Ames Harris Neville Co.

National Labor Relations Board - Board Decisions

Apr 17, 1946

67 N.L.R.B. 422 (N.L.R.B. 1946)

In the Matter of AMES HARRIS NEVILLE COMPANY and INTERNATIONAL
BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN &
HELPERS, LOCAL 386, A. F. L.
Ca.ee No. 20-0-1302.-Decided April Ti, 1946
DECISION
AND
ORDER
On November 1, 1945, the Trial Examiner issued his Intermediate
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 cer-
tain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter , the respondent filed exceptions
to the Intermediate Report and a supporting brief. None of the
parties requested oral argument before the Board at Washington, D. C.,
and none was held.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report , the respondent 's exceptions and brief , and the
entire record in the case , and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner , with the modifications
hereinafter set forth.
T11E REMEDY
We agree with the Trial Examiner, that the respondent discrimi-
natorily discharged and refused to rehire Dossie Williams , William
Atchley, and Helen Combs, and that these employees should be re-
instated in the respondent's employ with back pay. We shall accord-
ingly order , as recommended by the Trial Examiner , that the re-
spondent offer to Williams and Combs immediate and full reinstate-
ment to their former positions or to substantially equivalent positions.
However, we shall not require the respondent to reinstate Atchley
to his former position of foreman , as recommended by the Trial Ex-
aminer, because the record shows that on the day before Atchley's
discharge he had voluntarily requested a transfer to non-supervisory
67 N. L. R. B., No 57.
422
AMES HARRIS NEVILLE COMPANY 423
production work and that the respondent had then agreed to effect
such a transfer as soon as other arrangements could be made . In these
circumstances , we shall order the respondent to offer Atchley imme-
diate and full reinstatement to the non -supervisory production posi-
tion he normally would have been given in effectuating said transfer,
or to a substantially equivalent position . We shall also order the
respondent to make whole these employees for any loss of pay they
have suffered by reason of the respondent 's discrimination against
them, by payment to Williams and Combs , respectively, of a sum of
money equal to the amount each normally would have earned as wages
from the date of the discrimination against her to the date of the
respondent 's offer of reinstatement ,' less her net earnings during said
period, and by payment to Atchley of a sum of money equal to the
amount he normally would have earned as wages , in the aforesaid
production position , from the date of his discharge to the date of the
respondent 's offer of reinstatement , less his net earnings during said
period.
We shall further order the respondent to take the affirmative action
recommended by the Trial Examiner.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c) of
the National Labor Relations Act, the NationalLabor Relations Board
hereby orders that the respondent, Ames Harris Neville Company,
Merced, California, and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers, Local 386, A. F. L.,
or any other labor organization of its employees, by discharging or
refusing to reinstate any of its employees, or by discriminating in any
other manner in regard to their hire and tenure of employment, or
any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers,'Local 386, A. F. L.,
or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activ-
ities, for the purpose of collective bargaining, or other mutual aid or
protection, as guaranteed in Section 7 of the Act.
I Under the established interpretation of our restoration orders, Williams is not entitled
to back pay for the period during which she was unable to work because of illness
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to Dossie Williams, Helen Combs, and William Atchley
immediate and full reinstatement, without prejudice to their seniority
or other rights and privileges, in the manner set forth in our Decision
herein ;
(b) Make whole Dossie Williams, Helen Combs, and William
Atchley for any loss of pay they may have suffered by reason of the
respondent's discrimination against them, in the manner set forth in
our Decision herein ;
(c) Post at its plant at Merced, California, copies of the notice at-
tached hereto, marked "Appendix A". Copies of said notice, to be
furnished by the Regional Director for the Twentieth Region, shall,
after being duly signed by the respondent's representatives, be posted
by the respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Twentieth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply therewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
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, 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 International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers, Local
386, A. F. L., or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection.
We will offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination.
Dossie Williams
Helen Combs
AMES HARRIS NEVILLE COMPANY 425
We will offer to William Atchley immediate and full reinstate-
ment to the production position he would normally have been
given in complying with his voluntary request to be relieved of
his duties as foreman, or to a substantially equivalent position,
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of pay
suffered as a result of the discrimination.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
AMES HARRIS NEVILLE COMPANY,
Employer.
Dated ---------------- By ---------- ------ ------------------
(Representative ) ( Title)
NoTE.-Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
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
Mr. John Paul Jennings, for the Board
Fitzgerald , Abbott d Beardsley , by Edward B. Kelly, Esq, of Oakland , Calif.,
for the respondent.
W. J. Kiser, Esq, of Modesto, Calif., for the Union.
STATEMENT OF THE CASE
On a charge duly filed on January 26, 1945, by International Brotherhood
of teamsters, Chauffeurs, Warehousemen & Helpers, Local 386, A. F. L, herein
called the Union, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Twentieth Region ( San Francisco , California),
issued its complaint dated July 18, 1945, against Ames Harris Neville Company,
herein called the respondent , alleging that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Re-
lations Act, 49 Stat. 449, herein called the Act Copies of the complaint and
notice of hearing thereon were duly served upon the respondent and the Union.
With respect to the unfair labor practices the complaint, as amended at the
hearing, alleges in substance that (1) on December 8, 1944, the respondent dis-
charged Dossie Williams and William Atchley, and on January 8, 1945, dis-
charged Helen Combs, and has since refused to reinstate them because of their
membership and activities in behalf of the Union , and because they engaged in
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted activities with other employees of the respondent for the purpose of
collective bargaining and other mutual aid or protection, (2) that during ap-
proximately May and June of 1944 the respondent by named supervisors dis-
paraged representatives of the General Laborers' Union, AFL, which had been
designated by a number of the respondent's employees and warned its employees
that they had nothing to gain by joining said labor organization and (3) the
respondent during approximately November and December of 1944 and continu-
ously thereafter, through named supervisors and other representatives by desig-
nated acts interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed by Section 7 of the Act.
On or about July 30, 1945, the respondent filed its answer in which it admits
the facts alleged in the complaint as to its corporate organization and certain
facts as to the nature of its business operations However, the respondent denies
that it has engaged in any of the unfair labor practices alleged by the complaint.
Pursuant to notice, a hearing was held in Merced, California, on August 1, 2,
and 3, 1945, before the undersigned, Charles E. Persons, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the respondent
were represented by counsel and the Union by one of its officials Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. At the conclusion of
the presentation of evidence, the Board moved to conform the pleadings to the
proof adduced as to minor matters not affecting the substance of the allegations.
This motion was granted without objection. After the presentation of evidence,
the Board and the respondent participated in oral argument before the under-
signed. The parties were duly advised that they had the privilege of presenting
briefs for the consideration of the Trial Examiner . No briefs have been received.
On the entire record in the case and from his observation of the witnesses
the undersigned makes the following:
FINDINGS OF Fxar
I. THE BUSINESS OF THE RESPONDENT I
The respondent, Ames Harris Neville Company, is a corporation established
in 1906 under the laws of the State of California. Its principal office is located
in San Francisco, California, and it has factories and warehouses in San Fran-
cisco and Merced, California, and in Portland, Oregon. The respondent main-
tains branch offices at Salt Lake City, Utah; Twin Falls, Idaho ; and Los Angeles,
California It has branch warehouses at Twin Falls and Idaho Falls, Idaho,
and at Los Angeles, California. The business of the respondent consists of the
manufacture and sale of textile bags used to sack agricultural products, milled
feeds and processed foods.
For its plants at San Francisco and Merced, California, during the year 1944
the respondent purchased over $1,000,000 worth of raw materials consisting of
burlap, cotton textiles and canvas. Practically all of these raw materials came
from outside the State of California. In this year the value of the products
manufactured in these two plants was over $1,000,000 and approximately 10
percent was shipped out of the State.
This proceeding is primarily concerned with the Merced plant where about
155 workers are employed. Practically all its raw materials are purchased
1 These findings are based on a stipulation of the parties incorporated in the record, on
allegations in the complaint admitted by the respondent in its answer , and on testimony
which is uncontroverted.
AMES HARRIS NEVILLE COMPANY 427
outside the State of California? Its sales in 1944 were over $200,000 in value,
of which 5 to 8 percent was shipped outside the State.
The undersigned finds that the respondent is engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help-
ers, Local 386, A. F. L., is a labor organization affiliated with the American
Federation of Labor, and admits to membership employees of the respondent.
III THE UNFAIR LABOR PRACTICES
A Interference, restraint , and coercion
About May 10, 1944, one Kelly, an organizer for the General Laborers' Union,
AFL, held an open meeting opposite the Merced plant. On that occasion com-
plainant Atchley, as he testified, overheard Nick Fadave, Manager of the Merced
plant, talking to employees Aulce Calhoun and Buster Bullman in the plant.
Atcbley's testimony in point reads :
I heard him tell them that the Union would not do them any good, they
wouldn't help their increase in the wages any at all, they would only be out
union dues every month.
On November 29, the Union held its first open meeting. Forelady Norma
Dunn, who supervised all the women employed in the plant, attended. Com-
plainant Williams gave testimony as to Dunn's statement at this meeting reading
as follows :
Well, she just said she didn 't think it would do any good for the
Union to go down there and that she thought they would all do all right
down there if they were left alone and that she knew she was getting more
than she would if the Union came in . . . and then she said that they would
move the plant before they would let it go Union.
Dunn denied that she had said the plant would move if the Union came in.
Fadave also denied making the statements to Calhoun and Bullman ascribed
to him by Atchley . Since the credibility of both Dunn and Fadave, as appears
below , was seriously impaired by evidence presented by respondent 's witnesses,
while Williams and Atchley are shown by the record to be trustworthy witnesses,
these denials are rejected.
The record contains 10 signed copies of a form revoking an employee ' s author-
ization to the Union .' These are uniform in text and read :
To the Teamsters , Chauffeurs , Warehousemen, and Helpers Union No. 386,
A F. of L.:
You will please be advised that I desire to cancel and rescind, and do
hereby cancel , rescind and revoke, any authority heretofore given you by me
2 Respondent ' s ansicer avers "that large and substantial proportions of the raw ma-
terials used in its Merced plant have their origin outside the State of California , but that
the same after reaching the State of California come to rest and are warehoused in San
Francisco , and subsequently from time to time such quantities of raw materials as are
required at respondent ' s Merced plant are shipped there from San Francisco." The
undersigned accepts as true this qualification of the allegations in the complaint but finds
that it does not affect the finding that the Merced plant is engaged in commerce within
the meaning of the Act.
' The signers were • Laura Brizzi, Aulce Calhoun, Geraldine Glover, Rachel E. Kirk-
wood , Ann Rautar , Nadine Schell , Moiris D. Schell , William Schell , Leora Turner and
Audrey Wear.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to act for me as my representative, or otherwise, in collective bargaining
with my employer, the Ames Harris Neville Company.
Dated :
Fadave testified that employee Leora Turner came to him and stated that
she and several other employees "wanted to know how [they] could get out"
of the Union. Fadave thereupon, as he testified, took the matter up with R A.
Christman, respondent's general superintendent, by telephone and was referred
in turn to Firm Member Harris and to Attorney Cornell, a Merced practitioner.
Cornell sent copies of the above form to the respondent's office where the secretary
and office girl, Mildred Noblet, made duplicates under Fadave's instruction,
running it twice on her typewriter. Noblet, who was an exceptionally careful,
precise and impressive witness, stated that the original from Cornell was received
before Williams' employment terminated, i e., before December 7, 1944. Noblet
stated that the revocations were available in the office and that she handed theiu
to employees who came in for them. In one case, that of employee Rudiger, not
included in the 10 signed revocations in evidence, Noblet volunteered to get the
slip for her and took it to Rudiger out in the plant.
Only three of those signing the revocation slips were called as witnesses.
William Schell, assistant floor manager, witness for respondent, testified that
he had had conversations with Williams about joining the Union "every night for
a week" "most always at the machine where she was working." He further testi-
fied that he had no conversation with Williams on the subject at home or on the
street. It was Schell's testimony that he finally signed a union authorization
one evening in the plant when he had been drinking "all day long" while on the
job and was "pretty drunk." Schell stated that his signing the union authoriza-
tion occurred "about four days" before Williams' termination. On reflection,
after becoming sober, he told some of his fellow employees including Forelady
Dunn, "I wished I hadn't joined the Union." When asked with reference to
Dunn, "Then what did she say?" his recorded reply reads:
Didn't say anything at the present. Later on she came to me then two or
three days afterwards, there were several of us' wanted out, come to us
and told us she had papers we could send in, there was papers there we
could sign and send in our resignation.
About the same time that Schell reported his dissatisfaction with his relations
to the Union to Dunn, he also told Fadave, as he testified, "that I'd fooled around
and joined, and I didn't want to stay in " Fadave made no suggestion at the
time but "guyed [Schell] about doing things when" drunk.
Schell testified, and the undersigned finds, that Dunn gave him a revocation
slip to sign outside the office and that he signed and returned it to her. He testi-
fied that tI is occurred 3 or 4 days after he had signed the union authorization
"just about the date [Williams] left." He further testified that Dunn later
told him she "gave it to Mrs Watkins' and another lady to take it to the [Unions
office. She volunteered to take it."
Laura Brizzi, a sewer, signed an authorization card after having been solicited
several times by Williams However, Brizzi testified, as a respondent witness,
Combs [one of the complainants] "finally convinced me to " Later Brizzi learned
from employees in the plant that Dunn was "passing out papers for staying out"
of the Union. She then asked Dunn if there were "some papers in the office we
could sign to get out of the Union " Dunn replied affirmatively and that evening
* The record reflects that Schell's son and daughter -in-law ; Norris D. Schell and Nadine
Schell also revoked union authorizations.
6 Not identified in the record but seemingly an employee.
AMES HARRIS NEVILLE COMPANY 429
as Bi izzi was checking out, gave her a revocation slip. Brizzi signed it and
returned it to Dunn next morning at Dunn's desk in the plant Brizzi was asked
whether Williams was still working in the plant when she signed the revocation
slip and replied, "Yes, I am pretty sure she was."
Leora Turner testified that Williams came to her home one evening after
Williams' employment with the respondent had terminated and "persuaded" her
to sign a union authorization slip. Next day, on inquiry at the plant she found
that Williams had misrepresented the number of union adherents. As a conse-
quence, Turner, as she testified, "started in then to find out how I could get out
of it because I didn't want to join in the first place" Turner's further testimony
reads
Well, sortie of the girls there told me that they had some slips of paper that
I could get one and sign it and withdraw out of the union. So I went into
Norma [Dunn] and asked her about it, if she would get me one. She said,
Nick [Fadave] wouldn't let them pass out papers, anything against the union
there because he was union and if I wanted a paper I would have to go to the
office and get it. So I went to the office and got a paper and filled it out.
Manager Fadave, as appears from his testimony, was present in the office and
gave Turner the revocation blank e Turner testified, and the undersigned finds,
that she dated the revocation, December 15, 1945,1 and on that same day after
work, took it together with eight or nine others, which were lying "all in a pile"
in t'adave's office to the union headquarters where she turned them over to the
office girl. She had been requested, as she told Fadave at the time, to do so by
"Schell and his son and daughter-in-law." The date of delivery of the revocations
to the union office was definitely established as December 15, 1944. W. J. Kiser,
president of Local 386, gave credited testimony that they were discussed at the
union meeting of that date and that he had protested to Fadave and to others of
respondent's officials on the next day.
Combs protested to Dunn during the period that the revocations were being
signed, saying as she testified: "If the company isn't against the Union, why
are they passing out these resignations . . ." 8 Dunn reported the incident to
Fadave and arranged that Combs be summoned to his office. Combs' credited
testimony, as to what then occurred, reads: "he [Fadave] wanted to get a few
things straight . . that he knew what he was doing . . . he had a lawyer . . .
[and that] he had just as much right to pass out the resignations as [the em-
ployees] did have to sign for the Union."'
In her testimony Dunn denied : that she ever had a copy of the revocation in
her possession during December 1944; that she had ever seen any of them at the
plant; that any of the employees had asked her about these forms; that she
6 Fadave was asked , "Did any of the employees ever call at your office to get the slip?"
He answered , "I gave one to Leora Turner who asked for it. I suppose in turn she prob-
ably told the other girls . They came into the office for them."
i Elsewhere Turner testified : "Seems like some of them had already signed [ revoca-
tions ]" and again , "I heard different ones-you know how talk gets around in a fac-
tory-I heard different ones say they had slips some of them were signing."
" Dunn ' s testimony in point here reads , " She [Combs ] Caine running to me and said,
'I bear you are trying to stop the Union in here' I said, `What do you meant She
said , 'About those slips .' I said, 'I have nothing to do with those slips.' "
"This agrees in substance with testimony by Kiser about a conference in the matter with
Attorney Cornell Kiser 's testimony reads as follows:
He [Cornell] informed us that certainly if the union had a right to sign up
people in the union that the employer had a right to ask them to resign from the
union , that If the law was other than that he didn ' t want to be a part of this
country.
Fadave testified that he did not remember discussing the revocations with Combs.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had ever told any of the employees where to find them ; and that she had ever
read the form before the hearing. Although at one point she specifically denied
knowledge of how Turner found out about the revocation forms, Dunn later
admitted that Turner told her several of the employees had signed up with the
Union and had later found out they had been told untruths about it. Dunn
testified that she then told Turner, "Maybe you better talk to Nick [Fadave]
about it." In view of the detailed testimony by Schell, Brizzi and Turner, set
forth above, all of whom were called as witnesses by the respondent, Dunn's
denials must be rejected. Under these circumstances the undersigned finds
the evidentiary value of testimony by Dunn seriously impaired.
Fadave gave circumstantial testimony to the effect that it was following
complaints by Turner that Williams had misrepresented matters to her in
persuading Turner to sign the union authorization that he had sought advice
from Christman which resulted in the retaining of Cornell and the preparation
of the revocation form. The testimony of Turner shows that she did not sign
the Union's authorization until December 15. The revocation slips, however,
had been prepared about December 4. Moreover, Turner testified that she had
never asked either Dunn or Fadave to prepare the revocations Further Fadave
testified that he had placed the date December 15, 1944, which appears on
eight of the revocations on these forms "when I got these here forms that day "
When his attention was called to discrepancies in handwriting, he acknowledged
that he did not put the date on the revocations in evidence signed by employees
Wear and Kirkwood. He insisted, however, that lie put the date on the six other
copies bearing a date when he got the slips and when they were still unsigned.
In view of the testimony of Schell, Brizzi, Turner and Noblet set forth above the
undersigned finds this testimony incredible and rejects it. It is clear that the
revocations were circulated and signed in the period from December 4 to
December 15. Fadave's contrary testimony can only be explained as an effort
to falsify the record.
By the acts and utterances of Forelady Dunn and Manager Fadave and the
entire course of conduct set forth above, the respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
B Alleged acts of interference, restraint, and coercion
On or about December 13, 1943, a notice prepared under the supervision of
Edward B. Kelly, counsel of record for the respondent in this proceeding, was
posted in the Merced plant. The notice reads as follows :
To the employees of the company at Merced, California :
It has recently been drawn to our attention that employees of the Company
in Merced have been approached by representatives of one or more labor
organizations to solicit their membership Since the organization of this
plant at Merced, this Company and its employees have enjoyed a happy
relationship of mutual confidence and understanding with each other and
during this period there has not been any labor organization among you in
any department, so far as the management is aware.
Under these circumstances, we feel that our employees are entitled to know
the Company's attitude with reference to this natter :
The Company recognizes the right of every employee to join any union
that he may wish to join and such membership will not affect his position
with or relationship to the Company.
AMES HARRIS NEVILLE COMPANY 431
On the other hand, we feel that it should be made equally clear to each
employee that it is not at all necessary for him to join any labor organiza-
tion in order to work for this Company. There is no law which requires
that, and whether or not an employee joins a union is entirely optional with
the employee and a matter of free choice with him
If any of you, individually or as a group, at any time, have any matter
which you wish to discuss with us, any officer or department head will be
glad, as they always have been, to meet with you and discuss it frankly and
fully.
It is our earnest desire to straighten out in a friendly manner whatever
questions you may have in your minds. It is reasonable to believe that our
interests are mutual and can be promoted through mutual confidence and
cooperation.
Dated December 13, 1944.
AMEs IIARRIS NEVILLE COMPANY.
The Board contends that the notice "is a very carefully worded suggestion
to the employees that they would be better off if they did not join the Union."
After carefully considering this document, the undersigned concludes and finds
that it does not constitute interference, restraint, or coercion as defined by the
Act.
On December 20, 1944, the respondent distributed a bonus to the employees at
the Merced plant amounting to 5 per cent of each employee's earnings during
the preceding calendar year. The Board contends that this bonus "was paid to
the employees in Merced because respondent hoped thereby to influence the em-
ployees not to be represented by the Union." It appears by uncontroverted testi-
mony credited by the undersigned, that a similar bonus had been paid by the re-
spondent to all its employees in four of the six preceding years. The bonus
payment on December 20, 1944, was made in all the respondent's plants Under
these circumstances, the undersigned finds no merit in this contention of the
Board.
On December 26, 1944, Kelly, accompanied by Allan Ames 10 and R. A. Christ-
man, respondent's general superintendent, came to Merced. The employees were
assembled and Kelly addressed those "who cared to stay and listen." The only
testimony regarding this speech was given by Kelly. This testimony, being uncoil-
troverted, is credited by the undersigned. Kelly stated that he had two purposes
in view : "to tell the employees that the company had no position one way or
the other for or against unions" ; and to correct a report that a 15 cent per hour
differential existed in the wages in the Merced plant as compared to those paid
in respondent's San Francisco plant. The differential in favor of San Francisco
employees was 5 cents an hour. This Kelly explained "had been arrived at through
the War Labor Board . . . such a differential between industries in the San
Joaquin Valley . . . and the San Francisco Bay Area [existed] primarily on
account of a different labor situation and higher living conditions in the Bay area "
The undersigned finds nothing in derogation of the Act in these statements by
respondent's Attorney Kelly.
On January 20, 1945, the respondent applied to the National War Labor Board
for permission to grant a wage increase of 5 cents an hour to its Merced employ-
ees. This action was taken because the respondent's nearest competitor in the
San Joaquin Valley had made a similar request. The War Labor Board granted
the request in part on February 21, 1945 The Board contends that this repre-
sented unilateral action by the respondent and that the Union was entitled to be
10 Ames' position with the respondent is not exactly defined in the record . It is clear,
however, that he is a supervisory official.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consulted in the matter. The Union presented to respondent's officials its claim
to majority membership among the respondent's employees in late December,
1944. But proof was not made which established the Union's right to be recog-
nized as the statutory representative of the employees. Hence, the contention of
the Board cannot be sustained.
C. The discriminato7y discharges
Dossw Williams and William Atchley were closely associated in the events
with which this proceeding is concerned. Williams was hired on March 2, 1944.
After working for 2 or 3 months as a sewer she was trained as an operator on
the turning machine. This machine operates at a speed of about 60 revolutions
a minute Each revolution accomplishes the turning of a bag if the operator
can keep the pace of the machine. The respondent introduced testimony to show
that 24,000 sacks per 8 hour day is the normal output of an experienced turner.
However, data from the records of the Merced plant, referred to below, show a
maximum of 20,000 bags for a day's operation of 8% hours during the period of
Williams' employment The plant had chronic difficulty in training and retaining
turning machine operators. As Fadave testified, "I always train them on the
second machine at all times I couldn't get anybody to work steady on it . . .
They were kind of nervous. They were afraid of the movement of the machine." n
Fadave explained that an operator had been injured "carelessly". Her hand had
been caught between the rollers of the machine.
The plant contained but one experienced operator on the turning machine,
Mary Ochoa. She had learned the operation in a San Francisco bag plant and
had been hired at the Merced plant on March 9, 1944. She was on leave of absence
during the fig picking season from September 7 to December 6, 1944. Fadave
testified that Ochoa "was more productive than" Williams and stated that none
of the other employees approached Williams in production. He credited Williams
with being a "pretty good worker" "when she didn't have her temper." Dunn
testified of Williams, "when she wanted to work she was a very good worker."
She further testified that as a turner Williams "was all right for a while and then
she started getting those tantrums again."
Atchley was also hired on March 2, 1944, as a worker in the warehouse oper-
ating the baler. After 3 to 31/ months he was made foreman supervising the
male employees of whom there were 6 in the main building and 3 or 4 in the
warehouse. Atchley also repaired the turning machines and, when regular
operators were absent, turned bags. When production lagged in this operation
lie turned bags at night. Fadave testified that Atchley was a "good turner" and
a "good worker in the warehouse." He criticized his ability as a foreman and
Atchley admitted that he had considerable difficulty in getting the men to take
his orders. Atchley testified further that Fadave "had told them the same thing
and they wouldn't do it either." Mutual dissatisfaction with his handling of the
foreman's duties caused Atchley to tell Fadave on the morning of December 7,
1944, that he wished to relinquish these duties. Fadave, after consulting with
Christman, requested Atchley to retain the position until he could make other
arrangements.
11 Christman gave similar testimony reading :
Turning, while Dossie was on our machine, was one of the biggest problems in the
plant. Either that , or that machine broke down , and while Mary Ochoa was away
every new girl we tried to break in on the machine seemed to get-discouraged.
Dossie had to kind of teach them. She was the girl on the other machine. We seemed
to have a great deal of difficulty getting new girls to stay on the machine.
AMES HARRIS NEVILLE COMPANY 433
Union activities began in the plant late in April, 1944.. At that time, Williams
on the advice of one Allen, an official with the local A. F. of L. organization,
secured the signatures of employees desiring organization. Later, Allen sent an
organizer from the General Laborers' Union, A. F. of L., who about May 10,
1944, held an open air meeting across the street from the Merced plant. Esti-
mated attendance was from 25 to 35. Dunn attended and recognized the organ-
izer as a man she had met at a dance of the Carpenters Union and its Ladies
Auxiliary. She later told the employees that he had a criminal record. Williams
testified that at the meeting Dunn asked the organizer "what good it [organiza-
tion] would do the girls and what good it would do her [Dunn]." The organizer
departed after the street meeting and organizational activity ceased. Dunn
testified, and the undersigned finds, that she later told the employees, "If you
girls are going to join a union it looked like you could get a better man than that
to represent you." When asked the reason for this statment, she stated that the
organizer had a criminal record of armed robbery.
In November, when interest in organization revived, Williams and Atchley
consulted organizer W. J. Flint at the union office. They arranged for a meet-
ing on November 29, 1944 Williams and Atchley undertook to inform the em-
ployees. Dunn and about a dozen other employees attended. Flint, W. J. Kiser,
president of Local 386 and representative of record for the Union in this pro-
ceeding, and Ted Gonsolves represented the Union. All the employees present
except Dunn including the complainants, Williams, Atchley, and Combs, signed
union authorizations that evening. They were given a supply of authorization
forms and were thereafter active in securing signatures. Kiser testified that
these three employees and Employee Doris Nolan were the Union's principal
contacts at the plant. A second open meeting was held on December 8, 1944.
Dunn was in attendance and remained while the Union signed up employees
present who decided to join. Thereafter, she was asked to withdraw. A third
meeting was held on December 15.
It is clear that the respondent was well informed of the union activities of
Williams and Atchley. Dunn's presence at the first two union meetings assures
respondent's knowledge of their initial activities and of their membership. Soon
after the meeting of November 29, Williams was notified by Dunn to go to Fadave's
office. Williams' testimony as to what happened there, reads as follows:
Well, he had one of the authorization papers and he asked me had I seen
that and I told him "Yes," so he said, "Don't you like your job?" So I told
him I did, and he said, "Well," he says, "this is tantalizing the girls." And
he says, "If you don't stop this Union business," he says. "I am going to have
to let you go." He says "You; work is fine, but I can't afford to let that
stand in my way."
Fadave testified that he had called Williams to his office and asked her if she
passed authorizations around and that she denied it. His testimony was that he
then told her, "You waste too much time on the machine. If you want to organize
do it in your own time "'" " After considering this testimony and the demeanor
of the witnesses against the background of the entire record, the undersigned
finds that Williams' version of the incident was substantially correct.
Dunn testified that certain employees had told her that Williams was trying
to force them to sign papers designating the Union as bargaining agent. Dunn
was asked, "Did you make any inquiry of Dossie Williams trying to find out what
' The office girl , Mildred Noblet , testified that Williams came to the office on Fadave's
request "at least a week" before December 7, 1944, and was accused by hint' of "passing
notes out among the employees" on company time Noblet testified that Williams, "em-
phatically denied whatever it was that [Fadave] said that she was doing."
692148-46-vol. 67-29
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it was she was trying to get the girls to sign?" and answered, "No, I just went
and told her I wished she wouldn't bother the girls so much in working hours."
Williams testified that after these warnings she ceased to pass out authoriza-
tions on company property. However, when on an occasion 4 to 6 days before
her termination an employee came to her while the girls were "resting" and asked
about the propriety of talking about the Union during spare time, Williams
repeated to her the statement made at the union meeting. "that they could not
fire us for just talking about the Union during our spare time." Williams' further
testimony is recorded as follows :
In just a very short time [Fadave] came up to the turner where I was
and he told me, he shook his finger at me and told me he would fire me, my
mother and my father, and even [Atchley] if I said any more about the
Union.
Williams further testified that Fadave made his warning applicable to "any
place on the property . . at any time." Fadave denied this incident but after
consideration of the record the undersigned rejects his denial. Fadave admitted
he knew that Williams was active in signing up employees for the Union ; that
she was the "spearhead of the Union organization in the plant" and "that she
was very active in the Union." It was Christman's testimony that Fadave had
told him Williams was quite active in the Union.
It was Atchley's credited testimony that Fadave called him to the office on
the morning after the union meeting of November 29 Atchley's testimony reads :
A. He asked me if I was working for myself or working for the company?
Q. What did you tell him?
A. I said both.
Q. What did he say?
A. He said, "you'd be better off to work for the company."
Fadave denied this conversation, although lie admitted that Atchley, when
hired, had told him of his membership in the Warehousemen's Union. He further
denied knowledge of Atchley's union activities. In view of Atchley's close asso-
ciation with Williams, Dunn's observation both of their activities at the union
meeting on November 29 and of Atchley's attendance at the December 8 meeting,
as well as the detailed and persuasive testimony, set forth above, these denials
are rejected
The termination of the employment of Williams and Atchley, which occurred
on December 8, 1944, resulted from the same incidents. Fadave assumed full
responsibility for the discharges It is agreed that Williams had contracted a
severe cold and was quite hoarse during the Week preceding her discharge. Wil-
liams' mother, Employee Myrtle Farmer, testified that Williams "was feeling bad
a week" before her termination About December 4, she was transferred to
another job where she escaped the draft created by the turning machines. On
December 5, turning machine No 1, which Williams was operating, suffered a
major breakdown and was under repairs until late in the morning of December 7.
Williams operated machine No. 2 on beginning work that day. Ochoa, who had
returned on the 6th, was directed to turn at the No. 1 machine when it resumed
operation. Williams was told of this assignment and protested to Dunn and to
Fadave saying that she was entitled, on the score of her longer service, to operate
the No. 1 machine. The testimony is in agreement that Fadave instructed her
to continue on No. 2 for the balance of the day and assured her that she would
be given No. 1 on the next day Williams testified that this adjustment was
satisfactory to her.
AMES HARRIS NEVILLE COMPANY 435
However, about 10 o'clock in the forenoon, she felt ill and applied to Dunn
for permission to go home. Dunn referred her to Fadave who refused permission.
Williams then continued working until the lunch hour at 12. She testified that
she was unable to eat any lunch. She talked with her mother, Myrtle Farmer,
who advised that she finish out the day if possible. In the afternoon, feeling
worse she again applied to Dunn and Fadave in turn for permission to leave.
It was Williams' testimony that Fadave said: "I think you are just mad." When
she assured him that she was not mad, he said, "You can't go home on account
you just won't have a job when you come back " Fadave's testimony is in close
agreement with Williams' at this point. He explained that the factory was
"stacked with bags all over the place" and that he told Williams, who "said
she was sick, wanted to go home", "if she left the factory when I needed her
the most she needn't come back."
Atchley came to Williams' machine shortly thereafter and observing her dis-
tress proposed to take her to the doctor. Both checked out about 1: 50 p. in
and Atchley drove her to the office of Dr E R Fountain. Both Williams and
Atchley agreed in testifying that Fadave was notified of the reason for checking
out. Williams' testimony reads that Atchley "told him he wanted to take the
afternoon off, he was going to take me to the doctor." Atchley testified, "1 told
him I was taking Birs. Williams to the doctor and I was checking out for the
rest of the afternoon." Fadave testified as to Williams, "In the afternoon she
left her machine without informing me." And as to Atchley. "in the afternoon
he walked out with Dossie Williams, didn't tell me anything about it. I met
him outside and asked him what was the trouble. He said lie was checking out,
that is all." After consideration of the demeanor of the witnesses and the entire
record the undersigned accepts the mutually corroborative testimony of Williams
and Atchley and rejects that of Fadave
Under Dr Fountain's advice, Williams went home and remained in bed most
of the time for the next 4 or 5 days Fountain gave her a handwritten certificate,
stating that she was ill and unable to work. This was lost and Fountain gave
her an undated signed duplicate reading, "This woman was sick on December 7
and is still unable to work." Williams' statement that she was ill was further
corroborated by the testimony of her mother, living right next door, who did
her house work and cared for her two sons while she was confined to the house,
and by Atchley who saw her every day.
Farmer observed that Fadave removed Williams' card from the rack during
the afternoon of December 7. She reported this to Williams that evening. Next
morning, December 8, Williams and Atchley came to the office and interviewed
b`adave. Williams showed Fadave the original note given her by Dr. Fountain
and testified that Fadave said, "Well, I don't have anything against you if that
is the case. but I will have to call up and see what [Christman] says about putting
you back on"" On inquiry by Williams as to how she would be informed,
Fadave promised to send word to Williams by her mother. Farmer testified,
and the undersigned finds, that Dunn told her that day that Williams "wasn't
to work." " Atchley testified that on arriving the morning of December 8, he
found his card was not in the rack and on inquiring the reason he was told by
Fadave "You walked off the job I sent your card in." Atchley protested that
he did not walk off the job but had taken Williams to the doctor. Despite the'
13 Williams so testified and her uncontroverted testimony is accepted by the undersigned.
14 Fadave 's testimony essentially agrees with this statement, It reads , "I told them I
turned their cards in I would check with San Francisco about them walking out. I told
them it was the policy of Ames Harris Neville that person who does walk off a job, we do not
replace. " He agrees that he promised to send word to Williams by Farmer.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence afforded by Dr. Fountain's statement Fadave persisted in his position.
On the following day, Saturday, December 9, both Williams and Atchley were
given envelopes containing their checks and releases. Each took the cheek from
the enevelope and left the release on Fadave's desk.
When sufficiently recovered to be able to return to work, "just before Christ-
mas," Williams went to the plant and asked Fadave if she could go back to work.
She was assured by him that she could on the first opening. On February 13,
1945, Williams procured a note from Dr. Fountain reading:
To whom it may concern:
Mrs. Dossie Williams has been sick and under my care. She is now able
to return to work. Her illness began December 7, 1944.
Respectfully,
(Signed) E. It. FOUNTAIN, M. D.
Accompanied by Ashley, Williams took this note to Fadave at once and was
told by him that there was no opening for her but that she would be notified
through her mother and would be recalled at the first opportunity. She had,
however, received no such notification at the time of the hearing.
Respondent's contentions for the discharges of and refusals to rehire Williams
and Atchley
Both Dunn and Fadave testified that Williams had an uncontrolled temper
and was difficult to work with on that account. Fadave's testimony was, "I
couldn't get anybody to work with her. I was constantly hiring people there
on that machine." These general criticisms of Dunn and Fadave were not sup-
ported by the presentation of definite instances of transgression by Williams.
Moreover, numerous employees called as witnesses by the respondent were
asked whether Williams displayed a troublesome temper in the plant. The only
specific testimony supporting this contention of the respondent was given by
Ochoa." She testified that on an occasion when she was placing bags for Williams
to turn, Williams said, "This is too hard, too hard." "My arm hurts" and became
angry and threw all the bags on the floor. Williams explained in her testimony
that due to an injury to her arm, she was unable to reach high for the bags and
had arranged with Fadave that no more than 3 bundles, 75 bags at a time should
be placed for her use. Ochoa, however, "put up about 250 bags " Whereupon,
as Williams testified, "[she] went around and laid them off back on the pile."
Ochoa did not report the incident at the time and there is no contention by the
respondent that it affected the decision to discharge Williams. The undersigned
finds no substantial evidence in the record that supports these criticisms of
Williams by Dunn and Fadave
The respondent contended that Williams' production as a turner was inferior
and that her output was diminished by frequent breakdowns of her machine
ascribable to her carelessness in operation. At the request of the undersigned,
the production records for 27 days between August 11, 1944, and December 7,
1944, were spread on the record. On December 7 Williams did not work a full
day. On 23 of the other 26 days she turned more bags than any other turner.
On August 21, Ochoa turned 20,000 bags and Williams 18,000; on August 23 the
relative numbers were 18,000 and 14,000 and on August 30, 14,000 and 12,500.
On August 17, however, Williams turned 17,500 and Ochoa 17,000. On September
's The record suggests that some rivalry on their ability as turners existed between
Ochoa and Williams . As Ochoa testified, "Every time I beat her to turn , and she wants
to beat me."
AMES HARRIS NEVILLE COMPANY 437
1 the comparative figures were 17,500 and 12,500 and on August 31, 17,000 and
15,500. It should be added that on all these six dates Ochoa had the advantage
of operating machine No 1, which was somewhat faster than Williams No. 2
machine. In these records of 27 days output the highest day of production at-
tained was 20,000 bags turned. Williams made this figure on 3 days. The
undersigned concludes and finds that the actual production records refute the
respondent's contention that Williams was inefficient as a turning machine
operator and that excessive breakdown due to her carelessness reduced her
output.'e
The respondent further alleged that Williams was responsible for complaints
by important customers that bales, which should contain 500 bags, were short
in count and contained broken or otherwise damaged bags. It appears that
counting is done by a meter attached to the machine which registers each bag
turned. Operators are responsible for correcting the record in case a bag is
torn in the process of turning. They rely on the meter for the enumeration of
500 bags which are then removed to the baler. The record shows that the meters
on both No. 1 and No. 2 machine had been defective during Williams' employment,
necessitating repairs and replacement.
The respondent enumerated three orders as having been improperly filled :
1. American Potash and Chemical Corporation-75,000 bags
2. Farmers Bag and Supply Company-100,000 bags
3. Grange Company-30,000 bags
When asked to produce the records which fixed responsibility on Williams for
the errors made, the respondent withdrew the allegation as to the Farmers Bag
and Supply Company, explaining through its witness Allan Ames, that "it was
impossible to trace that back because it covered bags that they had purchased
over a period of time . . . sort of an inventory of them, it was impossible to
find out the date on which those bags were turned."
As to the American Potash and Chemical Corporation order of 75,000 bags,
Ames testified that the bags were turned on dates from August 12 through August
17, 1944. He presented the data which is incorporated in the following table :
Date Ochoa Williams Jeffrey Turned byhand
Aug 12----------------------------------------------- 11,500 ------------ 7,000 5,500
14---------------------------------------------- ----------- 15,000 11,500 10,000
15--------------------------------------------- ----------- 12,500 11,500 5,500
16----------------------------------------------- ------------ 16,000 11,000 ------------
17------------------------------------------------ 17,000 17,500 -----------
- 1
8,000
Ames further explained that only the No. 1 machine could turn the 40-inch
burlap bags which this order called for. His analysis proceeded on the assump-
tion that Ochoa when turning, operated this machine and that Willians oper-
ated it on the days when Ochoa was engaged on other duties. He admitted
that the records used did not indicate on which machine any of the employees
were working on the days in question. On the final day only 1,500 bags were
turned for this customer. These were assumed to have been supplied from the
11 It was Fadave 's testimony that when Williams ' turning machine broke down she was
not transferred to another machine, Instead , "she stayed and waited until the machine
was repaired "
17 However, Ochoa testified that prior to September 2, there were only two machines
and three turners . She further testified , "sometimes we had turns ," and again that she
at times allowed the third turner, Jeffrey, to operate her machine.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
17,000 bags turned on that day by Ochoa. Adding the 11,500 turned on No. 1
machine on August 12 this accounts for 13,000 bags turned by Ochoa or 17 3 per-
cent of the order. The respondent assumes that all the bags turned by Williams
on August 14, 15 and 16 went to this customer This made a total of 43,500 or
57.3 percent of the total's The balance of the total order, some 25 percent,
cannot be allocated, on the basis of Ames' testimony, to any of the production
shown in these data. The hand turned bags were described by Ames as 12 ounce
burlap which turns to better advantage by hand than on the machines, while
none of Jeffrey's production can be so allocated since the No 1 machine which
alone could handle the 40-inch bags was used on each of the 5 days involved
either by Ochoa or by Williams. Williams' share in the total production at most
was under 58 percent and there is no proof whatever that the bales contauuug
defective bags fell in this percentage.
The evidence as to the Grange Company order is also inconclusive. Ames
first stated that these 40-inch burlap bags, 30 ,000 in number were turned on
September 18, 19 and 20, 1944. After figures for these days had been submitted
he testified, "I would like to make a correction, I think that went through to
September 21." Ames further stated that on this date only 9,500 of the total
were turned. Data presented by Ames make up the following showing :
Sept 1s Sept 19 Sept 20 Sept 21
Williams --------------- -------------------------------- 7,000 14,500 13,500 15,500
Reed----- -------------------------------------------- 7,000 ----------- ----------- ------------
Dunn---------------- ---------------------------. 2,000 ----------- --------- ----------
"No 2 machine"--------------------------------------- ------------ 3,500 ------------ -----------
Fadave ------------------ ------------------------ ------------ ----------- ----------- 7,000Spnngston ------------------------------------------- ----------- ----------- 3,000 - ----------
Atchley----------------------------------------------- ----------- ---------- 15,500
Ames stated that the bags credited to Atchley and to Fadave were turned on
the second shift. He did not know on what machine He assumed that all bags
turned by Williams were handled by machine No. 1, which was adjusted to the
40-inch bag. However, Fadave testified as to the production of this order, as
follows :
At the time of [the shipment's return] we had on and off turners there.
There were three turners and two machines so every other day one would
change . .. Like Dossie would be turning No. 1, Mary Ochoa No. 2, the
next day Mary would be on No. 1. I worked for a while like that.
It will be noted that on September 18 Williams and Reed together turned 14,000
bags, which might well have been done on the No. 1 machine Similarly, Spring-
ston's 3,000 turned on the 20th might have filled out Williams' short day of
13,500. On the hypothesis that Reed and Springston worked on No. 1 machine
and that Atchley and Fadave also used No. 1 and remembering that only 9,500
were turned for this order on the 21st we have 19,500 bags or about two-thirds
of the -number required to fill the entire order which cannot on the evidence in
the record be excluded from responsibility for the defects involved. Fadave
testified that after checking the respondent's records in order to fix responsibility
for the bales containing defective bags in this shipment, he had cautioned Wil-
liams to be more careful about including broken bags. It was his further testi-
mony that Williams replied, "Well, she would do her best."
18 This computation is based on the total of 75,000 bags given in the respondent's first
statement , by its witness Christman , general superintendent . Ames later gave the total
60,000 bags.
AMES HARRIS NEVILLE COMPANY 439
The undersigned cannot find in this evidence any justification for Williams'
discharge or for the failure to rehire her.
Fadave gave testimony which, if accepted, would have weight in determining
the obligation of the respondent to rehire Atchley. Fadave testified that on
the evening of December 8, 1944, between 8: 00 and 8: 30, he met Williams and
Atchley in a car at the corner of 20th and "L" Streets in Merced "just a half
a block away" from the factory. Fadave's testimony read as follows :
[Atchley] wanted to know why he was let go. I told him he walked off
the job. He said he was checking out, that he quit first thing in the morning,
he was getting boisterous and grabbed my coat and wanted to strike me . . .
I said, "Be careful, Willie, don't be like that. You are well liked in the fac-
tory. [Christman] likes you quite a bit, you want to control yourself."
He went on and started talking quite a bit of different persons in the factory.
Q Did he say anything about any releases?
A. Later on I said, "I can give you your job back, but not as a foreman "
I said, "I have to rehire you." He said, "I wouldn't work for you if you were
the last person on earth. I want a release " I said, "Come in Saturday and
I will give you a release."
Fadave further testified that he reported this incident to either Allen Ames
or Christman by telephone next day. Christman was recalled as the respond-
ent's last witness and stated that Fadave reported this incident to him by tele-
phone on the day following its occurrence. Christman gave no details beyond
assenting to a question that Fadave's report was "With reference to [a] threat-
ened assault by Willie Atchley."
Atchley, when recalled during the Board's rebuttal, testified that on the eve-
ning of December 8 he was at Williams' home until he left for the union meeting
at 8 p. in on that date and that lie returned to Williams' house immediately after
the meeting closed. This testimony was fully corroborated by Williams. Atchley
and Williams further specifically denied every significant statement advanced in
Fadave's testimony as to this incident.
The undersigned notes that Fadave's testimony is implausible on two counts.
He stated that both Williams and Atchley desired their releases in his account
of his conversation with them on the evening of December 8. Yet the record
shows that on the following morning each of them took their releases from their
pay envelopes and left them on Fadave's desk. Again, Fadave testified that
he offered Atchley reemployment as a warehouse worker on December 8, in the
evening although he had refused to allow Atchley to continue in his employment
about 7:30 in the morning of the same day Moreover, as Fadave testified, lie
had hired a man to take over Atchley's work in the forenoon of December 8.
When asked what had happened during the day, which caused him to change his
mind , Fadave answered , "I wouldn't know now."
Under this state of the record, the undersigned rejects the testimony of Fadave
and Christman regarding this matter and accepts that of Atchley and Williams
as substantially correct.
The undersigned concludes and finds that the discharges of Dossie Williauus
and of William Atchley effective on December 8, 1944, were discriminatory and
were based on their Union membership and activity.
Helen Combs was hired by the respondent in March 1944. After picking up
bags for 2 or 3 weeks she was made an inspector. In September, Combs had a
leave of absence and worked in a cannery almost a month . On returning
November 3, 1944, she was reinstated in her job as inspector. Combs testified
without contradiction and the undersigned finds that in addition to her duties
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as inspector she assisted in various other operations when employees were absent.
It is admitted that Combs was a satisfactory employee in the period before
December 15, 1944. It was Dunn's testimony that "she was a good worker, she
did her work good but would throw bags at the girls and they were always
complaining about her." Fadave similarly testified of Combs, "To a certain
extent she was satisfactory, but other times she wasn't." Fadave also testi-
fied that Combs on November 3 had aroused resentment among the sewers by
the manner in which she rejected bags as an inspector. Dunn testified that she
had changed Combs' station at the time and instructed her "when they had bad
bags to lay them on the table in a mannerly sort of way." Dunn further testi-
fied that Combs thereafter showed improvement. Combs positively denied that
she ever "threw any bad bags back at anybody" and further testified that she
had never been reprimanded for such conduct. No witness other than Dunn and
Fadave was produced to testify to any dereliction by Combs in deportment or
efficiency. No other specific instance of wrongdoing by Combs was advanced by
either Dunn or Fadave Under these circumstances the undersigned finds that
the incident of November 3 was closed by the action taken by Dunn at that time.
As appears below, the matter did not figure in Combs' termination over 2
months later.
Combs' credited testimony shows that she was an active union protagonist.
She had been a member of a cannery workers' union at the time she was hired.
She attended each of the three meetings held by the Union. At the first meet-
ing on November 29, she signed a union card under the observation of Dunn.
She received a supply of union authorization slips and as she testified "When-
ever I didn't have anything to do I talked about the [Union]." As set forth
above, she protested to Dunn about December 15, 1944, concerning the respond-
ent's activities in securing signatures to the revocation forms. On that oc-
casion she was summoned to Fadave's office for the purpose "of getting certain
things straight." She then told Fadave that she "had signed for the Union."
And, as her credited testimony reads, "He said he would rather I wouldn't talk
about it, but he didn't tell me not to." It is clear that the respondent was
fully apprised of Combs' union membership and activities.
On or about December 15, 1944, Combs was hurt while engaged in her duties
in the plant. She strained her side while lifting bags. On December 18, she
visited her family physician, Dr. Moyle, who taped her side and administered heat
treatments. He advised that she would be incapacitated for about a week. She
reported to Dunn and to Fadave immediately after visiting the doctor. Fadave
told her that Moyle was not the respondent's doctor, but suggested that he "could
work it out all right." Thereafter Combs had four or five further treatments
from Dr. Moyle. On each occasion she visited the plant and, as she testified
and Dunn agreed, on each occasion she saw Dunn and told her she did not
know how soon she would be able to return to work. Dunn testified that she
reported to Fadave that Combs had been in the plant and had stated that she
did not know when she would be able to return. Fadave admitted knowledge
that Combs received workmen's compensation for her injury. However, when
Combs finished her treatments on January 8, 1945, and went to the house of her
close neighbor Fadave, to report herself fit for duty, she was surprised to be
told that she "did not have a job any more." Fadave then said, as Combs
testified, that "he took it for granted that I had quit." '9
39 The quotations are from Combs' credited testimony. Fadave testified that he told
Combs : "Well, I replaced you. You have been away for two weeks and didn't notify the
office at all. It is our policy when we do not receive word from the workers to take
them off the pay roll."
AMES HARRIS NEVILLE COMPANY 441
Combs thereupon procured from Dr. Moyle a statement , dated January 9,
1945 , which reads as follows:
To whom it may concern :
In the case of Helen Combs, it was reported originally no disability.
This was an error on the part of our secretary . Mrs. Combs is now reported
as able to return to work on January 8, 1945.
Sincerely yours,
[Sgd ] CHESTER A. MovLE, M. D.
A copy of this statement was sent to the California Indemnity Company and
Combs presented a copy to Fadave who thereupon showed Combs a "little pink
paper" which stated that she wasn 't injured ." Fadave's testimony agrees with
that of Combs in stating that she had no previous knowledge of this document.
Combs' testimony as to Fadave ' s final answer reads :
Well , he said he sent my card in now and he said they didn't have
a job for me becaule they were all filled up and the first opening, why I
could have it.
Fadave's testimony corroborates this version . He contended , however, that
his promise to recall Combs was restricted to the first opening for an inspector.
Combs had not been recalled at the time of the hearing in this proceeding.
Although not working on December 20, 1944, combs participated in the 5 per-
cent bonus payment made on that date . Her mother who was employed by the
respondent that day received her bonus check and delivered it to her. It will be
noted that Combs' inquiry and absence from work coincides in date with the
delivery of the revocations to the union office on December 15, 1944. About that
date, she had aroused the ire of Fadave by protesting this action by the respond-
ent. Fadave, who assumed full responsibility for Combs ' discharge , was admit-
tedly informed as to the cause of her absence. The respondent further was
currently informed through Combs ' periodic reports to Dunn of her continued
incapacity . Under these circumstances , the undersigned concludes and finds,
after consideration of the full record , that Fadave seized on the opportunity
afforded by Combs' enforced absence to discharge her for her union membership
and activity. This discharge became effective on January 8, 1945.
Concluding findings
The discharges of Williams , Atchley, and Combs were each closely associated
in dates with the respondent 's campaign to secure the revocation of its employ-
ees' union authorizations . Fadave admitted knowing that Williams was the
most active of the union protagonists . He admittedly knew also that Atchley was
a union member when hired and that he was very closely associated with
Williams . Combs disclosed her union sympathies to Dunn and Fadave and
aroused Fadave 's anger when she protested against the respondent 's activities in
securing signatures to its revocation slips. The respondent 's compaign extended
from about December 4 to December 15, 1944. Williams and Atchley were dis-
charged on December 8, and Combs on January 8, 1945, although she was absent
beginning December 18, 1944
The services of the three complainants were satisfactory to the respondent until
they became actively engaged in the Union 's organizational activities. Both
Williams and Combs previously had been reinstated , without question, after
extended leaves of absence. Atchley had been elevated to a position as foreman
and given a wage increase after some 3 months' serviee . Williams and Atchley
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
left the plant on the afternoon of December 7 for a legitimate reason. Fadave
admitted in his testimony that he had never refused any other employee's request
to leave 'work for the purpose of visiting a doctor. Moreover, Fadave testified that
if Atchley had told him he proposed to take Williams to a doctor, he would have
excused their absence. Williams promptly furnished proof in the form of a
statement by Dr. Fountain, that she had visited him on December 7 and was in
fact Ill and unable to work She gave Fadave further evidence of the same
character on February 13, when she applied for reinstatement. Nevertheless,
Fadave persisted in his decision to discharge her and Atchley and in his refusal
to rehire them. Similarly, Combs was known to both Dunn and Fadave to have
been injured in the course of her employment. After each visit to her doctor
Combs told Dunn of her continued incapacity for employment. Fadave admitted,
albeit reluctantly, that he knew Combs received workmen's compensation for her
injury. Under such conditions she was plainly entitled to be reinstated on Jan-
uary 8, 1945, when she applied. But Fadave refused and was not moved to change
his decision when Combs presented proof that an earlier report from her
doctor's office that she had not incurred injury was issued through error, Other
justifications alleged by the respondent as a basis for the discharges were not
sustained by the evidence.
It is clear that openings which each of the complainants might well have filled
were available in the plant Fadave testified that he hired a man to take over
Atchley's duties on December 8, 1944. He further testified that he had hired
a woman worker on each of the dates December 22, and 27, January 19, 20, 22,
and 29, while on January 23 four women were hired Fadave admitted that
since December 8 he had filled practically every position in the plant. Both
Williams and Combs were capable, as the record shows, of filling several posi-
tions efficiently. Yet, despite Fadave's promise to recall them on the first open-
ing they had been refused reinstatement up to the time of the hearing in this
proceeding.
Under these circumstances, the undersigned concludes and finds that the dis-
charge of Williams, Atchley and Combs was a constituent part of the respond-
ent's antiunion campaign. It admittedly secured ten revocations of union
authorizations and cooperated in transmitting them to the Union's office. Dur-
ing the same period of time it discharged the three most active and effective
proponents of the Union among its employees These measures were successful
in defeating the movement for union organization. As Farmer testified, since
Williams left "they never did name that [the Union] to me in that plant, nobody,
not to me."
By the discharge of Dossie Williams and William Atchley on December 8,
1944, of Helen Combs on January 8, 1945, and by its subsequent refusal to rehire
them the respondent had discriminated in the terms and conditions of their em-
ployment and has discouraged membership in a labor organization. By such dis-
charge and refusal to rehire Williams, Atchley and Combs and by the anti-union
acts and utterances of Dunn and Fadave set forth in this section, the respondent
has interfered with, restrained, and coerced it employees in the exercise of
rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
It is found that the activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent described in Sec-
tion I above, have a close, intimate and substantial relation to trade, traffic
AMES HARRIS NEVILLE COMPANY 443
and commerce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action found necessary in order to effectuate the policies
of the Act.
It has been found that the respondent discharged Dossie Williams and William
Atchley on December 8, 1944, and Helen Combs on January 8, 1945, and has there-
after refused to reinstate them for the reason that they joined and assisted a labor
organization and engaged in concerted activities for the purpose of collective
bargaining and other mutual aid and protection. It will be recommended that the
respondent offer Williams, Atchley and Combs immediate and full reinstatement
to their former or substantially equivalent positions without prejudice to their
seniority or other rights and privileges they may have It will be further recom-
mended that the respondent make Williams, Atchley and Combs whole for any
loss of pay they may have suffered by reason of the respondent's discriminatory
acts by payment to each of them of a sum of money equal to the amount he of she
normally would have earned as wages from the date of the discriminatory dis-
charge to the date of the respondent's offer of reinstatement, less his or her net
earnings 20 during said period.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers, Local 386, A. F. of L., is a labor organization within the meaning of
Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Dossie
Williams, William Atchley and Helen Combs, thereby discouraging membership
in a labor organization, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law the under-
signed recommends that the respondent, Ames Harris Neville Company, and its
officers, agents, successors and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers, Local 386, A. F. of L., or any other labor
20 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company , 8 N L R . B 440 Monies received for work performed
upon Federal , State , county, municipal , or other work relief projects shall be considered
as earnings . See Republic Steel Corporation v N. L. R. B., 311 U. S. 7.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization, by discriminating in regard to hire and tenure of employment, or
any terms or conditions of employment of its employees;
(b) In any other manner, interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers, Local 386, A. F. of L., or any other labor organization, to
bargain collectively-through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Dossie Williams, William Atchley and Helen Combs immediate
and full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges ;
(b) Make whole Dossie Williams, William Atchley and Helen Combs for any
loss of pay they may have suffered by reason of the respondent's discrimination
against them by payment to them of a sum of money equal to the amount which
they normally would have earned n as wages from the date of their discrimi-
natory discharge to the date of the respondent's offer of reinstatement, less
their.net earnings during such period ;
(c) Post immediately at its plant in Merced, California, copies of the notice
attached hereto, marked "Appendix A " Copies of said notice, to be furnished
by the Regional Director of the Twentieth Region, shall, after being duly signed
by the respondent's representative, be posted by the respondent immediately
upon receipt thereof, and maintained by it for sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the respondent to
insure that said notices are not altered, defaced, or covered by any other
material;
(d) File with the Regional Director for the Twentieth Region on or before
ten (10) days from the receipt of this Intermediate Report, a report in writing
setting forth in detail the manner and form in which the respondent has com-
plied with the foregoing recommendations.
It is further recommended that, unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Di-
rector in writing that it will comply with the foregoing recommendations the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the date
of the entry of the order transferring the case to the Board, pursuant to Section
32 of Article II of said Rules and Regulations file with the Board, Rocbambeau
Building, Washington 25, D. C., an original and four copies of a statement in
writing setting forth such exceptions to the Intermediate Report or to any other
part of the record or proceeding (including rulings upon all motions or objec-
tions) as he relies upon, together with the original and four copies of a brief in
support thereof. Immediately upon the filing of such statement of exceptions
and/or brief, the party or counsel for the Board filing the same shall serve a
copy thereof upon each of the other parties and shall file a copy with the Regional
Director. As further provided in said Section 33, should any party desire
11 See footnote 20, supra.
AMES HARRIS NEVILLE COMPANY 445
permission to argue orally before the Board, request therefor must be made in
writing within ten (10) days from the date of the order transferring the case
to the Board.
CHARLES E. PERSONS,
Trial Examiner.
Dated November 1, 1945.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers, Local 386, A. F. of L. or any other labor
organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Dossie Williams
William Atchley
Helen Combs-
All our employees are free to become or remain members of the above-named
union or any other labor organization. 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.
AMES HARms NEVILLE COMPANY,
Employer.
Dated-------------------- By-------------------- --------------------
(Representative ) (Title)
NorE.-Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.