California Prune and Apricot Growers Association

National Labor Relations Board - Board Decisions

Sep 14, 1940

27 N.L.R.B. 204 (N.L.R.B. 1940)

In the Matter of CALIFORNIA PRUNE AND APRICOT GROWERS ASSOCIATION
and INTERNATIONAL LONGSIIOREDIEN'S AND WAREHOUSEMEN'S UNION,
LOCAL 1-6
Case No. C-1636.-Decided September 14, 1940
Jurisdiction : dried fruit processing and packing industry.
Unfair Labor Practices
Discrimination: discharge, charges of, dismissed
Although an employee refused to join a labor organization which company
had assisted in organizing, held there was no justification for an inference
that his discharge two years later was occasioned by his union activity where
circumstances show reasonable conviction by respondent that be was deficient
in his work.
Practice and Procedure : complaint dismissed
Mr. John Paul Jennings , for the Board.
Mr. 1V. V. Jaclea , of San Jose, ,Calif., and Hagar, Crosby c6 Crosby,
by Mr . Gerald H. Hagar, of Oakland, Calif ., for the respondent.
Gladstein , Grossrzan, Margolis c6 Sawyer , of San Francisco , Calif.,
for the I. L. W. U.
Mr. Raymond J. Compton, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International Long-
shoremen's and Warehousemen's Union, Local 1-6, herein called the
I. L. W. U., the National Labor Relations Board, herein called the
Board, by the Regional Director for the Twentieth Region (San Fran-
cisco, California), issued its complaint dated March 6, 1940, against
California Prune and Apricot Growers Association, San Jose, Cali-
fornia, the respondent herein, 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 Relations Act, 49 Stat. 449, herein called
the Act. The complaint alleged in substance (1) that the respondent,
on September 9, 1939,' discharged and thereafter refused to reinstate
27 N. L. R: B., No. 45.
204
CALIFORNIA PRUNE AND APRICOT GROWERS ASSN. 205
D. R. Cooper, and since July 1939 refused to reinstate or employ Sally
Giotta, because of their membership in and activity on behalf of the
1. L. W. U., and (2) that by the foregoing acts, by urging, persuading,
and warning its employees to refrain from becoming or remaining
members of, or from assisting or. participating in, the I. L. W. U., and
by other acts, the respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
Copies of the complaint and notice of hearing were duly served upon-
the respondent and upon the I. L. W. U. Thereafter the respondent
filed a written answer to the complaint, dated March 16, 1940, admit-
ting the allegations of the complaint pertaining to its business but
denying that it had engaged in the unfair labor practices alleged
therein.
Pursuant to notice and notice of postponement, a hearing was held
in San Jose, California, from March 27 through March 29, 1940, before
Henry J. Kent, the Trial Examiner duly designated by the Board.
The Board and the respondent were represented by counsel, partici-
pated in the hearing, and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues. During the course , of the hearing, the Trial
Examiner granted a motion by counsel for the Board to dismiss the
allegations of the complaint in so far as it alleged that the respondent
had discriminatorily refused to reinstate or employ Sally Giotta and
that the respondent had urged, persuaded, and warned its employees
to refrain from becoming or remaining members of the I. L. W. U. At
the close of the hearing, the respondent moved to strike the testimony
of Earl T. Baker, pertaining to alleged assistance granted by the
respondent in the, organization of another union in its plant, and
further moved that the complaint be dismissed for failure of proof
to sustain the allegations therein. The Trial Examiner reserved rul-
ings on these motions for his Intermediate Report. A motion by coun-
sel for the Board to amend the complaint to conform to the proof with
respect to variances in names, dates, and other clerical errors, was
granted by the Trial Examiner. During the course of the hearing
the Trial Examiner ruled upon other motions and upon objections to
the admission of evidence. The Board has reviewed the rulings of
the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
The Trial Examiner thereafter filed his Intermediate Report, dated'
July 12,1940, copies of which were duly served on the parties, in which
he found that the respondent had not engaged in unfair labor practices
within the meaning of Section 8 (1) and (3) and Section 2, (6) and (7)
of the Act, and granted the aforesaid motion of the respondent to
. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dismiss the complaint. The Trial Examiner denied the motion made
by the respondent to strike the testimony of Earl T. Baker. There-
after the respondent and the Union filed exceptions to the Intermediate
Report. The Union also filed a brief which the Board has considered.
The Board has considered the exceptions to the Intermediate Report
and, in so far as they are inconsistent with the findings, conclusions,
and order set forth below, finds them to be without merit. .
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a California corporation engaged in the processing,
packing, warehousing, sale and distribution of dried fruits and fruit
products. Its principal office and place of business is located at San
Jose, California, where it operates 5 plants, Nos. 6, 10, 11, 17, and 70.
Four other plants of the respondent are located at Campbell, Morgan
Hill, Gilroy, and Hollister, California.
During 1938, the respondent processed, packed, and sold approxi-
mately 95,000 tons of fruit and fruit products valued at approximately
$9,500,000, of which 90 per cent 'i as shipped to points outside the State
of California.
The respondent stipulated that it is engaged in commerce within the
meaning of the Act.
IT. THE ORGANIZATION INVOLVED
International Longshoremen's and Warehousemen's Union, Local
1-6, is a labor organization affiliated with the Congress of Industrial
Organizations, admitting to membership employees of the respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background of labor relations
In August 1937, Local 21084, Dried Fruit and Nut Packers Union,
affiliated, with the American Federation of Labor, herein called Local
21084, organized the respondent's employees, and in 1937' and 1938
entered into collective bargaining contracts with the respondent. On
April 20, 1939, the membership of Local 21084 voted 321 to 128 in
favor of affiliating with the I. L. W. U. Thereafter, the I. L. W. U.
_sought recognition by the respondent as the bargaining representative
of its employees, and on Jime 20, 1939, filed charges with the Board
alleging that the respondent had refused to bargain collectively and
that it had interfered with and assisted in the organization and admin-
CALIFORNIA PRUNE AND APRICOT GROWERS ASSN. 207
istration of Local 21084 with which it was continuing to negotiate.
These charges were still pending at the time of the hearing in the
instant case."
B. The alleged disc' iinninatory discharge
D. R. Cooper was first employed by the respondent in 1931, quitting
the following year to work elsewhere. _ He returned to San Jose
in 1934 and was again employed by the respondent at plant No. 6 where
he worked until his discharge on September 9, 1939. Cooper was
employed as a maintenance nman, and he and Thomas Whiteman, who
was similarly employed, on the other shift, were responsible for the
general maintenance and repair of the plant. While it appears that
Whiteman assumed most of the electrical work, Cooper testified that
there was no differentiation between Whiteman's duties and his own
in so far as electrical work was concerned, and that-he had been
charged generally by Robert Atkinson, plant superintendent, with
the maintenance and repair of all plant machinery and equipment.
Cooper joined Local 21084 when it was first organized in 1937. He
testified that he did so only because Al Cariega, a fellow employee
who was soliciting memberships in Local 21084, told him that Kluge,
assistant general manager of the respondent, wanted all employees
to join, and that if he did not join, he would lose his job. Cooper
also testified that on two occasions after becoming a member of Local
21084 he had expressed to Atkinson his belief that Local 21084 was
a "company union." He was among those voting on April 20, 1939,
for the affiliation of Local 21084 with the I. L. W. U., and together with
other employees signed a petition authorizing the I. L. W. U. to act
as their collective bargaining agent. Whiteman also joined the
1. L. W. U. and both he and Cooper openly wore union buttons at the
plant. They both testified that they saw no other employees wearing
buttons while at work. Atkinson, however, testified that following
the affiliation of Local 21084 with the I. L. W. U. he saw several
_ employees wearing union buttons around the plant. Cooper also
testified that on one occasion while working in, the machine shop he
dropped his union button and that as he was picking it up Atkinson
entered and accused him of loafing.
On September 5, 1939, Cooper came to work at 2 p. in. and found
Whiteman repairing the magnetic brake on the freight elevator.
Whiteman told him that a loose nut from the bottom of the elevator
had fallen into the magnetic brakq coil and had caused a short cir-
I On August 24, 1940, the Board issued its decision in Matter of Abinante R Nola Pack-
ing Co , et at., 26 N L. R 13 1288, wherein it found, inter alia, that the respondent,
California Prune and Apricot (;rowers Association, had wrongfully assisted-in the organi-
zation of Local 21084, but that it had not refused to bargain collectively with the
I L W U
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cuit, burning part of the wiring. Before Whiteman went off duty,
Cooper helped him in 'replacing the repaired coil and adjusting the
brake. Later in the day, the coil again burned out. Cooper reported
to Atkinson that the coil was beyond repair and upon Cooper's advice,
Atkinson sent for a service man from the Otis Elevator Company.
Upon being told by the Otis service man that the coil could not be
repaired, Atkinson ordered_ the installation of a new coil, and the
elevator was again placed in service that same day. The repairs
cost the respondent approximately $125.00.
Whiteman had repaired the coil on February 21, 1939, and had
then advised Atkinson to have it replaced. Atkinson, however, told
'him to repair it and that he would consult Edwin Barker, plant,in-
spector, about purchasing a new one. According to Wjrhiteman, Atkin-
son on that occasion blamed him for the condition of the coil. Atkin-
son testified that an examination of the elevator on September 5, 1939,
revealed that the brake had not been properly oiled and that nuts on
the case housing the magnetic switch were loose. It was also- found
that a motor bearing was hot from lack of oil, a packing-joint was loose
and improperly packed, and the rubber bumpers on the elevator were
so worn as to be unable to function. William Lawry, the Otis service
man, testified that he had told Atkinson that since Cooper and White-
man were not elevator men they should not be held responsible for
the damage.
Atkinson testified that he was away from the plant on September.
7, and did not definitely decide to discharge Cooper and Whiteman
for their neglect of the elevator until Friday, September 8, after he
had made a- survey of the plant that day and found a number of
other repairs which they had failed to make. When Cooper came to
work on September 9, 1939, he found a note from Whiteman on a
board in the machine shop which read, "Well Coop it happened. Will
be over after my tools Monday." Cooper took the note to Atkinson
and asked him what it meant. Atkinson replied that he had dis-
,charged Whiteman and stated, "That means you too." Without asking
Atkinson why he was discharged, Cooper returned to the shop to get
his tools and then left the plant.
Cooper testified that after Lawry, the Otis service man, examined
the elevator on September 5, 1939, he had overheard him say that there
was very little oil in the case housing the magnetic brake coil. Fol-
lowing their discharge, he and Whiteman went to Miller, superintend-
ent of the Otis Elevator Company, and protested that they had been
dismissed on the basis of the report made by Lawry. According to
Cooper, Miller told them they were not responsible for the condition
of the elevator, and that although the oil was "a little bit low" it was
not low enough to cause the damage that had occurred. Cooper ad-
CALIFORNIA PRUNE AND APRICOT GROWERS ASSN. 209
mitted that Miller also told them that the machinery in the elevator'
loft needed a general overhauling, but testified that he was "up. there
every day" and had not discovered any mechanical deficiency.
In view of the foregoing facts, we are convinced, as was the Trial
Examiner, .that Cooper was not discharged because of his member-
ship or activity in the I. L. W. U. While his reluctance in 1937 to join
Local 21084, which the respondent had assisted in organizing, and his
expressed belief at that time that it was a "company union," might sup-
port an inference that the respondent bore some resentment toward
Cooper, such an inference is not justified under the circumstances here
present. There is no showing that Cooper was any more active in the
I. L. W. U. than the substantial number of other employees, who had
joined the I. L. W. U. Moreover, two of the four employees who
were assigned portions of the work formerly done by Cooper and
Whiteman were also members of the I. L. W. U. Although we are
not convinced of the merits of the respondent's contention that Cooper
and Whiteman were responsible for the damage to the elevator which
occurred on September 5, 1939, we believe that the respondent's, con-
viction that he was deficient in his work motivated his discharge.
We find that the respondent has not discriminated in regard to
the hire and tenure of employment of D. R. Cooper, thereby discourag-
ing membership in a labor organization.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLusIONs OF LAw
1. The operations of the respondent occur in commerce, within the
meaning of Section 2 (6) of the Act.
2. International Longshoremen's and Warehousemen's Union, Local
1-6, affiliated with the Congress of Industrial Organizations, is a labor
organization, within the meaning of Section 2 (5) of the Act.
3. The respondent has not discriminated against D. R. Cooper in
regard to hire or tenure of employment or terms or conditions of
employment, within the meaning of Section 8 (3) of the Act.
-4. The respondent has not interfered with, restrained, or coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act, within the meaning of Section 8 (1) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the com-
plaint against the respondent, California Prune and Apricot Growers
Association, San Jose, California, be, and it hereby is , dismissed.
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