Vegetable Oil Products Co., Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1936

1 N.L.R.B. 989 (N.L.R.B. 1936)

In the Matter Of VEGETABLE OIL PRODUCTS COMPANY, INC., A CORPO-
RATION and SOAP AND EDIBLE OIL WORKERS UNION, LOCAL No.
18409
Case No. C-44.-Decided June 23, 1936
Vegetable Oil Products Industry-Interference, Restraint or Coercion : denial
of right of employees to be represented by non-employees ; questioning employees
regarding union membership and activity ; expressed opposition to labor organi-
zations ; circulating petition designating company-dominated union as representa-
tive of employees ; persuading employees to refrain from joining union-
Discrimination : discharge-Reinstatement Ordered-Back pay: awarded.
Mr. Leonard Janofsky for the Board.
Mr. C. W. Hobson, of Los Angeles, Cal., for respondent.
Mr. M. Melnicoe, Mr J. W. Buzzell and Mr. H. B. McMurray, of
Los Angeles, Cal., and Mr. A. H. Peterson, Mr. E. F. Prior and Mr.
C. A. Evans, of Wilmington, Cal., for the Union.
Mr. Melvin C. Smith, of counsel to the Board.
DECISION
STATEMENT OF CASE
Upon charges duly filed by Soap and Edible Oil Workers Union,
Local No. 18409, hereinafter called Local No. 18409, the National
Labor Relations Board, by Towne Nylander, Regional Director for
the Twenty-first Region, issued its complaint, dated November 12,
1935, against Vegetable Oil Products Company, Inc., Los Angeles,
California, hereinafter called respondent. The complaint, and po-
lice of hearing thereon, were duly served upon respondent and Local
No. 18409 on November 12, 1935.
The complaint alleges that respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section 8, sub-
divisions (1) and (3), and Section 2, subdivisions (6) and (7) of the
National Labor Relations Act, approved July 5, 1935, hereinafter
called the Act, in that respondent, by its officers and agents, did dis-
charge James C. Humphrey, Dale Fritts, Marshall Shafer, Harry
Shephard, Reece L. Moore, Walter Crostic, H. L. Taylor, William
D. Ensor, A. V. Price, F. E. Campbell, Lester Price, Frank L. Lee,
Frank Williams, and John Williams, and refused and does now
989
990 NATIONAL LABOR RELATIONS BOARD
refuse to reinstate them for the reason that they, and each of them,
joined and assisted Local No. 18409, a labor organization, and en-
gaged in concerted activities with other employees for the purpose of
collective bargaining and other mutual aid and protection. Re-
spondent filed an answer to the complaint admitting the allegations
concerning its incorporation and place of business, and admitting
the interstate sources of quantities of its raw materials and the sale
and interstate transportation of certain of its finished products, but
denying that such constitutes a continuous flow of commerce among
the several states. Respondent's answer admits that respondent dis-
charged and refused reinstatement to each of its employees named in
the complaint, but denies the allegations in the complaint with re-
spect to the unfair labor practices.
Pursuant to the notice thereof, A. P. Entenza, Trial Examiner
duly designated by order of the Board, conducted a hearing on
November 19, 1935, at Los Angeles, California. Respondent, appear-
ing by counsel, participated in the hearing. Respondent moved to
dismiss the complaint on the ground that the Board has no juris-
diction over respondent, and on the further ground that the Act is
unconstitutional. The Trial Examiner denied the motion to dismiss.
Respondent, alleging insufficient time in which to prepare its case,
made a motion for a continuance of the hearing to December 2, 1935.
The Trial Examiner granted the motion, and the hearing was re-
sumed on December 2, 1935. Counsel for the Board made a motion
that A. P. Entenza be disqualified as Trial Examiner for the Board
on the ground that he had made a speech before Local No. 18409 sub-
sequent toy the issuance of the Board's complaint. The Trial
examiner granted the motion. The rulings of A. P. Entenza, Trial
Examiner, are hereby affirmed.
Thereafter, Charles F. Lowy, Trial Examiner duly designated by
order of the Board, conducted the hearing on December 2, 3, 4, 5, 6,
9, 10, 11, 12, 13, 23, 24, 26, and 30, 1935, at Los Angeles, California.
The complaint was amended at the hearing by counsel for the Board,
by withdrawing Reece L. Moore from the list of individuals named
therein, and adding H. L. Livesay thereto ; and it was further alleged
that respondent had discharged and refused to reinstate William F.
Wyly because he was a member of a labor organization. Full oppor-
tunity to be heard, to cross-examine witnesses and to produce evi-
dence was afforded to all parties.
Upon the record thus made, the transcript of the hearing and all
evidence, including oral testimony, documentary and other evidence
offered and received at the hearing, the Trial Examiner, on January
9, 1936, filed an intermediate report, finding and concluding that
respondent had engaged in unfair labor practices affecting com-
DECISIONS AND ORDERS 991
coerce, within the meaning of Section 8, subdivisions (1) and (3),
and Section 2, subdivisions (6) and (7) of the Act. The Trial
Examiner recommended that the complaint be dismissed as to Wil-
liam F. Wyly; and ordered respondent to offer immediate and full
reinstatement with back pay to James C. Humphrey, Dale Fritts,
Marshall Shafer, Harry Shephard, Walter Crostic, H. L. Taylor,
William D. Ensor, A. V. Price, F. E. Campbell, Lester Price, Frank
L. Lee, Frank Williams, John Williams and H. L. Livesay, and
offer immediate and full reinstatement to all of respondent's em-
ployees who struck on November 13, 1935, provided that said em-
ployees apply for such reinstatement either individually or through
their union representatives within ten days.
Respondent thereafter filed exceptions to the record and interme-
diate report, making exceptions to the Trial Examiner's rulings
upon its motions and objections, as well as to the Trial Examiner's
intermediate report.
We find no error in the Trial Examiner's rulings upon respondent's
notions and objections, and such rulings are hereby affirmed. As
set forth below, we also find that the evidence supports the findings
and conclusions made by the Trial Examiner in his intermediate
report that respondent has engaged in unfair labor practices affect-
ing commerce, within the meaning of Section 8, subdivisions (1) and
(3), and Section 2, subdivisions (6) and (7) of the Act.
Upon the evidence adduced at the hearing and from the entire
record now before it, the Board makes the following:
FINDINGS OF FACT
I. RESPONDENT AND ITS BUSINESS
1. Respondent, Vegetable Oil Products Company, Inc., is and has
been since January 1, 1926, a corporation organized under and exist-
ing by virtue of the laws of the State of Delaware, having an office
in Wilmington, Delaware, merely for the purpose of fulfilling the
Delaware statutory requirement.' Respondent is and has been since
on or about July 10, 1926, qualified to do business in the State of
California, having its principal office in Los Angeles, California, and
an office and place of business at Wilmington, California, hereinafter
called respondent's plant. It is now and has continuously been en-
gaged at its plant in the production, sale and distribution of products
ranging from crude oils to refined shortenings, margarine and other
edible oils.
2. Respondent's manufacturing operations consist mainly of expel-
ling oils from copra and oil bearing seeds and the processing of such
I Section 32-General Corporation Law of Delaware , as amended.
992 NATIONAL LABOR RELATIONS BOARD
oils, and the processing of other oils which it has purchased. Raw
materials used in the manufacture of respondent's finished products
consist mainly of copra, sesame seed, hempseed, kapok seed, cotton-
seed oil, rapeseed oil, sardine oil, crude cocoanut oil, hempseed oil and
palm oil.
Copra, the dried meat of cocoanuts, is purchased from sellers in
the Philippine Islands. Approximately 12,000,000 pounds of copra
were purchased and used by respondent during the ten months pe-
riod ending October 31, 1935. Copra is purchased throughout the
year and is delivered every 60 or 90 days from the date of purchase.
Approximately 66 per cent of the copra is oil; however, only approxi-
mately 62 per cent is extracted, leaving approximately 34 per cent
meal and four per cent loss. Part of the oil, obtained by, crushing
the copra, is sold by respondent in the crude state to soap manu-
facturers, and the balance is transferred to respondent's refinery
where it is refined and made into oils to be used in the manufacture of
oleomargarine, cocoanut oil shortening and soap. The meal is sold
for use as cattle feed.
Sesame seed is imported by respondent from China. Respondent
received approximately 18,000,000 pounds of sesame seed during the
ten months period ending October 31, 1935; and used 15,000,000
pounds in its business during the same period. This seed is delivered
in large quantities varying from 250 tons to 1,000 tons per cargo.
Sesame seed is generally purchased in the fall of each year for de-
livery between December and March or April, at which times suffi-
cient quantities are purchased, received and stored at respondent's
plant to supply respondent's needs during the remainder of the year.
All of the sesame seed purchased by respondent is crushed at its
plant, and yields approximately 47 per cent oil, 48 per cent meal and
five per cent loss. The oil is sold either in its crude state or is
transferred to the respondent's refinery where it is refined for salad
oils and shortenings. The meal is sold for use as cattle feed.
Hempseed is obtained, through various suppliers, from Manchuria.
Respondent received approximately 3,000,000 pounds of hempseed
during the ten months period ending October 31, 1935, and used
approximately 1,000,000 pounds in its business during the same
period. Hempseed is purchased by respondent throughout the year
and stored in the warehouses at respondent's plant. All of the hemp-
seed purchased by respondent is crushed at respondent's plant. It
yields approximately 24 per cent oil, 70 per cent meal and six per cent
loss. The oil is refined and specially treated by respondent to pro-
duce ingredients for the compounding of paint oils; however, it may
be sold in its crude state to some purchasers who prefer to process
their own oils. Small quantities of hempseed oil are further refined
DECISIONS AND ORDERS 993
and become an ingredient in certain of the shortenings produced by
respondent. The meal is sold for use as cattle feed.
Kapok seed is obtained, through various suppliers, from the Dutch
East Indies, principally Java. Respondent received approximately
3,500,000 pounds of kapok seed during the ten months period ending
October 31, 1935, and used approximately 6,500,000 pounds in its
business during the same period. Kapok seed is purchased through-
out the year and stored in the warehouses at respondent's plant. All
of the kapok seed, purchased by respondent is crushed in its plant.
It yields approximately 19 per cent oil, 72 per cent meal and nine
per cent loss. The oil is either sold in its crude state or transferred
to respondent's refinery, where it is refined to produce salad oils or
shortening. The meal is sold for use as cattle feed or fertilizer.
Cottonseed oil is supplied to respondent from five principal
sources. These sources, together with the amount of cottonseed oil
received from each during the ten months period ending October 31,
1935, are as follows :
Pounds
England ---------------------------------------------- 5,659,113
Japan ----------------------------------------------- 2,431,795
California-------------------------------------------- 1,130,120
Texas ----------------------------------------------- 503,694
Egypt----------------------------------------------- 224,103
Total------------------------------------------ 9,948,825
Respondent used 9,724,368 pounds of cottonseed oil in its business
during the same period. The cottonseed oil is purchased throughout
the year, and stored in tanks at respondent's plant. All of the cotton-
seed oil purchased by respondent is processed at respondent's plant.
A portion of the cottonseed oil is deodorized. Large quantities are
destearinated (the stearine is taken out), and other large quantities
are bleached and hydrogenated (hardened by treatment with hydro-
gen). A portion of the bleached cottonseed oil is sold as white cot-
tonseed oil. The destearinated and deodorized cottonseed oil is sold
as salad oil, and the hydrogenated oil, after further processing, is
used in the manufacture of shortening.
Rapeseed oil is imported from Japan. It is purchased under the
general specification of "Shirashime" rapeseed oil, which is refined
but not deodorized. Approximately 3,000,000 pounds of rapeseed oil
were purchased and used by respondent during the ten months period
ending October 31, 1935. Rapeseed oil is purchased by respondent
throughout the year. It is stored either in tanks or drums at re-
spondent's plant. Although the rapeseed oil is purchased in a par-
tially refined state all of it requires and is subjected to further
refining, deodorization and processing at respondent's plant, and
994 NATIONAL LABOR RELATIONS BOARD
becomes a component part of the shortening manufactured by
respondent.
Sardine oil and herring oil are received from California, Alaska
and Oregon. The following amounts were received by respondent
during the ten months period ending October 31, 1935:
Po snd s
California (sardine oil) ----------------------------- 13,372,445
Alaska (herring oil) -------------------------------- 1,227,100
Oregon (sardine oil) -------------------------------- 615,280
Total------------------------------------------ 15,214,825
The herring oil, originating in Alaska, is purchased by respondent
f. o. b. Seattle, Washington. A total of 11,510,956 pounds of sardine
and herring oils were used by respondent in its business during the
period mentioned above. These oils are purchased by respondent
throughout the year, and stored in tanks at respondent's plant. All
sardine and herring oils are hydrogenated, deodorized, refined or
destearinated at respondent's plant, and used in the manufacture of
hardened fish oil, paint oils or shortening.
It is sometimes difficult for respondent to obtain sufficient quanti-
ties of copra to meet its needs, in which event it purchases crude
cocoanut oil from sellers in the Philippine Islands. During the ten
months period ending October 31, 1935, respondent purchased and
used 2,339,755 pounds of crude cocoanut oil. Crude cocoanut oil is
purchased by respondent throughout the year. It is refined and
processed and used in the manufacture of cocoanut oil products.
Hempseed oil and palm oil are purchased in small quantities by
respondent for use in the manufacture of certain' of its products.
During the ten months period ending October 31, 1935, respondent
purchased and used 20,401 pounds of hempseed oil; and purchased
38,560 pounds of palm oil, but used none of the palm oil it had
purchased. The record does not indicate where respondent obtains
the hempseed oil or palm oil.
3. During the ten months period ending October 31, 1935, 78.52
per cent of all raw materials received by respondent were shipped
from foreign countries or points without the State of California ;
and during the same period 76.41 per cent of all raw materials used
by respondent in the manufacturing of its finished products were
shipped from foreign countries or points without the State of
California.
4. Respondent's business consists largely of refining and processing
various oils, all of which are done at respondent's plant, and usually
consist of the following operations :
(a) Neutralization by treating with caustic solutions.
DECISIONS AND ORDERS 995
(b) Bleaching by treating the oils with various bleaching
materials.
(c) Filtering to remove any foreign materials as well as the clays
used for bleaching purposes.
(d) Deodorization by treating the oils for the purpose of removing
all characteristic odors and flavors.
(e) Hardening the oils by causing them to combine with pure
hydrogen in the presence of a catalytic agent.
(f) Separation of nonliquid oils from liquid oils by refrigeration
and filtration.
(g) Chilling and aerating oils, which are then packed as short-
enings.
(h) Flaking. Some of the oils are hardened to such a point that
when they are run over a chilling roll they form into hard flakes
which are then packed in paper lined bags to be shipped.
Respondent also operates a mill in which oil is expelled from all
of the copra and oil bearing seeds purchased by it. The expelling
of the oils involves the following processing :
(a) Grinding the copra.
(b) Heating and drying the copra or oil bearing seeds.
(c) Running the copra or oil bearing seeds under high pressure
through the expellers for the purpose of separating the oil from
the meal.
(d) Filtering the crude oils in order to separate all fine particles
of meal which may have passed through the expellers with the
oils. A portion of the filtered oil is then sold as crude oil. The
meal as it comes from the expellers is in hard flakes, varying in size
but approximately one eighth inch in thickness. These flakes, known
as "expeller cake", are then ground, packed and sold by respondent
as cattle feed and fertilizer.
Respondent also manufactures industrial gas at its plant. It sells
oxygen which is produced as a by-product in its electrolytic hydrogen
plant, in which water is decomposed into its two constituents, hydro-
gen and oxygen. The hydrogen is used to harden the oils.
The operations of respondent fall into the following departments :
copra mill; fish oil refinery; cocoanut oil refinery; finished products
plant; margarine plant; and gas plant. All departments are located
at and are a part of respondent's plant in Wilmington, California.
The departments are operated as one plant; however, the depart-
ments are not necessarily interdependent. Certain of the depart-
ments may be operated without operating other departments.
5. The finished products manufactured by respondent, together
with the total quantities sold by it and the respective quantities sold
996 NATIONAL LABOR RELATIONS BOARD
without the State of California during the period between January 1,
1935, and October 31, 1935, inclusive, are as follows :
roduct
Total quan-
tity sold
Quantity
sold for
delivery
without the
State of
California
Meal-----------------------------------------------------------------------
Pounds
8,377,200
Pounds
None
Vegetable oils-------------------------------------------------------------- 17,369,309 3,834,411
Fish oils------------------------------------------------------------------- 9,043,772 4,316,595
Shortenings----------------------------------------------------------------- 5,704,757 2,215,005
Salad oils ------------------------------------------------------------------- 6,179,896 1,288,314
Margarine----------------------------------------------------------------- 2,025,525 209, 118
iw
Total----------------------------------------------------------------- 48,700,459 11, 863, 443
Thus, 24.36 per cent of all sales of the above products were billed
to respondent's customers outside the State of California and deliv-
ered to common carriers for shipment. However, of the total quan-
tity of products sold by respondent, 9,503,490 pounds were sold to
purchasers within the State of California, who in turn sold their
products both within and without the State of California, but so
commingled other products with respondents' products that the quan-
tity of respondent's products eventually sold and transported with-
out the State of California cannot be determined. Respondent also
billed to purchasers within the State of California, but delivered to
,common carriers for transportation to points named by the pur-
chasers without the State of California, 96,987 pounds of the total
quantity of products sold by respondent.
Of the 11,863,443 pounds of respondent's products sold to cus-
tomers without the State of California, 4,714,826 pounds were sold
f. o. b. destination, and 7,148,617 pounds were sold f. o. b. respondent's
plant.
Respondent performs a service for other companies by processing
certain of their oils for them. During the period between Janu-
ary 1, 1935, and October 31, 1935, respondent performed such a serv-
ice on 16,289,177 pounds of oils. Of this amount 188,306 pounds
were processed by respondent and delivered to points without the
State of California. The remainder, amounting to 16,100,871 pounds,
was processed by respondent and delivered to one customer within
the State of California. This customer subsequently sold and deliv-
ered approximately 40 per cent of the 16,100,871 pounds of oil to
points without the State of California.
Respondent also sold 20,891,130 cubic feet of oxygen and acetylene
gas during the ten months period ending October 31, 1935, all of
which was sold and delivered to customers within the State of
California.
DECISIONS AND ORDERS 997
6. All the manufacturing and -processing operations of respondent
are conducted at its plant in Wilmington, California. Respondent
owns no warehouses outside the State of California; however, it pays
a rental fee for the storage of its finished products in public ware-
houses in New York, New York, Detroit, Michigan, Seattle, Wash-
ington, Pittsburgh, Pennsylvania, Cleveland, Ohio, and Portland,
Oregon. Respondent maintains a salaried salesman throughout the
year in the States of Washington and Oregon, but that portion of
respondent's products which is sold without the State of California
is sold principally through brokers.
7. The aforesaid operations of respondent constitute a continuous
flow if trade, traffic and commerce among the several States and
with foreign countries.
II. SOAP AND EDIBLE OIL WORKERS UNION, LOCAL NO. 18409 AND
VEGETABLE OIL PRODUCTS COMPANY EMPLOYEES COUNCIL
A. O i°ganization
(1) Soap and Edible Oil Workers Union, Local No. 18409
8. Soap and Edible Oil Workers Union, Local No. 18409, is a labor
organization affiliated with the American Federation of Labor, hav-
ing received its certificate of affiliation on August 7, 1933. It admits
to membership any soap or edible oil worker employed in the Long
Beach, California, area.
(2) Vegetable Oil Products Company Employees Council
9. Vegetable Oil Products Company Employees Council, herein-
after called the Council, was organized in 1933, subsequent to the
organization of Local No. 18409, for the purpose of presenting em-
ployee grievances to the management of respondent. However, inter-
est in the Council soon waned, no representatives of the employees
were elected, no by-laws were adopted, and for almost a year it
existed in name only.
In 1934 the management of respondent suggested to Ahlin, an em-
ployee of respondent, that he attempt to reorganize the Council.
Ahlin found other employees of respondent who were interested in
reorganizing the Council, and requested West, office manager of re-
spondent, to draw up its by-laws. After obtaining permission from
Pattison, president of respondent, West drew up by-laws for the
Council by referring to by-laws of similar organizations. Repre-
sentatives of respondent's employees in the various departments at
respondent's plant were elected to represent such employees in the
Council. Ahlin was elected secretary of the Council. Subsequently
998 NATIONAL LABOR RELATIONS BOARD
West complimented Ahlin upon his success in reorganizing the Coun-
cil, and told him that he was building up prestige with respondent
that would do him good later on.
Respondent provides a place for the Council to hold its meetings,
and employees are permitted to attend its meetipgs without any loss
of pay. Any employee of respondent is eligible to membership in
the Council. It collects no dues or fees from its members.
B. Activity
10. On February 1, 1934, about 90 per cent of approximately 114
employees then employed by respondent, were members of Local
No. 18409. Membership in Local No. 18409 decreased considerably
within the next three months, so that on or about May 1, 1934, ap-
proximately 65 per cent of respondent's employees were members of
Local No. 18409.
On May 17, 1934, at the request of Local No. 18409, the Los Angeles
Regional Board of the National Labor Board conducted an election
among the employees at respondent's plant to determine whether re-
spondent's employees wished to designate or select Local No. 18409
or the Council to represent them for the purpose of collective bar-
gaining or other mutual aid or protection. Local No. 18409 won the
election and was certified by the Los Angeles Regional Board as the
representative of respondent's employees.
The record clearly indicates that subsequent to the organization of
both the Council and Local No. 18409, respondent not only was
vitally interested in the continued existence of the Council but also
openly displayed ,a hostile attitude toward Local No. 18409. In
June, 1934, several weeks after the election had been conducted by
the Los Angeles .Regional Board, West told Ahlin that Walter
Crostic, an employee of respondent and member of Local No. 18409,
that "men of his calibre are easily influenced by the bull they throw
out at the union." West also told Ahlin that Stotts, another em-
ployee of respondent, was "on the spot" because he had been active
in Local No. 18409. Respondent's hostile attitude toward Local No.
18409 is further shown in that at a meeting of the Council in July
or August, 1934, Pattison, president of respondent, stated that he
would not recognize Local No. 18409 and would never have anything
to do with an "outside" organization, and that he did not think that
employees who belonged to a union organization were loyal to re-
spondent.
11. In January, 1935, the number of respondent's employees had
increased to approximately 191, and in April, 1935, respondent em-
ployed approximately 227 employees. However, apparently due to
respondent's hostile attitude toward Local Nd. 18409, Local No. 18409
DECISIONS AND ORDERS 999
suffered a severe loss in its membership during the latter part of
1934, and between January and April , 1935, Local No. 18409 had
only seven members.
In April, 1935 , Local No. 18409 made plans for reorganization. A
meeting hall was secured and a meeting of respondent 's employees
interested in Local No. 18409 was held on April 20, 1935. The record
does not disclose the number present at this meeting, but it is indi-
cated that a substantial majority of respondent 's employees attended.
Considerable discussion ensued concerning the Council , and a vote
to dissolve the Council was, carried . Thereafter , Local No. 18409
conducted an intense organization campaign.
On April 24, 1935, four days after the meeting of Local No. 18409,
the Council held a meeting . Pattison attended the meeting and
spoke to those present. He inquired in detail concerning the meeting
of Local No. 18409 on April 20, and stated that he would rather deal
with the Council and did not wish to see it dissolved, and that he
would not deal with any organization which had "outside" influence.
He further stated that he did not believe that any man who attended
a union meeting was loyal to respondent and that any man that
could not be loyal to respondent was better off not working in the
plant. Pattison also announced that he would give all employees
a ten per cent increase in wages ( approximately five cents per hour),
effective May 1, 1935.
Several days after April 24, 1935, Lowery, an employee of respond-
ent, saw Morris, foreman in the refinery , post the following notice
on a bulletin board:
"Attention : Departmental Delegate
"In the meeting with the management as of April 24, at 2: 00
P. M., it seems advisable to remind you of what took place at
that time ; in other words , this will serve as an outline of the min-
utes of the meeting. . Please give an unbiased outline of what was
said at the meeting, and it is to be hoped that the following re-
minders may be a little helpful.
"( a) The 5¢ raise , passed upon at the Board meeting, April 15.
"(b) Mr. Pattison 's stand against outside affiliation , and the
consequent discord that is bound to occur. In this stand, he is
backed by the Board.
"(c) His efforts in trying to get a satisfactory health and acci-
dent benefit plan patterned after the L . A. Gas & Electric Co.
plan, and costing around 75¢ per month,.per employee.
"(d) Only those that sign with the Council will be eligible
for participating in the, `health & accident' plan."
97571-36-vol i-64
1000 NATIONAL LABOR RELATIONS BOARD
Morris also posted the following notice at or about the same time:
"Notice to V. O. P. Employees
"Before signing the accompanying paper, please see your de-
partmental representative and get the details of the last meeting
with the management, and learn the advantages and disadvan-
tages of an Employees Council, or outside affiliation.
"We, the undersigned, employees of the Vegetable Oil Prod-
ucts Company, Inc. and members of the Employees Council,
refuse to recognize the action taken by a certain group of em-
ployees Saturday, April 20, and desire to have our elected repre-
sentatives of the Employees Council continue to deal with the
management."
Although these notices purport to have been issued by the Coun-
cil, they were posted by one of respondent's foremen and it seems
clear that respondent, and not any group or organization of its
employees, is solely responsible for the appearance of the notices.
We are convinced that the timely appearance of the notices imme-
diately subsequent to the attempted reorganization of Local No.
18409, was merely part of a well planned scheme on the part of
respondent to permanently destroy Local No. 18409. It is true
that these incidents occurred previous to July 5, 1935, the effective
date of the Act. However, an examination of respondent's hostile,
anti-union attitude throws light upon respondent's subsequent
conduct.
12. On or about July 15, 1935, Prior, secretary and business repre-
sentative of Local No. 18409, accompanied by Grillo, a representa-
tive of the American Federation of Labor, visited Pattison at his
office and requested him to bargain collectively with Local No. 18409
as the representative of respondent's employees. Pattison flatly
refused, and testified that he told Prior he would not bargain collec-
tively with Local No. 18409 as the representative of respondent's
employees but would bargain with any other group of employees
or any individual. Thus, Subsequent to July 5, 1935, respondent
clearly displayed its attitude toward Local No. 18409 and openly
challenged the rights Local No. 18409 had under the Act.
III. THE UNFAIR LABOR PRACTICES
13. The record clearly indicates that respondent's hostile and
antagonistic attitude toward Local No. '18409 continued during the
months of August, September and October, 1935. Employees were
questioned from time to time by foremen and officials of respondent
DECISIONS AND ORDERS 1001
concerning their activity and membership in Local No. 18409, and
persuasive efforts were made by respondent to forestall its employees
in their efforts to perpetuate the existence of Local No. 18409. For
example, sometime during the early part of August, Taylor, an
employee of respondent, was told by Van Fosson, master mechanic
and chief engineer, "Don't join this damn one horse union they have
got down there"; and in October, 1935, Jones, foreman, asked Harvey,
an employee of respondent, if he had joined Local No. 18409, and
told him that the time was near at hand when he would have to
make up his mind one way or the other, and requested Harvey to
advise him in the event any one asked him to join Local No. 18409.
The record clearly indicates that respondent knew in most in-
stances which of its employees were members of Local No. 18409.
The employees discussed their union membership and activity both
among themselves and with their foremen; and most of the members
of Local No. 18409 wore union buttons to and from work on the
lapels of their coats. Thus respondent was armed with definite
information concerning membership in Local No. 18409, and was in
a position to strike at Local No. 18409 at any time it chose to do so.
On October 29, 1935, Wilson, foreman in the copra mill, posted
the following notice on a bulletin board, and said to a group of
employees nearby, "You men had better remember that this time,
too":
"OCTOBER 29, 1935.
"Regardless of any statement which may be made by any per-
son or group, this company will continue to operate its plant on
an open shop basis; and will continue to deal with its employees
as in the past.
"VEGETABLE Ou PRODUCTS COMPANY, INC.
(Signed) W. D. YoRK."
Thereafter the following employees of respondent, all of whom,
with the exception of Wyly, were members of Local No. 18409, were
discharged :
Name Employed Date of discharge
James C Humphrey-------------------
Dale Fritts- _ _ ___
Marshall Shafer------------------------
Harry Shephard------------------------
Walter Crostic------- ------------------
H L Taylor ---------------------------
William D Ensor----------------------
A V Price-----------------------------
F E Campbell-------------------------
Lester Price----------------------------
Frank L Lee---------------------------
Frank Williams------------------------
John Williams--------------------------
H L Livesay--------------------------
William F. Wyly 1----------------------
2 years,3 months--------------------------
1 year --------------------------------------
10 months- --------------------------------
3 years. l3 months-----------------------
5 years, I month--------------------------
4 months -----------------------------------
11 years,1 month--------------------------
3 years, 230 months------------------------
935 months---------------------------------
3 years, 130 months------------------------
2 years, 235 months------------------------
0 months -----------------------------------
2Y2 months- ------------------------------
S months -----------------------------------
230 months---------------------------------
October 31,1935
October 31,1935
October 31,1935
October 31, 1935
November 5, 1935
November 5,1935
November 5,1935
November 5, 1935
November 5,1935
November 5, 1935
November 5, 1935
November 5,1935
November 5,1935
November 5,1935
November 12, 1935
I Wyly belongs to Steam and Operating Engineers ' Union, No. 235.
1002 NATIONAL LABOR RELATIONS BOARD
14. Humphrey, Fritts, Shafer and Shephard were employed in
the copra mill. Humphrey was employed as a relief operator one
day each week, at which time he operated ten expeller machines.
During the remainder of each week he was engaged in maintenance
work. On October 27, 1935, Humphrey was working as relief oper-
ator. It was testified to in behalf of respondent that on October 27,
1935 the copra elevators jammed and Wilson, foreman, found Hum-
phrey smoking outside the mill instead of tending to his job, and
respondent contends that this was its main reason for discharging
him. However, the evidence shows that a crew of five men, includ-
ing Humphrey, were working on the expeller machines, and it is
the duty of the "front end man" to watch the elevators, and that
Humphrey was not the "front end man." The evidence' further
shows that it was a customary practice for respondent's employees,
including the foremen, to go outside the mill three or four times each
day for the purpose of smoking.
Fritts, Shafer and Shephard were all employed on the same shift
and worked full time on the expeller machines. Shephard was an
operator and Fritts and Shafer were helpers. Respondent contends
that it discharged Fritts, Shafer and Shephard because of ineffi-
ciency in that they did not extract the maximum amount of oil
from the copra,' and that the entire shift seemed non-cooperative.
Respondent also contends that Humphrey failed to extract the maxi-
mum amount of oil from the copra during the time he was employed
as a relief operator, one day each week.
Respondent's records of the average percentage of oil extracted
from the copra by each of the four shifts working in the copra
mill show that during September and October, 1935, Fritts, Shafer
and Shephard extracted from one-tenth to one-half of one per cent
less oil than the operators on the other three shifts. However,
respondent's records were conclusively proven to be inaccurate and
unreliable. It was shown that the operators of the expeller ma-
chines on the other shifts made a practice of submitting as a test
sample, mash with a low content of oil instead of the mash which
had actually been expelled from their machines. Consequently the
chemical analysis did not show the true percentage of oil extrac-
tion. It was not shown that Fritts, Shafer and Shephard ever
failed to submit a true test sample of the mash expelled from their
machines.
Phillips, employed on the same shift with Humphrey, testified
that Humphrey was an efficient worker. Daniels, an employee of
respondent, testified that Wilson, foreman, told him on November 6,
1935, that "Fritts was a good man, a good worker, but had this
firing coming" and that "Shafer was a good man also, but was very
DECISIONS AND ORDERS 1003
hot-headed." When Shafer received his pay from Wilson, at the
time he was discharged, Wilson told Shafer that his work had been
satisfactory and he would like to keep him on the job, but that word
cane from the office that he would have to go. At the time Shep-
hard was discharged , Wilson said , "Well, it has come to this."
Shephard asked him why he was being discharged, and Wilson
replied, "Make what you want of it ." West, office manager, also
talked with Shephard, and told Shephard he "was a bad morale
to the men."
Crostic, Taylor and Frank Williams were employed in respond-
ent's salad oil department . Crostic and Taylor were operators, and
Williams was a helper. Crostic had been employed by respondent
more than five years and had been made an operator in June, 1935.
Respondent contends that he was inefficient and, because of his in-
ability to write, had to depend on his helper, Williams, to make out
his daily reports. In view of Crostic's long period of service we
may assume that respondent knew that he was unable to write before
promoting him to the position of operator . Crostic admitted that
he had inadvertently spilled some oils and was subsequently repri-
manded by Morris , his foreman . However, this occurred more
than one week before he was discharged . At the time Crostic was
discharged he was given no reason for the termination of his
employment.
The record indicates that Taylor was a competent and conscien-
tious worker . Several weeks before his discharge Morris compli-
mented him on his work. Morris testified that his work had been
satisfactory , and that he did not recommend his discharge. Taylor
admitted that he had been reprimanded for smoking in the plant
in August, 1935, but that he had been told since it was the first
time to think nothing about it. Taylor testified that he never
smoked at respondent's plant thereafter. Shortly after Taylor was
discharged York, superintendent, told him, "We' have decided to
make some changes around here and you may have been fired un-
justly. " York testified that he discharged Taylor because of re-
ports he had received that Taylor had smoked in the salad oil
building and had been "away from his duties ." There was no
evidence to show that Taylor had neglected his duties at any time.
Frank Williams was employed as Crostic's helper. Morris tes-
tified that he recommended the discharge of both Crostic and Wil-
liams because "the shift wasn't satisfactory, and I had to make a
change," and that several times they had failed to make out an
"inventory ticket" for oil which had been brought into the salad
oil department . However, Williams, like Crostic, was given no
reason why his employment was being terminated.
1004 NATIONAL LABOR RELATIONS BOARD
Lester Price and Campbell were employed in respondent's fish
oil plant. Price was an operator, and Campbell was a helper.
Price was a member of the shop committee of Local No. 18409 in May,
1934, at which time the shop committee met with Pattison and York.
At the time Price was discharged, Whitington, night foreman, told
him, "I am just here to hand you your check, and I cannot say any-
thing about it." York testified that Price seemed indifferent and
unresponsive and, believing he would progress no further, let him
go. However, Whitington testified that Price obeyed orders and
was not indifferent, and that he performed his work very well.
At the time Campbell was discharged, Whitington told him to
go to the office and get his check and said, "I suppose you know
what this is for." Campbell replied, "Well, I suppose it is the
union," and Whitington said, "Well, there isn't anything I can do
about it." Morris testified that Campbell 'did not take his work
seriously and that he sometimes found him standing around with
his hands in his pockets. York testified that Campbell seemed in-
different to his work. However, Whitington testified that Campbell
paid attention to business; and that although he sometimes saw him
standing with his hands in his pockets, it was on occasions when it
was necessary for Campbell to watch a gauge or thermometer for
a period of 15 to 20 minutes.
Ensor was employed as an autoclave operator. When Ensor was
discharged Morris gave him his check and said, "You got it." Mor-
ris made no further statement, and did not tell Ensor why he was
being discharged. West testified that Ensor had been negligent
in loading oil on a car, but admitted that his negligence had not
been discovered until after he had been discharged.
A. V. Price was employed as a catalyst operator. In June, 1934,
Price accused another employee of being a "scab". He was repri-
manded at that time by respondent and laid off for a period of one
week. However, it is shown that respondent made no complaint
concerning either his work or conduct thereafter. At the time Price
was discharged York merely told him that a "change was being
made for the good of the company."
Lee was employed in respondent's barrel room, loading drums and
barrels from the cocoanut refinery. At the time Lee was discharged
West told him that he was "making changes for the benefit of the
company." West and York testified that on several occasions there
had been an unexplained appearance of foreign substances in drums
and barrels prepared for shipment. However, it was shown that
two other employees worked with Lee in the barrel room, and no
evidence was offered to show that any of the employees in respond-
ent's barrel room were responsible for the foreign substances which
DECISIONS AND ORDERS 1005
were found in certain drums and barrels of oil. York further tes-
tified that Lee was indifferent to his work . However, Wright, his
foreman, testified that Lee was a conscientious workman, and was
not indifferent to his work.
John Williams, son of Frank Williams, was employed in respond-
ent's refinery , packing soap stock in barrels . He was discharged
by Morris . When Williams questioned Morris concerning the rea-
son for his discharge , Morris said, "Well , there is no reason." Re-
spondent contends that Williams was discharged because of a reduc-
tion in its force. Although Morris testified that his work had been
satisfactory , it is apparent that respondent made no effort to place
Williams in another job at its plant.
Livesay operated a carton machine in respondent 's finished prod-
ucts department . Chamberlin , foreman, discharged Livesay, and
told him he did not know why he was being discharged . Livesay
said, "I suppose it is because I belong to the union ," and Chamberlin
made no reply . York testified that he approved Livesay's discharge
because Chamberlin reported that Livesay would frequently leave
his machine during working hours. However, Navius , an employee
of respondent who worked with Livesay , testified that Livesay was a
good workman and did not leave his machine more often than was
customary among the operators in the department.
Wyly was employed by respondent in August , 1935, for temporary
work on the boilers in respondent 's plant. Wyly completed this
work on or about November 1, 1935, and , requested respondent to give
him another job. York told Wyly that he would try him out as an
operator in the gas plant , but could give him no assurance of steady
work until he had proven himself satisfactory to Stovall , an engineer
employed by W. F. H. Shultz Co. to erect a hydrogen plant for
respondent and train men to operate it. Wyly began work in the
gas plant on November 4, 1935. Stovall testified that in his opinion
Wyly would not make a good operator because he was not active and
"just didn't seem to grasp the idea. " Stovall recommended that
Wyly be taken out of the gas plant, and respondent discharged him.
Wyly is not a member of Local No. 18409, but belongs to the Steam
and Operating Engineers ' Union, No. 235 . The record indicates
that Wyly was not competent to assume the duties assigned to him
in the gas plant, and there is no evidence to show that he was dis-
charged by respondent because of his membership in a labor organi-
zation. Therefore , the complaint with respect to Wyly will be
dismissed.
The evidence clearly fails to sustain respondent 's contentions that
the remaining 14 employees were discharged for incompetency, in-
efficiency , failure to obey instructions or because of a reduction in
1006 NATIONAL LABOR RELATIONS BOARD
the force. The record convinces us that the discharge of these men,
when viewed in conjunction with respondent's hostile attitude toward
Local No. 18409 and its conduct in attempting to discourage member-
ship in Local No. 18409, was due to their membership and activity in
Local No. 18409. With the exception of Wyly, respondent dis-
charged no employees who were not members of Local No. 18409.
We find that respondent has discriminated in regard to the hire
and tenure of employment of James C. Humphrey, Dale Fritts,
Marshall Shafer, Harry Shephard, Walter Crostic, H. L. Taylor,
William D. Ensor, A. V. Price, F. E. Campbell, Lester Price, Frank
L. Lee, Frank Williams, John Williams, and H. L. Livesay, for the
purpose of discouraging membership in Local No. 18409, and that by
such acts, respondent has interfered with, restrained and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
IV. EFFECT OF UNFAIR LABOR PRACTICES ON COMMERCE
15. On November 13, 1935, a strike, called by Local No. 18409,
became effective at respondent's plant. Of approximately 270 work-
ers at respondent's plant, about 260 employees went out on strike.
Approximately 252 of the employees on strike were members of Local
No. 18409. Respondent ceased operations, but subsequently com-
menced operations on a small scale and employed new employees, a
few at a time. The record does not disclose the number of new em-
ployees so employed. Respondent's plant was picketed continuously
during the period. of the strike.
The strike was called as a protest against respondent's action in
discharging certain of its employees, members of Local No. 18409,
which we have already considered. The strike was indorsed by the
California State Federation of Labor, the Central Labor Council of
San Pedro and Wilmington, California, and several labor unions in
the vicinity of respondent's plant, including the International Long-
shoremen's Association, Local 38-82. Respondent's products were
placed on an "unfair to labor" list. The strike seriously interrupted
respondent's operations, substantially reduced and diminished its
normal volume of business and curtailed shipments in interstate com-
merce to and from its plant.2
16. On the basis of experience in respondent's plant and in other
plants, respondent's conduct as set forth in findings 13 and 14 above,
20n February 24, 19,10, Local No 18409 entered into a written agreement with re-
spondent, officially teiminating the strike and removing respondent's products from the
"unfair to labor " list Respondent agreed to reinstate 110 or more of the strikers and
place the remainder, members of Local No 18409, on a preferential list for future em-
ployment The matter of the employees named in the complaint issued by the Board,
discharged previous to the strike , was left to the Board for determination.
DECISIONS AND ORDERS 1007
and each item, of such conduct, has led and tends to lead to labor
disputes burdening and obstructing commerce and the free flow of
commerce.
RESPONDENT'S ExcEPTIONS
Respondent's exceptions to the Trial Examiner's intermediate re-
port are based mainly on the contentions that his findings of fact,
conclusions and recommendations are not sustained by and are con-
trary to the evidence. The findings of fact set forth above are in
substantial accord with those of the Trial Examiner, whose inter-
mediate report we find to be supported by the evidence.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact the Board makes
the following conclusions of law :
1. Soap and Edible Oil Workers Union, Local No. 18409, is a labor
organization, within the meaning of Section 2, subdivision (5) of
the Act.
2. By its discharge and refusal to reinstate Janies C. Humphrey,
Dale Fritts, Marshall Shafer, Harry Shephard, Walter Crostic, H. L.
Taylor, William D. Ensor, A. V. Price, F. E. Campbell, Lester Price,
Frank L. Lee, Frank Williams, John Williams, and H. L. Livesay,
and each of them, for the reason that they and each of them joined
and assisted Local No. 18409, respondent did interfere with, restrain,
and coerce, and is interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act, and by all of said acts and each of them did thereby engage in
and is thereby engaging in unfair labor practices, within the mean-
ing of Section 8, subdivision (1) of the Act.
3. By its discharge and refusal to reinstate the persons aforesaid,
as set forth in paragraph 2 hereof, and each of them, respondent did
discriminate and is discriminating in regard to hire and tenure of
employment of said persons and each of them, and did thus discour-
age and is thus discouraging membership in Local No. 18409, and
by all of said acts and each of them did thereby engage in and is
thereby engaging in unfair labor practices, within the meaning of
Section 8, subdivision (3) of the Act.
4. The unfair labor practices in which respondent has engaged and
is engaging are unfair labor practices affecting commerce, within the
meaning of Section 2, subdivisions (6) and (7) of the Act.
5. By its discharge and refusal to reinstate William F. Wyly, re-
spondent has not engaged in unfair labor practices, within the mean-
ing of Section 8, subdivisions (1) or (3) of the Act.
1008 NATIONAL LABOR RELATIONS BOARD
ORDER
On the basis of the findings of fact and the conclusions of law, and
pursuant to Section 10, subdivision (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders :
A. That respondent, Vegetable Oil Products Company, Inc., and its
officers and agents, shall:
1. Cease and desist from discouraging membership in Local No.
18409 or any other labor organization of its employees, by discrimi-
nation in regard to hire and tenure of employment or any term or
condition of employment ;
2. Cease and desist from in any other manner interfering with, re-
straining or coercing its employees in the exercise of their rights to
self-organization, to form, join, or assist laborj organizations, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, as guaranteed in Section
7 of the National Labor Relations Act.
3. Take the following affirmative action which the Board finds will
effectuate the policies of the National Labor Relations Act :
(a) Offer to James C. Humphrey, Dale Fritts, Marshall Shafer,
Harry Shephard, Walter Crostic, H. L. Taylor, William D. Ensor,
A. V. Price, F. E. Campbell, Lester Price, Frank L. Lee, Frank Wil-
liams, John Williams, and H. L. Livesay, employment in the respec-
tive positions formerly held by them with all rights and privileges
previously enjoyed; and
(b) Make whole said James C. Humphrey, Dale Fritts, Marshall
Shafer, Harry Shepard, Walter Crostic, H. L. Taylor, William D.
Ensor, A. V. Price, F. E. Campbell, Lester Price, Frank L. Lee,
Frank Williams, John Williams, and H. L. Livesay, for any losses
of pay they have suffered by reason of their discharge, by payment
to each of them, respectively, of a sum of money equal to that which
each would normally have earned as wages during the period from the
(late of his discharge to the date of such offer of reinstatement, com-
puted at the wage rate each was paid at the time of his discharge, less
the amount earned subsequently to his discharge.
(c) Post immediately notices to its employees in conspicuous places
at its plant, stating (1) that respondent will cease and desist in the
manner aforesaid, and (2) that such notices will remain posted for a
period of at least thirty (30) consecutive days from the date of
posting.
B. That the complaint is hereby dismissed as to the allegations of
discriminatory discharge of William F. Wyly.