Bud's Cooling Corp.

National Labor Relations Board - Board Decisions

Sep 17, 1962

138 N.L.R.B. 596 (N.L.R.B. 1962)

596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bud's Cooling Corporation and Bud Antle , Inc. and Local 78,
United Packinghouse , Food and Allied Workers , AFL-CIO.
Case No. 20-CA-2097. September 17, 1962
DECISION AND ORDER
On February 28, 1962, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
Thereafter, the Respondents filed exceptions to the Intermediate Re-
port and a supporting brief.'
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and the briefs, and the entire record
in this case, and hereby adopts the findings,' conclusions, and rec-
ommendations of the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
' The Respondents renewed to the Board a motion to dismiss the complaint directed to,
and denied by, the Trial Examiner In view of our decision herein , the motion is hereby
denied.
2 We do not adopt , or pass upon, the Trial Examiner ' s finding that the Respondents
violated Section 8 ( a)(5) and ( 1) of the Act by failing to give the Union notice of their
intent to transfer operations of the mixed loading dock from Cooling to Antle in June 1961.
Additionally, as Redmon has been awarded backpay as part of the remedy for the
8(a) (5) violations found herein , we do not deem it necessary to pass upon the Trial
Examiner 's finding that the Respondents did not violate Section 8 ( a) (3) of the Act by
their failure to rehire him.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act,
as amended , 29 U.S.C. Sec. 151, et seq ., herein called the Act, initiated by a charge
and amended charges filed by Local 78, United Packinghouse , Food and Allied
Workers , AFL-CIO, herein called the Union, against Bud 's Cooling Corporation
and Bud Antle , Inc., herein jointly called Respondents and severally called Cooling
and Antle, Inc ., respectively Upon such charges ( charge filed July 28, 1961; first
amended charge filed September 5, 1961; second amended charge filed September 14,
1961; complaint issued September 22, 1961; amendment to complaint issued Septem-
ber 25, 1961 ), a complaint was issued by the General Counsel of the National Labor
Relations Board ( the latter being herein called the Board ), which, as amended
during the hearing, alleges that Respondents had engaged in and were engaging
in unfair labor practices within the meaning of Section 8(a)(1), (2 ), ( 3), and (5)
of the Act. The Respondents ' answer, undated , but apparently filed in due course,
admitted certain allegations of the complaint and denied others, the total effect
thereof being a denial of all unfair labor practices alleged in the complaint. The
answer contains what is called an affirmative defense ( but which actually amounts
to a denial of the alleged collective -bargaining unit ) and raises a point of law which
was subsequently raised by motion and argument of counsel for the Respondents.
138 NLRB No. 72.
BUD'S COOLING CORPORATION AND BUD ANTLE, INC. 597
Pursuant to notice, a hearing was held in Salinas, California, on various dates
between November 7 and December 2, 1961, before Trial Examiner James R.
Hemingway. A representative of General Teamsters, Warehousemen and Helpers
Union, Local 890, herein called the Teamsters, was permitted to participate in the
hearing to the extent of its claimed interest as a party to a contract with Antle,
Inc. At the opening of the hearing, the General Counsel made a motion to amend
the complaint in a minor respect, and he made motions for other amendments to
the complaint during the hearing. Such motions were granted. The Respondents
made a motion to dismiss the complaint upon the ground that all the alleged unfair
labor practices were dependent upon interpretation of a collective-bargaining con-
tract and that the Board allegedly refuses to resolve ambiguities in a contract in
order to find that action taken under one interpretation constitutes an unfair labor
practice. I found that evidence would be required before consideration of the
motion and therefore requested that it be made after the General Counsel's evidence
was in. At the close of hearing, the Respondents renewed their motion. Ruling
thereon was reserved. It is now denied for reasons hereinafter set forth. Pursuant
to permission granted and time fixed, the parties filed briefs with me. These have
been considered.
From my observation of the witnesses, and upon the entire record in the case,'
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
The Respondents are California corporations doing business at Salinas, California,
and at various other places in California, Arizona, and Texas, and having their prin-
cipal office at the same location in Salinas, California. During the year 1960,
Cooling, which is in the business of vacuum cooling and shipping vegetables, in the
course and conduct of its business operations, performed services valued in excess
of $50,000 for customers in States other than the State of California. Antle, Inc.,
which is in the business of growing, packing, and shipping vegetables, during the
year 1960, in the course and conduct of its business operations, sold and distributed
at its Salinas, California, operations, products valued in excess of $50,000 which
were shipped from said operations directly to States of the United States other than
the State of California. The Respondents do not contest jurisdiction of the Board.
I find that the Board has legal jurisdiction and that it will effectuate the policies of
the Act to assert jurisdiction.
II. THE LABOR ORGANIZATIONS INVOLVED
The Union is a labor organization admitting to membership employees of the
Respondents. Teamsters is likewise a labor organization admitting to membership
employees of the Respondents.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. Business history and background
Antle, Inc., is a family-owned and managed corporation, the stock being owned
by Lester Lee Antle (250 shares), Lester V. (Bud) Antle, son of Lester Lee (125
shares), and Delores J. Antle (125 shares). The officers of this corporation are
Lester V. (Bud) Antle, president; George H. Hobbs, vice president, secretary,
assistant treasurer, and general manager; and Robert V. Antle, son of Lester V.
Antle, assistant secretary and treasurer. The directors are the officers plus Lester
Lee Antle and Respondents' attorney, Jacob Abramson. The date of incorporation
of Antle, Inc., is not in evidence, but it apparently preceded by some years the
incorporation of Cooling in December 1959.
Before December 1959 the Antle business interests had been carried on in asso-
ciation with the interests of Bruce Church under the corporate name of C & A
Enterprises, Inc. Both Church and Antle were growers and shippers of vegetables.
In 1954, Bruce Church and Bud Antle acquired nine vacuum-cooling plants in Cali-
i On January 31, 1962, I served notice on the parties of intent to correct errors in the
transcript of these proceedings In accordance with a list of corrections included in said
notice unless the parties on or before February 12, 1962, objected thereto No objection
having been made, I now order the corrections made In accordance with the list of correc-
tions contained in said notice.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fornia and Arizona. These were then taken over by corporations formed for the
purpose. As a result of an election conducted in 1954, the Union became the
collective-bargaining agent for the employees at these plants and annual contracts
resulted each year until 1960, at which time the Union and the employers entered
into a 2-year contract as hereinafter related.
In December 1959, the Church interests and the Antle interests were severed and
the various plants were apportioned between them. In that same month, but before
the actual split of the Church and Antle interests, Cooling was incorporated spe-
cifically to take over operation of the vacuum-cooling plants to which Church
relinquished its interest. Before the split, C & A Enterprises, Inc., had operated a
vacuum-cooling plant in Salinas under the name of Valley Cooling Co. (apparently
a separate corporation). This plant went to the Church interests in the split. The
Antle interests, in the split, acquired plants in Watsonville, El Centro, and Holtville,
California, and in Hereford, Texas, if not others.2 Because the Antle interests
would otherwise have been without a vacuum-cooling plant at Salinas, they acquired
a site and established a plant there. This plant was not in operation until the
spring of 1960. The manning and management of the operations of the various
plants, including that in Salinas, was turned over to Cooling.
Before 1960, the Church family and the Antle family, as growers and shippers,
utilized their various vacuum-cooling plant sites to load their vegetables, only some
of which (principally lettuce) were vacuum cooled, into trucks or freight cars for
shipment. Thus, the noncooled vegetables, so called, were loaded at the same dock
as the vacuum-cooled vegetables.3 Some of the so-called noncooled vegetables had
to be iced. At some of the vacuum-cooling plants, the iceplant was adjacent to the
loading dock. At others, the icing was done by portable equipment or by moving
the railroad car to the iceplant after it was loaded.
For the most part, vacuum-cooled vegetables and noncooled vegetables are
loaded into separate cars, although to some extent combination cars are made up.
Because most of the vacuum-cooled produce is lettuce, the cartons of lettuce usu-
ally make up carloads (approximately 85 percent or more of the cars) exclusive
of other vegetables.4 However, more than one type of noncooled vegetable is likely
to go into one car, depending on the different harvesting times. For this reason,
the loading of noncooled vegetables is called mixed carloading and the loading dock
therefor, the mixed vegetable loading dock, which is shortened to mixed'loading
dock.
Before 1960, the same dock was used for cooled and noncooled vegetables .5 As
will be more fully set forth later herein, Antle, Inc., made arrangements with an
ice company for a loading dock on the ice company's property and for the icing
of Antle's mixed vegetables. The property of the ice company is roughly a mile
from the Salinas vacuum-cooling plant. Cooling manned this mixed loading dock
and managed the loading of mixed vegetables starting about June 23, 1960, several
weeks after the vacuum-cooling plant began operating.6 This does not mean that
mixed vegetables were loaded at the vacuum-cooling plant in those few weeks. Ap-
parently, lettuce is one of the first vegetables to be harvested and shipped, and the
noncooled vegetables were not ready for shipment until beginning about June
23. Cooling hired the employees who worked at the cooling plant and likewise
the employees who worked at the mixed loading dock and billed Antle, Inc., for
its services at both places. Some employees who worked at the cooling plant dur-
ing 1960 also worked at the mixed loading dock
Antle, Inc., employs its own field hands and does its own packing in the field 7
before bringing its produce to the dock or cooling plant for shipment. Its field
hands, including packagers, and its truckdrivers are represented by the Teamsters,
2 Title to the plant properties, with the exception of the plant at Hereford and one of
the mobile vacuum-cooling plants, is vested in Bud's Imperial Cooling Corporation, an-
other of the Antic family interests.
3 There was for a time one exception. Carrots grown at Holtville were loaded at a
separate dock. However, for the past 2 years no carrots have been grown theie.
Antle, Inc., is one of the largest shippers of lettuce in the world.
s It is not clear as to whether, in any given plant, the dock was large enough to handle
the loading of both types of vegetables simultaneously or whether, as intimated with
respect to one plant, the two types were loaded alternately.
eIt was stipulated that the vacuum-cooling plant began operating before June 1960
Carrots were probably the first of the noncooled vegetables, followed by celery and other
vegetables
7 Some growers who do not pack in the field have combined packing sheds and shipping
docks.
BUD'S COOLING CORPORATION AND BUD ANTLE INC. 599
but the Union has a contract with Antle, Inc., regarding operation of the carrot-
harvesting machine as well as the contract with Cooling herein involved.
2. Bargaining negotiations and the 1960 contract
The 1959 collective-bargaining contract expired on April 1, 1960, and in February
of that year the Union opened collective-bargaining negotiations for a new contract
with a number of companies whose employees the Union represented. These in-
cluded, among others, Valley Cooling and Bud's Cooling, the latter apparently on
the basis of its successorship to certain C & A operations. Meetings were held in
the law offices of Abramson & Bolz, the Respondents' attorneys. Although Cool-
ing indicated that it wanted a separate contract for itself, the negotiations were car-
ried on for all the companies at the same sessions, and they resulted, but for the
name of the employer or employers involved, in identical agreements. Abramson
was the principal spokesman for all the employers and Frank Menezes (pronounced
"Menees"), the Umon's business agent, was the principal spokesman for the Union.
At no time during the negotiations was any mention made of a separate mixed
loading dock for Cooling. In fact, neither Abramson nor Menezes was informed
that Cooling intended to operate a dock separate from its cooling plant premises,
although Respondents stipulated that Robert and Bud Antle along with Hobbs de-
cided before March 1960 to operate such a dock.8 When agreement appeared to
be reached by the parties, Abramson drafted the contract, stating the execution date
therein as June 30, 1960, although is was made retroactive to April 1, 1960. The
term of the contract was for 2 years, to April 1, 1962, with automatic renewals
from year to year unless on or before February 1 of any year after 1961 either
party gave written notice of termination. After the draft was typed, the parties,
by telegram, reached an additional understanding and later, in early July, because
of a disagreement on the effect of a subsequently reached agreement between the
Teamsters and certain cooling companies whose employees it represented, the Union
and the employers met and reached a further understanding regarding rates of pay
requiring some retyping of the draft. The result was that the 1960 contract was
actually signed sometime between July 8 and 12, 1960 This was after the com-
mencement of operations at the mixed loading dock. Ed Maples, president of the
Union, who participated in the contract negotiations, testified that he had learned
of the separate mixed loading dock in late June or early July. He did not, how-
ever, raise the matter in negotiations before the agreement was signed.9
The contract, as signed, contains a recognition clause, in which Cooling recognizes
the Union as the exclusive bargaining agent for all plant employees (exclusive of
office clerical, professional, or supervisory employees) at five plants identified by
cities. "Plant" was not defined
The 1960 agreement contained a union-shop clause and a provision for vacation
pay to be given at the close of the season for employees who had worked for one
or full seasons. It also contained a provision for seniority in the job classification
of the employee at the plant where he worked, which seniority carried over from
one year to the next. Employees were entitled to be hired, during job openings,
on the basis of their seniority The contract obliged the employer to post a seniority
list on the bulletin board and to mail a copy thereof to the Union within 30 days
after the close of the season The contract also contained a provision covering
the manner for assertion of seniority by the employees before the beginning of the
next season and covering the obligations of the employer in respect thereto. Other
contract provisions will be mentioned hereinafter.
3. Basis for contention that there was a refusal to bargain
During the 1960 season, Cooling gave the Union no reason to believe that their
contract for cooling plants did not also cover the employees at the mixed loading
dock 19 The employees there received no less than the contract rate of pay and
other benefits shown in the contract, and their working conditions were in con-
8 Hobbs, himself, testified that he did not know who made the decision.
8
Maples testified that he had a conversation with Robert Antle about the time Maples
learned of the separate mixed loading dock, in which conversation he asked Antle about
that dock. He testified that Antle said that that was part of Bud's Cooling Corporation
and that the same rates and conditions would apply there Antic denied that such topic
was discussed at that time. I find it unnecessary to resolve the conflict
'°The Respondents contend that the Union, itself, believed that the mixed loading dock
was not covered This will be considered later herein.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formity with the contract provisions. In a few instances where employees con-
tended that they had not received the correct amount of pay, Maples telephoned or
spoke in person with Donald Raine, payroll supervisor for Antle, Inc. (who was
in charge of the computation of earnings, the issuance of paychecks, and matters
incidental thereto, for both Antle, Inc., and Cooling), about the discrepancies in
pay of a few of the employees on the mixed loading dock. He once asked the
supervisor at the mixed loading dock to consider one man for promotion. And
he spent considerable time with Bill Flory, the office manager for Antle, Inc., and
also for Cooling, working out the vacation pay of employees who had worked dur-
ing the 1959 season for C & A Enterprises. Some of the employees for whom such
vacation pay was figured were working for Cooling at the cooler location and others
were working at the mixed loading dock.
The 1960 season closed about mid-January 1961. In February 1961, Flory tele-
phoned Maples to inquire as to whether men working for Cooling would get only
1 week's vacation for having worked during the 1960 season. Maples took the
position that men who had worked for C & A Enterprises in 1959 and for Cooling
in 1960 would be entitled to 2 weeks' vacation pay. Flory read a list of names
which included employees who, in 1960, had worked at the mixed loading dock,
at the cooler, or both, and Maples indicated the number of weeks' vacation pay
each was entitled to under the contract.
Cooling did not mail to the Union the seniority list required by the contract to
be mailed within 30 days after the close of the 1960 season. Not having received
the list, Maples, for the Union, under date of May 3, 1961, wrote a letter addressed
to Bud Antle, Inc., at 629 South Sanborn Road, Salinas (the actual address of both
Antle, Inc., and Cooling was 639 , South Sanborn Road) in which the Union re-
quested the seniority list for the Watsonville and Salinas coolers and for the mixed
loading dock. The Respondents did not deny receipt of the letter and ,they stipulated
that the seniority list was never furnished to the Union under the 1960 contract
for any location. The Union wrote twice thereafter, once on July 24 and once on
August 14, each time addressing the letter to Cooling. The last letter was sent
to the correct address at 639 South Sanborn Road. The Union received no reply
to either letter. Cooling also failed to furnish the Union with a list of employees
within 15 days after it commenced operations in its 1961 season, as required under
the union-security provisions of its 1960 contract
In May 1961, Antle, Inc., entered into negotiations with the Teamsters for a con-
tract covering its field hands. In the same negotiations, Antle, Inc., agreed to oper-
ate the mixed loading dock under contract with the Teamsters, starting from the
time that operations there would commence in the 1961 season. The negotiators
for Antle, Inc, were Bud Antle, Robert Antle, and Hobbs, who were also officers
of Cooling. Thereafter, in late June, the Teamsters tendered a signed agreement
to Antle, Inc., for its signature. This appears to have been an agreement which
the Teamsters had made with other employers in 1960. Antle, Inc., never signed
the agreement, but it operated during the 1961 season under its terms."
In late June or early July 1961, when two men, who had worked during the 1960
season at the mixed loading dock applied for work there on the basis of their
seniority, they were not hired. They reported this to Maples and Menezes. The
latter telephoned Robert Antle and asked for a meeting. Antle asked the
reason. Menezes replied that he wanted to talk about the employees who had
seniority but had not been hired. Antle told Menezes that the mixed loading dock
had been taken over by Antle, Inc., who had a contract with the Teamsters. When
Menezes claimed that "you are still under contract to us," and repeated a desire
to meet, Antle responded that "that is the way the ball bounces" and that there was
nothing to talk about.
4. The appropriate unit and the Union's majority therein
The determination of the appropriate unit for bargaining is the function of the
Board under the Act. However, where the parties reach agreement on an appro-
priate unit which does no violence to any substantive rights of employees under
the Act, the Board would not be likely to impose a different unit on the parties.12
"The shed which had been leased by Antle, Inc , in 1960 , as a mixed loading dock for
Cooling's operations had been torn down , but Antle, Inc , was able to rent another shed
in the same string. It used this one until a permanent shed , which It was building near
the ice plant , but across the tracks , was completed in August 1961.
"See The Baker and Taylor Co, 109 NLRB 245; Growers Warehouse Company, Inc.,
114 NLRB 1568
BUD'S COOLING CORPORATION AND BUD ANTLE, INC. 601
The unit under the contract of the parties was originally defined before a Board-
conducted election ( whether or not this was a consent election does not appear),
and since 1954 the parties had apparently contracted for the same unit. This
creates a presumption of majority for the Union during the term of the contract.13
But it is the contention of the Respondents that because some of the employees and
some of the operations formerly covered by the agreed unit were moved to a physical
location separate from the location of the vacuum cooler , itself , this move created
a new plant, in effect , and therefore it excluded such employees from the unit, or
at least gave rise to an ambiguity in the contract . The mere change of location,
without more , especially where the location is within the same city, is no reason for
finding a change in the unit.14
In support of the contention that there were other changes than that of mere
location, the Respondents adduced testimony to the effect that the classifications
listed in the contract were not recognized at the mixed loading dock and that com-
pensation , although similar , was not, in some instances , the same as called for by
the contract . This evidence will be discussed herein below.
Aside from saying that a sufficient change occurred to remove the employees of
the mixed loading dock from the coverage of the contract , the Respondents asserted
that only by interpreting the 1960 contract can it be determined whether or not the
parties intended to include employees engaged in activities in connection with the
loading of uncooled vegetables separate and apart from vacuum -cooled vegetables in
the unit defined in the contract , and the Respondents rather vigorously argue that it
follows that only by an interpretation contrary to their own can it be found that the
contract covers the employees at the mixed loading dock; and , they argue , the Board
does not take jurisdiction of refusal -to-bargain cases where the acts alleged to consti-
tute the unfair labor practices depend upon an interpretation of a contract , for, say
the Respondents, this would require the Board to police the contract and that the
Board will not do.
Interpretation may be called for where a contract is ambiguous . It is not here
ambiguous on its face, and if there be any ambiguity in the contract here involved
it did not arise because of any uncertainty as to what was intended at the time the
contract was negotiated . It could only arise because of a latent ambiguity , one which
would appear only when the parties discovered what was previously unknown to
them, that some extrinsic fact existed to which the language could apply and which
would give that language a meaning different from that intended by one of the
parties So far as the Union is concerned, it was, at the time of the negotiation
of the contract , unaware of the intention of the Respondents to operate a separate
mixed loading dock. The Respondents , on the other hand , concede that they
decided , well before the conclusion of those negotiations , to operate a separate mixed
loading dock . As to the Respondents , a latent ambiguity could not exist . In fact,
by failing to reveal their intention , the Respondents themselves created any ambigu-
ity that may have arisen . They have no right now to impose their own subjective
meaning on the Union when they knew that the contract would mean something
else to the Union . This is all the more true since the language of the contract was
supplied by the Respondents through their attorney . The meaning reasonably
attributed thereto by the Union is, therefore , the meaning to which the Respondents
are bound.
But even if it be granted for the sake of argument that an ambiguity exists of which
the Respondents might avail themselves , the Respondents ' assumption as to the
Board's attitude toward interpretation of contracts is inaccurate . The Board has,
and will , assert jurisdiction to determine the question of whether or not a refusal to
bargain is an unfair labor practice even if this requires an interpretation of the
agreement of the parties as to the composition of the appropriate unit.15 The cases
cited by the Respondents in support of their contention , I find , are not apposite.
Although arguing that the Board will not police a contract , the Respondents are
here saying ( improperly , as I have found ) that there is no contract as to the employees
on the mixed loading dock, but that the Union should nevertheless have resorted
to the arbitration provisions of the contract to determine its meaning even though
the Respondents showed no disposition to recognize the contract as to such employ-
ees: In fact, by entering into a contract with the Teamsters , the Respondents were
repudiating the contract with the Union . Whatever the attiude of the Board may be
with respect to policing contracts where the only differences between the parties
arise in connection with a good -faith dispute as to the meaning of their written
is Shamrock Dairy, Inc, at at., 119 NLRB 998 , 124 NLRB 494 ; Servette, Inc, 133
NLRB 132.
14 A. K Allen Co., Inc, at al , 117 NLRB 568.
15 Growers Warehouse Company, Inc., 114 NLRB 1568.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
words, the Board does not stand aside where a party to a labor contract repudiates
it in whole or part.ie
The Respondents, in an effort to prove that the intent of the parties from the
beginning was not to include the employees of the mixed loading dock in the unit,
attempted to show that the Union, as well as themselves, interpreted the contract as
not covering the employees of the mixed loading dock and that the Union demon-
strated this affirmatively as well as negatively.
In attempting to prove an affirmative demonstration, the Respondents adduced
testimony concerning an alleged conversation between Robert Antle, Menezes,
Maples, and another representative of the Union in late July or early August 1960
at a time when they met to discuss a contract between the Union and Antle, Inc.,
concerning a carrot-harvesting machine. Robert Antle, during the early part of
the hearing, on questioning by Respondent's counsel, testified that before this meet-
ing got under way, one of the Union's representatives, either Menezes or Maples,
commented, "We had better get this mixed loading dock covered under the Standard
Packing Shed Agreement." 17 The latter contract between the Union and certain
operators of packing sheds covers the work of packing vegetables as well as of loading
them, and the wage rates for loading thereunder are different from the rates under
the vacuum-cooler contract. Antle testified that he had indicated surprise when
the quoted statement was made because, he testified, the vacuum-cooler rates being
paid at the mixed loading dock were higher than the loading rates being paid under
the packingshed agreement Actually, a comparison of the piece-work rates is
difficult, although the hourly rate for the loader under the packingshed agreement
would be less than the "standby" rate of the loader under the vacuum-cooler con-
tract. Both Menezes and Maples denied that there was any such conversation. In
an effort to corroborate Antle's testimony, Hobbs testified that he had, a few days
earlier, before the date of the alleged conversation testified to by Antle, had conver-
sations with some representatives of the Grower-Shipper Vegetable Association, the
other party to the packingshed agreement with the Union, in which these representa-
tives said they were negotiating a contract with the Union and said that the Union
had raised a question as to whether or not Antle, Inc., or Cooling (which of the
two was not identified) wanted to bring their loading dock under the packingshed
agreement. Antle testified that, before the meeting about the carrot machine, above
related, Hobbs had told him of the conversation which Hobbs had had with the
Grower-Shipper representatives. Menezes, however, testified that the Union had
had no negotiations with the Grower-Shipper Association in 1960, although they
had in 1961. A 2-year contract dated July 19, 1961, signed by that Association and
the Union, is in evidence. There is reason to believe that the conversation Hobbs
testified to may have taken place in July 1961 rather than 1960. In 1961 Antle,
Inc., built a permanent mixed loading dock for itself not far from its 1960 opera-
tions. There was testimony that Antle, Inc., contemplated the use of the dock for the
packing of winter vegetables unless it was able successfully to vacuum-cool broccoli.
So far, it has not done any packing there I credit the denial of Menezes and
Maples and find that Antle either misunderstood what Maples or Menezes had said
or that he confused that conversation with one he may have had at another time
or with someone else. It is significant that in the conversation when Menezes tele-
phoned Robert Antle in late June or early July 1961, Antle did not contend that
the Union had not been the representative of the employees at the mixed loading
dock in 1960 and he did not call attention to Maples' statement. His only explana-
tion for not recognizing the Union or its contract at the mixed loading dock in 1961
was that that dock had been taken over by Antle, Inc., that Antle, Inc., had a contract
with the Teamsters and that that was the way the ball bounced.
The negative demonstration of the Union's intent, the Respondent's argue, was in
the failure of the Union to do anything to show that it was claiming to represent the
employees at the mixed loading dock. This contention appears to stem mainly from
the fact that representatives of the Union did not make formal contact with Robert
Antle in raising questions of errors in pay of employees. The men who worked
at the mixed loading dock in 1960 were dues-paying members of the Union, and
Maples represented them as well as the employees of the cooling plant proper in
the matter of vacations and of errors in pay. The mere fact that Maples spoke with
the payroll supervisor and office manager rather than with an officer of Cooling is
ae Carroll's Transfer Company, 56 NLRB 935; Carter Machine and Tool Co., 133
NLRB 247.
37 Late in the hearing, Antle again gave testimony about the same conversation, but this
time he identified Maples positively as the speaker and quoted the conversation with
much greater detail.
BUD'S COOLING CORPORATION AND BUD ANTLE, INC. 603
not important. The payroll supervisor and the office manager were both agents of
the Respondents. Both were aware of the existence of the contract and each, during
the 1960 season, dealt with Maples to the knowledge of Robert Antle. After Maples
had spoken with the payroll supervisor about a grievance of several of the employees
who were working at the mixed loading dock concerning a deficiency in their pay,
one of the employees, Dave Coffman, had a personal conversation with Robert
Antle about the grievance. Antle testified that it was at the insistance of Coffman
(who, he testified, claimed to represent the other men) that he directed the payroll
supervisor to recompute the pay of the men with a certain change. This was given
by the Respondents as an instance of individual settlement of a grievance tending
to prove that the Union was not representing the employees at the mixed loading
dock. Although Coffman was presumably working at the mixed loading dock at
the time of the hearing, he was not called as a witness to give his version of his
conversation with Antle. I was not impressed with the reliability of Robert Antle's
testimony on controversial matters and I am of the opinion that the exact circum-
stances of the conversation between Robert Antle and Coffman as well as the exact
conversation itself do not appear in the transcript. I observe, furthermore, that
when the checks for backpay were ready for the men in November and December
1960, those for two or three of the men were delivered by the payroll supervisor to
Maples for delivery to the claimants. On one occasion, the payroll supervisor told
Maples that he had given Coffman's check to Coffman personally. I find that the evi-
dence of Maples' acts proves that the Union was undertaking to represent the employ-
ees at the mixed loading dock as well as at the cooler. Furthermore, the evidence
supports a conclusion that the Respondents recognized the applicability of the
contract to the mixed loading dock, themselves.
To support an argument that the parties never intended to include the employees
at the mixed loading dock under the contract, the Respondents sought to show
differences between the jobs and pay put into effect there as compared to those at
the cooler. First, Respondents offered testimony intended to establish that the
employees there had combination jobs other than those mentioned in the contract
and second, they gave testimony to the effect that the rates of pay for employess at
the mixed loading dock were not the same as those called for under the contract.
From a consideration of all the evidence, however, I am of the opinion that such
testimony as was given to support this contention was misleading. That some
employees on that dock occasionally worked outside their customary classifications
is fairly clear. But the evidence also indicates that except where they were trans-
ferred from one classification to another and were given a different timecard,18 they
did so merely because the exigencies of a given situation called for a temporary
change, such as when a loader might develop a sore arm and the foreman would let
him drive the forklift for a while and the forklift driver would take over the loader's
job, or when the setoff men might spend a few minutes removing pallets from the
belts when the forklift driver was interrupted in his work of removing them. The
latter was done "to help keep the operations going," Head testified. As used in the
contract, a combination job apparently refers to one in which the employee, as a
part of his regularly assigned duties (and therefore his job description), does two or
more kinds of work. The only combination job in Salinas, according to this mean-
ing, was the job of receiver and forklift driver, a classification specifically listed in
the contract. In any event, whatever differences may have existed between the
work of employees loading vacuum-cooled vegetables and those loading noncooled,
mixed vegetables, I am convinced and find that they would have existed whether the
mixed vegetables were loaded at the same dock as the vacuum-cooled vegetables or at
a separate dock. For years, without regard to such alleged differences, the Respond-
ents had recognized and continued to recognize a single unit containing employees
loading cooled and noncooled vegetables when it is done at the same dock. No
greater differences are shown to have existed because of the use of a separate dock.
The Respondents' testimony to show that combination jobs not mentioned in the
contract were used at the separate mixed loading dock, I am satisfied and find, refer
only to such diversification of work as occurred at any mixed loading dock, even those
admittedly covered by the 1960 contract. In fact, the contract itself contemplates
that occasions might arise when employees might be asked to perform work outside
their usual classifications, as is evident from the following contract provision:
18At such times they were paid the contract rate for the classification in which they
worked. Head testified that he would not change a man ' s classification unless the em-
ployee was to be on the new job for a period of a couple of hours or longer. Then he was
paid according to the contract scale for the next classification If a man did lower paid
work for it while, his classification and rate of pay were not downgraded.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Car-loaders and set-off men if put to work will be guaranteed a minimum
of four (4) hours' work at the stand-by rate of pay, provided the employee
performs all work of any kind assigned. . . .
Although the Respondents adduced testimony to the effect that the employees at
the mixed loading dock received pay on a basis different from the contract rates,
I find that this was true only in one or two instances where, because of the type of
container involved or because of conditions which prevented employees from mak-
ing, on piece rate, a minimum of at least the equivalent of the hourly standby rate,
adjustments in rates were made by Cooling during the season. One such instance
involved the handling of sacked carrots, which were apparently slower loading than
crates or cartons. The 1960 contract did not list sacks under the piece rate. Some
agreement, in such a case, would be required to be worked out in any event, because
the existence of the contract would not terminate the duty to bargain on new matters
not covered thereby.19 Such is not convincing evidence of an intent by Cooling not
to operate under the 1960 contract at the mixed loading dock. Problems such as
these would arise whether or not the employees on the mixed loading dock used the
same dock as the employees engaged in loading vacuum-cooled vegetables or not.
Furthermore, it is noteworthy that when the agreement was entered into with the
Teamsters in 1961, the same rates of pay for the same classifications of work were
agreed to and were paid as would have prevailed under the contract with the Union.zo
It is likewise noteworthy that Hobbs told Head, the 1961 foreman, that the employees
at the mixed loading dock in the 1961 season would receive the same rates of pay
that prevailed generally in the produce business. Such evidence tends to confirm my
conclusion that the 1960 contract rates were in effect during 1960 and that any
alleged differences in pay between the rates paid at the mixed loading dock and the
rates paid at the cooler for similar work resulted not from an abandonment of con-
tract rates but from adjustments made to meet unexpected conditions. Such an
adjustment was required once at the cooler, too, which was undisputedly subject to
the contract. During a hot spell in 1960, the cooler was not functioning properly.
The result was a slowdown in the quantity of cooled vegetables going to the loaders
and setoff men. Because of this condition, the loaders and setoff men were not able
to earn, on the contract-provided piece rate, a minimum amount equivalent to their
standby rate. The Union caused Cooling to make an adjustment in pay to bring
the employees' pay up to their standby rate.
5. Conclusions respecting refusal to bargain
On all the evidence, I conclude and find that the Respondents' contention that the
1960 contract did not cover the employees at the mixed loading dock is without
foundation or merit. From all the evidence tending to prove that the Respondents
recognized the Union as the collective-bargaining representative of the employees
at the mixed loading dock in 1960, I conclude that the Respondents' claim that the
1960 contract did not cover such employees was one adopted after the commission
of the unfair labor practices herein found.
Evidence of the Respondents' refusal to bargain, among other things, is to be
found in the Respondents' ignoring of the Union's request for the lists and notices
required under the contract, by their repudiation of the contract for the second year
of its 2-year term with respect to its coverage of employees at the mixed vegetable
loading dock, and by their refusal on and after June 24, 1961, to meet with the
Union or to discuss the rights of employees to jobs at the mixed vegetable loading
dock in 1961 on the basis of their seniority under the contract. This conduct along
with the unlawful recognition of the Teamsters constitutes a withdrawal of recogni-
tion from the Union as to part of the employees in the appropriate unit and a refusal
to bargain in contravention of Section 8 (a) (5) and (1) of the Act 21
The attempt to escape the provisions of the 1960 contract by transferring the
operations of the mixed loading dock to Antle, Inc., in 1961 does not alter the Re-
spondents' obligation to recognize and to bargain with the Union concerning the
employees at the mixed vegetable loading dock. In fact, since the change was
19I received the impression that Hobbs and Robert Antle, in testifying concerning rates
of pay, were holding back lust enough information to induce a misconception of the true
facts.
20Robert Antle did testify that, after looking at the Teamsters' proffered contract, he
remarked to Hobbs that it looked all right except for the combination jobs. He neverthe-
less testified that he considered himself bound by the proffered contract, and there was no
evidence that the work or pay at the mixed loading dock was considered by the Teamsters
or the Respondents as in violation of the Teamsters' contract.
22 Carter Machine and Tool Co., 133 NLRB 247
BUD'S COOLING CORPORATION AND BUD ANTLE, INC. 605
effected without notice to the Union, it gives the appearance of bad faith.22 For the
purposes of effectuating the policies of the Act, the two companies, having inter-
locking directors and stockholders and the same officers, constitute one employer 23
I find it unnecessary, therefore to consider whether or not the Respondents' motiva-
tion actually was, in part at least, to relieve Cooling from financial loss incurred in
the operations of loading the mixed vegetables of Antle, Inc., as the Respondents
contended. Since all the benefits accrued to the same interests, no real loss occurred.
If any loss was debited to Cooling, it was merely a bookkeeping loss which could
have been avoided by having Cooling charge Antle, Inc., for the actual cost of
operating the mixed loading dock the same as Antle, Inc., did in charging Cooling
for the services performed by the office manager and bookkeeping employees.
By failing to give the Union advance notice of intent to transfer operations from
Cooling to Antle, Inc., in June 1961, and to permit the Union to consider and bargain
with respect to the effect thereof on the employees in the appropriate unit, as well as
by other acts heretofore mentioned, the Respondents have further violated Section
8(a)(5) and (1) of theAct24
B. Assistance to Teamsters
During May 1960, Antle, Inc, negotiated a contract with the Teamsters. Present
at the negotiations for Antle, Inc., were Hobbs (vice president of both Antle, Inc.,
and Cooling, but general manager of Antle, Inc ), Robert Antle (treasurer and
assistant secretary of both corporations, but general manager of Cooling), and
Lester (Bud) Antle, president of both corporations.25 The Teamsters' representa-
tives were Glen Wilkerson, business representative, and William Kenyon, secretary
and treasurer. These negotiations were concerned with a contract for the harvesting
and field processing workers, but the negotiators discussed and agreed during these
meetings that the mixed loading dock would be operated in 1961 under contract
with the Teamsters, although, at this time, no employees had yet been hired to work
there that season. For one who was present at such negotiations for the company
of which he was manager, Hobbs displayed a singular lack of information. Hobbs
knew, for example, that the agreement with the Teamsters covering the mixed load-
ing dock was later reduced to writing but he testified that he did not know who did
this. He knew only that the written agreement was not signed by the Respondents.
Robert Antle apparently was better informed, for he testified that the Teamsters
were to "prepare" it. This is in contrast to the negotiations with the Union in 1960
and the preparation of the contract by the Respondents' attorney.
The Cooler operations in Salinas began about May 8, 1961,28 while those at the
mixed loading dock began on about June 23 or 24, 1961. At least four of the five
employees who were employed at that loading dock at the outset in 1961 had been
employed by Cooling at the cooler before they went to the mixed loading dock.
Those who worked at the cooler from May 8 to June 23, 1961, may be presumed
to have been members of the Union that year because of the union-shop clause in the
1960 contract. Of the five employees, four had worked at the mixed loading dock in
1960. All these had been members of the Union in 1960, and all had paid their
quarterly dues to the Union at least until July 1, 1961. Some paid dues to the Union
for a longer period of time in 1961, despite their required membership in the
Teamsters after July 1, 1961, presumably in the expectation of working again in
1961 at the cooler plant, where the Union was still recognized as bargaining agent.
One man, who worked at both the cooler plant and the mixed vegetable loading
dock during the 1961 season, paid his dues to the Union throughout the year. It
does not appear whether or not he also paid dues to the Teamsters.
Floyd Head, a member of the Union who was working at the cooler in 1961,
before going to the mixed loading dock, had been a member of the Teamsters for
19 years, although not at the Respondents' Salinas plant and not as an active member
in all those years. Apparently, he was on inactive status on withdrawal card before
u C & D Coal Company, 93 NLRB 799
28Esgro Inc. and E8gro Valley Inc, 135 NLRB 285; International Powder Metallurgy
Company, Inc, 134 NLRB 1605; Aluminum Tubular Corporation and American Flagpole
Equipment Co., Inc., 130 NLRB 1306; Royal Oak Tool & Machine Company and RO Manu-
facturing Company, et al., 132 NLRB 1361
u Rapid Bindery, Inc. and Frontier Bindery Corporation, 127 NLRB 212.
25 Hobbs testified at one point that he and Attorney Abramson were the ones who
negotiated contracts for Antle, Inc., while Robert Antle and Abramson negotiated for
Cooling. Abramson was not mentioned, however, as having been present at the Teamsters'
contract negotiations
se The date is based on the testimony of Floyd Head.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 23, 1961. Others who started the season at the mixed-loading dock also
had withdrawal cards from the Teamsters or a related local. Head, expecting to
work at the cooler plant again in 1961, paid dues to the Union during the third
quarter, as well as the second quarter, of 1961, although after July 1, 1961, he paid
dues to the Teamsters . I give the withdrawal status of these employees no value
for the purpose of giving the Teamsters any claim to representation.
Antle, Inc., appointed Head as foreman of the mixed vegetable loading dock in
1961. As such, Head hired the employees for that dock; at ]cast he hired those
starting after the opening day. A day or two before the season started at the mixed
loading dock, Hobbs told Head that Antle, Inc., had a contract with the Teamsters
and that that dock would be operated in accordance with that contract. Head was
told that the wage scale would be similar to all other contracts in the produce indus-
try and that when he hired men he should tell them only that it was a union job
and that they would receive the union scale.
On the first day of the 1961 operations at the mixed loading dock, Wilkerson
appeared at the shed and procured signed authorization cards from three or pos-
sibly four of the employees, including Head.27 While Wilkerson was still speaking
with these employees, Robert and Ken Antle (the latter not being identified except
by name) appeared at the door of the shed and waited a few minutes for Wilkerson
to finish. Wilkerson spoke to the Antles for 4 or 5 minutes on his way out, saying,
according to his testimony, that it looked like "we were going to have to work out
some kind of agreement "
A few days later, according to Wilkerson, he and Kenyon went to the office of
Antle, Inc., and discussed a contract with Hobbs and, when Robert Antle was in
the room, with him also. Wilkerson testified that he told Hobbs and Antle that
the Teamsters represented "their people." However, when asked if he again in-
formed them that the Teamsters "represented employees at ,the mixed loading dock,"
Wilkerson answered, "To be honest with you, they never asked; I never told them,
no. I did not." Since recognition was given before any employees had been hired
at the mixed loading dock, it is obvious that representation at a later date was un-
important. It is therefore not necessary to figure out whether or not the last
answer of Wilkerson contradicted his prior testimony. From the Respondents' plant,
Wilkerson testified, he and Kenyon returned to their office. Kenyon told Wilker-
son that he would "piece together" a contract for Antle, Inc Kenyon later handed
Wilkerson a contract, and Wilkerson took this document to the office of Antle, Inc.,
and left it with a receptionist with the request that she pass it on to Hobbs or Robert
Antle.28 The date of this delivery was not established. The document, however,
is in evidence It consists of what appears to be a standard contract between the
Teamsters jointly with a sister local and an unidentified employer or employers for
a term running from April 1, 1960, to July 15, 1962, with an automatic renewal
clause.29 The recognition clause states that the Teamsters is recognized as the
representative for collective-bargaining purposes "of all employees performing duties
that come within the classifications set forth" in a subsequent section The listed
classifications and rates of pay therefor are identical to the Union's 1960 contract,
with the exceptions that (1) the Teamsters' contract omits the classification of cooler
operator and (2) it lists "push back" as a classification, whereas the push back is
not a separate classification under the Union's contract but is treated by the Union
as in the classification of "dock help," a classification included in both contracts
Under the Teamsters' proposed contract the rate for push back and dock help is
the same. The Teamsters' proposed contract also contained a union-shop clause
requiring membership within 30 days after employment. This document was cov-
ered by a memorandum form of agreement on a Teamsters' letterhead. This memo-
21 None of the men who signed authorization cards that day ever paid iniliation fees
In view of the testimony that some of the men were members of the Teamsters or a re-
lated local who were on withdrawal status, this fact would suggest that all those who
were signed up on the first day had that status Although this suggests that the Re-
spondents might have selected for first employment employees having such inactive status
in the Teamsters in order to give the Teamsters more color of claim to represent the
employees , I find the evidence insufficiently strong to warrant such a finding
28Wilkerson testified that he did not see this contract I give no weight, therefore, to
his testimony that the Respondents were not paying the rates called for thereunder-
that "they were paying piece rates," especially since the contract provides that carloaders
and setoff men were to be paid on a piece-rate basis.
29 The heading of this agreement was obliterated by typewriter except for the initial
letter "V" and the word "Agreement "
BUD'S COOLING CORPORATION AND BUD ANTLE, INC. 607
randum was dated June 23, 1961, and was signed by Kenyon. The place for signa-
ture of Antle, Inc., remained blank. This memorandum stated in part that
Effective this 23rd day of June, 1961, Bud Antle, Inc., recognizes the General
Teamsters, Warehousemen and Helpers Union Local 890 as the exclusive bar-
gaining agency . . . for all of its employees working in the Liquid Ice shed
located on Airport Boulevard, Salinas, California.
The memorandum then stated that the attached agreement would be placed in full
force. Hobbs and Antle, although testifying that, on advice of counsel, they had
not signed the Teamsters' contract, both testified that they considered themselves
bound by the agreement. The terms of the Teamsters' contract were complied with
during 1961 by Antle, Inc.
The complaint alleges assistance to the Teamsters (1) in the recognition of the
Teamsters by Antle, Inc., since about June 24, 1961, and in the latter's entering
into an oral contract with the Teamsters covering employees already covered by
the Union's contract and (2) permitting the Teamsters to enter upon its mixed load-
ing dock at Salinas to solicit members during working hours and at a time when said
employees were members of the Union and were covered by the terms of the Union's
contract.
The Respondents' defense was that the employees at the mixed loading dock were
not covered by the Union's contract and so the Respondents were free to enter into
a contract with the Teamsters concerning them; also that the Respondents had not
denied the Union the privilege 'of entering upon the Respondents' premises to collect
dues and therefore the Respondents were merely according the same privilege to
the Teamsters. I have heretofore considered the first-mentioned defense and found
that the employees at the mixed loading dock were covered by the Union's contract.
But even if they were not, the Respondents very patently assisted the Teamsters by
agreeing with the Teamsters to operate under the latter's contract before the season
opened and before any employees had been hired at the mixed loading dock or been
assigned from the cooler to work there, and while another union was claiming to
represent employees having seniority rights to work there.30 Even if the Teamsters
did not have a signed contract before the season began, the Respondents had com-
mitted themselves by oral agreement to operate the mixed loading dock as a
Teamsters' job. This is evident not merely from the May negotiations with the
Teamsters but from the fact that Hobbs told the prospective dock foreman, before
any men began working at the mixed loading dock, that Antle, Inc., had a contract
with the Teamsters and that the mixed loading dock would be operated in accord-
ance therewith.
The Respondents' knowledge and consent to Wilkerson's "solicitation" 31 of the
dock employees is merely further evidence of assistance. Because of his foreknowl-
edge, Robert Antle certainly knew why Wilkerson was present at the dock when
he saw and spoke with him there on the opening day of the 1961 season. Whether
or not the Respondents would have permitted Wilkerson, during working hours, to
solicit membership for the Teamsters had there been no other union representing
the employees is beside the point. It is likewise beside the point that the Union,
.as the recognized contract representative of the employees at the cooler, was per-
mitted to collect dues on the plant premises. A comparison of the two situations is
not apt. The Respondents knew or are charged with knowledge of the fact that,
even if no other union were claiming representation, they could not legally rec-
ognize the Teamsters, as they did, unless the Teamsters had first received authoriza-
tions from a majority of the employees in the bargaining unit. Their recognition,
alone, was assistance. But the assistance is even greater when ,the Respondents per-
mitted the employees to be solicited by the Teamsters although they were already
represented by another labor organization to the knowledge of the Respondents,
Hence, permitting Wilkerson to sign up employees at the dock on the opening day
30 If the Respondents could , contrary to my findings herein, have doubted before May
1961 that the Union claimed to represent the employees at the mixed loading dock, they
should have had none after receipt of the Union's letter of May 3, 1961, in which it
asked for a seniority list of employees who had worked during the 1960 season , including
those who worked on the mixed loading dock.
31 There is reason to believe that Wilkerson did more than solicit . When he went to
the dock to sign up the employees , he first spoke with Foreman Head, who had already
been informed that the dock would be operated under contract with the Teamsters.
Wilkerson testified with respect to this conversation , "Well, I put it to him kind of
blunt I told . him I would like to get his people signed up in the Teamsters Union
and w .inted to get applications as of that time."
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(after having illegally recognized the Teamsters) was patently in furtherance of a
design to evade the requirements of the Act by presenting an appearance of legality
by having authorizations dated in advance of the date of a written contract (although
long after the date of recognition) and thus to assist the formation of the Teamsters 32
On all the evidence, therefore, I conclude and find that the Respondents, by rec-
ognizing the Teamsters at a time when they did not represent a majority of the em-
ployees in the appropriate unit, by entering into an oral agreement with the Teamsters
to bind themselves to the terms of the Teamsters' contract for the mixed-loading
dock employees, and by assisting the Teamsters to solicit memberships on the dock
during working hours from employees already represented by another union, have
interfered with the formation of the Teamsters at the mixed loading dock and have
contributed support to it in violation of Section 8(a)(2) and (1) of the Act By
the same conduct, the Respondents have violated Section 8(a)(5) and (1) of the
Act.33
C. Discrimination in refusal to hire Redmon
George Redmon was hired by Cooling at the mixed loading dock on July 5, 1960.
On or about July 20 of that year he joined the Union and paid dues to it regularly.
He understood that he was covered by the Union's contract.34 He started in the
classification of floor help, the lowest paid. One day when Redmon telephoned the
foreman of the dock to learn what time to report, the foreman told Redmon that he
was to work at the vacuum-cooler plant that day. Redmon reported there and
worked as a push back. A push back is in the classification of dock help and he
receives 5 cents an hour more than floor help. After his first day at the vacuum-
cooler plant, Redmon did setoff work, a piece-rate job, for about a week or so. The
setoff job was a still better paying job. Then Redmon returned to the mixed load-
ing dock and apparently went back to his original classification. About 3 or 4 weeks
after he returned to this dock, he became a setoff man and held that job until Jan-
uary 1961, the end of the season. Twice during the 1960 season Redmon spoke
to the foreman about the fact that his paychecks were short. The foreman said
he would look into the matter. When Redmon got no further word, he spoke to
Maples, who said he would look into the matter. On November 2, 1960, Redmon
received a check for extra pay.
By virtue of his work in 1960, Redmon was entitled, under the Union's contract,
to certain seniority rights entitling him to reemployment during the 1961 season.
In May 1961, Redmon procured from the Union a blank form for claiming seniority
and reemployment on the dock. He filled such form out in duplicate, dating it May
17, 1961, and leaving one with the Union and delivering the other to the head of
the Respondents' payroll office 35 In the form, Redmon stated his intention to as-
sert his seniority as "flunky-set off." I find that his partial misdescription of his
former jobs was not an element in his failure to get employment. The form was
filled in with Redmon's address and telephone number so that the Respondents could
notify him of the approximate starting date. He received no notice from the
Respondents.
On three or four occasions between late June or the first of July and mid-August,
Redmon went to the dock and spoke with Head about employment. On the first
occasion, Redmon testified, Head said that he would be hiring only those being
sent over from the office. Head testified that he did not think he told Redmon
this. In view of Head's own testimony, I find probability in Redmon's testimony
for, when asked how he contacted people when he needed them, Head testified,
"They come out ,there. They would say to me, 'I hear you need somebody.' " This
indication of knowledge that work was available suggests, when taken with other
evidence, that men were being directed to Head for hiring.36 I credit Redmon's
83 Since the full complement of employees at the mixed loading dock at the height of
the season was about 15 men, 3 nonsupervisory employees signed up on the opening day
would furnish a questionable majority, in any event
38 A. IV. Silver, et at, 47 NLRB 49.
84 That the Respondents apparently thought so, too, is evident from the fact that they
paid Redmon 1 week's vacation pay at the end of that season
8e This form was addressed by Redmon to Bud, Inc Counsel for the Respondents
objected that this was not a proper address Since the form was delivered in person,
and since I have found that, for the purposes of this case, the Respondents were one
employer, the misnomer was of no importance
a6 For example, the day before Head was to lose a man who was going into service,
Don Wilkerson, a relative of Glen Wilkerson, the Teamsters' business agent, appeared
and spoke with Head and was told to come to work the next day. Head testified that he
BUD'S COOLING CORPORATION AND BUD ANTLE, INC. 609
testimony. Redmon did not, however, go to the office to see if he could be di-
rected to Head. On Redmon's second visit to Head, in mid-July, Head informed
Redmon, upon the latter's inquiry if his seniority from 1960 did not apply to his
geuting work, that there was no seniority from 1960 because the dock was now under
a Teamsters' contract. Each time that Redmon inquired about work, Head told
him he did not need anyone. After mid-August, Redmon ceased to make any
further inquiries.
There is evidence that men were hired by Head, in intervals between inquiries by
Redmon, although they had not worked at the dock in 1960. Although there is
ground for suspicion that these men might have been selected for employment either
by the Respondents' office or by the 7 eamsters, the evidence does not suffice as a
basis for a finding of fact. As these men were hired, Wilkerson signed them up
for the Teamsters, he testified. Head testified that the only reason he did not hire
Redmon in 1961 was because Redmon was not present when he needed a man and
that the men he hired just happened to be present when he needed someone. At
some time during the 1961 season after July 1, Head apparently hired Don Shaffer,
for Redmon saw Shaffer working there the second time he applied for work. Shaffer
had worked on the mixed loading dock in 1960. There is no evidence that he was
a member of the Teamsters before he was hired in 1961. Between May 25 and
August 25, 1961, within which time Redmon was applying to Head for work at the
mixed loading dock, Redmon was working at another vacuum-cooler company,
where he was becoming a member of the Teamsters; that is, he was paying on his
initiation fee. He testified that he applied to Head for work because he thought
he could earn more at Antle, Inc., than he was then making.
It is the General Counsel's contention that Redmon was denied employment be-
cause he followed the provisions of the Union's 1960 contract and because he
relied on the Union as his representative. In his brief, he states, "Although several
employees who were employed at the dock in 1961 had acquired seniority during
the prior season, so far as the record shows none of them resorted to the Cooler
Contract provisions in order to secure their jobs under the right of recall therein
provided, nor did any of them rely on the Union as their representative." Lack of
evidence in such a case does not justify a conclusion either way-either that the
men hired had or had not filed seniority claims. If the General Counsel seeks to
establish discrimination on the ground of differences in the extent of reliance on
the Union or on seniority forms, it was up to the General Counsel to prove that
others than Redmon, in fact did not rely on the Union or file such forms. Although
there is some reason to suspect that the Respondents were irritated by a double claim
for backpay by Redmon's uncle (who worked at the mixed loading dock in 1960
and who apparently filed a seniority form like Redmon did, and who was present
with Redmon at the Union's offices when Redmon was complaining of inability
to get work with the Respondents in 1961, which complaint resulted in the tele-
phone conversation between Menezes and Robert Antle) and that they might have
decided that if they hired one they might have to hire both, such suspicion cannot
be given the status of evidence. At least two other employees, besides Redmon and
his uncle, had filed claims for extra pay in 1960 and had also received checks there-
for, yet both of these were employed in 1961. Furthermore, Redmon was join-
ing the Teamsters at another plant where he was working in 1961. I conclude that
Redmon's failure to get employment at the mixed loading dock in 1961 was not
because of his union membership or activity; it was rather because the Respondents
failed to honor the seniority provisions of the Union's contract Under the circum-
stances, I find that the evidence falls short of proving any discrimination in viola-
tion of Section 8(a) (3) of the Act, but it does further evidence a refusal to bargain
with the Union and an interference with the rights guaranteed in Section 7 of the
Act in violation of Section 8(a) (9) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, to the extent
that they have been found to constitute unfair labor practices, occurring in connection
with the operations of the Respondents described in section 1, 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.
did not then know that the man was a relative of the Teamsters' business agent, but the
new employee's opportune appearance suggests that he was directed to Head at that time
by the Union or by the Respondents
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Since I have found that the Respondents have engaged in unfair labor practices,
I shall recommend that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
I have found that the Respondents refused to recognize or to bargain with the
Union as the chosen representative of Respondents' employees at the mixed loading
dock in Salinas. In order to effectuate the policies of the Act, it will be necessary
to restore conditions as closely as possible to those which prevailed before the
commission of the unfair labor practices. Since the agreement with the Union was
to run until April 1, 1962, and from year to year thereafter if not terminated at that
time in accordance with the terms of the contract, I shall recommend that the
Respondents reinstate such contract with respect to the separate mixed loading dock
in Salinas, California, and if said contract has, with respect to the other employees
covered by the contract, been renewed automatically or by mutual agreement, for
another year, that the Respondents acknowledge the coverage of the employees at
the mixed loading dock by such renewed contract.37 If, by compliance with the
provisions of the contract, either party has given notice of intent not to renew
after April 1, 1962, 1 shall recommend that the Respondents, upon request, bargain
collectively with the Union as the exclusive representative of the employees in the
unit covered by the said contract as heretofore found appropriate, and, if an under-
standing is reached, embody such understanding in a signed agreement.
In order to dissipate the effects of the Respondents' unlawful assistance to the
Teamsters, I shall recommend that they withdraw and withhold recognition from
the Teamsters as the representative of the Respondents' employees at their Salinas
mixed loading dock until such time, if ever, as the Teamsters is able to prove its
majority representation in a duly conducted Board election. I shall further recom-
mend that the Respondents rescind their oral contract with the Teamsters.
I have found that the failure of the Respondents to acknowledge receipt of
Redmon's seniority notice or to honor the Union's contract with respect to hiring
rights of employees having seniority rights was a violation of Section 8(a)(5) and
(1) of the Act. This was a proximate cause of Redmon's failure to get employment
at the mixed loading dock in 1961. Whether or not the Respondents violated Section
8(a) (3) of the Act, then, Redmon's failure to receive employment at the Respond-
ents' mixed loading dock is attributable to the Respondents' other unfair labor
practices. Accordingly, a remedy as to Redmon is required to effectuate the policies
of the Act.38 I shall therefore recommend that the Respondents make Redmon
whole for any loss he may have suffered as a result of the unfair labor practices by
paying to him an amount equal to that which he would have earned at the Respond-
ents' Salinas mixed loading dock during the 1961 season,39 less his net earnings else-
where during said period, such backpay to be computed in accordance with the
formula established in F. W Woolworth Company, 90 NLRB 289. 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. The Respondents, jointly and severally, are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondents, jointly and severally, constitute an employer within the mean-
ing of Section 2(2) of the Act.
3. The Union and the Teamsters are labor organizations within the meaning of
Section 2(5) of the Act
4 All plant employees of Cooling (or its successor or assign) engaged in handling
commodities at its plants in Salinas, Watsonville, El Centro, and Holtville, California,
and Hereford, Texas, including mixed loading dock employees in those cities, but
exclusive of guards, professional employees, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act
5 At all times since June 30, 1960, the Union has been, and now is, the exclusive
representative of all the employees in the appropriate unit described in paragraph 4,
^ Carter Machine and Tool Co , 133 NLRB 247.
Is The remedy of backpay may be afforded for unfair labor practices under sections of
the Act other than S(a) (3) Bettei Dfonkeio Grip Company, 115 NLRB 1170, enfd 243
F 2d 836 (CA 5) . Oregon Teamsters' Security Plan Office, et at , 119 NLRB 207;
Seri ette, lee, 134 NLRB 132
The exact date when Redmon would , in the order of seniority have been hired in
1961 , is not clearly fixed in the record , but the date should be readily ascertainable In the
compliance stages of these proceedings.
BUD'S COOLING CORPORATION AND BUD ANTLE, INC. 611
above, for the purposes of collective bargaining within the meaning of Section 9(a)
of the Act.
6. Since May 3, 1961, the Respondents, by refusing to bargain collectively with
the Union as the representative of their employees within that portion of the appro-
priate unit known as the mixed loading dock, in Salinas, California, have engaged
in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act.
7. By interfering with the formation of the Teamsters at the mixed loading dock
and by contributing support to that labor organization, the Respondents have engaged
in unfair labor practices within the meaning of Section 8(a) (2) and (1) of the Act.
8. The foregoing unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
9. The Respondents have not engaged in unfair labor practices affecting com-
merce within the meaning of Section 8 (a) (3) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in the case, I recommend that the Respondents, Bud's Cooling Corporation
and Bud Antle, Inc., their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize or to bargain collectively with Local 78, United Packing-
house, Food and Allied Workers, AFL-CIO, as the exclusive representative of all
employees in the appropriate unit described above.
(b) Interfering with the formation of the Teamsters or any other labor organiza-
tion or contributing support thereto.
(c) Recognizing the Teamsters as the collective-bargaining representative of their
employees at the mixed loading dock in Salinas, California, or giving effect to any
collective-bargaining contract therewith unless and until it shall have demonstrated
its majority in an election duly conducted by the Board pursuant to the provisions
of the Act.
(d) In any other like or related manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of collec-
tive 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 re-
quiring membership in a labor organization as a condition of employment as au-
thorized in Section 8(a) (3) of the Act.
2 Take the following affirmative action which I find will effectuate the policies
of the Act.
(a) Withdraw and withhold recognition of the Teamsters as the collective-
bargaining agent of the Respondents' employees at the Salinas, California, mixed
loading dock and so notify the Teamsters in writing.
(b) Reinstate in full force and effect the 1960 contract with the Union with
respect to the mixed loading dock employees, including any automatic annual
renewal thereof if neither party on or before February 1, 1962, gave notice of
termination of the contract as of April 1, 1962, in accordance with its terms, but
if such notice was given by either party, then, upon request, bargain collectively
with the Union, as the exclusive representative of all the employees in the unit
herein found appropriate, concerning wages, hours, and working conditions, and,
if an understanding is reached, embody such understanding in a signed agreement.
(c) Make whole George Redmon in the manner set forth in the section herein
above entitled "The Remedy."
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze
the amount of backpay due and other benefits and rights of employment provided
for under the terms of the contract which may be due under the terms of this
Recommended Order.
(e) Post at the mixed loading dock of Respondents in-Salinas, California, copies
of the notice attached hereto marked "Appendix." 40 Copies of such notice, to be
40 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order"
662353-63-vol. 13 8-4 0
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
furnished by the Regional Director for the Twentieth Region, shall, after having
been duly signed by an authorized representative of the Respondents, be posted
immediately upon receipt thereof, and be maintained by them for a period of 60
consecutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by the
Respondents to insure that such notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director, in writing, within 20 days from the date of
service of this Intermediate Report and Recommended Order, what steps the
Respondents have taken to comply herewith?'
It is recommended that the complaint be dismissed insofar as it alleges a violation
of Section 8(a) (3) of the Act.
'i In the event that this Recommended Order be adopted by the Board this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we notify our employees that:
WE WILL withdraw and withhold recognition from General Teamsters, Ware-
housemen and Helpers Union Local 890, as the collective-bargaining agent
for our employees at the mixed loading dock in Salinas , California, and we will
refrain from recognizing said labor organization as such representative unless
and until it has demonstrated in an election conducted by the National Labor
Relations Board that it is the chosen representative of such employees.
WE WILL recognize Local 78, United Packinghouse, Food and Allied Workers,
AFL-CIO, as the collective-bargaining agent for all employees in the unit found
appropriate for the purposes of collective bargaining concerning wages, hours,
and working conditions . We will reinstate in full force and effect our 1960 con-
tract with said Local 78, United Packinghouse, Food and Allied Workers,
AFL-CIO, to cover employees of our mixed loading dock in Salinas , California,
and if said contract be not automatically renewed, we will, upon request, bargain
with said Union as the exclusive collective-bargaining representative of all
employees in the appropriate unit, and, if an understanding is reached, we will
embody such understanding in a signed writing. The appropriate unit is:
All plant employees of Bud's Cooling Corporation, or its successors or
assigns, engaged in handling commodities at its plants i n Salinas, Watson-
ville, El Centro, and Holtville, California, and Hereford, Texas, including
mixed loading dock employees in those cities, but exclusive of guards,
professional employees, and supervisors as defined in the Act.
WE WILL make whole George Redmon for any loss he may have suffered
as a result of our withholding seniority rights earned under our contract with
Local 78, United Packinghouse, Food and Allied Workers, AFL-CIO, during
the 1960 season, and our failure to give him employment during the 1961
season based on such seniority.
WE WILL NOT engage in any like or related acts or conduct interfering with,
restraining, or coercing our employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist Local 78, United
Packinghouse, Food and Allied Workers, AFL-CIO, or any other labor organi-
zation, 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 by Section 7 of the Act, or to
refrain from any and all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3) of the
Act.
KEENER RUBBER, INC. 613
All our employees are free to become or remain , or to refrain from becoming or
remaining , members of the above-named Union, or any other labor organization.
BUD'S COOLING CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
BUD ANTLE, INC.,
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.
Employees may communicate directly with the Board 's Regional Office, 830
Market Street, San Francisco 2, California , Telephone Number , Yukon 6-3500,
Extension 3193, if they have any question concerning this notice or compliance with
its provisions.
Keener Rubber , Inc. and Lodge 2222, International Association
of Machinists, AFL-CIO. Case No. 8-CA-2748. September 17,
1962
DECISION AND ORDER
On June 25, 1962, Trial Examiner A. Norman Somers 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 certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
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 Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
INTERMEDIATE REPORT AND RECOMMENDED ORDER i
STATEMENT AND FINDINGS
On March 8, 1962, the Board, in Case No. 8-RC-4276, on the basis of the results
of a consent election duly conducted on May 26, 1961, certified the Charging Party,
which was the petlitoner in said proceeding, as the exclusive bargaining representa-
'Procedural chronology: charge filed March 16, 1962; complaint Issued May 2, 1962;
and hearing thereon held in Alliance, Ohio, on June 18, 1962
138 NLRB No. 77.