Holme & Seifert

National Labor Relations Board - Board Decisions

Jan 19, 1953

102 N.L.R.B. 347 (N.L.R.B. 1953)

HOLME & SEIFERT 347
HOLME & SEIFERT AND GROWER-SHIPPER VEGETABLE ASSOCIATION OF
CENTRAL CALIFORNIA and Roy PARKER
GROWER -SHIPPER VEGETABLE ASSOCIATION OF CENTRAL CALIFORNIA AND
ARENA COMPANY OF SALINAS and EDNA COONEY
UNITED FRESH FRUIT & VEGETABLE WORKERS, LOCAL INDUSTRIAL UNION
No. 78, CIO and EDNA COONEY. Cases Nos. 00-CA-607, 20-CA-608,
and f2O-CB-205. January 19,1953
Decision and Order
On April 3, 1952, Trial Examiner Irving Rogosin issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondents had engaged and were engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter Respondents Grower-
Shipper Vegetable Association of Central California, Holme & Seifert,
and Arena Company of Salinas jointly filed exceptions to the Inter-
mediate Report and a supporting brief. No exceptions were filed by
Respondent Union or by the General Counsel.
The Board I has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and brief, and entire record in the case and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following additions and modifications :
Upon the entire record as a whole, we find, like the Trial Examiner,
that Respondent Arena discharged Cooney on July 3,1951, because of
her membership in F. T. A., thereby violating Section 8 (a) (3) and
(1) of the Act. We find, in addition, that Cooney's discharge on that
date was also motivated in part by Respondent Arena's belief that she
had participated in the packers' strike, which, as the Trial Examiner
found, was a protected activity, and that her discharge, insofar as it
was based on this belief, constituted an independent violation of Sec-
tion 8 (a) (1) of the Act. Whether her discharge be viewed as a
violation of Section 8 (a) (3) or of 8 (a) (1), we find that it will
effectuate the policies of the Act to order Cooney's reinstatement with
back pay.2
1 Pursuant to the provisions of Section 3 (b) of the Act, as amended , the National Labor
Relations Board has delegated its powers in connection with this case to a three-member
panel [ Chairman Herzog and Members Styles and Peterson].
In rejecting Respondent Arena 's contention that Cooney was discharged on July 3
because of her failure to report on June 29 and July 2, the Trial Examiner relied , in part,
on the absence of any evidence that other trimmers were discharged for not reporting
on those days. However, there is no evidence in the record that any of the other trimmers,
102 NLRB No. 48.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Remedy
We have found that the Respondents have violated Section 8 (a)
(3) and 8 (a) (1) of the Act. We shall order the Respondents to cease
and desist from such conduct and shall further order that Respondent
Arena and Respondent Holme & Seifert offer to reinstate Edna
Cooney and Dora Parker, respectively, to their former or substantially
equivalent positions in the manner set forth in section V of the Inter-
mediate Report, entitled "The Remedy." However, as the 1952 lettuce
packing season has ended, such offers of reinstatement shall be made at
the commencement of the 1953 lettuce packing season, instead of the
commencement of the 1952 season as recommended in the Intermediate
Report, section V. In accordance with the foregoing, the make-whole
provisions of section V of the Intermediate Report shall be modified
so that said Respondents will make Edna Cooney and Dora Parker
whole for any loss in pay resulting from the discriminations for the
remainder of the 1951 packing season following their discharges in
July 1951 for the whole of the 1952 season, and for the period running
from the commencement of the 1953 season until offers of reinstatement
are made.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
I. The Respondent, Holme & Seifert, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in any labor organization other than
the Respondent Union, or encouraging membership in the Respondent,
United Fresh Fruit & Vegetable Workers, Local Industrial Union No.
78, CIO, or in any other labor organization of its employees, by dis-
charging, suspending, or laying off any of its employees because of
their membership in any labor organization other than the Respondent
Union, or because of their nonmembership in the Respondent Union,
or by discriminating in any other manner in regard to their hire and
tenure of employment or any term or condition of their employment,
except to the extent permitted by Section 8 (a) (3) of the Act.
(b) In any other manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected by an agree-
in fact, failed so to report . Upon this state of the record , unlike the Trial Examiner, we
attach no significance to the failure of Respondent Arena to show that other trimmers
were discharged at the same time as Cooney for not reporting . Nevertheless, for the
other reasons detailed in the Intermediate Report, we reject Respondent Arena's foregoing
explanation of Cooney 's discharge.
HOLME & SEIFERT 349
ment requiring membership in a labor organization as a condition of
employment, as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer Dora A. Parker full reinstatement to her former or sub-
stantially equivalent position without prejudice to her seniority or
other rights and privileges in the manner set forth in the section en-
titled "The Remedy" in the Intermediate Report and the Decision
herein.
(b) Make the said Dora A. Parker whole for any loss of pay she
may have suffered by reason of the Respondent's discrimination against
her in the manner set forth in the section entitled "The Remedy" in
the Intermediate Report and the Decision herein.
(c) Upon request make available to the Board or its agents for
examination and copying all payroll records, social-security payment
records, timecards, personnel records and reports, and all other records
necessary to analyze and determine the amounts of back pay due and
the right of reinstatement under the terms of this Intermediate Report.
(d) Post copies of the notice attached to the Intermediate Report,
marked "Appendix A," 3 at the offices and shed of the Respondent
Holme & Seifert. Copies of such notice, to be furnished by the
Regional Director for the Twentieth Region, shall, after being duly
signed by the representatives of the Respondent Holme & Seifert, be
posted immediately upon receipt thereof, and maintained by it for
sixty (60) consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by said Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Twentieth Region, in
writing, within ten (10) days from the date of this Order, what steps
said Respondent has taken to comply herewith.
II. The Respondents, Grower-Shipper Vegetable Association of
Central California and Arena Company of Salinas, their respective
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in any labor organization other than
the Respondent Union, or encouraging membership in the Respondent
Union, or in any other labor organization of employees of the Re-
spondent Arena, by discharging, suspending, or laying off any of its
employees because of their membership in a labor organization other
A This notice shall be amended by substituting for the words "The Recommendations of a
Trial Examiner," the words "A Decision and Order ." If this Order is enforced by a decree
of a United States Court of Appeals , there shall be substituted for the words "Pursuant
to a Decision and Order" the words "Pursuant to a Decree of the United States Court of
Appeals Enforcing an Order."
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than the Respondent Union, or nonmembership in the Respondent
Union, or by discriminating in any other manner in regard to their
hire and tenure of employment or any term or condition of their
employment, except to the extent permitted by Section 8 (a) (3) of
the Act.
(b) In any other manner interfering with, restraining, or coercing
employees of the Respondent Arena in the exercise of rights guaran-
teed in Section 7 of the Act, except to the extent that such rights may
be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized by Section 8 (a)
(3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer Edna Cooney full reinstatement to her former or sub-
stantially equivalent position without prejudice to her seniority and
other rights and privileges in the manner set forth in the section en-
titled "The Remedy" in the Intermediate Report and the Decision
herein.
(b) Jointly and severally, with the Respondent Union, make said
Edna Cooney whole for any loss of pay she may have suffered by
reason of the Respondents' discrimination against her in the manner
and to the extent set forth in the section entitled "The Remedy" in
the Intermediate Report and Decision herein.
(c) Upon request make available to the Board or its agents for
examination and copying all payroll records, social-security payment
records, timecards, personnel records and reports, and all other records
necessary to analyze and determine the amount of back pay due and
the right of reinstatement under the terms of this Intermediate Report
and Recommended Order.
(d) Post copies of the notice attached to the Intermediate Report,
marked "Appendix B,"' at the office of the Respondent Association,
and at the offices and shed of the Respondent Arena. Copies of such
notice, to be furnished by the Regional Director for the Twentieth
Region, shall, after being duly signed by the representatives of the
Respondent Association and the Respondent Arena, respectively, be
posted immediately upon receipt thereof, and maintained by each of
them for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by each of said Respondents to insure
that said notices are not altered, defaced, or covered by any other
material.
* This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner " the words "A Decision and Order ." If this Order is enforced by a
decree of a United States Court of Appeals , there shall be substituted for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United
States Court of Appeals , Enforcing an Order."
HOLME & SEIFERT 351
(e) Notify the Regional Director for the Twentieth Region, in
writing, within ten (10) days from the date of this Order, what steps
each of said Respondents has taken to comply herewith.
III. The Respondent, United Fresh Fruit & Vegetable Workers,
Local Industrial Union No. 78, CIO, and its officers, representatives,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Causing or attempting to cause the Respondent Arena, its offi-
cers, agents, successors, and assigns, to discharge, suspend, lay off, or
in any other manner discriminate against employees of the Respondent
Arena in violation of Section 8 (a) (3), except to the extent authorized
by the proviso to said Section 8 (a) (3) of the Act.
(b) Restraining or coercing employees of the Respondent Arena,
its successors or assigns, in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8 (a) (3) of
the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Jointly and severally, with the Respondent Association and
the Respondent Arena, make whole said Edna Cooney for any loss
of pay she may have suffered by reason of the discrimination against
her for the period from April 10 to April 30, 1951, in the manner
and to the extent set forth in section V of the Intermediate Report,
entitled "The Remedy."
(b) Notify the Respondent Arena, in writing, furnishing a copy
to said Cooney, that it does not now and will not in the future object
to the employment of said Edna Cooney, in any position for which
she may be qualified, because of her membership in or adherence to
any labor organization other than the Respondent Union, or because
of her nonmembership in the Respondent Union, except to the extent
permitted by Section 8 (a) (3) of the Act.
(c) Post at its business offices and meeting halls in the Salinas-
Watsonville-Hollister area, and on any bulletin boards or other places
at the shed of the Respondent Arena where notices to union members
are permitted to be posted, copies of the notice attached to the Inter-
mediate Report, marked "Appendix C." 5 Copies of said notice, to
be furnished by the Regional Director for the Twentieth Region, shall,
after being duly signed by an official representative of the Respondent
Union, be posted by the; Respondent Union immediately upon receipt
$ This notice ' shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order ." If this Order is enforced by a decree
of a United States Court of Appeals , there shall be substituted for the words "Pursuant
to a Decision and Order " the words "Pursuant to a Decree of the United States Court of
Appeals, Enforcing an Order."
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof and maintained by it for a period of sixty (60) consecutive
days thereafter in conspicuous places, including all places where no-
tices to its members are customarily posted. Reasonable steps shall
be taken by the Respondent Union to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Mail to the Regional Director for the Twentieth Region signed
copies of the notice attached to the Intermediate Report, marked
"Appendix C," for posting, if the Respondent Arena desires, at the
said Company's offices and shed in Salinas, California, in places
where notices to employees are customarily posted.
(e) Notify the Regional Director for the Twentieth Region, in writ.
ing, within ten (10) days from the date of this Order what steps the
Respondent Union has taken to comply herewith.
IT IS FURTI ER ORDERED that the complaint be dismissed, insofar as
it alleges that the Respondents, or any of them, have otherwise engaged
in unfair labor practices or violated the Act.
Intermediate Report aRd Recommended Order
STATEMENT OF THE CASE
These proceedings are before the Board upon a consolidated complaint issued
on November 5, 1951, by the General Counsel on behalf of the Board, against
Holme & Seifert,' herein called the Respondent H & S. Grower-Shipper Vegetable
Association of Central California, herein called the Respondent Association, Arena
Company of Salinas, herein called the Respondent Arena, and United Fresh
Fruit & Vegetable Workers, Local Industrial Union No. 78, CIO, herein called
the Respondent Union.
The complaint, based upon separate charges or amended charges duly filed and
served, alleges that (1) the Respondent Union has engaged in unfair labor
practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the
National Labor Relations Act (49 Stat. 449), as amended (61 Stat. 136), herein
called the Act, by attempting to cause and causing the Respondent Arena to dis-
criminate against Edna Cooney, in violation of Section 8 (a) (3), by laying her
off or terminating her employment from April 10 to April 30, 1951; (2) the
Respondent Arena and the Respondent Association, in violation of Section 8 (a)
(3) and 8 (a) (1) of the Act, have discriminated in regard to the hire and tenure
of employment of said Cooney, by acceding to the Respondent Union's demand,
and on or about June 28, 1951, discharging her and thereafter refusing to re-
instate her because of her affiliation with or concerted activities on behalf of
another union; and (3) the Respondent H & S and the Respondent Association,
in violation of Section 8 (a) (3) and 8 (a) (1), have discriminated in regard to
the hire and tenure of employment of Dora Parker, by discharging her, on or
about June 28, 1951, and thereafter refusing to reinstate her, because of her
affiliation with or concerted activities on behalf of such union. All said unfair
labor practices are alleged to affect commerce within the meaning of Section
2 (6) and (7) of the Act. Copies of the charges and amended charges, order
consolidating the cases, the complaint, and notice of hearing were duly served on
the respective parties.
I Erroneously named in the pleadings as Holmes & Seifert.
HOLME & SEIFERT 353
The Respondent Companies and the Association , in their joint answer duly
filed , generally deny the substantive allegations of the complaint . The Respondent
Union, in its separate answer duly filed, except for admitting its status as a labor
organization , similarly denies the allegations of the complaint.
Pursuant to notice, a hearing was held on various dates between November 19
and November 27, 1951, both inclusive, at Salinas, California. The General
Counsel and the Respondents were represented by counsel. All parties par-
ticipated in the hearing , and were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses , and to introduce evidence relevant and
material to the issues. At the outset of the hearing, the Respondent Union moved
to sever Cases Nos. 20-CA-608 and 20-CB-205, in which the Respondent Union is
involved, from Case No. 20-CA-607, in which only Holme & Seifert and the Asso-
ciation are named as Respondents. The motion was denied. Motion of the
Respondent Union for a bill of particulars regarding the allegations of the com-
plaint against it was, in effect, granted in substantial part, and in response
thereto, the General Counsel furnished said particulars orally upon the record.
At the close of the General Counsel's case and, again , at the close of the evi-
dence, the Respondent Union renewed its motion to sever, and, with the Re-
spondent Companies, further moved to strike certain testimony and dismiss the
complaint for failure of proof. The Respondent Companies and the Association,
but not the Respondent Union, moved to dismiss the complaint on the further
ground that the employees of said Companies are agricultural laborers and not
employees within the meaning of the Act, and that said Companies are therefore
not subject to the jurisdiction of the Board. The motions were either denied or
taken under advisement. To the extent that ruling on said motions is now re-
quired, the same is disposed of by the findings and conclusions made below. Mo-
tion of the General Counsel at the close of the hearing to conform the pleadings
to the proof with respect to formal matters and minor variances, not affecting
the substantive issues, was granted without objection. Before the close of the
hearing all parties were afforded full opportunity to argue orally upon the record,
and to file briefs and proposed findings of fact and conclusions of law. All de-
clined to argue orally but some of the issues were discussed informally on the
record. No proposed findings or conclusions of law have been filed. A brief on
behalf of the Respondent Companies and the Association was received on Janu-
ary 3, 1952. None of the other parties have filed briefs.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT ASSOCIATION AND THE RESPONDENT COMPANIES
Grower-Shipper Vegetable Association of Central California, a corporate trade
association , organized in 1935 , is the representative of employers engaged in the
operation of packing sheds in the Salinas -Watsonville-Hollister district, in the
Counties of Monterey, Santa Cruz, and San Benito, California. During 1950 and
1951, the Association was designated as collective-bargaining representative by
some 53 employers, including the Respondents H & S and Arena, engaged in the
business of packing and shipping lettuce, chicory, endives, carrots, celery, and
broccoli. These employer-members pack and ship fresh vegetables grown within
the State of California, amounting to more than 45,000 carloads annually, valued
in excess of $1,000,000, of which approximately 90 percent is shipped to points
outside the State of California.
The Respondent H & S operates a packing shed at Salinas, leased from the
Union Ice Company , where it packs and ships approximately 300,000 crates of
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lettuce annually, valued in excess of $750,000, of which about 85 percent is grown
on land leased by it, situated a distance of from 2 to 20 miles from its sheds at
Salinas. The remaining 15 percent, grown by other farmers, is packed and
shipped by the said Respondent under so-called joint or "pack-out deals," in which
the Respondent is compensated for the service rendered.2
Crops grown by the Respondent H & S are harvested, loaded on trucks, and
transported by its employees to its packing shed in Salinas. Generally, due
to the perishable nature of the crops, they are packed and shipped the day they
are harvested. Carrots, however, may be harvested one day and loaded the
next. Employees engaged in the raising and harvesting of crops do not operate
the trucks which haul the produce from the fields to the packing sheds; and
the truck operators perform no work in connection with the raising and harvest-
ing of crops or the packing of produce at the packing sheds. Similarly, the
packing shed employees do not engage in the raising and harvesting of crops
or in the operation of trucks which haul the produce from the farms to the
packing sheds. In short, there is generally no interchange among the agricul-
tural, trucking, and packing shed employees. Separate payrolls are maintained
for the packing shed employees, who are under the separate supervision of a
shed foreman, and are covered by a separate collective-bargaining agreement.
Packing shed employees consist of trimmers, who inspect, cull, and trim the
lettuce; packers, who size and pack lettuce and other produce; and other em-
ployees, known as receivers, floor help, icemen, lidders, loaders, and miscel-
laneous employees. Of the produce packed and shipped, 95 percent is destined
for points outside the State of California.
The Respondent Arena operates a packing shed at Salinas, leased from the
Salinas Ice Company, where it packs and ships large quantities of lettuce
and other produce annually. It farms 1,352 acres in Salinas Valley on land
leased from various owners situated a distance of from 3 to 30 miles from
the city of Salinas. Respondent Arena raises on this land lettuce, carrots, celery,
and broccoli, employing workers to prepare, plant, cultivate, and irrigate the
soil, and thin and harvest the crops, with farming equipment owned by it.
Farming operations are continuous throughout the year, and 2 crops of lettuce
and carrots, and 1 crop of celery and broccoli are raised each year, maturing
in from 60 to 150 days, depending on the nature of the crop and the period of
year in which the crop is planted. After the crops are harvested, the produce
is loaded on trucks and transported by the Respondent's employees to the pack-
ing shed, where the produce is prepared for packing, packed, and shipped.
During the year 1951, in addition to the acreage which it cultivated and
harvested, and the produce which it packed and shipped on its own behalf,
the Respondent Arena harvested, but did not plant or cultivate, 204 acres
of land owned by other farmers, transporting the produce to its packing sheds
where the same was packed by the same employees, and in the same manner,
as the crops which it produced on its own behalf, under a purchase and guarantee
arrangement with the farmers' In 1951 the produce from these 204 acres con-
stituted less than 20 percent of the total crops packed for the season. The
method of farming, cultivation, harvesting, and transporting of produce, and
the packing shed operations are substantially the same as those of the Respond-
ent IB & S. As in the case of that Respondent, there is no interchange between
The Respondent H & S farms about 1,600 acres, out of a total of 3,245, leased from
others, on which it raises lettuce, carrots, broccoli, beans , and sugar beets. Its packing
operations, however, are limited to the packing and shipping of lettuce.
The Respondent Arena also sometimes packs and ships produce of other farmers under a
"pack-out" arrangement.
HOLME & SEIFERT 355
the field and shed employees or between either of those groups and the trucking
employees. Also, separate payrolls are maintained for the shed employees,
who are under separate supervision, and are covered by a separate collective-
bargaining agreement.
During the year 1951, the total volume of produce thus packed and shipped
by the Respondent Arena amounted to approximately 500,000 crates of lettuce,
150,000 crates of carrots, and 150,000 crates of celery, valued in the aggregate
in excess of $1,000,000, of which about 95 percent was shipped to points outside
the State of California.` Upon the basis of the foregoing facts, the Respondent
Association and Respondent Companies deny that they are subject to the Act,
asserting, in effect, that the packing shed employees are agricultural laborers.
The facts found above establish that the operations conducted at the packing
sheds of the Respondent Companies are industrial in character, and that the em-
ployees engaged in those operations constitute a labor force separate and distinct
from the farm employees. The packing shed employees are geographically sep-
arated from the farm employees by distances of 2 to 30 miles ; they are carried
on separate payrolls, are paid in accordance with wage scales established for
packing operations under collective-bargaining agreement between the Associa-
tion and the bargaining agent of those employees, and perform no functions in
connection with the planting, cultivating, or harvesting of crops. It is, therefore,
evident, and the undersigned finds, that the packing shed employees of the Re-
spondent Companies are employed in operations constituting separate com-
mercial enterprises, and that the operations are not conducted merely "as an
incident to or in conjunction with" their agricultural operations. Moreover,
the Board has already asserted jurisdiction over these Respondents, and other
members of the Association, in a representation proceeding based upon a con-
sent-election agreement in which jurisdiction of the Board was conceded.' Fol-
lowing this determination, the Respondent Association, on behalf of its members,
including the Respondent Companies, executed a collective-bargaining agree-
ment with the Respondent Union, covering packing shed employees for the year
1951.
The undersigned therefore finds, contrary to the contention of the Respondent
Association and the Respondent Companies, that the packing shed employees
of each of said companies are not "agricultural laborers," but are "employees"
within the meaning of the Act. The undersigned further finds that the said
' The findings with respect to the Association are based upon the admissions in the joint
answer of the Respondent Association and the Respondent Companies to the pertinent
allegations of the complaint. Although the answer of the Respondent Union avers lack of
information and knowledge concerning these allegations and, hence , denies the same, it
is clear from its position at the hearing that it maintains that the Respondent Arena,
with which it is immediately concerned herein, is engaged in commerce within the mean-
ing of the Act. The findings regarding the Respondent H & S are based upon a stipulation
of the General Counsel and that Respondent regarding the testimony which would have
been adduced through E. M. Seifert, Jr., if he were called as a witness. The Respondent
Union, though not a party to the complaint against the Respondent H & S, objected to
the stipulation as a party to the collective-bargaining agreement a ith the Respondent
Association, to the extent that any findings based on that stipulation might "withdraw
[Holme & Seifert] from the coverage of the Act." With respect to the Respondent Arena,
the findings are based upon a stipulation by all the parties concerning the testimony
which would have been adduced through William M. Diercks, general manager of the
Respondent Arena, if he were examined on the subject. Both the General Counsel and
the Respondent Union, however, objected to the several stipulations on the ground of
materiality and relevancy. The objection was overruled.
" Grower-Shipper Vegetable Association of Central California, 20-RC-1147; see also
Grower-Shipper Vegetable Association of Southern California, Case No. 20-RC-631
(unreported).
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents are, and at all times material herein have been, engaged in com-
merce, and that their operations affect commerce within the meaning of the Act.'
II. THE ORGANIZATION INVOLVED
The Respondent, United Fresh Fruit & Vegetable Workers Union, Local In-
dustrial Union No. 78, affiliated with the Congress of Industrial Organizations,
is a labor organization admitting to membership employees of Respondent
Companies.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
From 1943 until late 1950, Fresh Fruit & Vegetable Workers Union, Local 78,'
and Food, Tobacco, Agricultural and Allied Workers Union of America, commonly
referred to as the FTA, or its predecessors, were the collective-bargaining agents
of the packing shed employees of employer-members of the Respondent Associa-
tion, including the Respondent Companies. During that period, the PTA, or its
predecessors, negotiated and executed collective-bargaining agreements with the
Respondent Association, on behalf of its members, covering their packing shed
employees.
On December 29, 1950, after a consent election held from October 18 to 23, 1950,
among packing shed employees of some 53 employer-members of the Respondent
Association, including Respondent Companies, the Regional Director determined
that the Respondent Union was the duly designated bargaining representative
of said employees. On July 20, 1951, upon an appropriate petition by said Re-
spondent Union, and an election held thereon, the Regional Director certified that
a majority of the employees in the appropriate unit eligible to vote had authorized
said Union to enter into a union-shop agreement with the Respondent Association
and its member companies.'
B. The operations of the Respondent Companies
The lettuce packing season in the Salinas area normally begins in early April
and continues until early November each year. Lettuce is transported by truck
from the farms to the packing sheds, where it is unloaded, trimmed, graded, and
packed into crates. The crates are then iced, lidded, and loaded into freight cars
in quantities of about 300 crates to a car. Crushed ice is then sprayed into the
cars, the doors are closed, and the produce is ready for shipment.
The packing crews or "humps," as they are known in the trade, consist of 1
packer and 4 trimmers to each hump. Because each hump works as a unit, work
for the trimmers is dependent on the availability of a packer for each hump.
The number of humps employed is determined by the "field man," who gauges
the quantity of lettuce to be packed each day and furnishes this information to
the shed foreman. He, in turn, transmits the information to the packer boss,
who is responsible for procuring the necessary crews. During the peak of the
1951 season, each of the Respondent Companies employed about 12 or 13 humps,
the number fluctuating somewhat according to the volume of lettuce to be packed.
There are two types of trimmers, regular or "seniority" trimmers and "booster"
trimmers. The former are employees who, by reason of having worked for an
8 See Imperial Garden Growers, 91 NLRB 1034 , and cases cited ; Arena-Norton, Inc.,
et at., 93 NLRB 375; see also J. J. Crosetti and Warren E. Scarbrough, individually and
as co-partners, d/b/a J. J. Crosetti Co., 98 NLRB 268.
'Not to be confused with the Respondent Union.
g Findings in this subsection are based on a stipulation by all the parties . The union-
authorization provisions of the Act, however, are not involved in this proceeding.
HOLME & SEIFERT 357
employer a specified proportion of the preceding or previous seasons , as pre-
scribed by collective-bargaining agreement , have acquired seniority , and are,
therefore, entitled to priority in employment the following season. The latter
are those without seniority status, who report to the packing sheds, frequently
daily, in the expectation of obtaining employment as temporary replacements for
seniority trimmers who fail to report for work or who may be on vacation.
Boosters may also receive employment during so-called "snow" intervals, when
the sheds may be "snowed under" by the volume of lettuce arriving from the
fields. Although boosters may obtain temporary employment in this manner
over an entire season, they are subject to being replaced by returning seniority
employees, and do not themselves acquire seniority.
The 1950 packing shed agreement between the Association and the FTA, dated
January 27, 1950, effective for a year from December 1, 1949, subject to automatic
renewal, expired or was terminated as of December 1, 1950. The collective-
bargaining agreement between the Association and the Respondent Union cover-
ing the 1951 season was executed on May 24, 1951, effective April 1, 1951. To
avoid any issue regarding the seniority status of packing shed employees while
this contract was being negotiated, the Association issued a bulletin to its mem-
bers, dated March 26, 1951, recommending that the seniority provisions of the
1950 collective-bargaining agreement be continued in effect pending the con-
summation of the 1951 contract ° This recommendation was adopted by the
Respondent Companies.
With regard to seniority, the 1950 contract provided, in part :
As to employees having seniority of one or more seasons in a commodity
covered by the contract, hiring and layoffs of such employees engaged in the
handling and packing of each commodity shall be governed by the following
seniority rules.
The amount of seniority shall depend solely upon the number of seasons
worked for the Company 10 in work covered by this and previous contracts.
A season shall be defined as fifty-one percent of the period operated. The
employer shall, within 30 days following the close of each season, post a
seniority list on the bulletin board and mail a copy to the Union.
The employee shall, between 60 and 30 days prior to the commencement of
the season in which he claims seniority, notify the Company, in writing, of
his intention to assert his seniority. The Company shall acknowledge such
notice and notify the employee, in writing, of the approximate starting time
of the next season. The employee shall report and be available for work at
such time, unless he has obtained a written authorization from the Company
extending the time for reporting. There shall be at least ten days between
4 The text of this bulletin was as follows :
SENIORITY
Although we have no agreement which requires recognition of seniority in the
packing house classifications, seniority is one of the demands being made by the
C. I. 0. In their present negotiations . We will , no doubt , agree to some seniority
provision which will be similar to and based upon the present provision.
Therefore, to avoid any complications and trouble , it is our recommendation that
you follow the principle of seniority used in the past in assembling your crew for
this year and reemploy all former employees who would have had seniority if the
contract were still in effect.
Please prepare a seniority list based on the former contractual provisions. Post
one copy on your bulletin board ; send one copy to this office.
If you have any questions, call this office. [ Emphasis as in original.].
]U The Association is referred to in the preamble of the agreement as "the Company."
250983-vol. 102-53-24
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the date of notification and the date of reporting. Notification of the approxi-
mate date of starting operations shall not constitute a call.
* * * * s * *
Whatever seniority an employee has is lost if he :
(a) Is discharged for cause;
(b) Voluntarily leaves the employment of the employer without written
leave of absence, or
(c) Fails to give notice and report as required under this section.
* * * * * * *
Employees shall be granted leaves of absence for the following reasons :
(a) Written certification by the Union that the employee is necessarily
absent on union business or employed by the union.
(b) Illness of employee substantiated by doctor's certificate or other
adequate proof.
Such leaves of absence shall be executed in triplicate and signed by Com-
pany and the Union, one copy to be retained by the employee, one copy by
Company, and one copy by the Union. An employee on leave of absence shall
maintain his seniority as if he were employed by Company unless the Union
and Company shall agree otherwise Leaves of absence taken under subsec-
tion (a) above shall be exercised only after prior notice to Company.
Pursuant to these or similar provisions in earlier contracts, the shed foreman
and the packer boss of each employer have compiled seniority lists at the close
of each season, posting the same at the shed. With respect to the Respondent
H & S, the 1950 seniority list contains the names of 47 trimmers, arranged at
random, with their addresses, social-security numbers, and the number of seasons
worked by each, set against their respective names. With respect to the Respond-
ent Arena, the 1951 seniority list merely contains the names of 52 trimmers, num-
bered from 1 to 52, although it is conceded that the numerical position has no
relation to the seniority of each trimmer. The previous seniority list of this
Respondent, dated February 21, 1949, contains the names of 40 trimmers, with
their social-security numbers, but does not indicate their length of service or
relative seniority.
C. Discrimination by the Respondent H & S in regard to the hire and tenure of
employment of Dora A. Parker
Dora A. Parker had been employed as a trimmer in the lettuce packing sheds
in the Salinas area for 12 or 14 years. She first worked for the Respondent H &
S from May 18, 1950, about a month after the beginning of the season, until
October 28, 1950, about 2 weeks before the end of the season, when she left under
circumstances later described.
The history of Parker's union activity dates from 1942, when she joined the
FTA-CIO, successor to United Cannery, Agricultural, Packing and Allied Workers
of America, CIO, commonly referred to as UCAPAWA. She remained a member
of FTA-CIO until its expulsion from the CIO in February 1950, and thereafter
continued as a member of the FTA, Independent. In December 1948, as a mem-
ber of the negotiating committee of the FTA-CIO, she met with representatives
of the Respondent Association and its attorney. For 3 or 4 months, in the early
part of 1950, she was office secretary of the FTA-CIO at El Centro. During the
same year, she was also a member of the grievance committee of that union,
and participated in the presentation of grievances to the Association. Later,
when the FTA, Independent, merged with Distributive Workers Union of New
York City, and the Office Workers Union, to form Distributive, Processing and
HOLME & SEIFERT 359
Office Workers Union of America, commonly referred to as the DPO, she became
a member of that organization and, in the latter part of 1950, served briefly
as business agent. While in the employ of the Respondent H & S, with the per-
mission of Packer Boss William M. Jotter, she collected dues at the shed from
FTA members employed by that Respondent u In 1949 and 1950, Parker served
as an observer for the FTA-CIO, and the FTA, Independent, successively, at
Board-conducted elections to determine the bargaining representative of em-
ployees in the lettuce packing industry.
On April 6 or 7, about a week before the beginning of the 1951 packing season,
Roy Parker," a packer, called on Packer Boss Jotter at the H & S shed, and in-
quired whether Jotter intended to engage him for the coming season . Jotter
said that he did, and assured Parker of a job. Parker then asked him about a
job for his wife. Jotter told him that he was unwilling to hire her. Asked
why, Jotter replied that she had no seniority. Parker disputed this, insisting that
since, like himself, she had worked for the company for substantially more than
51 percent of the season, she had acquired seniority. According to Parker, Jotter
then claimed that it was necessary for her to have worked two-thirds of the
season to achieve that status. When asked whether he was being governed
by the seniority provisions of the 1950 contract, Jotter said he intended to abide
by that contract until a new one was signed. Parker suggested that Jotter refer
to the contract. Jotter did so and, after examining the seniority provisions, ad-
mitted that he had been mistaken. Although Parker testified that Jotter then
conceded that Dora Parker had seniority, it is doubtful that he made such a
concession in view of the subsequent events. Jotter stated, however, that he
was still unwilling to hire her. Asked for his reason, Jotter replied, according
to Parker, "Well, she talks too much union. She talked too much union last
year when she was here." 1S Parker then asked when the season would begin,
and was told that it would be about April 15. Parker said, "Well, I will be
seeing you," and left.
11 The undersigned does not regard Jotter's testimony, that he had no recollection that
Parker had requested, or that he had granted her permission, to collect dues at the
shed, an effective denial of her positive and credible testimony that Jotter had granted
her such permission.
11 Who filed the charges in this proceeding on behalf of his wife. Although, in the
original charge, Roy Parker alleged that the Respondent H & S had discriminated against
him as well, the allegation does not appear in the amended charge nor is it alleged in
the complaint.
13 According to Jotter's version of this episode, Roy Parker asked Jotter whether he
intended to employ him in the coming season. Jotter told him that he did, but when
Parker asked him about a job for his wife, Jotter said that he would not hire her because
she "does too much talking, and her trimming is unsatisfactory." Jotter also testified
that Parker did not ask him about his wife's seniority, but that he thought he told
Parker that she had none. Jotter was not asked about, nor did he deny, the conversation
in which, according to Parker, they had engaged in a controversy as to whether it was
necessary to work 51 percent of the previous season, or two-thirds, in order to acquire
seniority. Except as may be inferred from the context of his testimony, Jotter did not
otherwise deny that he had said to Parker that his wife "talks too much union," and
that she had done so the previous season. Nor, as will presently be seen, did Jotter deny
substantially similar statements attributed to him by Roy Parker and Dora Parker in
an interview with him the following week. The testimony regarding the crucial state-
ment, that Dora Parker had "talked too much union," finds circumstantial support in
the testimony of Walter A. Rowe, related hereinafter, regarding a similar remark to
him by Jotter on another occasion. Assuming that Jotter's testimony was intended, and
may be construed, as a denial of the statements attributed to him by Parker on this
occasion, the undersigned finds that such a denial is insufficient to overcome the more,
positive, persuasive, and circumstantially corroborated testimony of Roy Parker The
undersigned credits his testimony, and finds that the incident occurred, and that Jotter
made the remarks on the occasion in question substantially as Parker testified
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At about this time, according to the testimony of Shed Foreman Ostergaard,
Roy Parker called on him and demanded to know why Dora Parker's name did
not appear on the 1950 seniority list. Ostergaard told him that it was because
she had quit before the end of the 1950 season , and showed him her employment
card, which bore a notation that she had quit October 28.1•
A day or two later, Roy Parker telephoned Seifert, Sr., related his discussion
with Jotter, and asked him to investigate the matter. Seifert said that he usually
left the operation of the shed to the foreman and packing boss, but that he would
take up the matter with Jotter.
About April 12, Parker again phoned Seifert and learned that Shed Foreman
Ostergaard had been trying to reach him. Parker, with his wife and child,
called on Ostergaard at the shed. In the conversation which followed, Parker
testified, Ostergaard told them that he had nothing to do with the hiring of
trimmers and packers, that Jotter made the decisions, and that, since Jotter was
unwilling to hire Dora Parker, he, Ostergaard, would not interfere with Jotter's
decision. According to Ostergaard, after some discussion, he told the Parkers
that the company did not intend to hire Dora Parker for the coming season be-
cause she had been an unsatisfactory employee the previous season, and because,
having quit before the end of that season, she was not on the seniority list. The
two versions are not necessarily incompatible, and it is probable that Ostergaard
made the remarks attributed to him by Parker, as well as those to which Oster-
gaard testified.
At about this point, according to Ostergaard, Jotter appeared, called him into
the office, and recommended that, in view of the shortage of packers, and the
probability that Parker would not accept a job unless his wife were also em-
ployed, they give Dora Parker another chance and engage her for the season.
Ostergaard agreed and he and Jotter then told Dora Parker in the presence of
her husband that, although she had not been a satisfactory employee the previ-
ous season, they were going to give her another chance. Apparently no mention
was made at this time of her alleged lack of seniority, or of the fact that she
was being given the opportunity for employment only because of the need for
her husband's services.
The Parkers' version of this latter incident was substantially different. Ac-
cording to them, they were about to leave the shed when Jotter came out of the
office and told Ostergaard that he wanted to talk to them. The Parkers went
into the office, and Jotter repeated that he had not intended to use Dora Parker
that season. When she asked whether it was because of her work, Jotter replied,
according to them, "No, you just cause too much confusion, you talk too much
union talk," a statement which, according to them, he reiterated during the
conversation. Either or both of the Parkers asked Jotter why he had not taken
action about it the previous season instead of waiting until then. Jotter appar-
ently made no reply, but repeated that he had not intended to use her because
14 Parker, however, testified that, although he might have seen Ostergaard during this
period, he did not discuss his wife's case with him until a later occasion, presently
discussed, when he called at the shed with his wife after talking to Edward Seifert, Sr.,
one of the owners of the company. It was on this latter occasion, according to Parker,
that Ostergaard said that Dora Parker had no seniority because she had quit her job.
Parker told him that she had done so to take care of him after he had been injured in
an accident, and that this had been reported to Jotter. It is not unlikely that Parker
may have discussed his wife's seniority with Ostergaard on the earlier occasion, but
that the incident was overshadowed by the later meeting, and that Parker may have
forgotten the first conversation. In any event, the undersigned does not regard that
Parker's credibility has been impaired by his denial of the earlier interview with
Ostergaard.
HOLME & SEIFERT 361
she talked "too much union." n He stated, however, according to the Parkers,
that he would give her another chance , provided she refrained from engaging
in "union talk," warning that if she persisted in such talk she would be dis-
charged . She agreed to accept the job and do her best , but told him that she
would expect to be treated no differently from the rest of the workers 16
Sometime during the discussion, Dora Parker attempted to settle the issue of
her seniority, and raised the question with Jotter. He adhered to the position
that she had forfeited her seniority because she had quit before the end of the
1950 season. She reminded Jotter that she had telephoned him shortly before
she left, and notified him she would be unable to continue on the job because of
the illness of her husband and child, which had affected her health, as well. She
also attempted to recall to him that he had assured her that that would be
satisfactory because some of the packers were leaving , and the company would
have more than enough trimmers to complete the season. According to her,
Jotter agreed that he remembered some such conversation.17
With respect to the later remarks attributed to Jotter, that he had not intended
to use Dora Parker in the 1951 season because she talked "too much union," but
that he would give her another chance if she desisted from doing so, Jotter did
not specifically deny making these statements. As in the former instance, it is
possible that Jotter's version of what occurred may have been intended as a
denial of the remarks ascribed to him. In view of the crucial nature of those
remarks, however, the undersigned regards such denial, if intended, insufficient
to overcome the positive and persuasive testimony that he made such remarks
at the time. Moreover, the statements attributed to Jotter are consistent with
similar remarks concerning Dora Parker allegedly made by him to Walter A.
Rowe about a month earlier, under the following circumstances.
Shortly before Christmas, 1950, Roy and Dora Parker arrived at Yuma, Ari-
zona , remaining there until just before Easter Sunday, 1951, when they returned
to Salinas. After their arrival in Yuma, Roy Parker applied for and received
employment as a packer with the John E. Howe Company, where Jotter was
then employed as packer boss. Dora Parker had also applied to Jotter for a
job, but was presumably refused employment. On a night late in January or
early in February, Jotter drove with Rowe, who was employed by the John E.
Howe Company as a receiver , on a company errand . Observing Dora Parker in
her stalled car, the men helped get her car started and, after she had left, engaged
in a conversation about her. According to Rowe, Jotter, referring to Dora
ss During this conversation , according to Roy Parker 's undisputed testimony , Jotter also
asked him what had occurred at the Arena shed several days earlier when Edna Cooney,
one of the charging parties in these proceedings , was "pull [ ed] off the job." Parker told
him that he would have to find that out from the Arena Company. In view of Cooney's
prominence in the FTA-CIO, FTA , Independent , and the DPO, a matter of common
knowledge in the industry , it is unlikely that Jotter 's query was prompted by mere idle
curiosity . Rather does it suggest a concern on Jotter 's part as to the possible consequences
of hiring a militant union adherent.
TO For reasons stated below , the undersigned credits the Parkers ' version of the
conversation.
77 In his testimony Jotter did not deny that , during the discussion about her seniority,
Dora Parker had claimed that she had notified him by telephone on the occasion in question
that she would be unable to continue on the job for the reasons stated . Nor did he deny
that she had so notified him at the time. He testified , in fact , that he had a vague recol-
lection that she had told him on or about the date she actually quit that she intended to
do so, but that she had told him this in person at the shed , and apparently , without
giving any reason . In view of Jotter 's lack of any clear recollection, and Dora Parker's
positive and persuasive testimony , the undersigned credits her testimony both as to the
original notification to Jotter and her later reminder to him of the incident.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Parker remarked , "I can't work her down here . In fact, I don 't have to, she
doesn ' t have any seniority . No one has any seniority down here ." Then, ac-
cording to Rowe, Jotter added, "If I have to put her back to work at Holme and
Seifert in the spring , I will weed her out, because she is too much union. She
talks union too much, and she is too active in the union."
Rowe's testimony regarding this conversation was received over the objection
of the Respondent H & S, which contended that Jotter was not an employee of
the Respondent at the time the statement was made. The record discloses, how-
ever, that Jotter had been in the employ of the Respondent as a packer boss for
six seasons at the time of the hearing . Like other employees in the industry,
Jotter alternated his employment between Yuma, Arizona, where he worked
during the winter season , from November to March, and Salinas, California,
where he worked during the spring season, from April to November. At the
close of the 1950-1951 winter season with the John E Howe Company , Jotter
returned to his job with the Respondent H & S, where he hired and supervised the
crew. It is, therefore, evident that Jotter retained his supervisory status with
the Respondent H & S as a regular seasonal employee, and that the statements
made by him , even though made at a time when he was not actually working for
said Respondent , are admissible as evidence of motivation for Dora Parker ' s later
discharge.
Jotter admitted that he had had a conversation with Rowe on the occasion
mentioned , explaining that "the subject came up about her talking and laughing
and carrying on like that while she was working ," and that he probably told
Rowe that he would not hire her when they returned to Salinas because of "the
trouble that she causes." Jotter could not recall whether he had also mentioned
to Rowe, as an additional reason for not hiring her, that she had no seniority.
Once again , Jotter did not categorically deny telling Rowe that if he were
obliged to hire her, he would find a means of eliminating her because of her
union advocacy.
In crediting Rowe's testimony as to Jotter 's remarks, the undersigned has
considered the possibility of Rowe's bias against or hostility toward Jotter, stem-
ming from the fact that Jotter later discharged Rowe for engaging in a fight
with an allegedly drunken employee . The undersigned is convinced , however,
that Rowe's testimony was not influenced by resentment or vindictiveness toward
Jotter for having discharged him. Rowe, who testified as a witness for the
General Counsel under subpena, had been engaged in an auto wrecking business
for 5 months at the time of the hearing , and was no longer interested in employ-
ment in the packing industry . Although there had been no union-shop contract
in effect during his employment with the John E. Howe Company , he had been
a member and shop steward of Local 78, CIO, one of the Respondents herein,
which had displaced the FTA in which Dora Parker had been active as bargain-
ing representative.
Upon consideration of all the foregoing factors, and upon the entire record,
the undersigned credits Rowe 's testimony , and finds that , on the occasion in
question , Jotter made the remarks concerning his intention to eliminate Dora
Parker substantially as Rowe testified.
Both Parkers were assigned to work at their respective jobs on April 17, 1951,
when the season began, and continued working until June 28, 1951.
On June 27, 1951, a number of packers employed at various sheds in the
Salinas area went on strike . The Respondent H & S was then operating its shed
with 12 humps. Next morning , at about 9:30, Roy Parker and Robert L. Saun-
ders, packers on the No. 4 and No. 12 humps , respectively , left their jobs and
joined the packers ' strike. Dora Parker, who had been working on the No. 12
hump , and the other trimmers affected by the walkout remained at their humps.
HOLME & SEIFERT 363
Jotter instructed them to stand by while he attempted to secure other packers to
replace the 2 who had gone on strike. Later that morning, Edward Seifert, Jr.,
son of one of the owners, offered to pack for the No. 12 hump, although he had
had no previous experience as a packer. The trimmers agreed and finished out
the day in this manner. At the end of the day, Jotter instructed them to report
next morning when, he told them, he expected Henry Bond, a regular packer
who had been on leave that day, to return to work.
As a result of the strike by the 2 packers at the H & S shed, 8 trimmers,
including Dora Parker, were left without work. Jotter succeeded in operating
the No. 4 hump by replacing Roy Parker with David Ramsey, a full-time em-
ployee, who was employed as a combination packer and trimmer and worked
in either capacity as his services were needed. In this way, the 4 trimmers
on the No. 4 hump were able to continue at work. For the next week or 10
days, the Respondent II & S managed with only 11 humps.
Within the first 2 or 3 days after the strike, however, Jotter succeeded in
placing 3 of the 4 trimmers who had been working on the No. 12 hump, by
transferring them to the jobs of trimmers on other humps who failed to re-
port for work because of illness, vacation, or other reasons. According to Jotter,
the 3 trimmers for whom he found places had 1, 2, and 3 years of seniority,
respectively, and he assigned them to jobs in order of seniority. As to the
fourth, Parker, Jotter testified that since he considered that she had no
seniority, he felt no more responsibility for placing her than he did toward
the boosters, from among whom he could hire at his own discretion.
After the packers went on strike, Dora Parker reported at the shed twice
daily for the remainder of that week and the following week, pursuant to
Jotter's instructions, and his assurance that he would make an effort to pro-
cure a packer for the No. 12 hump. However, although ready, able, and
willing to work, she was not assigned a job.
Finally, on Saturday, July 7, when Parker reported at the shed, she discovered
that at least 6 trimmers, whom she identified by name at the hearing, and
who, according to her, had substantially less seniority than she had, had been
assigned jobs. Protesting to Jotter, Parker asked, "What's the story?" Ac-
cording to her, Jotter replied, "Well, if I was in your place I would go some
where else and try to find me a job." Suggesting that they "get to the point,"
Parker asked him if he had any fault to find with her work. Jotter replied,
according to her, "Well, no, you just talk too much union talk, and you cause
too much confusion." Pressed as to whether he had any complaint about her
work, Jotter told her, "No, the crew just don't want to work with you." Parker
challenged this statement and told Jotter that she intended to file unfair labor
practice charges. Jotter told her to "go ahead.""
Within a day or two of Parker's discharge , Jotter obtained another packer,
and restored the No. 12 hump, completing the season, except for some possible
fluctuation, with 12 humps. Parker, however, was not offered an opportunity
to return to work. She filed a claim with the Department of Unemployment
Compensation for the State of California, and thereafter received unemployment
compensation, without protest from the Respondent.
ms According to Jotter 's version , Parker approached hHn on the third or fourth day after
the packers ' strike, and asked him whether he intended to put her back to work He told
her that he did not. Asked why , he replied , "Well , your work is unsatisfactory and you
are doing too much talking and I understand that most of the crew don't want to work
with you, and you have no seniority ." Jotter did not explicitly deny that he had made
reference to her "union talk " in the conversation . Because of this, on the basis of Parker's
general credibility , and for reasons already stated , the undersigned credits Parker 's version
of the conversation . It is clear , as Jotter testified , that he intended by this conversation
to convey to her that she was discharged . It is equally plain that Parker so understood it.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Contentions and Conclusions as to Parker 's Discharge
In an effort to justify Parker 's discharge , the Respondent relies on 2 principal
grounds : First , that , at the time of her original layoff on June 28, she had no
seniority, and, with the reduction in the number of humps from 12 to 11, following
the packers ' strike , it had no place for her ; second , that her work had been unsat-
isfactory , and that she had been unable to get along with members of the crew,
who had stated that they would not work with her.
Considering, first , the question of whether Parker had acquired seniority before
the 1951 season, it will be recalled that seniority at the beginning of that season
was to be based on the provisions of the 1950 contract , which had been extended
pending the execution of a new contract. The basic terms of those seniority
provisions accorded seniority to employees working one or more seasons , a season
being defined as 51 percent of the period operated , and the amount of seniority
being determined by the number of seasons worked on jobs covered by that and
previous contracts . Contrary to Jotter 's statement to Roy Parker , when the
latter first visited the shed in April 1951 , the seniority provisions did not require
that employees work two-thirds of the season in order to acquire seniority. Nor
did those provisions require that employees work until the last day of the season.
Jotter admitted at the hearing that the contract did not so provide , but main-
tained that the provisions had been so construed and applied on instructions from
his shed foreman. The record furnishes no basis for a finding that the terms of
the seniority provisions were amended or modified by the mutual consent of
this employer and the bargaining agent of its employees , and any attempt to do
so unilaterally , and without notice to the bargaining agent or the employees,
could hardly accomplish this purpose.
Conceivably , the Respondent , in maintaining that Dora Parker had no seniority,
may have been attempting to rely on the provision that employees who left the
company's employ, presumably at any time during the course of their employ-
ment, without a written leave of absence, forfeited the right to seniority. The
question of Parker 's failure to obtain such a leave of absence, however , was not
raised either with her or her husband at any time prior to her discharge. Nor
was it advanced then or at the hearing as a basis for the Respondent 's claim
that she had no seniority . The position of both Jotter and Ostergaard was that
she had not acquired seniority merely because she had failed to finish the season.
Even if this position were broad enough to include by reasonable implication
as a ground for the denial of seniority her failure to obtain a leave of absence,
the preponderance of the creditable evidence establishes that when Dora Parker
left her job on October 28, 1950 , to care for her husband who had been injured
in an accident , she notified Jotter by telephone of the circumstances . He assured
her that since some of the packers were leaving , and he would have enough trim-
mers for the remainder of the season , she need have no concern . Significantly,
so far as this record discloses , he did not direct her attention to the requirement
for a written leave of absence or warn her that her seniority might be jeopardized
if she failed to comply with that requirement.
While it is true that Parker 's notification did not constitute strict compli-
ance with the leave-of-absence requirements , the actual notification and Jotter's
response , are factors to be considered in determining whether the Respondent
actually placed any reliance on her failure to obtain a written leave of absence,
in denying her seniority.
It is unnecessary to decide whether, in view of his supervisory status, Jotter
had authority to modify or waive the requirement for written leave of absence ;
or whether , because of Jotter 's conduct , the Respondent was, at the time of
HOLME & SEIFERT 365
her application for employment in 1951, or is now, estopped from relying on
her failure to comply with those provisions. The record establishes that Jotter,
to whom the Respondent had delegated complete responsibility for hiring, assem-
bling, maintaining, laying off, and discharging the packing crews, had placed
no reliance on her failure to obtain a written leave of absence when he first
asserted that she had no seniority. Moreover the record indicates that the
Respondent H & S did not observe or require strict compliance with other terms
of the 1950 contract, as a prerequisite to the acquisition of seniority by its
employees. Thus, it will be seen that, under the seniority provisions, which
have been cited above, employees were required to give notice to the employer
"between 60 and 30 days prior to the commencement of the season in which
[they] claim[ed] seniority . . . of [their] intention to assert" their seniority.
The employer, in turn, was required to acknowledge such notice and notify the
employees in writing of the approximate starting time of the season, when they
were required to report and make themselves available for work, unless excused
in writing. It was also provided that failure to give notice and report as
required would result in loss of seniority.
It is obvious from what has already been related that, with respect to Roy
Parker, at least, the Respondent did not require strict compliance with the fore-
going provisions. Yet, it accorded him seniority at the beginning of the 1951
season, although he himself had not worked until the end of the 1950 season,
and his name had been omitted, erroneously, according to the Respondent, from
the applicable seniority list. The fact that the Respondent was then confronted
with a shortage of packers does not meet the issue, because the Respondent
does not contend that it hired him for the 1951 season despite any lack of
seniority but, on the contrary, maintains that he did have seniority.
The foregoing facts and the record as a whole, with respect to this Respondent,
convince the undersigned that in maintaining that Dora Parker had no seniority
at the beginning of the 1951 season, and thereafter, the Respondent relied solely
on the fact that she had not completed the 1950 season, a requirement not
imposed by the pertinent seniority provisions.
The undersigned concludes, therefore, that, having worked more than 51 per-
cent of the 1950 season, in accordance with the applicable seniority provisions,19
Parker acquired seniority, and was entitled to a job as a seniority trimmer at
the beginning of the 1951 season.
Turning to the contention that Parker's work was unsatisfactory, except for the
claim that she talked excessively, "laughing and carrying on" while at work, the
Respondent has not shown in what respects her work was unsatisfactory. It
must be concluded that the Respondent regarded her work as unsatisfactory
solely because of her behavior on the job. It is entirely likely that Parker en-
gaged in conversations while at work with employees on her own hump or those
in the immediate area. It is equally probable that she engaged in "union talk"
during working time. The record discloses, however, that there was no rule or
policy prohibiting conversation during working time on subjects of general inter-
est, including union matters. There was no showing that employees engaging
in such conversation had been discharged, reprimanded, or otherwise disciplined.
19 The 1950 lettuce packing season extended from about April 17 to November 8 or 10,
a period of 6 months and about 3 weeks. Parker was employed from May 18) to October
28, a period of 5 months and about 10 days. Thus, it is clear that she had worked for
more than the required 51 percent. Although the 195t collective-bargaining agreement had
become effective prior to Parker's discharge, there is no contention that the seniority
provisions of that agreement were involved in her discharge. In any event, there Is no
substantial change in the seniority provisions which ' would affect the ultimate conclusions
herein.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor that Parker had engaged in such conversation excessively in comparison
with other employees on the packing humps. Moreover, there was no showing
that her conversation interfered with either her own production or that of her
fellow-employees. Indeed, although both Jotter and Ostergaard testified that
they had observed Parker engaging in conversation during working time on 3
or 4 occasions, and that Jotter had complained of this to Ostergaard on at least
several occasions, there was no showing that either of them had reprimanded
or admonished her, or warned that if she persisted in this conduct she would be
discharged. Certainly, there was no showing that her behavior in this respect
during her second period of employment was more serious than it had been
during her employment in 1950. The undersigned is, therefore, convinced that
the Respondent's reason for its dissatisfaction with Parker's conduct was not
that she engaged in conversation excessively during working time, or that this
interfered with production, but that it had concluded that her conversations
partook of "union talk."
As to the final contention that Parker had been unable to get along with mem-
bers of the crew, who had stated that they would not work with her, Jotter testi-
fied that some 4 or 5 packers had so stated to him. Of these, 2 had done so in
response to an inquiry by Jotter, the day after the packers' walkout, as to
whether they would be willing to work with her. Another was Price Parker,20
brother of Russell Parker, a CIO business agent, mentioned later in connection
with Edna Cooney's case. Still another, according to Jotter, had merely stated,
without further explanation, that he had had trouble with Dora Parker elsewhere
and that he was unwilling to work with her. None of these packers furnished
Jotter with any reason for their unwillingness to work with her, and he did not
ask them for any explanation or make an independent investigation to determine
whether there was any basis for their position. Nor did Jotter reveal to Parker
the names of those who had allegedly stated that they would not work with her
or offer her an opportunity to defend herself against their claims. For aught
that appears in this record, any antipathy they may have harbored toward her
may have stemmed from their allegiance to rival labor organizations.
Except for Henry Bond, who, though named by Jotter as one who had allegedly
objected to working with Parker, was called as a witness by the General Counsel,
none of the others was called to testify, and there was no showing that any of
them were unavailable. Jotter's testimony in this respect is, therefore, without
corroboration. As to Bond, who testified that he had worked on the same hump
as Parker or on one close to her, far from corroborating Jotter's testimony, Bond
denied that he had told Jotter that he would not work with her, and further
denied that he had ever complained about Parker. On the contrary, Bond testi-
fied that he regarded her as a good trimmer because she left large heads on the
lettuce, an obvious advantage to the packer.
Bond's testimony, which the undersigned credits, received substantial support
from the testimony of Terese Hibbs, a trimmer who had worked with Parker
during the 1950 and 1951 seasons. In addition to testifying that there was no
company rule against talking during working time about union or other matters ;
that such conversations were a common occurrence; and that Parker did not
engage in conversation to a greater extent than other employees on the humps ;
Hibbs testified that she, herself, had never complained about Parker, and that
none of the other employees had voiced any complaints about Parker to Hibbs or
to anyone else in her presence ; and that she had never heard them say that they
would not work with Parker or that they could not get along with her. Hibbs
20 No relation to Roy or Dora Parker.
HOLME & SEIFERT 367
testified that she, herself , had never made such a statement , and had never
encountered any such difficulty with Parker.
It should be noted , too, that much , if not all , of the evidence offered by the
Respondent regarding its dissatisfaction with Parker related to the period of
her earlier employment during the 1950 season . Nevertheless , with full knowl-
edge of her prior unsatisfactory work performance , Jotter engaged her for the
1951 season. The undersigned has not overlooked the Respondent 's contention
that it did so only because of the shortage of competent packers, and its need
for securing the services of her husband as a packer . Whatever conclusion the
Respondent may have reached as to whether Roy Parker would accept a job, if
the Respondent did not also hire Dora Parker , the fact remains that he himself
did not impose any such condition . The Respondent 's concern because Roy
Parker had not committed himself, on April 10, to accept Jotter's offer of a job, but
instead had left Jotter with the cryptic remark , "Well , I will be seeing you," is
understandable . But this is far from justifying a conclusion that Roy Parker
had intended by this remark to convey the impression that he would not accept
a job unless the Respondent also agreed to hire his wife.
The preponderance of the credible evidence leads to the conclusion that the
Respondent did not regard Dora Parker's services during the 1950 season so
unsatisfactory as to render her unacceptable for employment , or that it was
willing to abide her shortcomings in order to secure her husband 's services. On
the basis of either of these alternatives , the Respondent cannot now be heard to
urge as grounds for her discharge on July 7, complaints which had allegedly
existed prior to her employment on April 17, 1951, particularly in the absence of
a showing that her behavior during her employment in the 1951 season had
degenerated below that of the previous season.
There is, indeed , some basis for inferring that the Respondent may have
discharged Parker in retaliation for her husband 's participation in the packers'
strike or its conclusion that she had participated in or supported that strike.
A line of cross -examination in which the Respondent 's counsel engaged gives
rise to this inference. She denied, however, that she had participated in or
supported the strike, testifying that she had actually been opposed to it and
had so stated to other employees. Her testimony is credited. The fact that
she reported for work at the shed daily from the time of her layoff until the
date of her discharge negates a finding that she participated in or supported
the strike. In any event, the Respondent declined to take a position at the
hearing as to whether it discharged Parker either because her husband had
engaged in the strike or because it believed that she had supported the strike.
Instead, it maintained that if the record as a whole warranted the conclusion
that Parker had engaged in unprotected concerted activities by participating in
or supporting a "wildcat " strike, even though it may not have been aware of her
participation or support at the time , it must be exonerated for its conduct in
refusing to reinstate and discharging her. The answer to this contention is,
first , that the record affords no basis for a finding that the packers ' strike was
unlawful , and, second , that the affirmative evidence establishes that Parker
did not participate in, engage in, or support this strike. Moreover , the Respond-
ent cannot now rely for justification of its action upon facts of which it was not
aware and which it did not advance at the time of the discharge.
The preponderance of the evidence, on the record as a whole , convinces the
undersigned that the Respondent did not discharge Dora Parker for any of the
reasons assigned by it, but rather because it regarded that she had been too
zealous as a union advocate . Thus, Jotter 's statements to Roy Parker, and
later , to both Roy and Dora Parker , that she talked "too much union" ; Jotter's
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement to Rowe about a month earlier to the same effect, coupled with the
remark that if he found himself obliged to hire her, he would find a means of
eliminating her ; and finally his remark to her at the time of her discharge.
The extent of her activity on behalf of the FTA-CIO, the FTA, Independent,
and the DPO have been detailed earlier. The FTA, Independent, in which
Parker had been active as a member and official, had been displaced by Local
78, CIO, as bargaining representative in December 1950. The rivalry between
the FTA, which had been expelled from the CIO, and Local 78, CIO, which
replaced it, had apparently given rise to intense feeling between members of
those organizations. Conceivably, the Respondent may have regarded the pres-
ence among its employees of Dora Parker, an ardent protagonist of a rival
organization, a threat to the stability of its relations with the incumbent bar-
gaining agent. Whatever extent this consideration may have played in the
Respondent's decision to discharge Parker, the fact is that Jotter, a responsible
supervisor, had obviously concluded that she was too preoccupied with "union
talk," and that her continued employment was inimical to the Respondent's
interests.
The undersigned is not unmindful of the fact that Jotter had hired her at the
outset of the 1951 season, despite her known union sympathies n and her proclivity
for "union talk" at the shed. This, of course, does not necessarily establish the
absence of discriminatory motive in connection with her subsequent discarge.
It is clear from the evidence regarding the circumstances under which she was
actually hired that the Respondent granted her the job on condition that she
should refrain from engaging in "union talk." There was no showing that
between the time she was hired, on April 17, 1951, and the date she was laid
off, on June 28, 1951, she continued to engage in "union talk" during working
time, or did so to a greater extent than she had done during the period of her
previous employment. Yet, what the Respondent attempted to do was to revive,
as grounds for her discharge, reasons which had allegedly existed during her
earlier period of employment, and which it had been willing to overlook. It is
significant that from April 17, when she was hired, until June 28, when the
packers went on strike, the Respondent took no occasion to reprimand, discipline,
or discharge Parker or to admonish her about her behavior.
While the record does not establish that her layoff on June 28 was motivated
by considerations of her union adherence or activity, the Respondent' s failure
to offer her employment when it restored the No. 12 hump, ostensibly because
of her lack of seniority, her excessive talking, her inability to get along with her
fellow employees, and their unwillingness to work with her, reasons which, for
the most part, had existed before her employment on April 17, convinces the
undersigned that the Respondent refused to reinstate Dora Parker, and dis-
charged her on July 7, not for the reasons advanced but because of her zeal
on behalf of the union of her choice, as manifested by Jotter's repeated remarks
that she had engaged in "too much union talk." The record supports the in-
ference that the Respondent seized upon the fortuitous circumstance of the
layoff occasioned by the packers' strike to reconsider and reverse its earlier
decision to hire her despite her known union adherence and activity.
Zl Although Jotter testified that he was unaware of the nature and extent of Dora
Parker's union affiliation or activities at any time prior to her discharge, the undersigned
finds this testimony incredible in view of the comparatively small complement of employees
and the closely confined operation. Moreover, the record establishes that Parker had been
active on the grievance and negotiating committees of the predecessor bargaining agents,
and her activities were a matter of common knowledge in the packing sheds in the area.
HOLME & SEIFERT 369
The fact that this Respondent may not have discharged or otherwise dis-
criminated against other known FTA or DPO adherents does not, of course,
establish an absence of discriminatory motive or intent with respect to Dora
Parker.' It is usually neither necessary nor economically feasible to discharge
every union member in order to discourage union membership or activities."
Upon the basis of the preponderance of the reliable, probative, and substantial
evidence on the record as a whole, the undersigned finds that the Respondent
H & S refused to reinstate and discharged Dora Parker on July 7, 1951, because
of her membership in and activities on behalf of the union of her choice, thereby
discriminating in regard to her hire and tenure of employment, to discourage
membership in a labor organization, in violation of Section 8 (a) (3), and inter-
fering with, restraining, and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, in violation of Section 8 (a) (1).
The complaint also alleges, and the General Counsel contends, that the Re-
spondent Association is jointly liable with the Respondent H & S for the dis-
crimination against Dora Parker. The record furnishes no direct evidence
that the Respondent Association engaged or participated in the unlawful conduct
of the Respondent H & S, or that the latter, in discharging Parker, was acting
on behalf of the Respondent Association, under its direction, or in pursuance
of a policy established or maintained by said Association. Presumably, liability
is sought to be attached because of the status of the Association as collective-
bargaining representative on behalf of the Respondent H & S and other em-
ployer-members of the Association. While the Association may stand in the
position of an employer within the meaning of the Act for certain purposes, the
undersigned perceives no basis for a finding that, under the circumstances related
above, the Respondent Association is liable for the acts of the Respondent H & S,
without regard to whether it engaged or participated in the unlawful conduct,
or directed, instigated, authorized, or ratified such conduct.
The undersigned, therefore, finds that the Respondent Association has not
discriminated in regard to the hire or tenure of employment of Dora Parker
to discourage membership in a labor organization, and has not engaged in unfair
labor practices within the meaning of Section 8 (a) (3) and 8 (a) (1) of the
Act, and will, therefore, recommend that these allegations of the complaint
be dismissed.
D. Discrimination by the Respondent Arena and the Respondent Association in
regard to the hiMe and tenure of employment of Edna Cooney ; the attempt to
cause and the causing of discrimination by the Respondent Union.
1. The layoff or discharge of April 10, 1951
Edna Cooney had been employed as a lettuce trimmer in the Salinas area
since 1930. In 1942 she joined UCAPAWA, and when it was succeeded by the
FTA-CIO, continued as a member of that labor organization. She was employed
by the Respondent Arena as a trimmer during the 1946 and 1947 seasons and
acquired seniority in that classification. Her name was included in the seniority
list for the 1948 season. In June 1948 she was appointed business agent for
Local 78, FTA-CIO, and in the same year also became secretary-treasurer of
that Local. In November 1948, again in 1949, and in early 1950, she served on
¢a See W. C. Nabors Company, 89 NLRB 538, 541-542 , and cases cited ; see also Coca-Cola
Bottling Co. of St. Louis, 95 NLRB 284.
n See N. L. R. B. v. Link-Belt Co., 311 U. S. 584 , 602; see also N. L. R. B . v. National
Garment Co., 1,68 F. 2d 233, 238 (C. A. 8) cert. den. 334 U. S. 845.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the negotiating committee, participating in some 30 conferences with the Asso-
ciation which resulted in contracts covering the packing shed employees for
the 1949 and 1950 seasons. After the expulsion of the YEA by the CIO, on
February 15, 1950, and the merger of the FTA with other labor organizations
to form the DPO, Cooney became a member of the latter organization , and con-
tinued as business agent and secretary-treasurer, remaining in those positions
until the time of the hearing. From July 1948 until December 1950, she also
served as a member of the grievance committees of the successive labor organiza-
tions, meeting with representatives of the Respondent Arena or the Association
on an average of twice a week during that period. She did not join Local 78,
CIO, the Respondent Union, after it replaced the FTA as bargaining representa-
tive but, instead, retained her affiliation with the DPO.
In the latter part of June 1948, Cooney informed William H. "Whitey" Welcher,
shed foreman for the Respondent Arena, that she had been offered the position
of business agent for Local 78, FTA-CIO, and obtained his consent to a leave of
absence from the company. On July 23, 1948, she delivered to him a letter,
signed by a representative of that union, addressed to Welcher, in care of the
company, requesting an "indefinite leave of absence without loss of seniority or
other rights," as provided in the existing collective- bargaining agreement R4
Although, according to Welcher, Cooney did not deliver the letter to him per-
sonally, he admitted that he had discussed the matter with her earlier and given
his consent, and that, while he did not actually see the letter until after charges
were filed, he had been told about the letter by Vincent Arena, vice president of
the company, within a day or two after its receipt. There is no dispute that
this request for a leave of absence was received by the Respondent on or about
the day of its date and that the Respondent granted the request. The under-
signed, therefore, regards the conflict in the testimony as to whether Cooney
delivered the letter to Welcher in person immaterial.
Late in March and, again , early in April 1950, while Cooney had occasion to be
at the Arena shed, she discovered that her name did not appear on the seniority
list for that season. She questioned Welcher about this, and he told her not to
be concerned , assuring her that she could have her job whenever she wished.
In August 1950, when Cooney called at the shed, Welcher referred to a news-
paper item reporting that Cooney had been defeated in the FTA (Ind.) election
for secretary-treasurer. Remarking that she would probably want her job with
the company, Welcher said that he would instruct Packer Boss Ray King to
make a place for her. Cooney confirmed that she had lost the election but told
him that, since she still held the position of area secretary-treasurer, she would
not need a job with the company as yet.
In March 1951, shortly before the beginning of the season, Cooney mailed to
the Respondent Arena a mimeographed "seniority" card, which her union
furnished its members, asserting her seniority as a trimmer, and requesting a
job for the coming season in conformity with the 1950 contract.
Early in April, having received no reply, Cooney called at the shed. Discover-
ing that her name did not appear on the seniority list for the coming season,
she mentioned this to Welcher. He told her that it was probably an oversight
on the part of the girl who had prepared the list and had doubtless been unaware
of Cooney's situation. Several days later, Cooney again called at the shed to
inquire when the season would begin. Welcher said he did not know the exact
date, probably about April 10, but assured her of a job as soon as the season
started, and suggested that she keep in touch with him.
The leave-of-absence provisions in the collective-bargaining agreements covering the
1948 and 1949 seasons were identical with those in the 1950 agreement , quoted In section
III, B , supra.
HOLME & SEIFERT 371
On April 10, the Respondent Arena began operations for the season, and Cooney
reported for work. Welcher, who was assembling the crew, asked General
Manager William M. Diereks what to do about Cooney. Diercks had only re-
cently assumed his position with the company, and said that he was unfamiliar
with her situation. Welcher then explained that she was an employee who had
been on leave of absence on union business, and told him that there was a letter
on file in the office to that effect. Diercks thereupon instructed Welcher to put
Cooney to work, and she was assigned to the No. 10 hump.
That morning, Russell A. Parker 5 and Chris S. "Lum" Moorehead, business
agents for Local 78, CIO, the Respondent Union, called at the shed. Various
trimmers, members of the Respondent Union, who had not been assigned to
work, protested to Parker that although, according to them, Cooney had no
seniority, Welcher had assigned her to work in preference to them. Parker
examined the seniority list posted at the shed, and when he discovered that
Cooney's name was not on the list , notified Welcher that she had no seniority.
Welcher disputed this, but Parker told him that he had checked the seniority
list himself and that since her name was not on the list, he was satisfied that
she had no seniority.
Welcher reported to Diercks that he was having trouble with the Union over
Cooney, that the Union wanted her removed from the job, and suggested that
Diereks talk to the union representatives. Diereks went out to Parker and
Moorehead and asked what the trouble was. According to Diereks, Parker
told him that trimmers with more seniority than Cooney had not been assigned
jobs, and that "the crew would not stand for it, there would be trouble if I
didn't take her off." Neither Parker nor Moorehead was questioned about, nor
did either categorically deny that Parker had made the statement attributed by
Diereks to Parker. Diercks' testimony impressed the undersigned as entirely
credible and trustworthy, and is credited quite apart from the fact that it is
undenied.
During his examination by counsel for the Respondent Arena and the As-
sociation, Diercks testified that he regarded Parker's statement as an implicit
threat that unless he acceded to the demand for Cooney's removal, there would
be a work stoppage. The undersigned regards this inference entirely justified
as a realistic appraisal of the situation with which the company was confronted.
Although Diercks had been convinced, on the basis of what Welcher had told
him about Cooney's leave of absence, that she was entitled to seniority, he testi-
fied that his concern with the possibility of a strike at the outset of the season,
while there was still no collective-bargaining agreement in effect, outweighed
any consideration of Cooney's seniority. He, therefore, directed Welcher to
remove her from the job until the matter could be investigated.26
Cooney had been working about 10 minutes when Welcher sent for her, and
told her that the CIO representatives "were causing trouble" and threatening
to "shut the shed down" unless they removed her from the job. He expressed
his regrets, but told her that he had no choice. Cooney asked his advice, and
he referred her to General Manager Diereks. As she set out to look for him,
she encountered Parker and Moorhead. Cooney asked Parker why he had had
her removed from the job. He replied, according to Cooney, "Well, you belong
to the wrong union. There are a lot of girls around here that have seniority
ss Not to be confused with Roy Parker.
x Moorehead 's testimony , that Dlercks ordered Cooney removed , at Moorehead 's sugges-
tion, until the issue of her seniority could be determined , only after Diercks had acknowl-
edged that the company had no letter requesting a leave of obsence , is neither plausible
nor consistent with the facts as known to Diercks , at the tinre . Moorehead 's testimony is
not credited.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over you," and added, "You have been working all the time and these girls
have been drawing unemployment insurance all winter." When Cooney pro-
tested that she had seniority by reason of her leave of absence, Parker told her
that he had been assured by Welcher that she had not obtained any leave of
absence. Cooney became irate, and summoned Welcher to explain why he had
so stated to Parker. When Welcher denied that he had made any such state-
ment, Parker conceded that he might have heard it from Moorehead. Cooney
warned Parker that she would file unfair labor practices charges. Parker
asked Moorhead, "She can't do that, can she, Lum?" Moorhead agreed that
she could not.
Cooney's testimony concerning her encounter with the CIO representatives
received substantial corroboration in the testimony of Roy Parker, the husband
of Dora Parker, whose case has already been discussed. According to him,
he had been at the Arena shed on the morning in question seeking employment,
when he overheard Russell Parker make the statements attributed to him by
Cooney.
Further circumstantial corroboration of Cooney's testimony is furnished by the
testimony of Dora Parker. According to her credited testimony, she was at the
Independent Grocers lettuce shed, between April 10 and April 15, when she
overheard one of the women ask Business Agent Parker what had happened to
Cooney. He replied, "Well, I just wanted to show her what it felt like to be
pulled off a job like she did some of them last year."
In crediting the testimony of Roy and Dora Parker concerning these separate
incidents, the undersigned has not overlooked the element of coincidence in the
fact that these individuals happened to be present and overheard the crucial
remarks attributed to the business agent. Nor is the undersigned unmindful
that they had been members of the same labor organizations as those to which
Cooney had belonged, and were, at the time of the hearing, members of the
DPO. The undersigned has also taken into consideration the fact that, as
persons interested in the outcome of these consolidated proceedings, they were
undoubtedly favorably disposed toward Cooney and anxious to be helpful to
her cause. Their testimony, however, was not contradicted, nor was it ma-
terially undermined on cross-examination. Their explanation of the circum-
stances under which they were at the sheds of other employers, seeking jobs at
the beginning of the season, impressed the undersigned as plausible and per-
sausive. Upon consideration of all the relevant factors, the undersigned credits
their testimony, and finds that it furnishes substantial corroboration of Cooney's
credited testimony regarding her encounter with the CIO representatives.
According to Business Agent Parker, Cooney approached him and Moorehead
after she had been removed from the job and engaged them in conversation.
She told Parker that she had formerly regarded him as "a pretty good guy,"
but that she no longer thought so. He rejoined that he had considered her
"a pretty good union person" until that morning, but that he did not approve
of her "running ahead of these people here." She insisted that she had seniority
and when he challenged this, she mentioned "something about a letter." Moore-
head interjected to suggest that she produce the letter. Cooney then stated
that she would file unfair labor practice charges in which she was confident she
would prevail. Parker said that he was only performing his job, and that he
owed an obligation to the persons who had seniority.27
27 Although Parker denied that he had said to Cooney, in the presence of Roy Parker,
that she belonged to the "wrong union ," and further denied the statement attributed to
him by Dora Parker in the conversation with the employee at the Independent Growers
shed, the undersigned was not favorably impressed with Russel Parker's testimony or his
general attitude and demeanor on the witness stand. His denials are not credited.
HOLME do SEIFERT 373
Almost immediately afterward , Business Agent Parker told Welcher that he
regretted causing him any trouble , but that he had a job to do. According to
Parker , Welcher asked him what the Union 's position was with respect to Ben
Barton, a packer, who admittedly had no seniority . Parker testified that he
told Welcher that he "wasn 't down there to pull Ben Barton off the job , that we
had no beef with Ben Barton , or anyone else that held seniority , or anyone else
that was on the job that wasn 't taking the place of someone that did hold
seniority." "
Parker admitted that he had remarked to Welcher during the conversation
that Cooney had been working at "a good job for the last three years," obviously
alluding to her position with the FTA ( Ind.) and the DPO, that "she had been
on a big , nice salary," and that he failed to understand why Welcher had hired
her in preference to persons who had had seniority from the previous year, and
who, Welcher knew , had been drawing unemployment compensation all winter
and needed work.
When Cooney finally spoke to Diercks , and asked him why she had been re-
moved from the job , he told her that the "CIO was causing trouble, threatening
to shut down the shed ." She brought up the matter of her leave of absence, but
he said that he was unfamiliar with the situation , and asked her to forbear
while he attempted to settle the matter through the Association . She consented.
Diercks notified the Association of the dispute about her seniority. Later
that morning , Diercks found the letter requesting Cooney's leave of absence,
and referred it to the Association.
Between April 10 and April 30, Cooney communicated with General Manager
Diercks, and Secretary -Manager Jack Bias and Vice -President Roy Ladra of
the Association in an effort to obtain reinstatement . She was told that the
matter was being investigated . On about April 15, Cooney telephoned Vice-
President Arena and asked him if he was aware that she had been removed from
her job . He said that he had just learned of it on his return from Los Angeles,
and agreed to investigate , assuring her that the incident would not have occurred
if he had not been away at the time.
Within a day or two, Cooney met Arena at the shed . He told her that he
had given instructions not to add another hump until her status was deter-
mined , and that she would be notified as soon as the hump was restored.
On April 16, 1951 , Cooney filed unfair labor practice charges against the Re-
spondent Arena, the Association , and the Union 29
In later discussions with Vice -President Arena , be assured her that she would
be reinstated to her job shortly , that the matter was in the hands of the Associa-
tion , and that the "NLRB was working on it." He promised that she would be
assigned to the No. 13 hump as soon as it was established, and told her that she
would be reimbursed for her loss of pay even if he had to pay it out of his own
pocket.
Later, Cooney telephoned Diercks to find out when she could return to work,
and protested that a number of trimmers who were working at the shed had less
seniority than she had. Diereks said , according to her, that he was aware of it,
but that the matter would have to be handled by the Association.
On April 29, Coonel learned through one of the trimmers that the Respondent
Arena was adding another hump next day . She reported to the shed, and
v Presumably this was a reference to the contention that, because of the scarcity of
packers, the issue of seniority was of no practical application as to them.
'B The formal file on these charges, Cases Nos. 20-CA-578 and 20-CB-194, of which the
undersigned has taken official notice, discloses that these charges were dismissed by the
Regional Director on July 13, 1951.
250983-vol 102-53-25
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Welcher assigned her to the No. 13 hump. Although she requested her back
pay, she did not receive reimbursement and has not been reimbursed since.
The record leaves no doubt that, at the time of her employment on April 10,
Cooney had seniority under the policy then in effect. She had applied for, and
been granted, a leave of absence under which her seniority status was preserved.
That the Respondent Arena was aware of this at the time she was removed is
abundantly clear from the testimony of both Welcher and Diercks. Diercks,
himself, acknowledged in his testimony that he was satisfied that she had
seniority, even while he ordered her removal. That he yielded to the Union's
demand for reasons of expediency is, of course, no justification for his action.
Despite the Respondent Union's contention that, in requesting Cooney's
removal, it was concerned solely with the question of her seniority, and its desire
to procure employment for its members who were entitled to seniority, the
record fairly establishes that those were not the primary considerations which
motivated it. For, if that were its real concern, the issue of Cooney's seniority
could have readily been determined by requesting the Respondent Arena to make
a search for the application for the leave of absence, which was actually dis-
covered within an hour of Cooney's dismissal. Instead, the Union steadfastly
avoided a resolution of this issue, preferring to rely on the inconclusive fact that
her name did not appear on the seniority list, despite her repeated protestations
that she had been granted such a leave.
In these circumstances, the credited testimony concerning Business Agent
Parker's statement to Cooney, almost immediately after her dismissal, that she
belonged to the "wrong union"; his comment to Welcher that she had been work-
ing 3 years for other labor organizations at a "big, nice salary" ; his subsequent
conversation with the employee at the Independent Grocers lettuce shed, over-
heard by Dora Parker, in which he explained "what had happened to Cooney"
at the Arena shed ; and the other facts already related, convince the under-
signed that in demanding Cooney's discharge, the Respondent was motivated,
not by considerations of her alleged lack of seniority, but of her affiliation with
and allegiance to a rival labor organization. The nature and extent of her
activities on behalf of the various labor organizations have been detailed else-
where, and no purpose would be served in repeating them here. While it is true
that the Respondent Union had displaced the union with which Cooney had been
affiliated, this did not eliminate the threat to its continuing status as bargaining
agent represented by Cooney's employment with the Respondent Arena.
Upon the basis of the foregoing, and the entire record relating to these
Respondents, the undersigned concludes and finds that the Respondent Union
demanded, under threat of work stoppage, express or implied, that the Respondent
Arena dismiss Cooney from her job because of her affiliation with and continued
allegiance to a rival labor organization. By this conduct, the Respondent Union
has attempted to cause and has caused the Respondent Arena to discriminate
in regard to the hire and tenure of employment of Edna Cooney, in violation of
Section 8 (a) (3), thereby engaging in unfair labor practices within the mean-
ing of Section 8 (b) (2), and restraining and coercing employees in the exercise
of the rights guaranteed by Section 7, in violation of Section 8 (b) (1) (A) of
the Act.
It is further found that, by acceding to the demand of the Respondent Union for
Edna Cooney's discharge because of her affiliation with and continued allegiance
to a rival labor organization, thereby discriminating in regard to her hire and
tenure of employment, the Respondent Arena has engaged in unfair labor prac-
tices within the meaning of Section 8 (a) (3), and has interfered with, restrained,
HOLME & SEIFERT 375
and coerced employees in the exercise of the rights guaranteed by Section 7, in
violation of Section 8 (a) (1) of the Act 80
The complaint also alleges, and the General Counsel contends, that the Respond-
ent Association is equally responsible with the Respondent Arena for the dis-
crimination practiced against Cooney. In contrast to the evidence in the case
of Dora Parker, where a similar allegation 'Nas dismissed, the record here
fairly establishes that the Respondent Association, as bargaining representa-
tive of the Respondent Arena, actually participated, with the express authori-
zation and consent of the Respondent Arena, in the determination which resulted
in her dismissal , and her later reinstatement upon the recommendation of the
Association. The Association, in effect, thereby became a joint tort-feasor, and,
is therefore, jointly and severally liable with the Respondent Arena for the
unlawful acts in which each engaged.
2. The discharge of July 3, 1951 "
When Cooney was reinstated on April 30 , she asked Welcher why she had
been assigned to the No. 13 hump rather than the No. 10 hump from which she
had been removed. Welcher assured her that her seniority would not be affected
by the change in assignment . Cooney also raised the question with Vice-Presi-
dent Arena and Secretary -Manager Bias of the Association , explaining that she
wanted her status established so that she would not be faced with a layoff in
the event of a reduction in force because of having been assigned to the last
hump. Both assured her that her seniority would remain unimpaired , but would
not commit themselves as to her relative seniority. Several days later she
communicated with the Regional Office of the Board in an effort to have this
question settled . The record does not disclose what action was taken , if any.
Cooney continued to work on the No. 13 hump from April 30 until June 27,
1951. When she and other members of the crew reported for work that morning,
Welcher informed them that some of the packers had gone on strike . Actually,
8 of the packers at the Arena shed engaged in this strike , leaving 5 humps at
work. Cooney and other trimmers remained at the shed until 11 o'clock that
morning, holding themselves available for work. At that time Welcher dis-
missed the crew and he or Ernest "Whitey" Smith , the packing foreman,
instructed them to return at noon.
Meanwhile, about 10 o 'clock , Vice-President Arena had engaged Cooney in a
conversation at the shed , in the presence of Vera Robinson , another trimmer.
According to Cooney , Arena asked her if she was the spokesman for the packers.
She replied that she was not, that she no longer represented the employees, and
told him that he would have to take the matter up with the CIO representatives.
Arena said that he understood she had attended two of the packers' meetings.
Cooney told him that he had apparently been misinformed , and that she had
never attended any of their meetings , a fact to which she also testified at the
hearing."
80 "It is well established that an employer's acceptance of the determination of a labor
organization as to who shall be permitted to work for it is violative of Section 8 (a) (3)
of the Act, where, as here. no lawful contractual obligation for such action exists." Ameri-
can Pipe and Steel Corporation et at, 93 NLRB 54, 56, and cases cited.
ai Although the complaint alleges that the Respondent Arena and the Association die-
criminatorily discharged Edna Cooney on or about June 28, 1951, as will later appear,
the discharge actually occurred on July 3, 1051. There is no allegation or contention that
the Respondent Union was in any way responsible for her discharge on that date.
11 For Vice-President Arena' s version of this and other matters about which Cooney
testified, see footnote 33, infra.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cooney returned to the shed at noon and found that there were no packers
available for the crews which had been affected by the walkout. About a half
hour later, Whitey Smith instructed the trimmers to return next morning, and
stated that the Company would attempt to obtain packers for their humps. One
hump had, however, been added in the interim, making a total of six humps
which were then working.
According to Cooney's undisputed testimony, on the basis of her examination
of the seniority lists for 1949 and 1950, there were then five trimmers working
who had less seniority than Cooney. Because she assumed that she would
return to work within the next day or two, Cooney did not then raise any issue
with the Company concerning the alleged disparate treatment.
Smith instructed the trimmers to report the following morning. When Cooney
and the others arrived, Welcher told them that there were still no packers avail-
able for them. Fern Haynes, one of the trimmers in this group , asked Welcher
whether they were being laid off. Welcher replied that they were. Haynes then
asked him whether the trimmers should "go down and sign up for unemployment
insurance." He agreed that they should. The trimmers, including Cooney, then
left for the office of the Department of Employment, affiliated with the U. S.
Employment Service, in Salinas, and registered for unemployment compensation.
An entry on Cooney's employment card produced at the hearing confirms that she
registered with that agency on June 28, 1951.
Packer Foreman Smith instructed the trimmers to report next day, Friday,
June 29. Some did, although Cooney, among others, did not report on that day.
The Arena shed did not operate on Saturday, June 30, or Sunday, July 1. Cooney
did not report on Monday, July 2, but, instead went to other packing sheds in the
area on each of those days to seek employment.
Late Monday night, Cooney learned in a telephone call from Dora Parker that
the packers had met earlier that evening and voted to return to work Concluding
that, with the return of the packers, work would become available for the trim-
mers, Cooney reported to the shed next morning, July 3. She was told by either
Whitey Welcher or Whitey Smith that there was still no work available for her.
Cooney testified that she asked Welcher "what the score was." He said that
he did not know, but that Diercks had been told that she had been the "leader
of the packers' strike." When Cooney denied this, Welcher remarked that he
had been told that she had been in the vicinity of the Holme & Seifert shed, and
that she had "pulled the Holme & Seifert crew." Cooney told him that he had
been misinformed, that she had merely been in a coffeeshop across the street
from the H & S shed from which she observed what was going on. According to
Cooney, Welcher also asked her who the leader of the packers was, and, when
she said she did not know, Welcher observed that he already knew, identifying
him, at her request, as Jack Montgomery, a former regional director of the FTA.
Cooney then asked him if she had been placed on a blacklist. He replied that
he did not know. She told him that if that proved to be so, she would be com-
pelled to file unfair labor practice charges to ensure her future employment.
According to Welcher's version of this conversation, Cooney asked him "what
the score was." He observed that she should know, and asked why she had
not reported on Friday or Monday. She said, according to his testimony, which
Cooney denied, that she had been home with a sick headache. When he said
that he had been informed that she had been at the H & S shed, she admitted
that she had been across the street in the coffeeshop. He denied that he had
discussed the packers' strike with her, and that he had made any of the state-
ments attributed to him by her implicating her in the strike. He further denied
that she had asked him whether she was on a blacklist.
HOLME & SEIFERT 377
In view of the Respondent's obvious concern with the work stoppage occa-
sioned by the packers' walkout; Welcher's evident conclusion that Cooney's
failure to report on the 2 days in question had been because she was supporting
the packers' strike; the plausibility of Cooney's version of the conversation,
and her general credibility, the undersigned does not credit Welcher' s denials,
and finds that Welcher made the statements substantially as attributed to him
by Cooney.
Cooney telephoned General Manager Diereks about her job. He asked her
whether she had reported on Friday and Monday, and whether she had been
in touch with Welcher on those days. When she said that she had not done
either he told her, "Then you have quit." She asked to talk to Arena, but he
told her that he was out of town and would be gone about 10 weeks.
Diercks testified that he had instructed Welcher the previous Thursday to
follow the seniority list when the trimmers were put back to work. On Monday
afternoon, according to Diercks, he observed from a casual scanning of the
trimmers ' list that Cooney had not reported for work. He discussed this with
Welcher and again next morning, and decided to discharge her. Welcher,
however, testified that he had reached the same decision independently of
Diercks. Diercks denied that he had ever told Welcher or Arena that Cooney
was the leader of the packers' strike, and testified that he did not know who
the leader of the strike had been. Although Diercks may not have been aware
of the actual identity of the leader of the strike, for reasons already stated with
respect to Welcher, his denial that he had so identified Cooney to Welcher is not
credited."
After her discussion with Diercks, and at his suggestion, she telephoned Bias
of the Association. He told her that he would investigate, and suggested that
she call him back. When she did so, he reported that the company was main-
taining that she had quit her job. She denied that she had quit, asserting that
since she had been laid off, she was at a loss to understand the company's
position.
On or about July 10, when Cooney reported to the State Unemployment Service,
she learned that her claim for unemployment compensation had been protested
by the company on the ground that she had voluntarily quit her job. She there-
upon went to the Arena shed and asked Welcher for an explanation. According
to Cooney, he told her that there must have been some mistake because he had
never reported that she had quit, that he had received a call from that office, and
that the matter had been straightened out. Thereafter, Cooney received her
unemployment compensation without further protest.
ss Vincent Arena did not testify at the hearing. In lieu of his testimony, the parties
stipulated that if he were called as a witness he would testify substantially as follows :
He was not in Salinas on April 10, 1951, when the season began , but returned sometime
between April 15 and April 20 Between those dates, he had a conversation with Cooney,
the substance of which he could not recall, but he knew that the question of her status
was being investigated . Although he did not say that he would reimburse her for her
loss of pay, he might have told her that she would receive any back pay to which she was
entitled. He did not recall any conversation with her on or about June 27, when he was
alleged to have said that he understood she was the leader of the packers ' strike. He did
not discuss Cooney's status with Diercks or Welcher at any time after June 27, but left for
Los Angeles on the night of June 28, without then, or thereafter, giving Diercks or
Welcher instructions regarding Cooney. He had no knowledge that she had failed to report
for work on Friday, June 29, or Monday, July 2, and had no knowledge of it on July 3,
when Cooney is alleged to have had the conversation with Diercks and Welcher. Even
assuming the truth of these statements, the undersigned regards them wholly insufficient
to overcome Cooney's more positive , credible, and persuasive testimony regarding these
matters.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cooney has not since been reinstated. From about mid-July until the rest of
the season , Cooney had occasion to visit the Arena shed on various occasions. On
the basis of her observations and her familiarity with the relative standing of
the trimmers on the seniority list, she testified that she was the only trimmer
who had been laid off at the time of the packers' strike who had not been re-
instated to her job.
Contentions and Conclusions
The Respondent Arena contends that Cooney was not reinstated after the ter-
mination of the packers ' strike solely because she had failed to report on Friday,
June 29, and Monday, July 2. Because of her failure to report, it was regarded
that she had quit her employment. Why, then, the Respondent found it neces-
sary to discharge her has not been satisfactorily explained.
After the packers went on strike on Wednesday, June 27, the Respondent con-
tinued its operations with only 5 humps . Next day, a total of 8 packers became
available , and the Respondent increased the number of humps accordingly. On
Friday, the number of humps was further increased to 10. By about July 13, the
Respondent was operating with its full complement of 14 humps. The Respondent
maintains that had Cooney reported for work on Friday she would have been
assigned to work, and that the fact that she had been working on the No. 13
hump at the time of the layoff on June 27 had not affected her seniority
standing.'
There is record support for the Respondent's contention that the trimmers,
who were laid off as a result of the packers' strike, were instructed to report on
the following days, and that most of them did so. The question, however, is
whether Cooney's failure to report, as directed, reasonably justified the Respond-
ent in concluding that she had, in fact, quit her employment. It will be remem-
bered that on June 27, when the trimmers were laid off, Packer Boss Smith ap-
proved of their registering for unemployment compensation. The trimmers,
including Cooney, were, therefore, reasonably justified in concluding that the
layoff occasioned by the strike might be of uncertain duration. And, while the
Respondent might legally impose upon these employees the burden of ascer-
taining when work would be resumed, they were at no time warned that their
failure to report daily during the strike might result in loss of employment. More-
over, it will be recalled that Cooney, herself, did in fact report to the shed at noon
on the day of the layoff, after the trimmers had been dismissed, and again the
following morning on Thursday, June 28. On neither of these occasions did any
of the Respondent's supervisors or representatives give any indication as to when
work would be available for the trimmers who had been affected by the strike.
Under the circumstances, Cooney's failure to report on the two succeeding work
days, during which she made efforts to obtain employment at other sheds in the
area, was hardly unreasonable. It will be recalled, too, that, although the Re-
spondent had originally protested her claim for unemployment compensation on
the ground that she had voluntarily quit, it later withdrew its opposition. With-
out deciding whether this conduct constituted a waiver of the Respondent's
claim that she had voluntarily quit, its position regarding her claim for un-
employment compensation is a factor to be considered. The fact that the Re-
spondent may have been reluctant to deprive Cooney of her unemployment com-
pensation does not vitiate the effect of its overt action.
A^+ The Respondent Arena conceded that her standing on the trimmers ' seniority list
at the time was between 35 and 40. With 10 humps operating on Friday , and 4 trimmers
to each hump , the Respondent would have reached at least as far as number 40 on the
seniority list.
HOLME & SEIFERT 379
Notwithstanding what has been said, it is settled, of course, that the Respond-
ent was at liberty to discharge Cooney for failure to report on Friday and Monday,
irrespective of whether imposition of such a requirement was reasonable. For,
as has been repeatedly held, an employer may discharge an employee for any
reason whatever, or, indeed, for none at all, so long as he is not motivated by
considerations of the employee's union or concerted activities.
The record and the facts detailed above, particularly the evidence concerning
Vice-President Arena's interrogation of Cooney, the statements attributed by
Welcher to Diercks regarding Cooney's alleged leadership in the packers' strike,
and Welcher's effort to discover the identify of the actual leader of the strike,
suggest that the Respondent Arena terminated Cooney's employment because of
its conclusion that she had engaged in or supported that strike. The Respond-
ent, however, refused to take a position at the hearing as to whether it discharged
Cooney for that reason. Instead, it adopted the same position as did the
Respondent H & S with respect to Dora Parker, that if, on the record as a
whole, a finding was justified that Cooney had in fact engaged in or supported
what it regarded as an unauthorized or "wildcat" strike, she was not entitled
to the protection of the Act, even though the Respondent did not rely on such
alleged activity at the time, and, indeed, may not even have been aware of it
at the time of her discharge. The record, however, is wholly inadequate to
support a finding either that the packers had engaged in an unauthorized or
wildcat strike, that Cooney had participated in any way in such a strike, or
that she had failed to report on the days in question because of her sympathy
with or support of the strike. On the contrary, she testified credibly that she
was vigorously opposed to the strike and, when asked by other trimmers what
their position should be in relation to that strike, informed them that the matter
was of no concern to them.
It remains to be decided, therefore, whether the Respondent Arena terminated
Cooney's employment solely for the reasons advanced or because of considera-
tions of her union or concerted activities. Under the circumstances of her layoff
on June 27, including the indefiniteness of the prospect for subsequent employ-
ment, and the absence of any showing that other trimmers who did not report
on Friday and Monday were similarly discharged,"' the undersigned concludes
and finds that Cooney was not discharged for the reasons asserted.
The record establishes that the Respondent Arena was fully aware of the
nature and extent of Cooney's activities on behalf of the several unions with
which she had been affiliated. Moreover, it was also aware that the Respondent
Union was opposed to her employment with the Respondent Arena because the
Union regarded her interests and allegiance in conflict with its own. While
the Respondent Arena may have harbored no animus toward Cooney, it is evi-
dent that it had concluded on the basis of its prior experience that the Re-
spondent Union regarded her continued employment with the Respondent Arena
a challenge to the Union's future representative status, which, in turn, might
prove disruptive to the stability of its operations. Cooney's layoff on April 10
is illustrative. The fact that the Respondent Arena later reinstated her, and
that the Respondent Union did not oppose her reinstatement, does not establish
that either of these Respondents had become reconciled to her employment.
Her reinstatement was effected only after charges had been filed, and it is not
surprising that the Respondent Arena waited only until it was afforded a con-
venient pretext to discharge her. The undersigned is persuaded and finds that
s< According to General Manager Diercks, there were no records which would reveal
which employees reported for work on the 2 days in question and which did not. Shed
Foreman Welcher testified that he could not recall any other trimmers who did not report.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent Arena discharged Cooney not because of her failure to report
on the days in question, but because of its desire to eliminate an employee, who,
because of her adherence to and activity on behalf of a dissident union group,
represented a threat to the stability of its relations with the incumbent collective-
bargaining representative.
As has been pointed out elsewhere, the fact that the Respondent Arena did
not discriminatorily discharge or otherwise discriminate against other known
FTA or DPO adherents, does not establish an absence of discriminatory motive
concerning Cooney. Apart from the reasons there stated, there is always the
issue of whether such union adherents had engaged in conduct which could
furnish a pretext for discharge.
The undersigned, therefore, finds, on the basis of the foregoing and the entire
record, that the Respondent Arena discharged Cooney on July 3, 1951, and there-
after failed to reinstate her because of her membership in and adherence to a
labor organization other than the Respondent Union, to discourage membership
in the labor organization of her choice, and to encourage membership in the
Respondent Union, thereby violating Section 8 (a) (3) of the Act, and has
interfered with, restrained, and coerced employees in the exercise of the rights
guaranteed in Section 7, thereby violating Section 8 (a) (1).
The complaint also alleges, and the General Counsel contends, that the Re-
spondent Association has similarly discriminated in regard to the hire and
tenure of employment of said Cooney by the conduct of said Respondent Arena.
The record furnishes no evidence that the said Association engaged in or par-
ticipated in any conduct concerning Cooney's discharge on July 3, 1951. The
most that this record reveals with respect to the Respondent Association is that
when Cooney notified Bias of her discharge, he investigated and later reported
to her that the Respondent Arena contended that she had quit voluntarily. This
conduct falls far short of establishing a basis for responsibility on the part of
the Association. The undersigned has already rejected elsewhere the General
Counsel's contention that the Association's liability arises from its status as the
bargaining representative of the Respondent Arena and other member com-
panies, without regard to whether the Association engaged or participated in
the unlawful conduct or directed, instigated, authorized, or ratified such con-
duct. The undersigned, therefore, finds that the Respondent Association has
not engaged in unfair labor practices with respect to the discharge of Cooney,
on or about July 3, 1951, and will recommend that those allegations of the
complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in section III, above, occurring
in connection with the operations of the Respondent Association and the Respond-
ents, Holme & Seifert and Arena, described in section I, above, have a close, inti-
mate, 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.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor
practices, it will be recommended that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent Holme & Seifert has discriminated with
regard to the hire and tenure of employment of Dora A. Parker, by discharging
her on or about July 7, 1951, and thereafter refusing to reinstate her, thereby dis-
HOLME & SEIFERT 381
couraging membership in the labor organization of her choice, and encouraging
membership in the Respondent Union, and interfering with, restraining, and
coercing employees in the exercise of the rights guaranteed in Section 7 of the
Act
It will, therefore, be recommended that the said Respondent Holme & Seifert
offer her full reinstatement to her former or substantially equivalent position,"
without prejudice to her seniority or other rights and privileges. In view of
the seasonal nature of the operations of the Respondent Holme & Seifert, this
recommendation shall be construed to require said Respondent to offer her
reinstatement to such position at the commencement of the 1952 lettuce packing
season. It will further be recommended that the Respondent Holme & Seifert
make said Dora A. Parker whole for any loss of pay she may have suffered by
reason of the discrimination against her by payment of a sum of money equal
to that which she normally would have earned from the date of said discrimi-
natory treatment, on or about July 7, 1951, until the end of the 1951 lettuce
packing season, and an additional sum of money equal to that which she would
normally earn from the date of the beginning of the 1952 lettuce packing season
until the date of the said Respondent's offer of reinstatement, less her net earn-
ings " during said periods.
It has also been found that the Respondent Association and the Respondent
Arena have discriminated in regard to the hire and tenure of employment of
Edna Cooney, by her dismissal on April 10, 1951, because of her membership in
or adherence to a union other than the Respondent Union, thereby discouraging
membership in the union of her choice and encouraging membership in the
Respondent Union. It has also been found that the Respondent Union has
attempted to cause and has caused the said Respondent Arena to discriminate
in regard to her hire and tenure of employment in violation of Section 8 (a) (3)
of the Act. Since the Respondent Arena reinstated Cooney to her former or
substantially equivalent position on April 30, 1951, it will be recommended that
the Respondent Association, the Respondent Arena, and the Respondent Union,
jointly and severally, make said Cooney whole for any loss of pay she may have
sustained by reason of said discrimination, by payment to her of a sum of money
equal to that which she would normally have earned as wages in the Respondent
Arena's employ from April 10 to April 30, 1951, less her net earnings during
said period. It has also been found that the Respondent Arena has discriminated
with regard to the hire and tenure of employment of said Cooney by discharging
her on July 3, 1951, because of her membership in or adherence to a union other
than the Respondent Union, thereby discouraging membership in the union of
her choice and encouraging membership in the Respondent Union. It will,
therefore, be recommended that the Respondent Arena offer said Cooney full
reinstatement to her former or substantially equivalent position, without preju-
dice to her seniority and other rights and privileges. In view of the seasonal
operations of the Respondent Arena, this recommendation shall be construed
to require the said Respondent to offer Cooney reinstatement to her former or
substantially equivalent position at the commencement of the 1952 lettuce packing
season. It will also be recommended that the said Respondent Arena make
said Cooney whole for any loss of pay she may have sustained by reason of said
Respondent's discrimination against her by payment to her of a sum of money
equal to that which she would normally have earned as wages from the date of
the discrimination, on July 3, 1951, until the end of the said Respondent's 1951
86 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
11 Crossett Lumber Company, 8 NLRB 440, 492-498.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
season , and an additional sum equal to that which she would normally earn as
wages from the date on which said Respondent Arena shall commence its 1952
lettuce packing operations to the date of said Respondent's offer of reinstatement,
less her net earnings during each of said periods. In accordance with the
Board's policy, loss of pay in all instances shall be computed in accordance with
the formula enunciated in F. W. Woolworth Company, 90 NLRB 289, and, as
directed therein, the Respondent Arena shall, upon request, make available to
the Board and its agents all records pertinent to the determination of the right
to reinstatement and the amounts of back pay due. It will further be recom-
mended that the Respondent Union notify the said Respondent Arena in writing,
furnishing Cooney with a copy of said notice, that it withdraws, and will not
assert any objection to her future employment with the Respondent Arena, for
reasons based upon her membership in any labor organization other than the
Respondent Union, or for failure to maintain membership in the Respondent
Union as a condition of employment, except to the extent and under the conditions
permitted by the proviso to Section 8 (a) (3).
It is apparent from the entire record, and the illegal activities in which
the Respondents have engaged, including the discriminatory treatment of Parker
and Cooney, that there is danger of the commission in the future by said Re-
spondents of other unfair labor practices proscribed by the Act. In order to
make effective the interdependent guarantees of Section 7, and to effectuate the
policies of the Act, it will also be recommended that the Respondents cease and
desist from infringing in any manner upon the rights of employees guaranteed
by the Act, except to the extent that such rights may be affected by a valid
agreement requiring membership in a labor organization as a condition of em-
ployment as authorized by Section 8 (a) (3) of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in these cases, the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Fresh Fruit & Vegetable Workers, Local Industrial Union No. 78,
CIO, is a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Dora
A. Parker, thereby discouraging membership in a labor organization other than
the Respondent Union, and encouraging membership in the Respondent Union,
the Respondent Holme & Seifert has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By the foregoing discrimination, and by interfering with, restraining, and
coercing employees in the exercise of the rights guaranteed in Section 7 of the
Act, the Respondent Holme & Seifert has engaged in and is enraging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Edna
Cooney, on April 10, 1951, thereby discouraging membership in a labor organi-
zation other than the Respondent Union, and encouraging membership in
Respondent Union, the Respondent Association and the Respondent Arena have
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act; and by discriminating in regard to the hire and
tenure of employment of said Cooney, on July 3, 1951, for the same purpose, the
said Respondent Arena has engaged in unfair labor practices within the mean-
ing of said section.
5. By attempting to cause and causing the Respondent Arena on April 10, 1951,
to discriminate in regard to the hire and tenure of employment of Edna Cooney, in
HOLME & SEIFERT 383
violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (b) (2)
of the Act.
6. By restraining and coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, the Respondent Union has engaged and is engaging
in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the
Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. The Respondents have not, except to the extent found above, otherwise
engaged in unfair labor practices or violated the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
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
Relations Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership in any labor organization of our
employees' choice, or encourage membership in UNITED FRESH FRUIT & VEGE-
TABLE WORKERS, LOCAL INDUSTRIAL UNION No. 78, CIO, or in any other labor
organization of our employees, because of their membership in a labor
organization other than the said union, or because of their nonmembership
in said union, or by discriminating against them in any other manner in
regard to their hire or tenure of employment or any term or condition of
employment, except to the extent permitted by Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed in Section 7 of the Act,
except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment, as
authorized by Section 8 (a) (3) of the Act.
WE WILL offer Dora A. Parker full reinstatement to her former or sub-
stantially equivalent position, without prejudice to any seniority or other
rights and privileges previously enjoyed, and make her whole for any loss
of pay suffered as a result of the discrimination against her, as provided
in the section of the Intermediate Report and Recommended Order entitled
"The Remedy."
All our employees are free to become, remain, or to refrain from becoming
or remaining, members of the above-named union or any other labor organiza-
tion, except to the extent permitted by the provisions of Section 8 (a) (3) of
the Act.
HOLME & SEIFERT,
Employer.
By ----------------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for sixty (60) days from the date hereof,
and must not be altered, defaced, or covered by any other material.
384
Appendix B
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
Relations Act, as amended, we hereby notify you that :
WE WILL NOT discourage membership in any labor organization of our
employees' choice, or encourage membership in UNITED FRESH FRUIT & VEGE-
TABLE WORKERS, LOCAL INDUSTRIAL UNION No. 78, CIO, or in any other labor
organization of our employees, because of their membership in a labor
organization other than the said union, or because of their nonmembership
in said union, or by discriminating against them in any other manner in
regard to their hire or tenure of employment or any term or condition of
employment, except to the extent permitted by Section 8 (a) (3) of the
Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed in Section 7 of the Act,
except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment, as
authorized by Section 8 (a) (3) of the Act.
WE WILL offer Edna Cooney full reinstatement to her former or substan-
tially equivalent position, without prejudice to any seniority or other rights
and privileges previously enjoyed, and, jointly and severally with said union,
and in the manner and to the extent set forth in the section of the Inter-
mediate Report and Recommended Order entitled "The Remedy," make said
Edna Cooney whole for any loss of pay suffered as a result of the discrimi-
nation against her.
All our employees are free to become, remain, or to refrain from becoming or
remaining, members of the above-named union or any other labor organization,
except to the extent permitted by the provisions of Section 8 (a) (3) of the Act.
GROWER- SHIPPER VEGETABLE ASSOCIATION
OF CENTRAL CALIFORNIA
Employer.
By --------------------------------------------
(Representative ) ( Title)
Dated --------------------
ARENA COMPANY OF SALINAS
Employer.
By --------------------------------------------
(Representative) ( Title)
Dated --------------------
This notice must remain posted for sixty (60) days from the date hereof, and
must not be altered, defaced, or covered by any other material.
Appendix C
Notice to All Members of United Fresh Fruit & Vegetable Workers, Local Indus-
trial Union No. 78, C. I. 0., and to All Employees of Arena Company of Salinas
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
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause ARENA COMPANY OF SALINAS, its
officers, agents, successors , or assigns , to discharge, suspend, lay off, or in
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PACIFIC MILLS 385
any other manner to discriminate against employees because of their mem-
bership in a labor organization other than UNITED FRESH FRUIT & VEGETABLE
WORKERS, LOCAL INDUSTRIAL UNION No. 78, C. I. 0., or because of their non-
membership in said union, in violation of Section 8 (a) (3) of the Act,
except to the extent authorized by said section.
WE WILL NOT restrain or coerce employees of ARENA COMPANY OF SALINAS,
its successors or assigns, in the exercise of the rights guaranteed by Section
7 of the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condition of
employment, as authorized by Section 8 (a) (3) of the Act.
WE WILL, jointly and severally, with GROWER-SHIPPER VEGETABLE'ASSOCIA-
TION OF CENTRAL CALIFORNIA, and said ARENA COMPANY OF SALINAS, and in
the manner and to the extent set forth in the section of the Intermediate
Report and Recommended Order entitled "The Remedy," make Edna Cooney
whole for any loss of pay suffered as a result of the discrimination against
her.
UNITED FRESH FRUIT & VEGETABLE WORICERS,
LOCAL INDUSTRIAL UNION No. 78, C. I. O.
Labor Organization.
By ------------------------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for sixty (60) days from the date hereof, and
must not be altered, defaced, or covered by any other material.
PACIFIC MILLS ( CARRBORO WOOLEN MILLS DIVISION ) and TEXTILE
WORKERS UNION OF AMERICA , CIO . Case No. 11-CA-271 (formerly
34-CA-271). January 19,1953
Decision and Order
On September 12, 1952, Trial Examiner Max M. Goldman 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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report. The General Counsel has filed
a brief herein.
The Board 2 has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed.3 The
1 As corrected September 15, 1952.
2 Pursuant to the provisi-ns of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Members Houston , Styles,
and Peterson]..
3 The Respondent has excepted to the Trial Examiner 's ruling excluding from evidence
certain tabulations and a graph which the Respondent prepared in an attempt to prove
that Sheila D. Peterson , a web drawer whose discriminatory discharge was alleged in the
complaint , was actually discharged because her weekly earnings were too low . The Re-
102 NLRB No. 46.