Winter Garden Citrus Products Cooperative

National Labor Relations Board - Board Decisions

Nov 16, 1955

114 N.L.R.B. 1048 (N.L.R.B. 1955)

1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
Winter Garden Citrus Products Cooperative and American Fed-
eration of Labor . Case No. 10-CA-1976. November 16, 1955
DECISION AND ORDER
On June 10, 1955, Trial Examiner John H. Eadie issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other alleged unfair labor
practices and recommended that the complaint be dismissed as to these
allegations . Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following modifications:
1. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1) of the Act by (a) unilaterally instituting changes in
working conditions without discussing these specific changes with the
Union, the certified bargaining representative of the Respondent's
employees; (b) discriminatorily applying plant rules against union
adherents; (c) banning talking and confining employees to their place
of work in retaliation for selecting the Union as their bargaining
agent; (d) making it "hard" on employees by increasing their work
assignments and transferring them to more difficult jobs in reprisal for
their union membership, activity, and support; and (e) reducing the
working hours of employees and laying off an employee because of
their union activities.
2. We also agree with the Trial Examiner that the Respondent, in
violation of Section 8 (a) (3) and (1) of the Act, discriminated
against the striking employees as indicated in the Intermediate Report.
We find, as did the Trial Examiner, that these employees were unfair
labor practice strikers entitled to reinstatement to their jobs after they
abandoned the strike and unconditionally applied for reinstatement.
As discussed in the Intermediate Report, the Union called the em-
ployees out on strike, in part, in protest to the Respondent' s unfair
labor practices. Although a contributing cause of the strike was the
parties' inability to reach an agreement on a contract, this, however,
1 The Respondent ' s request for oral argument is denied , because the record , exceptions,
and beefs, in oui opinion , adequately present the issues and positions of the parties
114 NLRB No. 165.
WINTER GARDEN CITRUS PRODUCTS COOPERATIVE 1049
was not, contrary to the Respondent's contention, the only cause. The
record shows that at different times during the course of negotiations,
the Union complained to the Respondent about its actions against
union members, which we have found violated the Act. While it is
true that during these negotiations the Union concentrated its efforts
on securing a contract, it did not thereby condone the Respondent's
unlawful conduct or regard it as unconsequential. Indeed, according
to the credited testimony of E'Dalgo, the Union's spokesman, and Lee,
its president, the Union expected to be in a better position to adjust
these grievances after it obtained a contract.
Persuasively establishing that the Respondent's unfair labor prac-
tices were one of the reasons for the strike is the fact that 2 days
before the strike, the union membership authorized the bargaining
committee to strike the Respondent after E'Dalgo advised them that
he would recommend a strike only if the Respondent continued to
refuse to bargain in good faith and because of the Respondent's dis-
criminatory action against union members. In addition, at the last
bargaining conference before the strike, E'Dalgo requested the con-
ciliator, who was present during this conference, to transmit a mes-
sage to the Respondent that, because of the Respondent's refusal to
bargain and its persistence in "hardtiming" the employees, no useful
purpose would be served in continuing negotiations.
As one of the motivating factors for the strike was the Respondent's
unfair labor practices, we find that the Respondent was not excused
from the consequences of its unlawful conduct because economic con-
siderations also entered into the Union's decision to strike. We there-
fore find, as did the Trial Examiner, that by not according the striking
employees their right to immediate reinstatement to their former jobs
after unconditional application, the Respondent violated Section 8 (a)
(3) and (1) of the Act.2
3. The General Counsel excepts to the Trial Examiner's finding that
Virgil McDowell was not entitled to reinstatement because the Re-
spondent had previously reinstated him after the strike to a substan-
tially equivalent position which he quit a few days later. We find
merit in this exception.
As indicated above, the strike against the Respondent was an unfair
labor practice strike. As one of the unfair labor practice strikers,
McDowell was entitled to be returned to his former job when lie un-
conditionally applied for reinstatement, even though his old job had
been filled during the strike and it required the discharge of his re-
placement.3 Admittedly, McDowell was not returned to his former
2 1, I R 11 v Stilley Plywood Company, Inc . 199 F 2d 319 (C A 4 ), cert denied
844 U S 933 , Berkshire Knittinq dills v N L P B , 139 F 2d 134 , 137 (C A 3),
Bert denied 322 U S 747
'N L R B v Thayer Company and H l 'lira per Company. 214 F 2d 748, 752
(C .A 1), cert denied 348 U S 883 with respect to the other unfan mbm piactice
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position in the warehouse, but instead was given a more onerous job
in the mill "stacking meal in 100 pound bags." It is significant, as the
Trial Examiner found, that the Respondent's reason for assigning
McDowell to this work was that it expected that "he wouldn't like that
job and that would make him quit." As subsequent events proved, this
expectation came true.
In view of the foregoing, and in order to effectuate the policies of
the Act, we shall direct the Respondent to reinstate McDowell to his
former job, dismissing, if necessary, any employee hired on and after
April 21,1954, the date of the strike. We shall also order the Respond-
ent to reimburse McDowell for any loss of pay he may have suffered as
a result of the discrimination by payment to him of a sum of money
equal to that which he would have earned as wages from the date of
the discrimination to the date of the Respondent's offer of reinstate-
ment to his former job, less his net earnings during this period. The
amount of back pay shall be abated, however, for the period between
the issuance of the Intermediate Repoiit and the Decision and Order
herein.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Winter Garden
Citrus Products Cooperative, Winter Garden, Florida, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in the American Federation of La-
bor, or any other labor organization of its employees, by discriminat-
ing in regard to their hire or tenure of employment or any term or
condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist the Union named above, or any
other labor organization, to bargain collectively through represent-
atives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
strikers who have not been reinstated , the Trial Examiner recommended , and we agree,
that they are entitled to immediate and full reinstatement "to their former or substantially
equivalent position ." In accordance with the Board 's consistent interpretation of the
expression "former or substantially equivalent position ," it is intended to mean "former
position wherever possible and if such position is no longer in existence then to a sub-
stantially equivalent position." The Chase National Bank of the City of New York, an
Juan, Puerto Rico , Branch, 65 NLRB 827.
WINTER GARDEN CITRUS PRODUCTS COOPERATIVE 1051
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Offer the employees whose names are listed on Appendix A
and to employees Edna Robinson and Sarah Worthington immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges.
(b) Make whole each of the employees listed in Appendices A
and B, in the manner set forth in section V of the Intermediate Report,
entitled "The Remedy," as modified by the Board's decision herein.
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due and the rights of employment under the terms of this Order.
(d) Post at its plant at Winter Garden, Florida, the notice at-
tached hereto marked "Appendix C." " Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by the Respondent's authorized representative,
be posted by the Respondent immediately upon receipt thereof and
maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
alleges that the Respondent discriminatorily denied reinstatement to
Arnold Treadway, J. D. Darley, Clinton Windham, and E. T. Hill in
violation of Section 8 (a) (3) and (1) of the Act.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
4 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order," the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
Hazel Bell Falsy Morris
James Tindell Willie V. Browder
Ruby Clark Vona Mae Bailey
Lois (Zether) Bond Mae White
Ellie Jones Sally Lee Yawn
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aline Cooper
Noah Jones
Myrtie Schaeffer
Conrad Worthington
Joseph Adams
Mary Bass
William Gardner
Doris Gardner
Zipporah Mooney
(J. C.) Crawford
Runell Brown
Maxine Brown
Elzie Wisdom
Clarence King
Mooney
Charles Lee
Dorothy Lee
Betty Hazel
Hazel Colburn
Ann Kuzio
Betty Hubbard
Francis Pearson
Ruby Newson
Leameal J. Davis
Ruth Garrett
(A. W.) Albert Tucker
M. C. Richardson
Virgil McDowell
APPENDIX B
Harston Hall_________ 5-13-54
Ulice Sisson__________ 5-17-54
Jack Riffle ------------ 5-1-54
Zayde (L. C.) Robin-
son ---------------- 5-9-54
Buna Mote___________ 5-3-54
Christine Daughtery___ 5-11-54
Victor Newson________ 5-10-54
Wilmer Spicer________ 5-5-54
James Olin Spicer_____ 5-9-54
Joseph Carpenter----- 5-8-54
Marvin Stuckey_______ 5-6-54
L. Archie Davis------- 5-1-54
Coy Miller___________ 5-1-54
Noble Riner___________ 5-7-54
John Stone___________ 5-7-54
Bennett McCramie____ 5-2-54
Jack Wingard________ 5-1-54
Odis C. Spicer________ 5-5-54
James Marlow________ 5-2-54
Ezra Ramsey_________ 5-6-54
Edna Robinson -------- 5-18-54
Sarah Worthington ___ 5-27-54
Helen Fleming________ 5-11-54
William G. Fleming___ 5-11-54
John Masterson ------- 5-6-54
C. S. Masterson------- 5-6-54
Felix Kuzio___ ________ 5-15-54
Percy Goodman _______ 5-11-54
Delmus Pnapp _______ 5-7-54
Franklin Fleming_____ 5-1-54
James Shelton ________ 5-8-54
Harlan Whigham_____ 5-6-54
Leon Schaeffer-------- 5-15-54
APPENDIX C
NOTICE TO ALL EDIPI.OIEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist American Federa-
tion of Labor, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to
WINTER GARDEN CITRUS PRODUCTS COOPERATIVE 1053
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all such activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organ-
ization as a condition of employment, as authorized in Section 8
(a) (3) of the Act.
WE WILL offer the employes named below immediate and full
reinstatement to their former or substantially equivalent posi-
tions, without prejudice to any seniority or other rights and
privileges previously enjoyed.
Hazel Bell (J. C.) Crawford Mooney
James Tindell Runell Brown
Ruby Clark Maxine Brown
Lois (Zether) Bond Elzie Wisdom
Ellie Jones Clarence King
Falsy Morris Charles Lee
Willie V. Browder Dorothy Lee
Vona Mae Bailey Betty Hazel
Mae White Hazel Colburn
Sally Lee Yawn Ann Kuzio
Aline Cooper Betty Hubbard
Noah Jones Francis Pearson
Myrtie Schaeffer Ruby Newson
Conrad Worthington Leameal J. Davis
Joseph Adams Ruth Garrett
Mary Bass (A. W.) Albert Tucker
William Gardner Edna Robinson
Doris Gardner Sarah Worthington
Zipporah Mooney Al. C. Richardson
Virgil McDowell
WE WILL make whole the above employees and also those named
below for any loss of pay suffered as a result of the discrimination.
Harston Hall
Ulice Sisson
Jack Riffle
Zayde (L. C.) Robinson
Buna Mote
Christine Daughtery
Victor Newson
Wilmer Spicer
James Olin Spicer
Joseph Carpenter
Marvin Stuckey
John Masterson
C. S. Masterson
Felix Kuzio
Percy Goodman
Delmus Knapp
L. Archie Davis
Coy Miller
Noble Riner
John Stone
1054 DECISIONS OF NATIONAL LABOR RELATIONS,BOARD
Bennett McCramie William G. Fleming
Jack Wingard Franklin Fleming
Odis C. Spicer James Shelton
James Marlow Harlan Whigham
Ezra Ramsey Leon Schaeffer
Helen Fleming
All our employees are free to become, remain, or refrain from
becoming, members of any labor organization, except as that right may
be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized in Section 8 (a) (3)
of the Act.' We will not discriminate in regard to hire or tenure of
employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such
labor organization.
WINTER GARDEN CITRUS PRODUCTS COOPERATIVE,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed by the American Federation of Labor , herein called the
Union , the General Counsel of the National Labor Relations Board, by the Regional
Director for the Tenth Region (Atlanta, Georgia ), issued a complaint , dated June
30, 1954 , and an amendment to the complaint dated October 27, 1954, against Winter
Garden Citrus Products Cooperative , herein called the Respondent , alleging that the
Respondent had engaged in unfair labor practices within the meaning of Section 2
(6) and ( 7) and Section 8 (a) (1) and ( 3) of the National Labor Relations Act, as
amended herein called the Act.
With respect to the unfair labor practices , the complaint alleges, in substance, that:
(1) At an election conducted by the Board on March 5, 1954 ,1 a majority of the em-
ployees in an appropriate unit selected the Union as their representative for purposes
of collective bargaining ; ( 2) since on or about March 5, 1954 , the Respondent, with-
out consulting or advising with the Union , changed the working conditions of em-
ployees in said unit by the altering of old , and the imposition of new, working rules
and regulations ; ( 3) the Respondent since on or about March 5, 1954 , discriminated
against union members by frequently transferring them unnecessarily from job to
job, by shortening their working hours, and by assigning them to more onerous tasks;
(4) on or about April 21, 1954 , certain named employees ceased work concertedly
and went on strike ; ( 5) said strike was caused and prolonged by the unfair labor
practices of Respondent ; ( 6) on or about April 30 , 1954 , said employees abandoned
the strike and unconditionally applied for reinstatement ; and (7) on or about May
1, 1954, the Respondent failed and refused to reinstate certain named employees,
and other named employees until certain specified dates, because of their union ac-
tivities and because they engaged in the strike.
On about July 9 , 1954 , the Respondent filed an answer in which it admitted the
jurisdictional allegations of the complaint , but denied the commission of any unfair
labor practices . As an affirmative defense the Respondent alleged that the strike was
1 Winter Garden Citrus Products Cooperative and American Federation of Labor, Case
No. 10-RC-2660 ( not reported in printed volumes of Board Decisions and Orders).
WINTER GARDEN CITRUS PRODUCTS COOPERATIVE 1055
economic, and that it reemployed all strikers whose positions had not been filled and
where employment was available without discrimination.
Pursuant to notice , a hearing was held at Orlando , Florida, before the duly desig-
nated Trial Examiner, on various dates, starting on November 8, 1954 , and ending
on December 10, 1954 . At the conclusion of its case, the Respondent renewed its
motion to dismiss the complaint . Ruling was reserved . The motion to dismiss is
disposed of as hereinafter indicated . The General Counsel moved to conform the
pleadings to the proof as to minor variances, not as to substance . The motion was
granted without objection.
Based upon the record as a whole , and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT 2
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Florida corporation , with its offices and place of business
located at Winter Garden , Florida. It is engaged in the processing of citrus fruits in
the form of citrus concentrates , juices, and byproducts . In the conduct of its opera-
tions during the year preceding the date of the complaint herein , the Respondent
sold and shipped finished products of a value in excess of $5,000 ,000, of which
products having a value of more than $4,000 ,000 were sold and shipped to points
outside the State of Florida.
H. THE LABOR ORGANIZATION INVOLVED
American Federation of Labor is a labor organization which admits to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent operates a cooperative type of business . At least 51 percent of
the fruit processed is supplied by its members. In 1950 the Respondent began to
process citrus fruits, principally oranges, for the frozen concentrate market. Before
that time it operated a small "single juice" plant . The construction which was neces-
sary in order to effect the change was not completed until 1953 . Certain tanks and
machinery were installed during 1954, but this work was performed under contract
and not by Respondent's employees.
The Respondent operates its plant on a seasonal basis. The season begins when
the citrus fruit is ripe in the fall, usually during the early part of December, and
continues until the early part of the following June . During each season an interval
of several weeks occurs between the crops of early fruit and late fruit . This period
is commonly referred to as the "mid -season break or lull," and usually takes place
during March . The plant does not operate at full capacity during this time.
Under the Fair Labor Standards Act, the Respondent , being a first processor of
a seasonal agricultural product, is allowed 14 weeks of unlimited hours without
overtime payments and 14 weeks of 56 hours without overtime except for hours in
excess of 12 per day. The Respondent used these overtime exemptions in its
operations . During the season the plant is operated 24 hours per day for 7 days
per week.
The Union began organizational activity in the Respondent 's plant during the
early part of January 1954. On February 2, 1954 , a petition was filed by the Union
in Case No. 10-RC-2660 with the Board , requesting an election among the Re-
spondent's production and maintenance employees . The parties entered into a
consent-election agreement on February 17, pursuant to which the Board conducted
an election on March 5 . Of 165 ballots cast, 93 were for the Union, 66 for no
union , and 6 were challenged . On March 15 , 1954, the Board certified the Union
2 The evidence in this case , both oral and documentary , is voluminous . Much of it, in
my opinion , is not relevant or material to the issues raised by the pleadings . Other evi-
dence presented for the General Counsel is cumulative . The Respondent adduced evidence
in defense of each and every issue raised. I have not attempted to relate or discuss
herein all of this evidence when cumulative evidence is involved . With respect to some of
the alleged violations , I have recited the evidence and resolved the issues in connection
with only 1 or 2 of the Respondent 's departments , such as the "wet grading" or "ware-
house" departments . The evidence concerning the same or similar Issues in other depart-
ments has been considered in making the overall findings , but has not been set forth.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the exclusive representative of the employees in the unit defined in the consent-
election proceeding.
On March 15 the Union filed with the Board a charge against the Respondent
in Case No. 10-CA-1930, alleging violation of Section 8 (a) (1) and (3) of the
Act. A settlement agreement of this case, calling for reinstatement and back pay
to six employees named in the charge, was approved by the Regional Director of
the Tenth Region of the Board on April 2, 1954.
On and after March 17, 1954, representatives of the Respondent and the Union
met in a number of bargaining sessions. No agreement was reached on a contract
during the negotiations; and immediately after one such meeting on April 21 and
at the change of shifts at 7 p. in., the employees walked off their jobs on strike.
On April 30, 1954, the Union. officially terminated the strike and striking employees
unconditionally applied for reinstatement to their jobs. The Respondent operated
its plant during the strike, using replacements and employees who did not partici-
pate in the strike.
On April 23, 1954, the Union filed with the Board a charge in Case No. 10-CA-
1957, alleging in part that the Respondent had refused to bargain in good faith.
The withdrawal of this charge, requested by the Union, was approved by the Regional
Director on May 6, 1954.
The main issue in the case is the cause of the strike. The General Counsel, while
conceding in his brief that the failure to reach agreement on a contract was a con-
tributing cause, contends that it was an unfair labor practice strike;-mainly caused
by the Respondent's illegal conduct between March 5 and April 21.. The Re-
spondent contends that the strike was economic in that the parties reached an im-
passe in the bargaining negotiations and the Union struck to enforce its economic
demands.
B. Conversations between employees and Respondent's supervisors concerning
the Union
James Bock is the Respondent's assistant general manager. Concerning a conversa-
tion that he had with Bock during about the middle of February 1954, employee
Thomas Traywick testified credibly and without contradiction as follows:
. he asked me, he says, "What is this I hear about you talking union?" And
I says, "Well, what do you mean by talking union?" He said, "You are
working for the union." "No, I ain't working for the union." And he said,
"Have you ever attended any union meetings?" Well, I hadn't at that time, . . .
So he told me. he says "... it makes no difference whether the union comes
in or whether it don't.... It don't cut my bread or butter off my table or cut
my salary. . . . If the union don't come in you will be working straight on
just like you are working," but if the union did come in I would have one job,
just cleaning, and that would be all.
Employee Ralph Smith signed a union authorization card on February 12, 1954.
About a week later he was called to the office by Assistant Plant Superintendent
Lloyd Donahey. Donahey asked him where he got the card. Smith replied that he
got it from employee James Tindell. Bock then entered the office and questioned
Smith about the card, asking him where he got it, if he signed it, and what he did
with it.
As related above, the Board conducted an election among Respondent's em-
ployees on March 5. On March 4 employee Leon Schaeffer had a conversation with
Donahey. In this connection, Schaeffer testified credibly and without contradiction
as follows:
I told him I thought the union would come in, would be voted in the plant ...
the next day, about 80 per cent, and he said no. He said, "I believe it will be
about fifty-fifty, . . . although if it does come in, ... we are going to double
up on you, and you are damned sure going to have to work"; and if it was
voted in, that within a year's time they would vote it back out, because they
wouldn't like the union operation.
Harlan Whigham was one of the employees involved in the settlement agreement
in Case No. 10-CA-1930. He testified that he was discharged about 2 or 3 weeks
before the election and that he had a conversation with Donahey about 3 days be-
fore his discharge. In this connection Whigham testified to the following:
He started the conversation saying that he wanted to talk to me about things
in the plant going on, and wanted to know if I had ever been worked too hard at
any time, or had anybody done me any wrong in the plant whatsoever. I told
him no, not as I knowed of, they hadn't.
WINTER GARDEN CITRUS PRODUCTS COOPERATIVE 1057
So he said something about, "I notice a few of you wearing union buttons";
and he says , "That is all right, perfectly all right, because that is what I went off
and fought for in the war, was freedom in the country , and you are free to wear
anything you want to ." And he asked me if I had ever belonged to the union
before, and I said no, I hadn't; and he said , "Well, what do you think the union
will get you?" I told him I didn't know He said, "Well , I would like to give
you a little brief on that. " He said something about the union , if it came in the
plant we would work eight hours a day , we would have a fifteen minute break
every four hours, and it would cut our take home pay, shorten it, and we wouldn't
have as much take home pay as we had before; and something else about me
and five more , I think it was, I think he said Charles Lee, naming one; he said
he knew who he was, he was the President of the union , and he said that if I
didn't watch out that I would go-something about I would go, I didn't get it
correctly on that, and he said "There will be five more going with you." I took
it he meant we would be fired; I don't know for sure about it or not.
That is about all he said. He said, "Remember on the voting day, and you
vote the way you want to."
Donahey testified on direct examination, "The first part of [Whigham 's] testimony
there is correct , to the best of my recollection , up to the point where he says that I
said the hours would be cut and they would get a coffee break , or a break , every four
hours. That is not a true statement " He denied making any statement that could
be construed as a threat that wages would be cut if the Union won the election. On
cross-examination Donahey testified to the effect that the Union was not mentioned
during the above conversation ; but was mentioned during a second conversation about
4 or 5 days after Whigham 's discharge , at which time Whigham said that he had got
"fouled up" by joining the Union. I believe that Whigham was the more reliable and
credible witness and credit his version of the above conversation.
Employee Elmer Brown testified that he had a conversation with.Donahey a few
days after the election ; that he asked Donahey if Robert Mairs, Respondent's general
manager, would sign a contract with the Union ; and that Donahey replied, "Mr.
Mairs said he wouldn't sign any- papers " 3
Employee Traywick had a conversation with Donahey on about March 15. In
this connection Traywick testified to the following:
So Mr. Donahey . . . told me someone had called me from home, that
my baby was sick and wanted me to take the baby to the doctor . . . I said,
"I understand . that today would be the last day," because it was mid-sea-
son. . . . I says, "I understand there is going to be a few days lull in between
these two crops of fruit , we always have had, . . . Do you want me to come
back tomorrow ?" And he said , "No, I was fixing to tell you that I was going to
have to lay you off for a few days , a week or ten days." . I said , "This is
the . . . second time I have ever been laid off since I have been working here."
So he said , "Well, if you boys hadn't got yourselves in this damned mess, .
you woudn 't have been laid off " I said , "What mess are you speaking of9" He
said, "This damned union. . You boys have got this damned union in a
mess here , . Your job is assigned as a clean-up, . . . You are going to have
to be laid off."
he says for me not to quote him on that. . . . I says, "Well, it has got to
be straightened out once and for all ." And he said , "Well, . I never had a
chance to talk to you about the union . . . . You know how I feel about it. . . .
You are a union man and I am not." . .
Concerning the same conversation , Donahey testified as follows:
There was a conversation The only true statement , portion of that statement
is, he asked me when I wanted him to come back, and I told him at that time
that I didn 't know when the plant was going to start up, and that I would have
to get my orders from the main office. And the word "union" was mentioned;
I made the statement that since the union activity had begun in the plant that I
wasn't free to make any guesses or assume when something was going to happen,
that I wanted to keep myself in the clear ; but the word "union" was just men-
tioned one time, and I said union activity , that my guesses were limited since
then.
Otherwise , Donahey denied the statements attributed to him by Traywick . I credit
Traywick 's version of the conversation.
3 Donahey denied making the above statement . His denial is not credited
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About March 3, Traywick and General Manager Mairs had a conversation. In
substance, Mairs said that he had heard that Traywick was a "key man" in the Union;
that joining the Union meant "going against management"; that he felt that Traywick
and other employees were "certainly satisfied"; that "there wasn't nobody going to
get anything on a silver platter"; and that "a vote for the union certainly was not a
vote for me." 4
Employee Leon Schaeffer testified that just before the election he attended a com-
pany meeting for employees at which Mairs made a speech. Concerning Mairs'
speech, Schaeffer testified, "Well, there were no personal threats. He just said what
the Company would do and what they wouldn't do: They would sign no contract
with the union, and that he wouldn't have to do business with the union, . They
had got along so far." Mairs denied the statements attributed to him by Schaeffer.
With respect to the above testimony of Schaeffer, Mairs testified as follows:
He has got it twisted around a little bit. The statement that I made, somebody
asked me a question at the union meeting, and I told them that the Company
was still going to run their own business; and I think at that time there was
some question as to wages that had been promised them, and I told them that
any wages that the Company paid would be what they decided on. In other
words, the Company is the one that is going to decide how much wages they
pay. He has twisted that around a little bit.
I believe that Mairs is the more reliable and credible witness in this connection,
and credit his version of the speech.
About January 12, 1954, employee James Tindell had a conversation with John
Barr, foreman over the feed mill. Barr asked Tindell if he knew who had brought
union cards into the plant. When Tindell replied that he did not know, Barr said,
"Well, I promise you this, as soon as I do know I am going to make it hard on
him; me or him, one will have to go."
A few days before March 5, employee Zipporah Mooney had a conversation with
Shelley Thompson, fruit receiving foreman. Concerning the conversation, Mooney
testified as follows:
. he came up to the window where I was working and says, "Zip, I am talk-
ing to all of my old hands about this union. I would like to know how they
feel about it." He says, "I am not supposed to talk to you about it, and if you
tell it I'm going to say it's a damned lie."
He asked me how did I feel about it, and I told him that I had other wor-
ries, that I had a husband in the hospital that worried me much more than
the union, that I would be glad when all of it was over, the election and all of
it was over and everybody settled down to their jobs and quit worrying about
the union. He said, "That's not what I mean. I want to know if you are
for it or if you are against it, which way you are going to vote." And I says,
"Well, my vote won't tell if I am for it or if I am against it, because I am with
the majority. If the majority is for it I am for it, and I am going to join it,
and if the majority is against it I won't join it."
He said, "I don't see why you want to join it, because it will cost you around
$45 a year to be a member of the union, and you will have the same benefits
if there is a contract signed that you would have, if you didn't belong to the
union." He says, "Now if the plant goes union inside that's all right, it just
don't make a damn with me, but the fruit yard is going to be 100 per cent. non-
union ," and he turned away from me and went on.
Thompson admitted that a conversation took place; but denied that he said anything
about a "damned lie," or that he told her that it would cost her $45 to be a member
of the Union. He testified that he did not "recall" asking her how she was going
to vote. I credit Mooney's version of the conversation.
Sometime during February 1954 employee John Mooney had several conversa-
tions with Foreman Thompson. Thompson asked him if any of the graders were
"talking union ." During a later conversation Thompson told Mooney that he was
talking to a few of his "old hands" about the Union and that, "If somebody. don't
push and explain to these people that if the union comes in here there will be much
less carry home pay than they are getting now. . . . There will be no privilege of
you coming to your foreman and getting any more money; no matter how good a
hand you are you can't come to your foreman and reason with him and talk with
4 The above statements of Mairs are based on the credited portions of the testimony of
both Mairs and Traywick.
WINTER GARDEN CITRUS PRODUCTS COOPERATIVE 1059
him and he will raise your pay. It will have to come through the union officials, .. .
I can't raise your pay unless it is agreeable with them."
William McBride was the Respondent's warehouse superintendent . Shortly after
the election, employee Jackie Riffle went to the place of work of employee Christine
Daugherty. McBride and Leadman William Holton 5 were present at the time.
McBride said to Holton, "Look there, Jackie went straight to her.... We know
she is a union girl now. . . There is only one thing to do, make them pay for it."
Employee Earl Forehand wore a union button while at work. Sometime during
April McBride ordered Holton to transfer Forehand to a more difficult job. Mc-
Bride stated to Holton at the,time, "He started the damned thing, I will let him pay
for it." It is found that McBride referred to the Union in this statement.
Herbert Barfield worked in the warehouse department as a leadman under
Superintendent McBride .6 Sometime during February 1954 McBride asked Barfield
if he had heard any employees talking about the Union. Barfield replied that he
had not. McBride then said that he knew "there are a bunch of them talking union,"
and asked Barfield to find out who they were. Shortly after the election on March
5; McBride stated to Barfield that he knew which employees were members of the
Union and named various individuals. He then said , "We are going to make it as
hard as we can on these employees, going to give them harder jobs. . . . We will
knock them off early; . We will shorten the hours, that will shorten their pay,
and we will see how they like that."
Barfield joined the Union during the latter part of May 1954. On the same
day that he joined , he had a conversation with McBride. In this connection Barfield
was questioned and testified credibly as follows:
Q. And what was said?
A. Well, he called me in the office, told me to come in there, and I walked
in. He looked at me and says, "Well, this is it , is it?" I said , "I guess so."
Q. Were you wearing a union button at that time?
A. Yes, I was. And he asked me, "Do you think the union is going to help
you?" I said, "I don't know, sir. If they don't do anything more for me
than the Company I haven't lost any more ." We went on, and I can't say
exactly all that was said, but we were just talking about it, and he doing most
of the talking.
Q. Tell us all you can remember of it.
A. He told me, he said, "I have heard for two or three weeks you were going
to join it, but I didn't believe it." I said, "You should, because it was known."
And he asked me why I joined the union, and I told him that I didn't feel like
that I was treating the unions right carrying out his orders. That was about
all.
Q. Do you recall anything more of that conversation?
A. Nothing but he kind of talked to me to get me to turn against it . He said,
"You know, I had you up for better jobs, in fact for the cold room job," which
was Mr. Stanford's job. He said, "You know Mr. Stanford is not the man for
it; you have known that all along and have said that all along. I had you up
for a bonus and a straight salary and a paid vacation."
Although the above evidence discloses that Respondent's supervisors interrogated
employees concerning their union activity and threatened them with reprisal because
of such activity, I make no specific findings of violation of the Act. The complaint
does not allege such violations. Further, as related above, Case No. 10-CA-1930
was settled on April 2, 1954. For the most part, the conversations occurred before
that time . However, this evidence will be considered in evaluating the Respondent's
conduct hereinafter related.
C. Working rules and regulations
Employees Doris Gardner, Annie Colburn, Annie Sapp, Idell Metts, Hazel Bell,
and Willie Browder worked as graders on the "wet belt." Gardner became an
6 The evidence discloses that leadmen transmitted foremen's orders to employees. Neither
the General Counsel nor the Respondent contended that they were supervisory employees
within the meaning of the Act.
6 The conversations hereinafter related between Barfield and McBride are based upon
the credited testimony of Barfield. McBride denied the, statements attributed to him by
Barfield and those heretofore found. McBride did not impress me as a reliable or credible
witness. His denials are not credited.
3876446-vol. 114-68
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee of the Respondent in April 1951, Colburn in May 1951, Sapp in April
1953, Bell in December 1950, Metts during 1953, and Browder in March 1953.
Gardner testified that she joined the Union on March 4 and that she wore a union
button while at work on and after March 5. Colburn testified that she joined the
Union on February 3 and that about a week later she started to wear a union button
in the plant. Bell testified that she joined the Union on February 4; that she wore
a union button while at work, starting sometime before March 5; that she was
recording secretary of the Union and a member of its negotiating committee; and
that she acted as an observer for the Union at the election . Sapp testified that she
joined the Union on April 3 and that she wore a union button in the plant after
that date. Metts testified that she joined the Union sometime before the midseason
lull in March.7
In general, the above witnesses testified to the effect that upon returning to work
after the midseason lull in 1954 they were instructed by their leadmen or head
graders not to talk while working and not to leave the grade tables for any purpose
while the belts were in operation; and that before these rules were announced, they
had been permitted to talk while working and to leave the table one at a time while
the belt was in operation in order to go to the restroom or the coffee shack.8 Sapp
and Metts testified, in substance, that they were reinstated to their jobs after the
strike and that the rules which were announced after the midseason lull were no
longer enforced, that the graders talked while working and left the grading table
while the belt was in operation in order to go to the coffee shack or the restroom
the same as they did before the midseason lull.
Employees Zipporah Mooney, John Mooney, and Russell Brown worked in the
fruit receiving yard under Foreman Shelley Thompson. Zipporah Mooney and Brown
were graders on the "dry belt," and John Mooney was a fruit checker. However,
Zipporah Mooney, John Mooney's wife, worked at her husband's job while he was
sick from about February 22 until about April 12.
John Mooney became an employee of the Respondent about October 1946. His
wife worked for the Respondent for about the same length of time and Brown
since 1950. Zipporah Mooney joined the Union on April 1. John Mooney joined
sometime before April 19 and Brown on April 19.
Zipporah Mooney testified that when she returned to work after the midseason lull,
Foreman Thompson spoke to the assembled 7 or 8 employees who worked as dry
graders, and that he told them, "Girls, I have a few new rules for you. . If you
are late, before you can clock in you will have to see me, because your cards will be
locked up, and if I think that your excuse is permissible I will let you have your card
and you can clock in; otherwise you will be off the rest of the day, and might be off
for good. . . . There will be no going to the restaurant without the belt is stopped.
Then you come down and ask me, and if I think it is all right, why, you may go, but
if you don't find me don't go. . . . Of course I know you have to go to the rest room,
and when you have to go, go . . . and anyone failing to observe these rules, you know
what it means; you will be automatically fired. . There will be no smoking on
the belt or upstairs at all." Mooney further testified that Thompson told the em-
ployees that if they were going to be absent, they should call and let him know.
Brown and John Mooney testified substantially the same as Zipporah Mooney in this
connection. John Mooney also testified that Thompson told him, "If a guy is out sick
or hurt, or anything like that, he is to report every day. . From now on everyone
will have that to do." All three testified to the effect that they had not heard of such
rules before Thompson's announcement; and that before that time employees smoked
when they wanted to and were permitted one at a time to leave the belt while it was
moving without notifying or obtaining Thompson's permission. Thompson admitted
that he talked to the graders about company rules when they returned after the mid-
season lull , but denied that he mentioned "new rules" or that timecards would be
"locked up " He testified, "We did go into the fact that we were reiterating our Com-
pany policies." His denials are not credited.
Thomas Traywick was employed by the Respondent since about February 1950,
and was leadman over the "cleanup crew." There were five employees in this crew,
including Traywick. Traywick testified to the effect that when he returned to work
after the midseason lull he was told by Assistant Plant Superintendent Donahey that
he could not "stand and talk" with other employees, that he could go to the coffee
shack only twice a day, and that he would have to punch out for lunch for 30 minutes;
that before that time he never had heard of such rules; that without punching out,
7 Browder was not questioned concerning her union activity. However, it appears that
she attended meetings of the Union.
8 Browder testified only in connection with the talking rule.
WINTER GARDEN CITRUS PRODUCTS COOPERATIVE 1061
"We would sit down and eat our dinner in from ten to fifteen minutes , and get up and
go back to work"; that he and 2 other employees in his crew wore union buttons while
at work; that George Lott and Aubrey Lindsey, the 2 employees who did not wear
union buttons, did not abide by the new rules; that he complained to Foreman Parker
that George and Aubrey were not obeying the new rules and were going to the coffee
shack "as high as five or six or seven times a day"; that Parker said he would see
Donahey about it; and that he did not hear anything further about his complaint.
James Shelton was employed by the Respondent since November 1952. He worked
in the "can loft" with three other employees. Shelton testified that the can loft was
located over the engineroom ; that shortly after March 24, Donahey told him that he
would have to "stay upstairs " and that he could come down only once in the morning
and once in the evening ; that about April 3 he was informed of a rule that he had to
wear his shirt while working ; that there were no such rules before this time; that
Crawford was the only employee in the can loft who did not wear a union button; and
that Crawford left the can loft "whenever he taken a notion" and wore his shirt "just
part of the time."
Conrad Worthington was employed by the Respondent since February 1953. He
worked in the warehouse under Foreman McBride. Worthington testified that he,
employee Robinson , and another employee worked together ; that he and Robinson
wore union buttons ; that sometime shortly before April 21 the leadman told him and
Robinson that they could not leave the warehouse to go to the restroom or the coffee
shack without his permission; that before that time he had been permitted to go to the
coffee shack whenever he wanted to and nothing had been said about it; that the fol-
lowing day Foreman McBride told him, "Well , we have got new rules around here now
we are going to go by. . Things are going to be different around here now"; and
that thereafter the nonunion employee "went to the coffee shop any time he wanted to."
Other witnesses for the General Counsel who worked in other departments of the
plant testified that after March 5 new rules were imposed, prohibiting smoking, re-
quiring them to punch out for lunch, limiting coffee shack privileges, and confining
them to their immediate working area.
The General Counsel contends that the above rules violated Section 8 (a) (1)
of the Act in that they were instituted unilaterally by the Respondent , without consul-
tation with the certified bargaining representative of the employees ; in that certain
of the rules were enforced discriminatorily against adherents of the Union; and in
that their institution and enforcement were for the purpose of discouraging union
membership and activity.
The Respondent admits that the employees were informed of the above rules after
the midseason lull; but contends that the rules had been established long before that
time, conceding that many employees perhaps were not aware of them.
About March 25, 1954, General Manager Mairs and Assistant General Manager
Bock had two conferences with - Paul Harper , an attorney representing the General
Counsel, and Mr. Mascotti , a field examiner of the Board, in connection with the set-
tlement of Case No. 10-CA-1930. Frank E'Dalgo, organizer for the Union, was
present at the afternoon session. Concerning a conversation with Harper at one
of the conferences , Mairs testified credibly and without contradiction to the following:
. At the time he was there, and when we were in discussion on the thing,
he said that undoubtedly we might be right in our contention of letting these
people go, but there was certainly enough doubt that the thing should be heard,
and we told him that we certainly didn 't want to prejudice our position in any way
in this settlement , because we felt we were right , and we were doing it in the
interest of harmony as well as anything else, and he pointed out to us
Mr. Harper told us that undoubtedly we had rules under which we could have
fired these people, and under which we thought we had fired them, but that the
rules had certainly not been made plain , and that they should be gotten up so
that the people could understand them ; and he suggested that we do that , because
he said that undoubtedly in the future as these things come up , if they are
made plain you will have a lot less difficulty.
E'Dalgo did not deny the statements attributed to Harper by Mairs. As related above,
E'Dalgo was not present at the morning conference Concerning statements of
Harper in this connection , E'Dalgo was questioned and testified as follows:
Q. Well, tell us your interpretation of what he said about rules.
A. To the best of my understanding , in substance this was said; that in the case
of these 8 ( a) 3's which were alleged in this complaint, and as I understood if
he was talking specifically about those , that the evidence was certainly in favor
1062 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
of the union's allegations-without saying "union," with that which had been
charged-and that, although maybe some of those had went contrary to some
of the rules that the Company claimed they did, that from the investigation that
had been made they had failed to find where these people had been informed
of such rules. In other words, if there is a rule out there that it wasn't-
Q. Made known?
A. -known to those, and that that tended to certainly further-
Q. Confuse the situation?
A. -support the evidence which had been considered.
Concerning coffee break and restroom rules, Bock was questioned and testified
as follows:
The policy on coffee break was handed down by me after the building of our
present lunch room in December of 1952, in that the permissible coffee breaks
would be one in the morning and one in the afternoon, in that general line.
The rest room privileges have been, of course, always that anybody that
needed to go, why, could go; otherwise, why, there was no particular definite
policy along that line except that it should not be abused.
With respect to the coffee break, Donahey testified, "The general rule, to all em-
ployees in the Company, was two coffee breaks per day, one in the morning and one
in the afternoon, any time that their operation permitted it, . . . and that was general
throughout the plant, in all departments. Of course there were some places that the
machinery had to be stopped in order for them to make a coffee break; that just
couldn't take a coffee break whenever they felt like it. . . Take for instance the
grade table; whenever the holding tank would be filled up for the purpose of cleaning
the finishers, why, the graders on that table had opportunity to go and have a coffee
break." Donahey further testified to the effect that the coffee break rule was instituted
during the 1952-53 season when the coffee shack was built, that the rule applied to
Respondent's office employees who were not included in the bargaining unit, and
that new employees "usually" were informed of the rules by the foreman who hired
and put them to work. Concerning the lunch period rule, Donahey testified, in
substance, that employees whose work required that they stay on the job were paid
full time while they were eating and were not required to punch out; and that
members of the cleanup crew were required to punch out for at least 30 minutes
for their lunch period, except on "general cleanup days" when they ate on company
time.
A memorandum, dated February 24, 1953, which was signed by Bock and was
distributed to all foremen, was introduced into evidence by Respondent. This
memorandum reads as follows:
As a matter of policy, only those persons actively engaged in the operation
and so engaged that they cannot leave their station will be allowed a paid lunch
hour.
All others shall take a prescribed length of time for lunch and will clock out
accordingly.
There should be no exceptions unless by specific permission of the foremen.
The restaurant is a good thing for employees, and we wish to be able to let it stay,
but altogether too many employees are abusing it.
Please cooperate by using good judgment in relation to this.
A few days after April 2, 1954, another memorandum was distributed to all
foremen. This memorandum reads in part:
3: If a person has to be absent he is to notify his foreman prior to the time
he is supposed to report to work. The employee is to notify you daily of ab-
sences, or notify the foreman specifically when he expects to come back to work.
Any employee not complying shall be considered quit and there shall be abso-
lutely no exceptions to this rule under any circumstances.
6: To establish a policy on eating in restaurant, all personnel paid by the hour
shall be required to punch out if they intend to eat their lunch in the coffee shack.
Bock testified concerning the no-talking rule applicable to graders. He did not
deny that the graders were informed of the rule after the 1954 midseason lull. In
general, he testified, as did other witnesses for the Respondent, that no new rules
were announced at that time. Concerning the necessity for the rule, Bock testified:
In years past we have tried to work along with the idea that a person doing
their job and doing what we essentially had them for, as regards talking we
didn 't object to it. As time went on it became increasingly apparent that the
WINTER GARDEN CITRUS PRODUCTS COOPERATIVE 1063
talking in itself was not the primary evil, but the accompanying things, in the
distractions that take place with people talking; it is only natural for a person
to turn to look at the person that he is talking to and all that thing; and when
they turn and look at the person they are talking to they obviously can't be
watching the fruit so that they can grade it properly. The fruit comes through
on the grading belts at a steady pace, and just because somebody turns and
talks to someone doesn't mean' that the fruit stops coming; it goes on, and
then we get into the problem of the "gone" orange.
Mairs testified, in substance , that smoking was prohibited at the insistence of
insurance companies , "particularly in the areas where there is anything inflammable";
and that it also was banned in' areas of the plant, such as around the closing machine,
for the reason that there had been complaints by, customers of foreign matter in the
product. Assistant Foreman David Stanford testified concerning the reason for the
ban on smoking in railroad boxcars as follows:
In the cold room anyone smoking findsi the smoking disagreeable to his taste,
and they become nauseated. If a man is smoking in the car, the hot air from
the car and from the warmer air outside creates a draft into the cold room, and
brings any smoke that is outside into the cold room, into the faces of the loaders
just inside . One man, Mr. Noble Riner, became nauseated on two occasions
from this smoke, and requested that I ask them to stop while he was loading
just inside the cold room.
With respect to the requirement on the ' wearing of shirts, Donahey testified to the
following:
There was no new rule or change in the rule . The rule ever since concentrate
has been started there, as far as the U. S. D. A. was concerned, was that any
person handling juice, cans or anything connected with the canning operation,
must be fully clothed at all times and wear a head covering ; and sometimes they
would get sort of out of hand , several of them would possibly take off their
shirts and they weren't told to put them back on, but somewhere between the
time-and I believe it was before the election , at the time we began getting
some cigarette wrappers in our juice, and cookie wrappers, that the U. S. D. A.
got after us about not strictly keeping after these people and keeping their
shirts on, particularly in the can loft and the closing machines. So we went
to them all and told them that they would have to keep their shirts on, and at
the same time we brought a fan out of the cold room , which was standing on
an angle iron frame, and stood it right at the point where the person dumped
the cans into the Dudley, so that it was blowing directly on the person, so
as far as he was concerned he was better off with his shirt on and having the
fan than he was without the fan and his shirt off; and that was done at the
request or at the orders of the U. S. Department of Agriculture.
In connection with the discharge of employee Hazel Eldridge, a grader, on April
2, 1953 , Donahey testified , without contradiction , "I fired her, . . . for continued
misuse of the rest room privilege and talking on the grade table, not grading her
fruit , and this was brought to my attention by some of the older graders on the grade
table, particularly Hazel Bell." Eldridge's timecard for the period ending April 8
was introduced in evidence . It contains the notation , "Fired unsatisfactory work."
Donahey also testified without contradiction that during May 1953, employee Betty
Eldridge, a grader, was docked a half hour for abuse of the coffee shack privilege.
He testified , "She left the grade table during a break in the operation and went to
the coffee shop and ate a plate lunch, . The conveyor started back up before she
completed her plate lunch ," and that Eldridge "got mad over the issue and quit."
The timecard of Eldridge for the period ending May 20 was received in evidence.
It contains notations which support Donahey's testimony in this connection.
The memorandum dated February 24, 1953,. set forth above, proves that the Re-
spondent had an established rule as to which employees would be allowed a paid
lunch period. While the memorandum does not set forth any specific rule on the
use of the coffee shack by employees , it does show that the Respondent was con-
cerned by abuse of the privilege. The fact that in May 1953 employee Betty
Eldridge was docked for half an hour, proves that the Respondent curtailed use of the
coffee shack. However, the evidence discloses,,that the Respondent changed its
existing policies or rules, which in effect , amounted to the imposition of new rules.
For example , in the wet grading department' it no longer permitted the graders to
leave the table one at a time while the machinery was in operation in order to go
to the restroom or the coffee shack. They had to wait until the belt was stopped,
which, according to the credible testimony of witnesses , for the General Counsel, was
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at times a 2- or 3-hour period. The Respondent adduced evidence which shows
that the holding tanks were filled more after the midseason break than before. The
Respondent contends, in substance, that this evidence proves that the machinery was
stopped more frequently and that the employees were not confined unreasonably to
their working areas. However, the issue is whether or not the Respondent instituted
new rules; not if such rules were reasonable.
The same reasoning applies to the no-talking rule for graders. The evidence
establishes that before the midseason break talking was permitted, provided that
it did not interfere with their work; and that after the break graders were not
permitted to talk. While this indicates that talking was restricted to some extent
before the break, nevertheless I find that a new rule was established.
I credit Donahey's testimony concerning the rule for the wearing of shirts. Even
if this was a new rule, which I do not find, I do not believe that the Respondent
was obligated to advise or consult with the Union in this respect since it was a re-
quirement of the United States Department of Agriculture.
The Respondent undoubtedly had some sort of policy covering absenteeism and
lateness for work before the midseason break of 1954. However, other than the
testimony in general of Respondent 's witnesses that no new rules were announced,
there is no evidence as to what the Respondent's policy was before that time. The
witnesses for the General Counsel, 2 of whom had been employed by Respondent
for about 8 years, testified credibly that they had never before heard of rules such
as those announced by Foreman Thompson and that he stated they were new rules.
Under the circumstances, I conclude and find that these were not rules which had
been established before April 1954.
The undisputed evidence discloses that the Respondent permitted smoking in the
dry grading department and in railroad cars before April 1954. Mairs and Assist-
ant Foreman Stanford testified as to the necessity for the rule banning smoking in
those areas, but it is clear from their testimony that the rule was changed.
The testimony of E'Dalgo shows that at the bargaining conferences of March 24
and April 7 the Respondent brought up the subject of rules. In this connection
E'Dalgo testified that, at the meeting on March 24, Mairs asked the Union for its
comments on certain issues, such as smoking in the plant, habitual lateness for work
"employees with reference to call in when they were absent from work," and
"workers roaming over the plant and loitering in the rest room"; that he told
Mairs that the Union "would be glad to take those things under consideration"
and discuss them at the next conference; that at the next meeting on April 7 9'
it was "generally agreed that `No Smoking' areas would be established where they
had open tanks of the juice and in the feed mill"; that "although there was discussion
on habitual lateness for work, there was no definite agreement reached"; that "it
was asked was the Company proposing that a worker call in each and every day
that he was absent from work, and it was not felt on the part of the Company that
that would be necessary"; that "with respect to leaving various departments, there
was no agreement reached on that. I told the Company that in my opinion cer-
tainly any Company would have a right to make a rule or rules governing such
things. At the same time, arbitrary rules, in my opinion, would be not desirable
on either the part of the worker or the Company"; that with respect to loitering in the
restroom, "I readily agreed that if one is an habitual loiterer and goes in the rest-
room just to loaf, then certainly the Company would have to take disciplinary ac-
tion"; and that "at this meeting there was a protest on the part of the workers as
to the restrictive rules on the grading belt with respect to talking and with respect
to going to the restroom." Mairs testified to the effect that at one of the meetings
the Respondent raised the question of smoking and "loitering in the toilets" in
order to see what E'Dalgo "could do to correct it"; and that no proposed rules were
submitted to the Union for its comments.
From the above testimony I find that the Respondent discussed in general with the
Union certain problems in the plant such as smoking and loitering in the restrooms,
but that it did not advise or consult with the Union concerning any specific rules for
remedying such problems. Moreover, the undisputed evidence shows that the ban
on talking by graders was first discussed after the rule had been imposed and when
the Union raised a complaint about it. Accordingly, I find that the Respondent, by
instituting unilateral changes in the working conditions of employees who were in
a unit represented by a certified bargaining representative, without consultation with
such representative, violated Section 8 (a) (1) of the Act.
The uncontradicted testimony of three witnesses for the General Counsel, as re-
lated above, discloses that the Respondent discriminatorily applied its rules against
0 The evidence discloses that a meeting was held on March 30
WINTER GARDEN CITRUS PRODUCTS COOPERATIVE 1065
known adherents of the Union. While it appears that this conduct was not general
throughout the plant, nevertheless I find it to be violative of Section 8 (a) (1) of the
Act.
The General Counsel's third contention is to the effect that the Respondent an-
nounced the above rules after the midseason break in order to discourage union
activity. The Respondent contends, in substance, that it clarified its existing rules at
the suggestion of Harper, the General Counsel's representative, who participated in
the settlement of Case No. 10-CA-1930. It has been found above that the Re-
spondent issued new rules. It is to be noted that Harper, according to Mairs' own
testimony, said nothing with respect to new rules. Employees Metts and Sapp testi-
fied without contradiction that when they returned to work after termination of the
strike, the bans against talking and leaving the grading tables while the belt,was in
motion were no longer enforced. Further, the threats of supervisory employees to
the effect that working conditions would be made more difficult if the Union succeeded
in organizing the plant have been related and found above. From all of the evidence
I believe that the conclusion that the Respondent banned talking and confined em-
ployees to their place of work in retaliation for their choice of the Union as their
bargaining agent and in order to discourage union membership and activity is
unescapable. I find that such conduct is violative of Section 8 (a) (1) of the Act.
D. Changes in work assignments and duties
As related above, employee Thomas Traywick was leadman over a five-man
"cleanup crew." He joined the Union about 2 weeks before the election on March
5 and wore a union button while at work. He was made a shop steward by the Union
and the Respondent was notified by the Union to this effect by letter dated April 3,
1954. Thereafter, he wore a shop steward's button on his cap.
Traywick testified, in substance, that shortly after the election new jobs were added
to the regular duties of the cleanup crew; that these new jobs were to wash extractors
in the juice room, to sweep and clean the ditch around the germicidal tank, to clean
around the fruit bins, to wash walls and ceilings, and to scrub under the blend tanks;
that the cleanup crew had not performed such work before; that employees Lott and
Lindsey, the only members of the cleanup crew who did not wear union buttons,
refused to perform the new jobs when ordered to do so, that he complained to
William Hinson, who had charge of the "quality control department"; that Hinson
told him that he would speak to Donahey about Lott and Lindsey and "get them
straight"; that thereafter Lott and Lindsey continued to refuse to perform the work;
that at the time when the new jobs were assigned "for about two months" he was re-
lieved from an undesirable job, the mowing of lawns, which work took about 2 days
a week of his time, and that about 3 weeks before the strike Lott and Lindsey were
transferred to driving jack trucks, leaving only 3 men for the cleanup crew.
The Respondent does not deny that the extra work was assigned to the cleanup
crew after the election. Foreman Thompson testified that "at times" when the
regular man on the job was absent the cleanup crew had been called upon to help
clean around the fruit bins, and that Traywick had performed some of that work in
1953. Contrary,to Traywick's testimony, Hinson testified as follows:
I personally worked with Mr. Traywick and members of his crew in the
1952-53 season in cleaning up finishers We had a problem of cleaning a finisher
in a certain period of time in order that we would not hold up production, and
I remember very distinctly having a stop watch with us at that time clocking the
time, the amount of time it took us, Tommy and I and there might have been
one helper there, to clean up this particular piece of equipment which was in the
juice room; plus the fact that during the early part of this past season, due to the
new machine, the new extracting machine and the difficulty that we were en-
countering with it, we had to have from time to time Mr. Traywick and his crew
up in the juice room to help speed the clean-up along, because they would have
finished the evaporator long before the clean-up crew in the juice room finished,
and we required additional help up there and they were told to go up in that room
and help, which they did.
The Respondent introduced in evidence a record which indicates that on February
18, 1953, Traywick cleaned the pulp finishing machine in the juice room. Hinson
further testified to the effect that the additional cleaning jobs were assigned to the
cleanup crew for purposes of quality control. Donahey testified to the effect that Lott
and Lindsey were chosen for the jobs on the jack trucks because of their past ex-
perience.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is nothing in the record to indicate that the regular work of the cleanup crew
had lessened before it was assigned the extra cleaning jobs. The testimony of the
Respondent's witnesses shows that "at times" during and before 1953 the crew had
performed some few of these jobs, but it is clear from such testimony that the jobs
were not part of the regularly assigned duties of the crew. Thus, it appears that the
workload increased to a considerable extent while the number of men in the crew
decreased. It is true that the crew gained 2 man-days per week when Traywick was
relieved from the mowing job, but it lost about 10 days when Lott and Lindsey worked
on the jack trucks. Further, it appears that only the known union adherents bore the
brunt of the increased work. Lott and Lindsey refused to perform the work and when
Traywick complained to Hinson, nothing apparently was done about it. Instead
they were rewarded with what the record indicates to be more desirable jobs. This
treatment seems to follow the warning of Donahey, Traywick's supervisor, that if the
Union won the election, ". . . we are going to double up on you and you are damned
sure going to have to work."
Similarly, other witnesses for the General Counsel, who were employed in the juice
room , can loft, fruit receiving yard, feed mill, and warehouse testified credibly that
after the election their work was increased or they were transferred to more difficult
jobs. As related and found above, Foreman McBride told Barfield to "make it hard
on all union members." Concerning instructions that he received from McBride
after the election, Barfield was questioned and testified credibly as follows:
Q. And what were your instructions as far as the truck driver went after that?
A. Before then, when we needed a truck driver or jack driver, a spare jack
driver, Hill was usually the man who got it. He was one of the next best jack
drivers, and he was a good truck driver. He constantly got trips.
Q. On the truck?
A. Yes, sir.
Q. Where would he drive?
A. Well, he would go to Leesburg for a load of cans, or-maybe down to
Tampa for a load of pallets.
Q. Did you receive any instructions as to who was to do that driving after
the election, the union election?
A. Well, we took Hill off of it.
Q. Did you receive any instructions to do that?
A. Yes, sir, I received instructions to do everything I done.
Q. Who gave you the instructions concerning the truck?
A. Mr. McBride.
Q. And what did he say?
A. He told me to pull Hill off the truck and put him to harder jobs, not
give him no ease, keep him working all the time.
Q. Did you ever, as the leadman in this particular crew, did you ever have
occasion to work in the cold room?
A. Yes, sir.
Q. Did your crew work in the cold room?
A. Yes, sir.
Q. Did you receive any instructions from Mr. McBride concerning the
handling of your crew in the cold room?
A. Well, I received instructions that I hadn't had before. Before we had been
going in there, staying thirty minutes, and most times the crew just came out and
messed around until they got warm and would go back in, but after that I was
told to keep them busy at all times while they were out.
Also as found above, during April 1954, McBride told Leadman Holton to transfer
employee Forehand to a more difficult job because he was an adherent of the
Union.
From all of the evidence, I am convinced and find that the Respondent was making
it "hard" on its employees by increasing their work or by transferring them to more
difficult jobs, in reprisal for their having voted for the Union at the election and for
their union membership and activity. It is found that by such conduct the Respondent
interfered with, restrained, and coerced its employees in violation of Section 8 (a)
(1) of the Act.
The changing of the seating arrangement at the grading tables in the wet grading
department is not included in the above finding. Witnesses for the General Counsel
testified to the effect that after the midseason lull they were required to sit at the
head of the table where the fruit came onto the belt instead of at the foot; that the
change made the grading more difficult and caused a strain on their eyes; that at
WINTER GARDEN CITRUS PRODUCTS COOPERATIVE 1067
the time the, number of graders at each table was reduced to about half; and that
the seating arrangement was changed back again after the strike. Hinson testified,
in substance , that as a result of losing five batches of juice, due to high bacteria
count , on January 29, 1954, the Respondent "tightened up on the graders"; and
that the seating at the tables was changed in an experiment to see if the efficiency
of the graders could be improved, and not as punishment for their union activity.
I credit Hinson 's testimony in this connection. From the record it appears that
grading was one of the most important parts of the Respondent's quality control
program . I do not believe that the Respondent deliberately would make it difficult
for the graders to perform their work efficiently, and thus sacrifice the quality of its
product. Accordingly, the General Counsel' s contention in this respect is re-
jected.
E. Reduction in working hours and layoffs
Employees Marvin Stuckey, Egbert Hill, and Virgil McDowell worked in the
warehouse department under Foreman McBride. Stuckey was hired by the Re-
spondent in January 1954. Hill and McDowell were hired in December 1952.
McDowell joined the Union on February 5, 1954. Hill joined on February 20 and
Stuckey on March 19. All three wore union buttons while at work. By letter dated
April 3, 1954, the Union notified the Respondent that Hill had been selected as a
shop steward.
McDowell testified that he was laid off during the midseason lull; that after the
midseason lull and until the strike he worked in the can loft; that before the lull
he had worked 12 hours per day, 7 days per week; that he sometimes worked as many
as 89 hours per week; and that after the lull he worked only from 58 to 63 hours
per week.
Concerning his work and the number of hours he worked before and after joining
the Union, Stuckey was questioned and testified as follows:
Q. Did you do any other work in the warehouse besides loading cars and
working in the cold room on occasion?
A. Yes, sir.
Q. What was that?
A. Unloading cans.
Q. Unloading cans from cars?
A. From a car box, unloading cans from the trucks, driving a jack; 'most
anything that came to hand around the warehouse department.
Q. Now before the time that you joined the union how many hours did
you work on an average each day?
A. Twelve hours a day.
Q. Seven days a week?
A. Yes, sir.
Q. Was there any change in the number of hours you worked after that,
after the time that you joined the union?
A. Yes, sir; I was checked out a lot of afternoons early, on a lot of days.
Q. How many hours would you say you averaged, if you recall, after that
time?
A. Well, I was cut as much as ten hours some weeks, during the week, and
maybe more. I don't recall just exactly.
Q. How long did that continue?
A. That continued for about a couple of weeks before the strike.
Q. Was that practice continued up to the time of the strike?
A. No, it didn't continue right up until the strike. It was for a couple of
weeks there that I was checked out early in the afternoon.
Q. Did you do any other work after the time you joined the union, aside
from loading cars and trucks?
A. Do any other work?
Q. Did you do any of these miscellaneous jobs, cleaning up and loading cans,
and what you stated you did?
A. After-
Q. After the time you joined the union?
A. No, sir; I was always clocked out in the afternoons when we finished
loading those cars and trucks and things.
Q. Who would tell you to clock out early?
A. Barfield, Buck Barfield, Herbert Barfield.
Q. What would he say to you at that time?
A. He would always come around and say, "Well, that's all for today,
Stuckey. Clock out."
1068 DECISIONS ON NATIONAL LABOR RELATIONS BOARD
Q. Had he ever done that prior to that time?
A. He hadn't been doing it up until then.
In this connection Hill was questioned and testified as follows:
Q. Mr. Hill, prior to your joining the union, or prior to the union election,
how many hours a day did you normally work9
A. I worked twelve hours a day.
Q. Seven days a week?
A. Seven days a week; with the exception of the summer months, forty
hours a week.
Q.• Did you do any other work besides loading cars?
A. Yes; I drove a jack, hauling cans, unloading cans, hauling buckets from
one end of the building around to where they dump them, at the time I wasn't
loading, when I wasn't loading.
Q. Do you mean that when you were not loading you did these other jobs,
Mr. Hill?
A. I did.
Q. Were there any other jobs that you did?
A. Oh, I swept the floor and such as that, other times.
Q. And where did you do this work?
A. In the warehouse.
Q. In the warehouse9
A. Down by the casing room there.
Q. After the time you began wearing your union button was there any change
in the number of hours you worked?
A. Yes; I was told to punch out after our loading was completed.
Q. Who told you this?
A. Barfield
Q And what did he say?
A. He would come out of McBride's office and say, "Well, that's all for today,
boys. You too, Hill "
Q. Did he do this more than once?
A. Oh, yes; frequently.
Q. And how many hours did you work on an average after this time, per day9
A. I would come in at seven o'clock, and get through about 2.30 in the after-
noon to four o'clock in the afternoon.
Q. Did you do any more of the various odd jobs you have previously testi-
fied to, after that time?
A. No, after my loading was completed we would go home.
Barfield testified credibly that after the election McBride told him to "hard time"
McDowell by not letting him help with loading cars any more and by confining his
work to the canning loft, and that he should send McDowell home when his work in
the loft was finished. On another occasion, while discussing the union employees,
McBride told Barfield, "We will knock them off early; . We will shorten the hours,
that will shorten their pay, and we will see how they like that." Concerning instruc-
tions that he received from McBride and work in the warehouse after the election,
Barfield was questioned and testified credibly as follows
Q. Did you follow Mr McBride's mstructions7
A. I did.
Q. In following those instructions what did you do?
A Well, I would go in the office when we would get through loading, and
talk with Mr. McBride
Q. And what did he say, what did he do?
A. Well, he would name out the ones he wanted to go home. The ones that
he named were always union employes
Q They were these employes that he had previously listed for you?
A. Yes, sir.
Q. Prior to that time, Mr. Barfield, what would these employes do when they
finished loading cars?
A. Well, we would have them sweeping, cleaning up, stacking cartons or
something, just anything to make the twelve hours.
Q And after these conversations, these instructions from Mr. McBride, what
was the practice?
A. Knock them off just as early as we could get rid of them
Q This former work, cleanup and sweeping, these odd jobs that you have
mentioned, who did those jobs, or were they still being done?
WINTER GARDEN CITRUS PRODUCTS COOPERATIVE 1069
A. Well, usually, if anybody did go home we split it up amongst them, but
after that they just kept what few Company hands there were, whether there
were two or three, and they done the job.
Q. By Company hands what do you mean?
A. Well, we had two or three that didn't belong to the union there.
Q. And they would do the cleanup work that the others formerly did?
A. Yes, sir.
In connection with his layoff during the midseason lull and his work before and
after the lull, McDowell was questioned and testified credibly as follows:
Q. What was your job with the, Company, Mr. McDowell?
A. I was hired in as a can loader, handled cans off of box cars and palletized
cans.
Q. Palletized cans; what do you mean by that?
A. Stacked on pallets, to be handled with the jack.
Q These are the empty cans as they come into the plant?
A. Yes, sir, empty cans.
Q. And what did you do during this past season with the Company; what
was your job9
A. I was hired back in for the same job. My first job was loading frozen
juice on the cars, for about four weeks.
Q. And who laid you off?
A. Mr. McBride
Q What did he say to you?
A. He said he wouldn't have any cans to unload during this midseason lull,
and that was the only job that I knew how to do.
Q. You were working in the can loft at that time?
A. No, sir. Up until this time I did all general work throughout the ware-
house department.
Q. Up until this time. What job was he speaking of, that that was the only
thing you could do?
A. Just unloading cans off the cars or palletizing cans.
Q. Had you done other jobs around the warehouse prior to that time?
A. Yes, sir. I had helped load this frozed juice onto cold cars, refrigerator
cars, and had run casing machines a lot of times, worked in the tunnel, in the
carton loft, and I did stack-off from time to time.
Q. Mr McDowell, were you recalled to work after the midseason lulh
A. No, sir. I came back in to see Mr. McBride.
Q. About how long after you had been laid off?
A. About fifteen days after I had been laid off.
Q. And what happened when you came in to see him?
A. He told me to come in the next morning to go to work. I came in,
punched in, came outside like we usually did every morning, waiting to be
assigned to a job He told me there wouldn't be any cans that day.
Q Who told you that?
A. Mr McBride. He said I would have to go back home and come back in
the next day at dinner. So I came back the next day at dinner, and was as-
signed to the can loft.
Q. And did you work in the can loft that day?
A. Yes, sir; I worked the rest of that day in the can loft, and up until the
strike came
It does not appear that any other employees were laid off in the warehouse de-
partment during the midseason lull. In fact, four employees who were hired in
March 1954 worked through this period The facts concerning these employees
were stipulated at the hearing as follows
Joseph Booth, hired March 13, 1954, as a jack driver in the warehouse; quit
April 5, 1954.
Raymond Hurn, hired as stack-off man on March 4, 1954, and is still working
to this date as a stack-off man
Charles Barfield, hired as a loader on March 5, 1954, transferred to stack off
May 28, 1954, and quit May 29, 1954
David Green, hired as a loader on March 6, 1954, and quit on April 12, 1954.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McBride admitted that the hours had been cut in his department .' In this connec-
tion he was questioned and testified as follows:
Q. Now, Mr. McBride , whenever the midseason lull comes around, most of
the plant stops its operation , does it not?
A. That is right.
Q. What happens to your department of which you are supervisor?
A. We don't stop; we ship.
Q. Why don't you stop?
A. Well, it is the shipping department, and we ship right on.
Q. Now do your crews that you use in loading and shipping, do they stay
continuously busy or are there lulls in their work?
A. Lulls in their work. They don't stay busy.
Q. And what causes lulls in their work, Mr. McBride?
A. Well, I get shipping instructions from the office, of course, and they desig-
nate the date that the shipment is to be made, and they also order the cars and
trucks.
Q. Now is that freight cars, railroad cars?
A. That is refrigerated cars, yes, sir.
Q. What is the practice with reference to when such cars would be spotted
on the Company's loading siding?
A. Well, we only have one train service a day, and the train would come and
bring the cars in anywhere from one o'clock to sometimes 3:30 in the afternoon.
Q. Let me stop you there a minute. What would your crew be doing during
the morning part of the day, if a car wasn't spotted until after one o'clock, which
you said happened?
A. Well, if we had trucks to load and the trucks came in, why, that was
taken care of.
Q. Yes, sir.
A. And there is a lot of the time that there wasn't anything to do.
Q. And what would your crew do; just stay around or just wait, nearby, or
what did they do?
A. Well, there was sweeping up or cleaning up or something like that to do.
Practically nothing.
Q. Was there any change made in the spotting of the freight cars on the Com-
pany's siding there, Mr. McBride?
A. Yes, sir.
Q. About when did that change occur, do you remember?
A. Yes, sir; in February.
Q. 1954?
A. Yes, sir.
Q. After that change occurred what difference did it make in the working
hours of your loading crew?
A. Well, instead of, in the morning, instead of sitting around and doing noth-
ing and waiting until afternoon to take care of all the shipping, we had cars
waiting in the morning at seven o'clock to go to work on.
Q. Now would that or not enable your working crews to get through sooner?
A. Sure, naturally.
Q. You would load cars that were in place at seven o'clock in the morning?
A. That is correct.
Q. And when they finished loading the freight cars were they customarily
knocked off; I mean , did you let them go home?
A. Yes; when the work was finished.
Q. When your work was finished?
A. Yes.
Q. Did that change in the spotting of freight cars result in any change in the
number of hours that the employees of that crew would make?
A. Yes; it would make a difference.
Q. Would you give us an estimate of about how many hours would be lost
because of idleness, before the Railroad Company changed and started spotting
cars for you early in the morning?
A. Well, on a six, eight man crew it would amount to an hour and a half or
two hours a day for each man.
McBride further testified that under the requirements of the Fair Labor Standards
Act "there are so many weeks during the season that for all over 56 hours time and
a half is paid, and some that for all over 40 time and a half is paid. Then we have
the unlimited"; that during the midseason break, beginning on March 15 and when
the rest of the plant was partially closed down, the hours were cut to 56 per week in
WINTER GARDEN CITRUS PRODUCTS COOPERATIVE 1071
the warehouse department in order to take advantage of said Act 's requirements; that
carloadings were high during the midseason break ; that by reason of the increased car-
loadings the crews were kept busy; that the problem of increased work and decreased
hours was met by transferring 2 or 3 employees "that were working on the line, in the
casing room "; and that after the midseason ,break carloadings dropped off and there
was less work for the crews. The Respondent introduced in evidence a record which
shows the following case shipments for the period from January 17 through May 1:
Jan. 17 through Jan. 23- ---------------------- --------------------- 44,486
Jan. 24 through Jan. 30----------------------- -- ------------------ 39,701
Jan. 31 through Feb. 6--- ----------------------------------------- 48,862
Feb. 7 through Feb. 13___________________________________________ 86,028
Feb. 14 through Feb. 20------------------------------------------- 88,331
Feb. 21 through Feb. 27------------------------------------------- 97,553
Feb. 28 through Mar. 6------------------------------------------- 76,523
Mar. 7 through Mar. 13------------------------------------------- 80,427
Mar. 14 through Mar. 20_________________________________________ 103,004
Mar. 21 through Mar. 27_________________________________________ 94,303
Mar. 28 through Apr. 3------------------------------------------- 69,125
Apr. 4 through Apr. 10------------------------------------------- 55,889
Apr. 11 through Apr. 17__________________________________________ 53,778
Apr. 18 through Apr. 24------------------------------------------- 40,413
Apr. 25 through May 1___________________________________________ 58,981
Assistant Foreman David Stanford testified concerning the change in the railroad
schedule as follows:
We have one train service a day, which the train comes in between one and
3:30 in the afternoon , and if we have ' a car , an empty car coming in on that
train that has to be loaded that afternoon , that is before the train leaves at five
or six o'clock it has to be completely loaded. If he brings in two or three cars,
then we have to stay there continually working until we get all three cars that
were assigned to move out that day loaded , so the train can take them on to
the main Seaboard line.
Well, then the cars were scheduled to be loaded the day after they arrived,
scheduled to be loaded and shipped the day after they arrived. The train
arrived at the usual time with the empty cars, but we wouldn 't be required to
have them loaded to move out that afternoon, but would have them loaded to
move out the following afternoon.
* * * * * * *
Before we got the cars the day before, if in the morning we had no trucks to
load the crew would have relatively little to do , just enough-we had to find
jobs, create jobs to keep them busy until we had some loading to do ; but when
the cars were there in the morning when we came in, we would be busy all that
morning, and we would let the trucks , as they came in, back up until we fin-
ished the cars. Then we would load the trucks, and we would complete our
day's loading much earlier , with less loss of time.
With respect to McDowell 's work, McBride testified , in substance , that when Mc-
Dowell started the season in December he went "on the can receiving "; that during
January when there was a strike at the plant of the company from which the Respond-
ent obtained its cans, McDowell was transferred to other duties; and that when the
strike ended during the latter part of January , McDowell was transferred back to
his old job which "required all of his time."
The Respondent contends that the hours in the warehouse department were
reduced for 3 reasons, namely ( 1) the rescheduling of freight car arrivals sometime
during February, (2) the 56-hour week during the midseason break, and (3) the
drop in shipments after the midseason break . None of these three reasons explain
the cut in McDowell 's hours, since he worked in the can loft after the midseason
break and his hours were not reduced until then.
Hill testified that his hours were cut after the election . Stuckey testified that his
hours were cut "for about a couple of weeks" during the period between the time
that he joined the Union on March 19 and the strike . Their testimony stands uncon-
tradicted in this connection . Barfield's testimony to the effect that only the union
employees wei e sent home early indicates the reason why Stuckey 's hours were not
reduced until sometime after March 19.
The fact that carloadings dropped after the midseason break does not account for
the reduction in hours. Carloadings were no lower then than they were during Jan-
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nary and the early part of February, when it is undisputed that the employees worked
12 hours per day, 7 days a week.
Taking into consideration the seasonal nature of the Respondent's operations and
the fact that almost all of the employees in the plant, except for the graders, worked
12 hours per day, it is difficult to understand why a rescheduling of freight car arrivals
would change the hours of some of the warehouse employees. Possibly the change
did make for more efficient loading. If the change was held out-as a reason for a
reduction in personnel, it would be understandable. However, the Respondent hired
four new employees during March, as related above This addition to the force
seems to indicate that the Respondent's purpose was to reduce the daily and weekly
hours. Further, Hill, Stuckey, and McDowell testified to the effect that when their
hours were reduced they were not permitted to do other jobs in the warehouse that
they usually had performed. Stuckey and Hill were confined to loading and Mc-
Dowell was confined to work in the can loft. As Barfield testified, the odd jobs then
were divided between employees who were not adherents of the Union.
The Respondent apparently contends that McDowell was laid off by reason of
the fact that cans were not unloaded during the midseason break. However, the
evidence shows that he was transferred to other jobs during the strike at the plant
of the can company during January. There is no explanation of why McBride sud-
denly decided McDowell's work should be confined to unloading cans. Four new
employees were hired to do the same work which McDowell had previously per-
formed. One of these employees was hired as a jack driver on March 13, just 2
days before the start of the midseason break. The evidence shows that McDowell
had experience as a jack driver. When these facts are considered together with
Barfield 's credited testimony concerning conversations with McBride it becomes
clear that the Respondent was discriminatorily motivated.
From all of the evidence I find that the Respondent reduced the working hours
of Hill, Stuckey, and McDowell, and laid off the latter, in reprisal for their union
activities, and that such conduct is violative of Section 8 (a) (1) of the Act. The
reduction of hours to 56 per week during the midseason break, in accordance with
the provisions of the Fair Labor Standards Act, is not included in this finding.
Other witnesses for the General Counsel testified either that their hours were
reduced or that they were laid off during the midseason break of 1954. The Re-
spondent's witnesses testified to various reasons for the action taken. I do not
find it necessary to resolve these issues, since a violation of the Act has been found
above and since the complaint does not allege that the Respondent by such conduct
violated Section 8 (a) (3) of the Act.
F. The strike
Considerable evidence was adduced concerning the bargaining conferences between
the parties, and particularly in connection with the last meeting which was held on
April 21. Since the complaint does not allege a refusal to bargain within the
meaning of Section 8 (a) (5) of the Act, I do not believe it necessary to discuss
such evidence herein. The evidence conclusively shows that the parties reached
an impasse in their negotiations for a contract. The General Counsel admits that
the failure to reach a contract was a contributing cause for the strike. However,
he contends "that even more of a factor were the unfair labor practices of the
Respondent in discriminating and `hard timing' union members."
It has been found above that the Respondent committed unfair labor practices
between March 5, the date of the election, and the start of the strike on April 21
Therefore, the remaining question is whether or not these unfair labor practices also
caused the strike.
At a union meeting held on April 19 the employees voted unanimously to author-
ize a committee to call a strike Concerning the discussion before the strike vote
was taken, E'Dalgo testified credibly as follows: 10
At this meeting I reported to the people my disappointment in what had re-
sulted in the negotiations. I further told them and reminded them that I had
asked them to be patient during the course of these negotiations, because I
had had hopes that we would have been able to have worked out proper
machinery to have relieved them of the injustice which had been done to them
in the plant with reference to this-
. I # * * * ^•
°Eniployee Jack Riffle, vice president of the Union, was called as it witness by the
Respondent Riffle admitted that E'T)algo spoke about "the hard time" the employees
had had in the plant
WINTER GARDEN CITRUS PRODUCTS COOPERATIVE 1073
I told the union members that only under two circumstances would I at all
concur - in a strike . No. 1 was for the Company 's refusal to bargain in good
faith ; No. 2, because of the Company 's discriminating against the workers, in
violation of their rights guaranteed under the law.
At the bargaining conference on April 21 a conciliator was present . E'Dalgo
gave him a message to take to the Respondent 's representatives , telling him, ".. .
that in the light of the fact of the Company's refusal to bargain with the union,
and in fact of this continuing hardtiming the workers, that I could see no good of
further continuance with the negotiations." Immediately after the bargaining con-
ference the union committee met and decided to call a strike. In this connection
E'Dalgo testified credibly to the following:
The committee discussed what had taken place at the conference; they discussed
what would be the proper steps to take as a result of the Company's action,
and I related to the union the committee, that I would concur in the committee
calling a strike based on two facts. No. 1 was to gain relief from the discrimi-
nation which the Company was exerting on the workers, and based on the
fact that the Company, in my opinion, was refusing to bargain with us in good
faith; that so long as I had been able to believe that I had a possible chance of
working out with the Company the necessary machinery for dealing with
those things which they had been subjected to that I had discouraged them
from taking strike action; that the Company's position there that day had left
me no alternative except to permit them to take such steps as the committee
wished to recommend. It was agreed that the strike would be called, based
on those two facts.
Charles Lee, president of the Union, testified substantially the same as E'Dalgo con-
cerning the meeting of the committee after the bargaining session.
On April 25, E'Dalgo sent the Respondent a telegram which reads in part, "The
strike at Winter Garden plant Wednesday, April 21, 1954, having been caused as a
result of your Company's refusal to bargain in good faith and did discriminate
against members of Citrus Workers Union 24925 in violation of the National Labor
Relations Act...... E'Dalgo made the same charge in a letter dated April 26,
1954.
From the evidence as a whole, I believe and find that the strike was caused
substantially by the unfair labor practices of the Respondent. Under the circum-
stances, I am constrained to conclude and find that it was an unfair labor practice
strike.11
G. Reinstatement of strikers
On April 30, 1954, the strike was abandoned At that time Lee, president of the
Union, and a group of employees went to the "guard gate" of the plant and asked to
see Assistant General Manager Bock When Bock appeared at the gate, Lee, acting
as spokesman for the group, handed Bock a sheet of paper which contained the
following:
All strikers offer to return to work unconditionally through this Committee.
These and all others who may not be present.
Bock told the employees that they would be required to sign a roster and that it
would be necessary for them to enter the guard shack one at a time for that purpose.
The employees signed a roster as requested Thereafter Lee sent the Respondent the
following letter, dated May 3, 1954:
This will confirm that all employees of your Winter Garden, Florida, plant
involved in the strike that began on April 21, 1954, did abandon said strike on
the morning of Friday, April 30th., and through their selected Committee of
Citrus Workers Union 24925, AFL, offer to return to work unconditionally.
Contrary to the Respondent's contention, I find that the employees made a valid
unconditional offer to return to work on April 30. Since this was an unfair labor
practice strike, the Respondent was obligated to reinstate all of the strikers as of the
time they made the unconditional offer to return to work.
At the hearing the parties stipulated that the following strikers were reinstated or
offered reinstatement on the dates set opposite their names-
11 L'roien Radio Se) nice and Laboratories. 70 NLRB 476: Spitzes Motor Sales, I it . 102
NLRB 437, P L R S v Stilley Plywood Co . 199 F 2d 319 (C A 4)
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Idell Metts---------------- 5-7-54
Annie Sapp---------------- 5-10-54
Thomas Traywick---------- 5-2-54
Harston Hall-------------- 5-13-54
Ulice Sisson ------------- !_ 5-17-54
Jack Rife-------------- - 5-1-54
Zayde (L. C.) Robinson----- 5-9-54
Buna Mote---------------- 5-3-54
Christine Daughtery-------- 5-11-54
Victor Newson_____________ 5-10-54
Wilmer Spicer_____________ 5-5-54
James Olin Spicer ---------- 5-9-54
Joseph Carpenter ------------ 5-8-54
Marvin Stuckey------------- 5-6-54
L. Archie Davis------------- 5-1-54
Coy Miller----------------- 5-1-54
Noble Riner---------------- 5-7-54
John Stone----------------- 5-7-54
Bennett McCramie---------- 5-2-54
Jack Wingard--------------- 5-1-54
Odis C. Spicer-------------- 5-5-54
James Marlow-------------- 5-2-54
Ezra Ramsey--------------- 5-6-54
It also was stipulated that employees Edna Robinson and Sarah Worthington were
reinstated on May 18 and 27, respectively; and that upon reinstatement neither
received as high an hourly rate as paid prior to the strike.
The parties further stipulated that employee Arnold Treadway was not a striker
since he was on sick leave during the strike. It will be recommended that the com-
plaint be dismissed as to him.
The undisputed facts show that offers of reinstatement or attempts to offer rein-
statement to the following employees were made on the dates set forth opposite their
names:
Helen Fleming_____________ 5-11-54 Felix Kuzio--------------- 5-15-54
William G. Fleming -------- 5-11-54 Percy Goodman ----------- 5-11-54
John Masterson------------ 5-6-54 Delmus Knapp ------------ 5-7-54
C. S. Masterson----------- 5-6-54 Franklin Fleming ---------- 5-1-54
Of the above, Kuzio, Goodman, and Franklin Fleming refused reinstatement. The
Respondent attempted to offer reinstatement to the other employees, named above,
but was unable to locate them since they had moved and left no address.
Eight of the strikers named in "Schedule A" of the complaint, as amended,
did not sign the Respondent's roster of applicants for reinstatement, namely, William
Gardner, Joseph Adams, J. D. Darley, Clinton Windham, Ruth Garrett, Ezra Ram-
sey, M. C. Richardson and one unidentified striker. All other strikers named
in said "Schedule A" signed the Respondent's roster. Of the above employees,
Gardner and Adams testified credibly and without contradiction that on about May
7 they made personal application for reinstatement; that they went to the plant and
asked a guard about applying for their jobs; and that following his instructions
they signed a paper in the guard sback.12 I find that the above employees, ex-
cluding Darley and Windham for reasons hereinafter stated, were entitled to rein-
statement on April 30. As found above, the Union made a valid application on
behalf of all striking employees on that date, including those who were not present
at the plant at the time The fact that most of the strikers complied with the
Respondent's request to sign a roster does not void the Union's action.
It was stipulated at the hearing that on April 24, J. D. Darley, a mechanic, "came
to the plant for his tools, turned in his boots, and accepted a job" with another
concern in Winter Garden. In my opinion, these facts raise a presumption that
Darley, although a striker, quit his job. Since the General Counsel did not adduce
any evidence in rebuttal of this presumption it will be recommended that the com-
plaint be discussed as to this employee.
It also was stipulated that striker Clinton Windham quit his job on April 24,
"stating to assistant manager Jim Bock that he was quitting and that he was going
to drive a truck." Concerning the conversation with Windham at the time, Bock
testified credibly and without contradiction as follows:
Q. Mr. Windham came up and asked for his check for the period that he
worked?
A. That is correct.
Q. And what was said at that time, if anything?
A. To the effect that he didn't need to worry about all this thing any more,
that he was through; or having to fool with it, something to that effect.
Q. Did he say why?
A. I asked him, "What do you mean? Are you going back to driving a
truck?" And he said, "Yes, that's right."
Q. That was the summary of the conversation?
A. That is a summary of the conversation.
12 The Respondent's roster was received in evidence. It does not contain the names of
Gardner and Adams.
WINTER, GARDEN CITRUS PRODUCTS COOPERATIVE 1075
Contrary to the General Counsel's contention, it is found that- Windham quit his
job, and it will be recommended that the complaint be dismissed as to him.
Virgil McDowell: This employee's work in the. warehouse under Foreman
McBride has been described above. He was one of the strikers who applied as a
group for reinstatement on April 30.
Concerning McDowell's reinstatement, Barfield testified credibly, "He [McBride]
told me and Stanford to go out and tell Virgil to return to work that night at seven
o'clock. He told us not to tell him what he was going to put him to doing, but
he was going to put him in the feed mill, and he wouldn't like that job and that
would make him quit." McDowell was reinstated on about May 6. It is undis-
puted that his old job in the warehouse had been filled during the strike. McDowell
was assigned to the feed mill, "stacking meal in 100 pound bags." He was under the
supervision of Superintendent Barr and Thomas Fowler, assistant feed mill super-
intendent.
When McDowell reported for work on the fifth night after his reinstatement,
Barr told him, "Why don't you quit, McDowell, . . . you're not any account;
you're not doing your job." McDowell then had an argument with Barr and Fowler
and did not work that night. The next day he spoke to Bock. Concerning this
conversation, McDowell testified credibly, "He said- I went in there with a chip on
my shoulder, and I couldn't expect these fellows to like me, since I had got messed
up with this thing-he referred to the union as a thing-and if I would go back
down there and act right, apologize to these folks, he was sure they would treat me
right from then on, and to go back to my job." McDowell worked 2 more nights and
then quit his job.
The General Counsel contends that McDowell was not reinstated "to his old
or equivalent position and he should be given true reinstatement." I do not agree.
The evidence shows that before the strike McDowell performed general labor work
in the warehouse. It appears that he was reinstated to a substantially equivalent
position. The evidence does not show that his rate of pay was cut. Accordingly,
I find that McDowell quit his job.
James Shelton: Plant Superintendent Donahey testified that he made an offer of
reinstatement to Shelton and that he did not hear from him thereafter. Donahey
testified credibly and without contradiction in this connection as follows:
. . it was May 7th or May 8th that I went to Mr. Shelton's house to call him
in to work on Mr. Hutto's shift, and as I drove up in front of his house his
wife and children were out in the yard, and I stopped my car and got out,
walked up in the yard, and Royce Shelton, his son, that had worked down at
the plant previously-
. And I asked him where his Dad was, I wanted to see his Dad about coming
back to work.
During our conversation Mrs. Shelton, his mother, walked up there to
us-I had known her before-and so she told me that Mr. Shelton was on
another job, they didn't know exactly what time he would be back in from
work, they figured around five or six o'clock, closer to six. "Oh," I says, "I
have to have a man to start at seven o'clock, so I have got another man on
my list, I will go and get him, and when Mr. Shelton comes in you tell him
to contact me, so that I will know if he still wants to go back to work." And
they both assured me that they would tell him.
Shelton testified to the effect that he never was told of Donahey's offer of reinstate-
ment.
Contrary to the General Counsel's contention, I find that Donahey made a proper
offer of reinstatement on about May 8, 1954.
Harlan Whigham: Whigham testified that about 1 week, or possibly less, before
the strike he was transferred to driving a jack truck for which the rate of pay was
90 cents per hour; that before the transfer he was paid at the rate of 75 cents per
hour; that after the transfer, "They didn't put the rate of pay I was getting on my
check stub, and I noticed it was more than I had been getting for the same amount
of hours"; that when he was reinstated after the strike he worked in the casing room
as a relief man for which he was paid at the rate of 80 cents per hour; and that in this
job he occasionally drove a jack.
Whigham was reinstated on May 6, 1954. Concerning Whigham's work before the
strike, Donahey was questioned and testified as follows:
Q. Will you give us briefly the facts about Harlan Whigham and the con-
fusion about his rate per hour?
387644--56-vol. 114-69
1076' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Harlan Whigham received 75 cents per hour, and he was one of the
bucket dumpers, and I believe, as the records will show, that we discontinued
dumping buckets on April 18th; that is when we laid off some of the bucket
dumpers, I believe Stone and several of the others were among them; and as
many of the bucket dumpers as we could place in other jobs we did, rather
than lay them off for lack of work and hire someone new, and there were
several of the boys that were put into the juice room in order to do some extra
sanitary work; and at that particular time the man driving the jack unloading
cans coming from the Can Company to our plant had quit, so I thought I would
try to place one of these bucket dumpers into there, and I talked to Mr. Mc-
Bride about it, and we decided to give Harlan Whigham a try at that job, and
if he worked out all right he would stay on the job for the rest of the season
rather than come back to bucket dumping, because that was an important job
and we would try him out. So we put him on the jack unloading cans in the
daytime-this was strictly a daytime job-and his time card stayed in exactly
the same spot next to the rest room at the front of the plant, under Mr. Hutto.
In other words, he was not officially transferred to that job, he was just there
for a trial basis to see how he worked out. Now this took place on the 18th
or 19th, and he walked out on strike on the 21st.
Q. Of April?
A. Of April, just a couple of days after he had started on that, and there
had never been any official transfer or an official acceptance or acknowledg-
ment that he would stay on that job. We were still, as far as we were con-
cerned, trying to see if he was going to be the man that we wanted to keep
on there permanently.
Q. When he started driving the jack truck did his rate of pay stay the same,
or was it increased?
A. Anybody like that, when we try them on another job, we keep them at
the same pay rate until they prove themselves, then we immediately move them
to the base rate for that particular classification, and he never received at any
time the job classification of a jack driver.
I credit the above testimony of Donahey in this connection, and find that Whigham
was reinstated to a substantially equivalent position on May 6, 1954.
Leon Schaeffer: The Respondent sent Schaeffer a letter, dated May 13, 1954, as
follows:
Please report not later than seven o'clock Saturday evening, May 15, 1954,
for re-employment.
The General Counsel contends that "this was not a valid offer since no mention is
made of reemployment at his old job, at his former rate of pay, or with former
seniority." This contention is rejected. Schaeffer admits that he received the
letter and that he did not report for work as directed or otherwise attempt to learn
the nature of the offered "re-employment." Under the circumstances I find that the
Respondent made a valid offer of reinstatement to Schaeffer on May 15, 1954.
E. T. Hill: Hill was offered reinstatement on May 8, 1954. McBride sent Bar-
field to Hill's home to ask him to return to work. Hill testified that he told Bar-
field, ". . that I wouldn't return to work unless there was a settlement and a con-
tract had been negotiated properly, and also that there had been several employees
return to work, pushed into the feed mill and had hard times stacking feed; that
I would not return under those conditions."
Since Hill's offer to return to work was conditional, it will be recommended that
the complaint be dismissed as to him.
It is found that by failing and refusing to reinstate the employees named in Appendix
A,13 and by failing to reinstate or to offer reinstatement to the employees named
in Appendix B until the dates set forth opposite their names, and by only partially
reinstating employees Edna Robinson and Sarah Worthington, the Respondent has
engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent set forth 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.
13 Appendixes A and B of this report not published.
NEW ORLEANS LAUNDRIES, "INC.
V. THE REMEDY
1077
Having found that' the' Respondent has engaged in unfair labor, practices, the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found- that the Respondent on and after April 30, 1954, failed and
refused to reinstate the employees whose names are listed on Appendix A; that the
Respondent failed and refused to reinstate the employees whose names are listed
on Appendix B until the dates set forth opposite their names; and that the Respond-
ent failed to reinstate employees Edna Robinson and Sarah Worthington to their
former or substantially equivalent positions. It will be recommended that the
Respondent offer the employees listed on Appendix A and, employees Edna Robin-
son and Sarah Worthington immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority or other rights
and, privileges. It will he further recommended that the Respondent make whole
said employees for any Joss bf pay they may have suffered by reason of Respond-
ent's discrimination by payment of a sum of money equal to that which they would
have earned as wages from the date of the discrimination to the date of an offer
of reinstatement, or to the date of reinstatement as in the case of the employees
listed on Appendix B, less their net earnings during such period. Said loss of pay
shall be computed on the basis of each separate calendar quarter, or portion thereof,
during the period from Respondent's discriminatory action to the date of the offer
of reinstatement. The quarterly periods, herein called "quarters" shall begin with
the first day of January, April, July, and October. Loss of pay shall be determined
by deducting, from a sum equal to that which the employee would normally have
earned for each such quarter or portion thereof, his net earnings, if any, in other
employment during that period. Earnings in one particular quarter shall have no
effect upon the back-pay liability for any other quarter. In order to ensure com-
pliance with the foregoing back-pay and reinstatement provisions, it is recommended
that Respondent be required, upon reasonable request, to make all pertinent records
available to the Board and its agents.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. American Federation of Labor is a labor organization within the meaning of
Section 2 {5) of the Act.
2. By discriminating against the employees named in Appendices A and B, the
Respondent has engaged in unfair labor practices within the meaning of Section
8 (a) (3) and (1) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in un-
fair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication. ]
New Orleans Laundries, Inc. and Amalgamated Clothing Work-
ers of America, CIO, and its New Orleans Joint Board and Al-
bert H. Bernadas, Representative and Laundry Workers Inter-
national Union, Local 402, AFL, successor to Local 320, AFL.
Cases Nos. 15-CA-460 and 15-CB-93. November 16,1955
DECISION AND ORDER
On April 20, 1954, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent Employer and the Respondent New Orleans Joint
Board and Albert H. Bernadas, its representative, had engaged in and
114 NLRB No. 157