eriiployees assigned to perform
their work, they immediately questioned Bashor. On this occasion
Bashor made no reference to -any notice of discharge given by him
during the preceding evening. On the contrary, Bashor told them
that they' were discharged by Crosii a's order. Crosina, to whom
Hipple thereafter appealed for the cause of his discharge, only re-
plied, "I don't need you any more." It was the respondents' busy
season at the plant. The work of the discharged men was entirely
satisfactory. We therefore conclude and find that, when Bashor
reported to Crosina by long distance telephone the presence' of Mc-
Doniel and Hipple in the plant and the threatened concerted action
for an increase in wages, Crosina knew that the successful organiza=
2In their answer, verified on July 10,' 1942, the respondents incorporated a motion to
dismiss this proceeding. Except'insofar as the complaint, as amended, alleges that.the
respondents discriminated against Vera' Sanford because of her union membership and
activities and those of her husband, the motion is hereby denied.
MICHELE PASTORE, ET AL. 871
tion of the plant was imminent and instructed. Bashor to discharge
McDoniel and Ripple when they reported for work the following
morning.
ORDER
Upon the entire record in the case, and pursuant to Section f0 (c)-
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents, Michele Pastore and Sisto
D. Crosina, co-partners, doing business under the name and style
of Superior -Olive Products Company, Fresno and Visalia, Cali-
fornia, their officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Fresno Labor Council, affiliated
with the American Federation of Labor, or in any other labor organ-
ization of their employees by discharging any of their employees
because of membership in Fresno Labor Council, affiliated with the
American Federation of Labor, or in any other labor organization,
or by discriminating in any other manner in regard to their hire and
tenure of employment;.
(b) Refusing to bargain collectively with Cannery and Dried Fruit
Workers Union, Local 22642, affiliated with the American Federation
of Labor, as the exclusive representative of all production and main-
tenance employees at the respondents' Visalia plant, exclusive of
supervisory employees, in respect to rates of pay, wages, hours of
employment, and other conditions of employment;
(c) In any other manner interfering with, restraining, or coercing
employees of the respondents in the exercise of the -right to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their-own choosing, and to
engage in concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection, as guaranteed in Section ' 7
of the Act: • % ^ ' ' - ` •
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to C. W. McDoniel 'and Archie Ripple immediate and
full reinstatement to their former or substantially , equivalent posi-
tions, without prejudice to their seniority and other rights' and
privileges ;
(b) Make whole C. W. McDoniel and Archie Hipple for 'any loss
of pay they may have- suffered by reason of their respective dis-
charges by payment to each of them of a sum of money equal to that
which he normally would, have earned as wages during the period
from the date of his discharge to the date of the respondents' offer
of reinstatement, less his net earnings ' during said period ;
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) - Upon request, bargain collectively • with Cannery and Dried
Fruit Workers Union, Local 22642, affiliated with the American Fed-
eration of Labor, as the exclusive bargaining representative- of all
production and maintenance employees at the respondents' Visalia
plant, exclusive of supervisory employees;
(d) Post immediately in conspicuous places at their Fresno and
Visalia plant's, and maintain for a, period of at least sixty ( 60) con-
secutive days' from the date of posting, notices to their employees
stating: , (1) that the respondents will not engage in the conduct
from which they are ordered to cease and desist in paragraphs 1
(a), (b), and (c) of this Order; (2) that the respondents will take
.the affirmative action set forth in paragraphs 2 (a), (b), and (c) of
this-Order; and at their Fresno plant (3) that the respondents' em-
ployees are free to become or remain members of Fresno Labor
Council, affiliated with the American Federation of Labor, and that
the, respondents will not discriminate against any employee because
of membership or activity on behalf of that organization; and
(e) Notify the Regional Director for the Twentieth Region in
writing within ten (10) days from the date of this Order what steps
the respondents have taken.to comply herewith.
IT Is HEREBY ORDERED that the complaint, as amended, be, and it
hereby is, dismissed insofar as it alleges that the respondents have
discriminated in regard to the hire and tenure of employment of
Vera Sanford.
CHAIRMAN MILLis took no part in the consideration of the above
Decision and Order.'
INTERMEDIATE REPORT
Mr. LeRoy Marceau, for the Board.
Mr. James T. Barstow, of Fresno , Calif., for the respondent.
Mr. I. B . Padway, of Hayword, Calif ., for the Council ' and for the Union.
STATEMENT OF THE CASE
Prior to May 26, 1942 , Fresno Labor Council, affiliated with the American
Federation of-Labor, herein called the Council, and Cannery and Dried Fruit
Workers Union , Local No. 22642, also affiliated with the American Federation
of Labor, herein called the Union, filed separate charges alleging that Michele
Pastore and Sisto D. Crosina , co-partners doing business under the name and
style of Superior Olive Products Company, herein collectively called the re-
spondent , had engaged in unfair labor practices within the meaning of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
On May 26, 1942, the National Labor Relations Board, herein called the
Board , issued an order consolidating the two cases. Under a third amended
charge duly filed on June 24, 1942 by the Union, and upon a second amended
charge duly filed on June 30, 1942, by the Council , the Board by its Regional
Director for the Twentieth . Region issued its consolidated complaint, dated
MICHELE PASTORE, ET" AL. 873
June 30, 1942, hereinafter referred to as the complaint, alleging that the
respondent had engaged in and was engaging in unfair, labor practices within
the meaning of Section 8 (1), (3), and (5), and Section 2 (6) and (7) of the
Act. Copies of the complaint accompanied by notice of hearing were duly
served upon the respondent, the Council and the Union.
'With respect to the unfair labor practices the complaint alleged in substance
that the respondent: (1) Urged, threatened and warned the employees (a) at
its Fresno plant, from on or about January 10, 1942, not to join or assist, but
on the contrary to withdraw from the Council, (b) at its Visalia plant, from on
or about March 17, 1942, not to join or assist, but on the contrary to withdraw
from the Union ; (2) On or about January 14, 1942, discharged C W. McDoniel
and Archie Ripple, employees at its Fresno plant, because they joined and-assisted
the Council; (3) Since about February 23, 1942, refused to bargain collectively
with the Union which at.all times since February 23, has been the exclusive
representative-of the respondent's employees at the Visalia plant, within a unit
appropriate for collective bargaining; ' (4) By the foregoing acts has interfered
with, restrained and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
The respondent filed its answer, verified July 10, 1942, in which it admitted
certain allegations of the complaint but denied that it had engaged in any unfair
labor practices. It admitted the discharges of McDoniel and Hippie but alleged
said discharges were for cause. The answer denied the appropriateness of the
unit alleged in the Visalia plant. The answer further admitted that on the
dates set forth in the complaint the Union requested the respondent to bargain
with it but denied that the respondent refused'to bargain with the Union, and
affirmatively alleged that the respondent was willing to bargain with the 'Union,
but would not make a contract because the Union did not represent a majority
in the unit.
Pursuant to notice, a hearing was held on July 14 and 15 at Fresno, California,
and on July 16 and 17, 1942, at Visalia, California, before the undersigned, the
Trial Examiner duly designated by the Chief Trial Examiner. The respondent,
the Council and the Union, were represented by counsel and participated in the
hearing Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded all parties. At the
commencement of the hearing Board's counsel moved, without objection, to amend
the complaint so as to allege that the respondent on or about April 13, 1942,
discharged Vera Sanford, an employee at the respondent's Visalia plant, solely
because of her membership and the membership and activities of her husband
in the Union. The motion was granted without objection 2 After the motion
to :amend the complaint had been granted, respondent's counsel stated on the
record that respondent denied the allegations in the amendment. It was then
stipulated by all the parties that the answer be considered amended so as to
include such denial. At the close of the hearing Board's counsel moved to amend
the complaint to conform to the proof with respect to such matters as names,
dates, and spelling. A similar motion to amend the answer was then made by
counsel for the respondent. Both motions were granted without objection. At
the conclusion of the hearing all parties were given an opportunity to present
oral argument before, and to file briefs with, the undersigned. No oral argu-
' The unit alleged to be appropriate consists of all production and maintenance em-
ployees of the respondent,.excluding supervisory employees
ID The second amended charge filed in Case XX-C-1120 on June 24, 1942, alleged the
unlawful discharge of Vera Sanford.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rlnents were presented but after the close of the hearing the respondent filed a.
brief with the undersigned.
Upon,the entire record in the case and from his observation of the witnesses
the undersigned makes the following: _
FINDINGS OF FACT '
I. THE BUSINESS OF THE RESPONDENT
The respondent is a partnership composed of Michele Pastore and Sisto D.
Crosina, doing business under the name and style of the Superior Olive Products
Company, having its principal office and place of business at, or near, Visalia,
California, where it is engaged in the business of processing olive oil and packing
olives. In addition to its plant at Visalia, herein referred to as the Visalia plant,
it has a plant in Fresno, California, herein referred to as the Fresno plant where
it is engaged in processing olive oil. Seventy-five percent of the olive oil produced
at the two plants, amounting annually to in excess of $300,000 and 50 percent
of the olives packed at its Visalia plant amounting annually to in excess of
$40,000 are shipped in interstate or foreign commerce to points other than in the
State of California. The respondent in its answer and on the record admitted
the interstate character of its business.
II. THE ORGANIZATIONS INVOLVED
Fresno Labor Council and Cannery and Dried Fruit Workers Union, Local
22642, are labor organizations, affiliated with the American Federation of Labor,
admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Fresno Plant. Interference, restraint and coercion;
discriminatory dn,schary'es
The record does not disclose any history of collective bargaining in either of
the respondent's plants prior to January 1942. Early in January 1942, some of
the employees at the Fresno plant discussed among themselves methods of secur-
ing higher wages and otherwise bettering their working conditions They dele-
gated one of their members, C W. McDoniel, to see what could be done about it.
About the 3rd or 4tb of January, McDoniel conferred with W. T. O'Rear, secretary
of the Fresno Labor Council,'. relative to the employees' problems. O'Rear
advised organizing the employees of the plant and gave McDoniel a number of
blank applications for membership in the American Federation of Labor. McDon-
iel distributed the application cards among the employees, and actively solicited
them to sign these cards. During the ensuing week there was discussion among
the employees in and out of the plant about organizing a union.
Two or three days after his conference with O'Rear, McDoniel and Archie
Ripple, another employee interested in organizing the Fresno employees, talked
to Plant Foreman A. A. Bashor, in a place located near the Fresno plant de-
scribed as "Sharkey's beer joint." McDoniel testified, that at that time they
discussed organizing a union in the plant and that Bashor stated that he
"wouldn't put up with it" and would discharge any of the employees who tried
The Fresno Labor Council accepts applications for membership in the American Federa-
tion •of Labor and places them in an applicable local union. If such a local is not in
existence, the Council cieates one when a sufficient number of applications are received'
' MICHELE PASTORE, ET AL., 875
to organize. Hippie corroborated McDoniel that the barroom talk was about
organizing the respondent's employees and that Bashor stated that he bad no
use for a union and that "if any of his men joined the union he would discharge
them." Although,Bashor admitted seeing , McDoniel and Ripple on several occa-
sions during this period at Sharkey's and talking with them, he denied'that
he talked tt3 them there or at any other place about union activities. The record
discloses Bashor's testimony to be inconsistent in several instances' and the
undersigned was not impressed with his reliability as a witness In view, of
the inconsistencies in Bashor's testimony and what transpired during the fol-
lowing week at the Fresno plant as hereafter appears, Bashor's denial is not
credited It is found that on January 5 or 6, Bashor told McDoniel and Ripple,
in effect, that if they organized a union in the plant, they would be discharged.
Within the next week, 13 employees, including McDoniel and Hipple , signed
application cards.
Sisto D. Crosina, one of the respondent partners, usually spent part of each
working day at the Fresno plant, although he lived in Visalia , 40 miles away.
On January 13 he told Bashor that he noticed that the men were not working
"like they used to,"' especially if no one was around to watch them. Crosina
instructed Bashor, "If there is someone that don't want to work, if we have to
watch them all the time you better leave them go "
The period herein discussed was the respondent' s busy season . It employed
33 persons about equally divided into day and night shifts. 11IcDoniel and
Hipple both worked on the day shift. On the night of January 13, after their
working hours, Ripple, using his car, drove McDoniel to the plant to interview
some of the employees on the night shift about signing application cards. Both
McDoniel and Hipple entered the plant. McDoniel talked for about 10 minutes
to several of the then working employees. Hippie waited in the plant for Mc-
Doniel. During this period Hipple greeted one or two of the employees While
this was going on, Bashor entered the plant 6 and saw McDoniel talking to the
employees and -Ripple apparently doing the salve thing. Bashor called Ripple
into the office and accused him of disrupting the plant. _
There is conflict,between •the testimony of Hippie and Bashor as to what dis-
cussion took place between them at this time. Hippie's version is that Bashor
asked him if he was the "main instigator of all the trouble that was going on
in the plant" ; that Ripple replied that he was not the main instigator but that
he would go along with the rest of the employees if they wanted to organize ;
that Bashor•replied by saying "I am sorry to hear it. You will have to go with
the rest of them then." Bashor at first testified that he • asked Hippie why he
* At this time , according to McDonel, he replied to Bashor , that organization of the
employees was coming and that the employees were going " to close the joint up "
5 Bashor testified that he knew nothing about any union activity in the plant until
January 14 On cross -examination , however, Bashor admitted that on January 13 he
talked to practically every man on the night shift about a rumored strike in the plant.
On cross-examination lie first stated that be did not know what Hippie was discussing
when he saw Hippie talking to the employees . Then he changed this testimony by ad-
mitting that Hippie had told him that the reason he was talking to the employees was
because they ( the employees ) were not getting enough money . Again Bashor stated that
when-he discharged Hippie he asked Hipple , "Why he should Rant to start anything like
that," meaning why Hippie w as active in talking to the men , and Hippie replied that
it was because he was , not getting enough money.
Bashor , as foreman , was in charge of the plant . He worked days but occasionally
came to the plant at night, especially when a night shift was working. In this instance,
his testimony is credited that he came to the plant because that day Crosina had com-
plained to him that some of the employees were shirking their work and instructed him
to ascertain who they were and discharge them.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was disrupting the plant and stopping work and that he then told Hippie he
would have to let him go ; that Ripple responded, "Well alright" and that he
[Bashor] then went back in the plant for McDoniel. Later on Bashor testified,
that when he asked Ripple why he "wanted to start anything like that," that
Ripple replied that it was because he was not getting enough money; to which
Bashor answered: "Well you never said anything about money, more'money" and
"that is a very poor way to get more money."
It is found that Bashor accused Ripple of organizing the employees and when
Ripple admitted that he was assisting others in attempting to organize the
plant, that Bashor told Ripple he would "have to go with the rest of them" but
did not discharge Ripple on the night of January 13.
After this warning to Ripple, Bashor had a conversation with McDoniel in the
office. According to McDoniel's• testimony, after he had talked to some of the
night shift employees for about ten minutes he went to the respondent's office
where he found Ripple with Bashor, that at that time they had a talk with
the foreman similar to the barroom conversation previously related. "We just
talked about trying to organize the plant and he [Bashor] just made it plain
he would discharge us if we caused any disturbance among the men-"
Ripple corroborated McDoniel that the latter came to the office while Ripple
was with Bashor. Ripple was not asked and did not testify as to what was
said after McDoniel arrived.
Bashor testified that after his talk with Ripple he went into the plant where
McDoniel was still talking to some of the workers, that he then brought McDoniel
back to the office and told McDoniel that he was discharged. Because of incon-
sistencies in Bashor's testimony herein found,' and the surrounding circumstances,
Bashor's testimony of his talk with McDoniel is not credited. It is found that
the conversation was substantially as detailed by McDoniel and that Bashor
did not discharge McDoniel January 13. None of the employees on the night shift
to whom McDoniel and Ripple talked on January 13 were discharged or even
criticized for neglecting their work. After the above talks with Bashor, McDoniel
and Ripple left the plant.
Although LeRoy Facciani, brother-in-law of Crosina, testified that Bashor
had instructed him that employees off duty were not allowed in the plant during
working hours,' neither Bashor nor Crosina testified that there was any such
rule in the plant at the time of the discharges. The testimony of Ripple and
McDoniel is credited that there was no notice or instruction to that effect while
they were working for the respondent but that several days after their dis-
,charge a notice prohibiting visitors was posted in the plant. It is therefore
found that the respondent had no rule prohibiting employees off duty from visit-
ing the plant. ' k
The next morning both McDoniel and Ripple reported at the plant but found 2
other employees doing their work. McDoniel's testimony is credited- 'that he
then went to Bashor and asked him "what the score was" ; that Bashor replied
that McDoniel was "finished" as he.had orders from Crosina to discharge him;
that Bashor then added that he, had told McDoniel before "it was going to
happen" and that Crosina knew about the organizing activity in the plant.
Ripple's uncontradicted testimony is credited that when he reported for work
that morning, the night man doing the same work was still on the job ; that,
when Ripple offered to take over, the night man told him that he had been
7 See footnote 5, supra.
s Facciani worked at the Visalia plant but spent some time at the Fresno plant during
January, 1942.
'MICHELE PASTORE^ ET AL. 877
instructed by Bashor' to "stick around a while" ; that Hipple then went to, the
office and asked Bashor what was wrong ; that Bashor replied, "I guess you
will have to go," 9 at the same time telling Hipple that he had intended using
'him to do repair work in the plant during the slack season the following summer
for he considered Hipple as one of the "main" men.
Neither McDoniel nor Hipple have been offered employment of any kind by
the respondent, since January 14.
Within the next week the respondent granted a general wage increase to the
employees.
Conclusions
The undersigned is of the opinion that the actions of the respondent in January
1942 show a pattern of unlawful intimidation, coercion and discrimination which
was designed, to discourage the respondent's Fresno employees from organizing.
Thus about January 6 Foreman Bashor, after he had heard the employees
were planning on organizing to secure better wages, told McDoniel and Hippler
the leaders in the movement, that he would discharge any employee who tried
to organize the plant. In spite of this warning McDoniel and Hipple continued
their efforts to secure union applications. The respondent on January 14 dis-
charged McDoniel and Hipple after it found that they were persisting in their
-efforts to organize the employees. ,
The undersigned finds that by said acts the respondent has interfered with„
restrained and coerced its employees in. the exercise of rights guaranteed in,
Section 7 of the Act.
The respondent contended at the hearing and in its brief that McDonieI
and Hipple were discharged, for interfering with production. This contention
is not credited. According to both Crosina and Bashor, the latter had instruc-
tions to discharge employees found loafing on duty., Instead, Bashor discharged
McDoniel and Hipple who were off duty at the time, because he claimed that he
found them talking to and interrupting the work of employees on duty. The
employees who 'allegedly neglected their work to listen to McDoniel and pre-
sumably to Hipple, were not discharged or even disciplined. So far- as the
record discloses, they were not even criticized for loafing on the job. Further-
more, at this time there was no rule which prohibited employees off duty from
talking to employees who were working.
There was some unrest and disturbances among. the employees but it was
due at least in part, to the desire of, the employees to better their low
wage scale. That the respondent recognized this is obvious from the fact that all
the employees' wages were increased after the discharge ofMcDouiel and Hipple.
It is found that the contention of the respondent that McDoniel and Hipple'
were discharged for interfering with production was a pretext and that the
real reason for, their discharge on January 14, 1942, was their' union activity.
The undersigned finds that the respondent has discriminated in regard,to the
hire and tenure of employment of C.. W. McDoniel 'and, Archie Hipple, thereby
discouraging membership in a labor organization.
° There is testimony in the record that on January i4, Hipple was under the influence
of liquor. This was at noon or later when Hipple had returned to the plant for his check
There is no contention that Hipple had been drinking \hen he reported for work that
morning, or that he was discharged for intoxication.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Visalia Plant. Interference , restraint and coercion ; . refusal to bargain
About February 21, 1942, John Medina, an organizer of the National Council
of Cannery and Dried Fruit Workers, affiliated with the American Federation
of Labor, began organizing the employees of the Visalia plant in Cannery and
Dried Fruit Workers Union, Local 22642. By February 23, Medina had secured
signatures to application cards of a majority of the respondent's production and
maintenance employees in that plant.10 In the early afternoon of February 23,
Medina accompanied by Harry Jones, vice president of Local 22642,11 called on
Michele Pastore, one of the two partners of the respondent at the company office.
Medina at that time showed the application cards to Pastore who looked them
over and conceded that the Union had signed applications from a majority of
the employees. 11 After Pastore had looked over the cards Medina presented
and requested the respondent to sign a typewritten form recognizing the Union
as the bargaining agency of the respondent's employees and agreeing to bargain
collectively with it. Pastore asked for' a day or two' to secure legal counsel.
It was agreed to adjourn the meeting to February 25 1' On the 25th of February,
Pastore, Medina and Jones met again at the respondent's office. James L.
Gorman, president of the Union, was also present at this meeting. Medina
asked Pastore if legal counsel had been secured and was advised that Pastore
had not talked to an attorney. Pastore then called J. Pat Kelly, sales manager
and administrative assistant in charge of labor relations for the respondent.
Kelly joined the conference and Pastore asked his advice about signing the
certificate of recognition. After some discussion Pastore agreed to sign a state-
ment in the form recently signed by the, Pacific Olive Company; a -competing
concern. Such a form was then prepared and typed in the respondent's office
under Medina's direction. Pastore then signed it. Crosina, the other partner,
was home ill at the time, so- the union representatives drove to Crosina's home
the same day and obtained his signature too. 14
Several days after February 25, Medina and C. C. Fuller, Secretary of the
Central Labor Council in Visalia, called on Pastore and requested him to arrange
10 The business at Visalia was also somewhat seasonal but during the processing season
,the respondent employed approximately 30 people , about equally divided between men and
women
11 Local 22642 is usually referred to as the Union.
12 Medina told Pastore that he had applications of all the respondent's employees except
about 6 who had delayed signing Medina asked permission from Pastore for Jones and
James L Gorman, president of the Union , to enter the plant to secure the signatures of
these employees Permission was granted and the signatures of the following 6 employees
referred to by Medina were secured : Angelo, Gerald, and LeRoy Facciani, all hi others-in-law
of Sisto D. Crosina, and Olin Murphy, Joe Maderos, and Joe Miguel, Jr The six signed,
when they learned that the respondent did not object
13 On February 24, according to the undisputed testimony of Cecil R . Sanford , herein
credited , Michele Pastore after questioning Sanford about his union affiliations stated
"I don't know about these unions " The next day,at another talk with Pastore, the latter
inquired of Sanford , in the presence of two or three other employees , if they were mem-
bers of the Union Sanford, although he had signed a card, did not say so but admitted to
Pastore he belonged to a union that did not concern the respondent. -
14 It reads in part as follows :
It has been represented to the undersigned Company, . . . that more than 50% of its
employees have designated [ the Union ] as their representative for the purpose of
collective bargaining with said Company.
MICHELE PASTORE, ET AL. 879
a date to start negotiations relative to terms of a contract. Pastore informed
the representatives of the Local that the matter was out of his hands as the re-
spondent had authorized the California Association of Employers to, act for it
and that Mr. MeMeekan, attorney for that Association would represent the re-
spondent in any negotiations When Medina pressed for a date to start negotia-
tions, Pastore stated that he was uncertain when the negotiations would start
for he understood McMeekan was then busy on some other case. Medina then
told Pastore he would make a written request for a date to begin negotiations
On March 9, the Union sent the respondent a registered letter which contained
the Union's proposals, and,requested that negotiations start on March 14.1u On
March 16,3 not having received any response to the above letter, Medina, accom-
panied by Jones, called at the respondent's office and inquired of Kelly why no
answer had been received to the Union letter Kelly. replied that he did not know
that an answer was necessary Kelly further stated to the Union representa-
tives at that time that he could not understand why people should ask for more
wages with a war going on, and when his son in the armed forces was receiving
only $21 a month Kelly then referred to all labor organizers as racketeers and
illustrated his point by telling a story of a local creamery worker who negligently
destroyed a great quantity of cream or milk, and who,,after being discharged by
his employer, was reinstated because a union interceded in his behalf before
the Board 16
After this interview with Kelly, Medina reported to the National Council that
the respondent had no intention of negotiating with the Local."
On March 16, Joe Maderos invited Kelly to attend a meeting of the employees
to be held"in the plant on March 17, for the purpose of discussing labor problems
in the plant. On the same day Angelo Facciani 18 approached Cecil R Sanford
during working hours and asked Sanford, who had previously signed an appli-
cation to join the Union, what he thought about calling a meeting of the
employees to "see if we can't et something worked out without the Union."
Sanford replied, "that is just like sticking Johnny Medina, [the union organizer]
in the back." During the course of this talk, according to Sanford, Facciani
said that Crosina was his brother-in-law, and that he had learned that if the
meeting was not held, the respondent would "ship all the stuff south and
wouldn't sort it there" which would mean practically closing down the Visalia
`15 It reads in part as follows :
Att'n Mr. Pastore and Mr Crosma :
Pursuant to the action of the Negotiating Committee , at a special meeting held
Friday Night, March 6 , 1942 , we wish to inform you , that we wish to enter negotiations
a nth your company at your earliest cons enience
we should like to start negotiations on Saturday March 14, 1942 , at 1.00 P. M.
and we hope that this date will meet with your approval.
The Negotiating Committee requests and would appreciate an answer by return
mail
We are enclosing the Union proposal, 1942 supplementary ( sic) contract which
covets hours and wage and the blue booklet of 1941 , which contains all other stipula-
tions regarding working conditions etc. Please read page 1 of supplementary (sic)
agreement which clarifies this in full
le This finding is based on the testimony of Medina and Jones , which testimony was not
denied by Kelly
19 As appears hereafter, Medina and another National Council representative called on -
Kelly on the following Thuisday to arrange for a meeting to negotiate . Kelly answered,
that the respondent would not negotiate , because the Union did not represent a majority.
18 Maderos was one of the 6 employees who signed a union application after being advised
it was agreeable to the respondent . Facciani , a relative of Crosina , also delayed signing a
union application See footnote 13, supra
1
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant The above testimony of Sanford was not denied by Angelo Facciani and
is found to be the fact.
On March 17, the Visalia plant was not in full operation." However, all the
employees whether working or not, were notified by their fellow employees 2D
of a meeting to be held in the grading room of the plant that morning. Prac-
tically all the employees attended, including supervisors.` LeRoy Facciani
called the meeting to order and acted as chairman. According to Facciani, a
respondent's witness, he told the employees that the purpose of the meeting
was "to form a union of our own, sort of an organization of some kind and we
wanted suggestions for higher wages " After telling his audience that he
thought they might be able to get higher wages Facciani introduced Kelly.
The respondent's office stenographer, at Kelly's request, took notes of what
transpired at the meeting while Kelly was present. At the hearing, a transcript
of these notes was offered by the respondent and received in evidence. Kelly
testified that the transcript accurately set forth his speech Accepting his
testimony in this respect, as well as the transcript of the minutes of the meeting,
it is found that Kelly told the employees in substance: (1) that the respondent
knew that the employees were dissatisfied with their wages and had been
organized by the Union; (2) that the Union had been trying to negotiate with
the respondent for higher wages for the employees but so far had been un-
successful because (a) the respondent did not like to have "strangers" tell it
how, to run its business, and (b) the respondent was obligated neither to nego-
tiate nor to sign an agreement with a union unless the attorney for the California
Association of Employers, of which the respondent was a member, was present;
(3) that the Union's representatives had said that the employees were incapable
of negotiating for themselves but that the respondent did not think so and
would be "happy" to meet with a committee of its employees; (4) that the
respondent was financially able to raise the employees' wages and suggested
that if a group of regular or steady employees would go to the respondent, a
raise , to correspond with the union scale, would probably be forthcoming;
and (5) that the employees who signed applications to join the Union could
disregard them.
Employee Olin Murphy stated at the meeting that the respondent would not
want to deal with the Union as the representative of the employees because,
in that event, the respondent would be unable to discharge an employee without
good cause In obvious derision of unions generally, and following Murphy's
statement, Kelly recited two instances which occurred in a unionized, local
creamery where two employees had been separately discharged, one because he
negligently_ wasted a large quantity of milk, and the other because he wrecked a
truck in disobeying 'instructions not to speed Both of these employees, Kelly
stated, were ordered reinstated by the Board at the intercession of their union.aa
LeRoy Facciani then suggested that a written agreement be prepared and signed
by the employees and presented to the respondent. Kelly replied that if the
iB On March 12, due to the closing of the canning season, all women employees had been
temporarily laid off They did not return to work until about the first week of April
a° The Facciani brothers, Joe Madezas and Joe Miguel , Jr., notified some of the employees.
The supervisory present during the meeting were Mary Ferrero, forelady, and Anton
Pastore, foreman There was some effort made to prove that Angelo and LeRoy Facciani
"ere supervisors, but the undersigned finds the evidence insufficient to establish that fact
As brothers-in-law of Crosina both the Facciams were closer to the management than
oidinary employees, and it is so found.
a- This is the same story Kelly had previously told to Medina and heretofore referred to.
MICHELE PASTORE, ET AL. 881
employees desired such a written statement, that he would be glad to present it
to the respondent?' -
Kelly completed his talk and discussion, left the meeting, and returned to
his office. After his departure, a "Yes" and "No" ballot vote was suggested,`
followed by discussion as to whether or not the employees wanted the Union
to represent them. Gladys Barlow testified' that Angelo Facciani stated that
if the employees "were with the Union" that the plant would close, for he had
seen a letter to that effect In substance, Cecil Sanford corroborated this
testimony of Barlow. Although Angelo Facciani denied making such a state-
ment at the March 17 meeting, or at any other time, his credibility as a witness
was so badly impeached,26 that his denials are not believed. It is noted also,
as herein found, that Facciani had previously made a similar statement to
Cecil, It. Sanford. It is therefore found that Facciani made the statement
substantially as testified to by Barlow and Sanford.
After the discussion, blank sheets of paper were passed around for a "Yes"
or "No" vote as to affiliation with the Union. Benny Facciani 29 tabulated the
vote. Fore] ady 'Ferrero checked the tabulation and the result of the vote was
written on a blackboard by Angelo Facciani The vote was approximately 5
for the Union, and 20 against. LeRoy Facciani then suggested that the meet-
ing make a direct demand on the respondent for higher wages Without
putting the question to a vote, such a demand was prepared by LeRoy Facciani,
Joe Maderos and a few others, and was taken to the respondent's office where
its stenographer edited and typed the demand LeRoy Facciani then showed
the demand to Kelly, who when asked if it should be signed by the employees,
replied in the affirmative 27 LeRoy returned to the meeting and the demand
was read to the employees by Mrs. Ferrero, the forelady LeRoy Facciani
then requested the employees to sign this demand, stating that Kelly had
advised such action. Most of those present,signed, but a few, including Cecil
It. Sanford and Vera Sanford, refused to do so and started to leave. Vera
.Sanford, whose testimony was corroborated by other witnesses and is credited,
testified that as she and the others who had not signed started to leave the
meeting, Foreman Tony Pastore, brother of Michele Pastore, stated to them,
"Well, those that want jobs sign paper, and those that doesn't, why, they
don't want job." Sanford and the others then signed The demand 29 for a
wage increase was delivered to Kelly at his home that night by LeRoy Facciani.
The respondent put the demanded wage scale into effect the very next day,
March 18. '
On Thursday, March 19, Medina accompanied by Hal Angus, the National
Secretary of the National Council, called on Kelly Angus asked Kelly' whether
23 Kelly testified that the statement of LeRoy Facciani about a wi itten agreement was
made to Kelly by LeRoy in the respondent's office after Kelly had left the meeting The
undersigned is convinced and finds that the suggestion for an agreement was made at the
meeting during Kelly's presence Later, as hereafter found, a demand for 'an increase
in wages was prepared in the meeting and brought to the office by Angelo Facciani. At
that time the demand was approved by Kelly.
24 The record is not clear as to who made this suggestion
25 On cross-examination he admitted that he told the Board 's counsel pilor to the hearing
that he saw such a letter in the respondent 's wastebasket This admission was corroborated
by other testimony herein credited
23 Nephew of LeRoy and Angelo Facciani.
27 See footnote 23, supra.
28 It provides for a basic wage scale of 58 cents per hour for women except the floorlady,
.whose rate is 68 cents per hour, and for an increase of 15 cents an hour for men, above
the then prevailing rate in the plant. This increased rate was substantially equivalent
to the scale demanded by the Union.
493508-43-vol. 45-56
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the company intended to negotiate with the Union, adding that the Union was
going to meet the next day with the Pacific Olive Company to negotiate a contract
and suggested that the respondent join in the negotiations at that time Kelly
it first answered that the respondent would prefer to negotiate separately. He
then'added that the respondent would not negotiate because he understood that
some of the employees had withdrawn from the Union and therefore it no longer
represented a majority in the plant.
1. The appropriate unit
The unit alleged in the complaint consists of "all production and maintenance
employees, employed in connection with the Visalia` Plant, but excluding super-
visory employees."
Although the respondent in its answer denied the appropriateness of this unit
it stipulated at the hearing that the unit alleged in the complaint was an appro-
priate unit.
The undersigned therefore finds that all production and maintenance employees
of the respondent at its Visalia plant, exclusive of supervisory employees, at all
times material herein constituted, and now constitute, a unit appropriate for
the purposes of collective bargaining with respect to rates of pay, wages, hours
of employment, or other conditions of employment, and that said unit insures
to employees of the respondent the full benefit of their right to self-organization
and to collective bargaining and otherwise effectuates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
From February 23 to March 1, 1942, the respondent had 38 production and
maintenance employees , excluding supervisors.
On February 23, 1942, the Union had 30 signed applications. That day or
the next, the Union secured 6 more applications Although it denied the Union's
majority in its answer, the respondent at the hearing stipulated "that at the time
referred to in the complaint" the Union had a majority of signed pledge cards of
the employees in the "agreed unit."
The undersigned finds that' on and at all times after February 23, 1942, the
,Union was, the duly designated, representative of a majority of the employees
in the aforesaid appropriate unit, and that it, by virtue of Section 9 (a) of the
Act, was the exclusive representative of all the employees in that unit for the
Iiuiposes of collective bargaining with the respondent in respect to rates of pay,
wages, hours of employment, and other conditions of employment.
Concfusions
The respondent's activities after February 23, 1942, when it was advised by
the Union that it had a majority and deinanded,bargaining rights, evidence a
pattern of unlawful intimidation, coercion and discrimination which was designed
to undermine the authority of the Union, and to eliminate its majority and to
render ineffective its efforts to secure a collective agreement.
Although on February 23, the respondent conceded that the Union had a
majority, on February 24, Michele Pastore said to Cecil R. Sanford he "did
not know about these unions," and the next day he inquired of Sanford and two
or three other employees if they had signed union application cards. On Febru-
ary 25, the respondent refused to put in writing its prior admission that the
Union represented a majority, and its commitment to, bargain with the Union.
MICHELE PASTORE^ ET AL. 883
The respondent also refused to recognize the Union as the collective bargaining
representative of the employees. The respondent was under an obligation, within
the meaning , of the Act, to accord such recognition since the Union represented
a majority of the employees in an appropriate unit. By failing on February 25,
to so recognize the Union, the respondent refused to bargain in good faith with
the Union 20 Thereafter, the respondent at first delayed, and finally refused to
fix a date for negotiations and ignored the Union's proposal which included a
request for a raise in wages. Through Kelly, it criticized union organizers as
racketeers , for asking for wage increases in war time. The Facciani brothers,
Joe Miguel and Joe Maderos, arranged a meeting of the employees "to get some-
thing worked out without-.the union." 30 Although none of.these men were super-
visors , the Faccianis are brothers-in-law of Crosina, and it is clear from Kelly's
statements at the March 17 meeting that the respondent not only knew of these
representations , but approved of them, and it is so found.
At the March 17 employees' meeting, Kelly stated that the Union was seeking
to negotiate for higher wages but that the respondent had not agreed on a date
to start the negotiations ; that the respondent did not like to be told what to do
by "strangers"; that the employees could obtain a wage increase equivalent to the
Union demand if they asked for it directly ; that those who signed Union applica-
tions could ignore them. The vote on the retention of the Union that followed
this talk was taken in the presence of supervisors, after Angelo Facciani threat-
ened that the plant would close if the Union won. The demand by the employees
for a wage increase was prepared by Joe Maderos and LeRoy Facciani, and was
typed in the office by the respondent's stenographer with Kelly's knowledge.,
Forelady Ferrero read the,ddmand to the-meeting. Kelly, through LeRoy Fac-
ciani advised the employees to sign the statement Foreman Anton Pastore
warned that those employees that did not sign would lose their jobs.
The undersigned finds that by the above enumerated acts, the respondent has
interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
As herein -found, the respondent's first knowledge of the Union's activity in the
Visalia plant was on February 23, 1942, when the Union representatives showed
to the respondent Union application cards, signed by a majority, of its Visalia
employees , and requested the respondent to agree to bargain with it. At that
time, the respondent'acknowledged the'majority status of the-Union but asked for
time. During the next three weeks, it delayed negotiations with the Union and
on March 19 definitely refused to negotiate on the ground that it no longer repre-
sented a majority of the employees. In the meanwhile, as herein found, on
March 17, the employees had voted by a large majority against the Union and
had asked for and obtained a raise in their wage scale. But this occurred only
after they had been told by the respondent to repudiate the Union and that they
could obtain a wage increase without the aid of the Union.
Under the circumstances the Union's loss of the majority, if such there was
as a result of the March 17 vote, was the clear and inevitable result of the
respondent's unfair labor practices,. and it is so found. Such renunciation of
20 As heretofore found, the respondent (lid however sign a statement that the Union
claimed to represent a majority See footnote 15, saopra.
31 As heretofore found, Angelo Facciani, in urging the employees' meeting told Cecil
R Sanford on March 16 that if such meeting was not held the respondent would ship its
proceeds "south," and close the plant. Angelo at that time called attention to the fact
that he was a brother-in-law of Crosina, to impress Sanford with the apparent authenticity
of his infoimation
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union as occurred was clearly not the voluntary acts of the employees."
Under the circumstances , the Union did not lose its majority status,32 since any
expressed change in the attitude of the employees was the result of the coercive
and, intimidating practices of the respondent , as herein found.
It is therefore found that the respondent on February 25, 1942 , and at all times
thereafter,, has refused to bargain collectively with the Union as the exclusive
representative of the employees in the appropriate unit and that ' by such refusal
it has interfered with, restrained and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
C. The alleged dlscipininatory discharge
The complaint, as amended at, the hearing, alleged that the respondent dis-
charged Vera Sanford on or about April 13, 1942, solely by ,reason of her mem-
bership and the membership and activity of her husband in the Union.
Cecil R Sanford and his wife, Vera, began working for, the respondent in
Visalia in October 1941.33 Sanford signed a union application card in the presence
of Foreman Anton Pastore and Angelo Facciani. As has been heretofore found,
on March 16, Angelo Facciani asked Sanford what he thought of calling a meeting
of employees to work out their problems without the Union and that Sanford
replied in forceful language that he did not favor the idea. Sanford attended
the March 17 meeting, and'during the discussion at this meeting as to whether
or not the employees should retain the Union, Angelo Facciani told Sanford in
the presence of others. as has been heretofore found, that if the employees kept
the Union, the respondent would ship its olives South. In reply to this state-
ment of Facciani,-'Sanford said "that don't make no difference to me, Angelo."
After the request for the 'wage raise had been typed, Sanford was aiuong the
few who refused to sign the paper and left the meeting He however, with
the others, signed the document after Foreman Pastore had warned them to do
so or they would be out of work. On April 10, 1942, Sanford asked for and
obtained leave of absence for April 11. On .April 11 he went to Los Angeles.
On April 13, the next working day, he reported to work but on finding there
was no_ work for his wife he left the plant with and has not been back
since
Vera Sanford signed an application card on February 23 She also attended
the -March 17 meeting and refused to sign the wage increase demand until
Anton Pastore made the threat that those that did not sign would lose their
,jobs. Mrs. Sanford desired to accompany her husband to Los Angeles on April
11. On April 10, she told her forela'dy, Mrs Ferrero, that she would not report
for work on the next day. Mrs Ferrero told Mrs Sanford the respondent did
not like the girls to be absent from work unless it was for "an important
reason."" There was a dispute between Mrs Sanford and Mrs. Ferrero as to
what further was said at this point Mrs Sanford testified that she told the
forelady that "the trip is necessary On the other hand, Mrs. Ferrero testified
31 International Association of Machinists v. National Labor Relations Board, 311 U S.
72
as Golden Turkey Mining Company and International Union of Mine, Mill and Smelter
Workers, Local No 410, 34 N. L R B. 760 -
33 Sanford started working October 6 Mrs. Sanford began working about the middle of
October
31 At this time, according to the testimony of Mrs. Feriero and other witnesses whose tes-
tiniony in this respect is credited , the olives that were being processed were of poor quality
and required more grading than the usual inn, for which reason Mrs Sanford could not
be given any time off . Mrs Sanford and other women employees did this grading work
3s Although Mrs Sanford did not specifically testify that she told Mrs. Ferrero that
she was going to take a trip to Los Angeles, her testimony implied such a statement.
MICHELE PASTORE^ ET AL. 885.
Mrs. Sanford did not give any excuse or reason for desiring to be off Saturday
and that nothing further was said. It was not an unusual thing for the women
employed by the respondent to ask for and secure an occasional day off. The
previous February Mrs. Sanford bad asked for time off and it was granted as
she explained she desired to attend the funeral of a relative. Mrs Ferrero
testified that if she had been told by Mrs. Sanford that the latter was going to
Los Angeles with her husband, she would not-have,excused her unless:"she had to
be there."' Mrs Sanford knew on April 10 that a good excuse was required in
order to obtain a leave of absence from work. It is found that on April 10,
Mrs. Sanford requested a leave of absence for the following day,' saying only
that ft was "necessary" but that such leave was not granted by her forelady. On
Monday morning both Sanfords reported for work. Mrs Ferrero told Mrs San-
ford she did not need her but would send for her if she did.36 Both Sanfords
then left the plant and went to the office where Mrs.. Sanford asked Michele
Pastore why she had been laid off for more than one day when she had only
taken one day's leave of absence. Pastore replied that he did not know but be
would find out. He then telephoned to some one in the plant and after doing
so told Mrs. Sanford the. respondent did not need any women at that time but
they would send for her if they did. Neither Sanford nor his wife thereafter
returned to the plant or asked the respondent for work. Two women were
later employed by the respondent but in neither instance was Mrs. Sanford
called. One of these, Mary Graziani, had been employed by the respondent
prior to the employment of Mrs Sanford, and the other one, Mary Mello, had
been employed at approximately the same time n So far as the record discloses,
no strict seniority rule was followed at the Visalia plant.
It is clear from the above, and the undersigned so finds, that the respondents
knew that the Sanfords favored the Union up to and including the March 17
meeting. Aside from the signing of applications and participating'in the March
17 meeting as above set forth, as far as the record discloses neither of the San-
fords was particularly active in the Union. After the March 17 meeting neither
of them displayed any union activity. It is obvious that Mrs Sanford was not
discharged but was laid off on April 13, and that the reason given for her lay-off
was comparatively trivial However, the question the undersigned is concerned
with is whether or not she was removed from employment because of her
union membership, or the union membership and 'activities of her 'husband as
alleged in the complaint It has been found heretofore that the respondent en-
gaged in unfair labor practices by undermining the union membership in an
effort to reduce its membership. below, that of a majority of the respondent's
Visalia employees ; that the respondent also raised the wages of its employees
to correspond in effect to the Union's' demand, and refused to bargain with the
Union But this happened on and prior to March 17. Nothing developed after
that time so far as the Sanfords -were concerned to cause the respondent any
anxiety because of their prior union memberships, and-mild activity therein.,
The undersigned is therefore convinced and finds that Mrs. Sanford was laid
off on or about April 13, 1942, because she had failed to report to work on April
11, without obtaining leave. It' is, therefore, found that the respondent has not
36 The forelady also told Mrs; Sanford at the time that she thought she could get along
with one less woman. -
31 Mary Graziana was reemployed on May 29, Mary Mello on June 29. 'Mrs. Sanford
remained near Visalia where her address was known to the respondent until May 30,
1942. At that time the Sanfords removed from the vicinity of Visalia.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminated against Vera Sanford in regard to her hire or tenure of employ-
ment, thereby discouraging membership in a labor organization da
IV. THE EFFECT'OF THE:UNFAIR:LABOR PRACTICES- UPON - COMMERCE
The activities of the respondent set forth in Section III above occurring in
connection with the operations of the respondent described in Section I above,
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 of commerce.
V TIIE REMEDY
It has been found that the respondent has engaged in certain unfair labor
practices at its Fresno and Visalia plants. It will be recommended that the
respondent cease and desist therefrom, and take certain affirmative action
designed to effectuate the policies of the Act.
Since the respondent has unlawfully discriminated in regard to the hire and
tenure of employment of C. W. McDoniel and Archie Hipple, it will be recom-
mended that the respondent offer them reinstatement to their former or sub-
stantially equivalent positions and make them whole for any loss in earnings
suffered by them as a result of the respondent's discrimination against them,
by payment to each of them of a sum equal to the amount which he normally
would have earned in wages from the date of his discharge to the date of the
offer of reinstatement less his net earnings 39 during said period.
It has been found that the respondent refused to bargain collectively with the
Union, as the exclusive representative of its Visalia employees in an appropriate
unit It will, therefore, be recommended that the respondent, on request, bargain
collectively with the Union as the exclusive representative of its Visalia em-
ployees in the appropriate unit in respect to rates of pay, hours or employment,
and other conditions of employment.
Upon the foregoing findings of fact and upon the entire record of the case, the
undersigned makes. the following : I
CONOLUSIONS OF LAW
1. Fresno Labor Council and Cannery and Dried Fruit Workers Union, Local
22642, both affiliated with the American Federation of Labor, are labor organiza-
tions within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act the respondent has engaged in
unfair labor practices within the meaning .of Section 8 (1) of the Act.
as The complaint as amended did not allege a discriminatory refusal to reinstate Vera
Sanford . However, the record shows and the undersigned finds that there was no dis-
criminatory refusal to reinstate her. The only woman employee reinstated up to May 30,
1942 , while Sanford was still available, was Mary Graziana who had been initially em-
ployed prior to Sanford and who was therefore entitled to as much consideration as Sanford
if not more, when the need foi another woman worker arose on May 28, 1942.
3913y "net earnings" is meant earnings less expenses, such as for transportation, room,
and board , incurred by'an employee in connection with obtaining work and working else-
where than for the iespondent, which would not have been incurred but for his unlawful dis-
charge'and the consequent necessity of'his seeking employment elsewhere See Matter of
Crossett Lumber Company and United Brotherhood of Carpenters ' and Joiners of America,
Lnniber and Sawmill 117orkers Union, Local 2590, 8 N. L R. B 440 . Monies received for
work performed upon Federal , State , county, municipal , or other work -relief projects shall
be considered as earnings See Republic Steel Corporation v N. L. R. B., 311 U S 7.
MICHELE PASTORE, ET AL. 887,
3. By discrimination in regard to-the hire and tenure of employment of C. W.
McDoniel and Archie Ripple, thereby discouraging membership in a labor or-
ganization, the respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 '(3) of the Act.
4 The production and maintenance employees of the respondent at its Vis-
alia plant, excluding supervisory employees, at all times material herein, con-
stituted ' and now constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the Act.
5. Cannery and Dried Fruit Workers Union, Local 22642, affiliated with the
American Federation of Labor, on or about February 23, 1942, was, and at all
times thereafter has been, the exclusive representative of all employees in such
unit for the purpose of collective bargaining, within the meaning of Section 9
(a) of the Act.
6. By refusing on February 25, 1942, and at all times thereafter to bargain
collectively with Cannery and Dried Fruit Workers Union, Local 22642, affil-
iated with the American Federation of Labor as the exclusive representative
of its, employees: in the appropriate unit, the respondent has engaged- in' and
is engaging in unfair labor practices within the meaning of Section 8 (5) of
the Act.
7.' The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. By laying off Vera Sanford, the respondent did not engage in unfair labor
practices within the meaning of Section 8 (3) of the Act.
RECOMMENDATIONS
Upon the basis' of 'the foregoing findings of fact and conclusions of law the
undersigned recommends that the respondent, Michele Pastore and Sisto D
Crosina, co-partners, doing business under the name and style of Superior Olive
Products Company, Visalia, California, and their successors and assigns , shall:
1 Cease and desist from
(a) Discouraging membership in Fresno Labor Council or any other labor
organization of its employees 'by discharging' any of its employees because 6f
membership in the Fresno Labor Council or any other labor organization or by
discriminating in any other manner in regard to their hire and tenure of em-
ployment ;
(b) Refusing to bargain collectively with Cannery and Dried Fruit Workers
Union, Local 22642, affiliated with the American Federation of Labor as the ex-
clusive representative of all production and maintenance employees exclusive
of supervisory employees in the respondent's Visalia plant.
(c) In 'any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of their right to ' self-organization, to form,' join, or
assist labor organizations, to bargain collectively through representatives of
their own choosing and to engage in concerted activities for purposeg'of collective
bargaining or mutual aid or protection as guaranteed in Section 7 of the Act.
- 2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Offer to C. W. McDoniel and Archie Hipple immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to
their seniority and other rights and privileges ;
(b) Make whole C W. McDoniel and Archie Hipple for any losses of pay
they have suffered by reason of their respective discharges by payment to each
of them of a sum of money equal to that which each would have normally earned
888 DECISIONS OF NAT10NAL LABOR RELATIONS BOARD
as wages during the period from the date of his discharge to the date of the
offer of reinstatement, less his net earnings during such period ; 90 -
(c) Upon request bargain collectively with Cannery and Dried Fruit Workers
Union, Local 22642, affiliated with the American Federation of Labor, as the
exclusive bargaining representative of the employees in the unit found appro-
priate :
(d) Post immediately, in conspicuous places at its plants in Fresno and Visalia
and maintain for a period of at least sixty (60) consecutive days from the date
of posting, notices to its employees stating: (1) that the respondent will
not engage in the conduct from which it is recommended that it cease and desist
in paragraph 1 (a), (b), and (c) of these recommendations; (2) that the
respondent will take the affirmative action set forth in Section 2 (a), (b), and
(c) of these recommendations; and (3) that the respondent's employees are
free to become or remain members of Fresno Labor Counsel, affiliated with the
American Federation of Labor, and that the respondent will not discriminate
against any employee because of membership or activity in said organization ;
(e) Notify the Regional Director for the Twentieth Region in writing within
twenty (20) days from the date of the receipt of this Intermediate Report the
steps which the respondent has taken to comply herewith. It is further recom-
mended that unless on or before twenty (20) days from the receipt of this Inter-
mediate Report the respondent notifies said Regional Director in writing that
it will comply with the foregoing, recommendations, the National Labor Relations
Board issue an order requiring the respondent to take the action aforesaid.
It is further recommended that the complaint, as amended, be dismissed in-
sofar as it alleges that the respondent engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act by the discharge of Vera Sanford.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended-any party may within
thirty (30) days from the date of the entry of the order transferring the case
to the Board, pursuant to Section 32 of Article II of said Rules and Regula-
tions, file with the Board, Shoreham Building, Washington, D. C ; an original
and four copies of a statement in writing setting forth such exceptions to the
Intermediate Report or to any other part of the record or proceeding (including
rulings upon all motions or objections) as he relies upon, together with the original,
and four copies of a brief in support thereof. As further provided in said Section
33, should any party desire permission to argue orally before the Board, re-,
quest therefor must be made in writing to the Board within twenty '(20) days
after the date of the order transferring the case to the Board.
J. J. FITZPATRICK,
Trial Examiner.
Dated August 29, 1942.
40 See footnote 39, supra.