SECURITY WAREHOUSE AND COLD STORAGE COMPANY

National Labor Relations Board - Board Decisions

Sep 26, 1941

35 N.L.R.B. 857 (N.L.R.B. 1941)

In the Matter of SECURITY WAREHOUSE AND COLD STORAGE COMPANY
and INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, -
LOCAL 1-6
Case No. C-1613.-Decided September 26, 1941
Jurisdiction : cold storage and warehousing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: threats of discrimination in amount and
duration of employment to union members ; employment of uniformed police-
men at plants coincident with union organizational campaign ; hiring, housing
and preferential treatment of college students for purpose of discouraging
union membership.
Company-Dominated Union : originated and sponsored by supervisors and fore-
men ; foremen participated in administration of ; organizational activity in
plant ; hostility to rival affiliated union.
Discrimination : charges of, sustained as to thirteen, not sustained as to eleven ;
in amount and duration of seasonal employment ; by failure to reemploy
seasonal workers ; by demotions ; by discharge.
Remedial Orders : disestablishment of dominated organization ordered; rein-'
statement and back pay ordered persons discriminated against and unfair labor
practice strikers.
Mr. John T. MeTernan and Mr. Earle K. Shawe, for the Board.
Mr. W. W. Jacka, of San Jose, California, and Rogers & Clark, by
Mr. Webster V. Clark, of San Francisco, Calif., for the respondent.
Gladstein, Grossman d Margolis, by Mr. Norman Leonard, of San
Francisco, Calif., for the Union.
Mr. G. F. Purdy, of San Jose, Calif., for the Association.
Mr. N. Barr Miller, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Longshoremen's and Warehousemen's Union, Local 1-6, herein called
the Union, the National Labor Relations Board, herein called the
Board, by the Regional Director for the Twentieth Region (San
Francisco, California), issued its complaint, dated December 27,
35 N. L. R. B., No. 183.
857
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1939, against Security Warehouse and Cold Storage Company, San
Jose, California, herein called the respondent, alleging that the re-
spondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1), (2), and (3)
and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. Copies of the complaint, and notice
of hearing thereon were duly served upon the respondent, the Union,
and the Security Employees' Association, herein called the Associa-
tion, a labor organization alleged in the complaint to be dominated
by the respondent.
With respect to the unfair labor practices the complaint alleged,
in substance, (1) that the respondent, by its officers, supervisors, and
agents, during the month of May 1937 and thereafter dominated and
interfered with the formation and administration of the Association
and contributed financial and other support thereto; (2) that the
respondent on June 7, 1939, and continuously thereafter interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act (a) by urging, persuading,
and warning them to refrain from becoming or remaining members
of the Union and threatening them with loss of employment if they
refused or failed to surrender membership in the Union, (b) by
making known its opposition to the formation of, and the partici-
pation of its employees in, the Union, and (c) by discriminating
during the period from July 25, 1939, to August 25, 1939, against
substantially all employees known to be or suspected of being mem-
bers of the Union in the amount, duration, and type of their em-
ployment; (3) that the respondent discriminated against 24 named
individuals with regard to hire or tenure of employment because of
their membership in or activity on behalf of the Union, thereby dis-
couraging membership in the Union; and (4) that, because of the
alleged discriminations in hire and tenure of employment and the
above-described interference with, restraint, and coercion of em-
ployees by the respondent, the Union had declared a strike on August
25, 1939, which was still in progress on the date of the complaint.
On January 8, 1940, the respondent, filed its answer, in which it
admitted the allegations of the complaint as to the corporate struc-
ture and the nature of its business but denied that any of its business
is in commerce or affects commerce within the meaning of the Act,
further denied that it had committed any of the unfair labor prac-
tices alleged, admitted that a strike had occurred but denied that it
was still in progress and that it had been caused by any of the acts
alleged in the complaint. The answer also set forth affirmative de-
fenses as to certain of the allegations relating to discrimination with
regard to hire and tenure of employment.
SECURITY WAREHOUSE & COLD STORAGE CO. 859
Pursuant to notice, a hearing on the complaint was held from
January 15 to March 22, 1940, inclusive, at San Jose, California, be-
fore Madison Hill, the Trial Examiner duly designated by the Board.
The Board, the respondent, and the Union were represented by coun-
sel, and the Association by its secretary. All parties participated in
the hearing and were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bearing
upon the issues. The respondent filed its written motion to dismiss
the complaint on the ground that the Board has no jurisdiction over
its business and also filed its written motion to make the complaint
more definite and certain. The Trial Examiner denied the motion
to dismiss, and granted in part the motion to make the complaint
more definite and certain. In conformity with the latter ruling, the
Board's attorney submitted in writing his motion to amend the com-
plaint in certain enumerated respects. The motion to amend was
granted without objection. At the outset of the hearing, the Board's
attorney moved to strike certain affirmative allegations in the re-
pondent's answer asserting coercive conduct by agents of the Board.
The Trial Examiner denied the motion and the Regional Director
thereafter filed a reply to those portions of the respondent's answer.
At the conclusion of the hearing, a motion by the Board's attorney to
amend the complaint to conform to the proof was granted by the
Trial Examiner. These rulings are hereby affirmed. Various rul-
ings were made by the Trial Examiner during the course of-the hear-
ing on other motions and on objections to the admission of evidence.
The Board has reviewed these rulings and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
Upon the conclusion of the hearing, the parties were afforded an
opportunity to argue orally before the Trial Examiner and were ad-
vised that they might file briefs with him. Subsequently, counsel for
the Board and counsel for the respondent submitted briefs for the
consideration of the Trial Examiner.
On June 14, 1940, the Trial Examiner filed an Intermediate Re-
port, finding that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce, within the meaning of
Section 8 (1) and (2) and Section 2 (6) and (7) of the Act with
respect to the formation and administration of the Association, and
recommending that the respondent cease and desist therefrom and
take certain specified affirmative action deemed necessary to effectu-
ate the policies of the Act. The Trial Examiner further found that
the respondent had not engaged in and was not engaging in unfair
labor practices in the other respects enumerated in the complaint and
recommended that the complaint as to such unfair labor practices be
dismissed. Thereafter the respondent and the Union filed exceptions
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Intermediate Report and briefs in support thereof, which the
Board has duly considered. None of the parties requested the privi-
lege of oral argument before the Board. In so far as the exceptions
are inconsistent with the findings, conclusions, and order set forth
below, the Board finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Security Warehouse and Cold Storage Company,
is a California corporation with business offices at San Jose, Cali-
fornia. The principal business of the respondent is the cold storage
and pre-cooling of fruits and vegetables and the manufacture and
sale of ice. Cold-storage and ice plants are located at San Jose and
Santa Clara, California, each of which has facilities on or adjacent
to its property for the receipt and shipment of products by railroad
cars and trucks.
In addition, the respondent operates by lease 10 or 11 field ware-
houses at various points in California. At each field warehouse a
bonded employee of the respondent has charge of products stored
therein by their owners. . Negotiable warehouse receipts are issued
on these products by the respondent for credit purposes. The re-
spondent also controls a wholly owned subsidiary corporation, Se-
curity Storage and Moving Company,' which was formed on March 1,
1939, to handle the business of storing furniture, automobiles, and
other "dry" materials.
Nearly all the products received at the respondent's two cold-
storage plants are produced within the State of California 2 and are
transported to,the plants by rail or motor truck. The respondent's
employees unload the cars and trucks and store the products in
various rooms of the plants where they are cooled. When the
products are ready for reshipment, they likewise load the cars and
trucks.
The respondent does not have title to most of the products so
handled, and shipments are made by the respondent entirely upon
the instructions of the owners. Practically all the cherries passing
3 This organization was usually referred to in the transcript of the hearing as the
"Mayflower Company" or,the "Aero-Mayflower Dry Storage Company." Prior to March 1,
1939, the dry -storage business and certain phases of the respondent 's cold -storage business
had been operated by the Security Warehouse and Cold Storage Corporation which was
controlled by the respondent . After March 1, 1939, the respondent took over all the
cold-storage phases of the business and the new Security Storage and Moving Company
devoted itself to dry-storage business
In 1938, of approximately 59,353 tons of fruit handled by the respondent , 272.8 tons
were received from outside California
SECURITY WAREHOUSE & COLD STORAGE CO. 861
through the respondent's plants are shipped by rail to markets in
the eastern States. Packed pears likewise are shipped in refriger-
ator cars to eastern States or to San Francisco, where they are trans-
shipped to foreign markets. Cannery pears in most instances are
shipped from the respondent's cold-storage warehouses to canneries
within the State of California.
All refrigerator cars loaded at the Santa Clara and San Jose plants
of the respondent are iced by the respondent with ice there manu-
factured.3 In addition, the respondent, pursuant to contract, ices
other cars for the Pacific Fruit Express and the Railway Express
Company. In 1938, 1,266 of the cars iced for these companies were
employed to carry perishable products to States other than Cali-
fornia; in 1939, 1,434 such cars moved in interstate commerce.
The precooling of, cherries, pears, and other products in the re-
spondent's cold-storage warehouses and the icing of the refrigerator
cars in which they are shipped are services essential to the preserva-
tion of these otherwise perishable products during the course of
transportation to destinations outside California.
During the year 1938 the respondent handled approximately 59,353
tons of fruit. Of this amount, approximately 43,2104 tons were
shipped from the respondent's plants to points outside the State of
California. In 1939 the respondent handled approximately 46,866
tons of commodities, sending approximately 30,280 tons thereof to
destinations outside California. The respondent manufactured ap-
proximately 30,214 tons of ice in 1938. During that year, 11,010
tons were placed in the bunkers of refrigerator cars, half of which
cars were destined for points without the State of California. Simi-
larly in 1939, the respondent disposed of 11,881 tons of ice, out of
its total production of 34,335 tons, in the icing of refrigerator cars
about half of which were used to transport products outside the
State.,
3 Cars initially iced at the respondent 's plant for shipment to points outside California
are re-iced in most cases at another point within the State by the addition of some ice to
that placed in the cars by the respondent
4 Of this amount, 35,960 tons consisted of packed pears
6 The respondent's income for the years 1938 and 1939 was as follows
income by classes 1938 1939
Cold storage
Goods shipped to points within California------------------------- $147,032 16 $141,066 38
Goods shipped to points outside California-_--------------------- 208,367 89 163.406 66
Total cold storage-------- ------------------------------------- 355,400 05 304,473 04
Ice
Car ice ------------------------------------------------------------ 40, 596 59 42,007 98
Vcgctable ice---------------------------------------------------- 36,009 37 43, 367 54
Retail ice ---- ------------------------------------------------------ 21,571 01 20,832 62
Miscellaneous -------------------------- --------------- 1,322 18 10,497 69
Total Ice-------------------------------------------------------- 99,499 15 116,705 83
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent contends that, because all of its acts and services
are performed wholly within the State of California and because it
has no control over the ultimate destinations of the products pre-
cooled and the cars iced, its business is not in commerce and does not
affect commerce within the meaning of the Act. This contention, as
we have had occasion to point out in other cases, is without merit.'
The cold-storage and icing facilities which the respondent supplies
are necessary to preserve the products in the course of shipment.
A major portion of the products so serviced by the respondent flows
into interstate commerce from the respondents plants. An interrup-
tion of the respondent's business by a labor dispute would dislocate
and interrupt the movement in commerce of these perishable products.
H. THE LABOR ORGANIZATIONS INVOLVED
International Longshoremen's and Warehousemen's Union, Local
1-6, is a labor organization affiliated with the Congress of Industrial
Organizations. It admits to membership employees of the respondent.
Security Employees' Association is an unaffiliated labor organiza-
tion, admitting to membership the respondent's employees, including
all-year-round employees and foremen.
III. THE UNFAIR LABOR PRACTICES
A. Domination and support of the Association
1. Hostility of the respondent to the campaign of the I. L. A. in 1937.
At its cold-storage and ice plants in San Jose and Santa Clara
the respondent maintains a force of approximately 40 regular all-
Footnote 5-Continued.
Income by classes 1938 1939
Dry storage and household goods
Moving and storage ---------------------------------------------- $39,188 72 a $7,184 76
Miscellaneous items
Field warehouse--------------------------------------------------- 10, 542. 10 10, 254 49
Trading account -------------------------------------------------- 10, 7(k 74 6,213 63
Miscellaneous ----------------------------------------------------- 9, 077 75 10, 995.02
Total Miscellaneous --------------------------------------------- 30,324 59 27,463 14
Grand total ----------------------------------------------------- 524,412 61 455,826 77
a For 2 months only in 1939 on account of the separate incorporation of the dry-storage business on
March 1, 1939
a See Matter of Benjamin Fatinblatt and Marjorie Fainblatt and International Ladies'
Garment Worker 's Union, Local No. 149, 1 N. L . R. B. 864, aff'd in N. L. R. B v. Fatinblatt,
306 U S 601 , reversing 98 F. (2d ) 615 (C. C. A. 3 ) ; Matter of Santa Cruz Fruit Packing
Company and Weighers, Warehousemen and Cereal Workers, Local 38-44, I. L. A.,
1 N. L. It. B. 454 , enf'd in Santa Cruz Fruit Packing Company v. N. L. R. B., 303 U. S 453
as mod . in 91 F. ( 2d) 790 ( C. C. A. 9 ) ; Matter of Bradford Dyeing ds8oet .ation ( U. S. A.)
and Textile Workers Organizing Committee of the C. I. 0., 4 N. L. R. B. 604, aff'd in
N. L. R. B . v. Bradford Dyeing Ass 'n., 60 S. Ct. 918 , rev. and remanding 106 F. (2d)
119 (C. C. A. 1).
SECURITY WAREHOUSE & COLD STORAGE CO. 863
year-round employees. With the advent of the so-called "cherry
season" in the latter part of May each year the respondent adds to
its staff a substantial number of seasonal employees for the purpose
of receiving, cooling, and shipping this fruit. The cherry season
continues to the end of June, when there occurs a seasonal recession
in the volume of the respondent's business until the beginning of the
"pear season" in the latter part of July. •From that time until near
the end• of the calendar year the respondent uses a varying number of
seasonal employees 7 in the business of receiving, storing, cooling, and
shipping pears, grapes, and other seasonal fruits and some vegetables.
In March 1937, prior to the commencement of the cherry season,
Weighers, Warehousemen and Cereal Workers Local 38-44 of Inter-
national Longshoremen's Association, affiliated with the American
Federation of Labor, herein called the I. L. A., instituted an active
campaign for members among the respondent's employees at the San
Jose plant. Mass meetings to which employees of the respondent
were invited were held at the Labor Temple in San Jose.
Among the respondent's employees who joined the I. L. A. early in
1937 were Warren H. Murphy, Jack Burkhardt, regular all-year-
round employees, and C. R. Tomlinson and W. W. Evatt, seasonal
workers. Murphy was active in promoting the organization at the
San Jose plant. He testified at the hearing that in March 1937
Superintendent George Miller, who was in charge of the cold-storage
operations at San Jose, sent for him and said : "What is all this talk
about union activities around here? There is quite a bit of talk
amongst the men ... it wouldn't be profitable to have a union tell
us how to run our business and we are the ones that pay you and
the union would take your money and they are just a graft . . .
As long as I am boss here there will be no union." Miller denied
the occurrence of the conversation with Murphy, although admitting
that early in 1937 he had heard rumors concerning the activities of
one or more employees in an outside labor organization. On the
basis of the entire record we cannot credit Miller's denial , and we find
that Miller made the statements attributed to him by Murphy.,,
On April 3, 1937, Tomlinson and Evatt were laid off by Super-
intendent Miller. The I. L. A. filed charges against the respondent
alleging that these lay-offs were unfair labor practices. The respond-
ent denied that the lay-offs were caused by the activity of Evatt and
Tomlinson on behalf of the I. L. A. and agreed to reemploy them when
7In 1938 the respondent 's working force at the two cold-storage and ice plants was
increased to 277 men at the peak of the fruit season ; in 1939 it rose to 351.
i The Trial Examiner did not credit Murphy 's testimony . For reasons hereinafter stated
we do not agree with this conclusion of the Trial Examiner. Miller admitted warning both
Murphy and Burkhardt in January 1939 about their activities on behalf of the Union.
See Section III B 1 , infra.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the'business of the respondent increased with the advent of the cherry
season . In accordance with this agreement the respondent reemployed
the two men in the latter part of May 1937 and no complaint respon-
sive to the charge was ever issued by the Board.
The causes of these lay-offs are not in issue under the complaint in
this proceeding and we make no finding with regard to them. How-
ever, certain statements made by officers and superintendents of the
respondent with reference to these lay-offs disclose the hostility of
the respondent to the I. L. A. and are relevant to a complete under-
standing of the respondent's role in the formation of the Security
Employees' Association in May 1937.
Tomlinson testified that on the evening of the day he and Evatt
were laid off Kenneth Green, a shipping clerk at the San Jose plant,
told him that they had been discharged for union activities and that
two other men were to be "chopped off." As soon as Tomlinson and
Evatt received this information from Green they went to Miller and
asked the reason for their lay-offs. Miller replied that it was none
of their business and that he was "running" the plant. J. P. McCor-
mick, a foreman at the Santa Clara plant until August 1939, testified
to a conversation with G. H. Ballantyne, the respondent's general
manager and assistant secretary, which occurred soon after charges
had been filed with the Board in connection with the discharge of
Tomlinson and Evatt and about the time efforts were being made by
the Board's Regional Office to settle the matter without issuance of
a complaint. McCormick stated that the conversation related to
union efforts to organize transient workers and common labor in the
California canneries and packing houses, and that Ballantyne said
"I got two sons-of-bitches in San Jose, Murphy and Burkhardt, and
I would fire them if I was not afraid of getting in trouble with the
National Labor Board." s We find the testimony of Tomlinson and
McCormick to be credible. In their accounts of the above-related
conversations they were corroborated by Burkhardt. We are not
equally convinced of the credibility of Miller and Ballantyne and
we cannot credit their denials of these conversations. We find that
Miller, Green, and Ballantyne made the statements attributed to them
by Tomlinson and McCormick.
We find that by the above-related statements of Miller and Bal-
lantyne the respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
0 McCormick 's testimony was adduced by the Board on rebuttal after Ballantyne had
denied Burkhardt 's hearsay testimony that Ballantyne had made substantially the state-
ment quoted above.
d
SECURITY WAREHOUSE & COLD STORAGE CO . 865
2. The formation of the Association
During the spring of 1937 the I. L. A. obtained approximately 34
members among the respondent's employees at the San Jose plant
and on May 13, filed with the Regional Director of the Board for
the Twentieth Region its petition for investigation and certification
of representatives pursuant to Section 9 (c) of the Act. Prior to
May 21, a conference concerning the petition was held, attended by
representatives of the respondent, the I. L. A., and the Board. Nego-
tiations for a consent election were unsuccessful because the respon-
dent and the I. L. A. disagreed on the scope of the appropriate
bargaining unit .10
In the midst of the I. L. A.'s campaign the Security Employees'
Association made its appearance. On May 21, 1937, just 5 days after
the respondent had received word that the I. L. A. had filed its peti-
tion for investigation and certification as the exclusive bargaining
representative of the respondent's employees, petitions were circu-,
lated at the San Jose and Santa Clara cold-storage plants and at the
dry-storage warehouse. The petitions, dated May 21, 1937, stated :
We, the undersigned, do hereby and hereon join the Security
Employee's [sic] Association as charter members of said organ-
ization.
Constitution, By-Laws, and Resolutions to be drawn up at
regular meetings. Also rates for regular dues will be fixed by
members discussing and voting on same.
This the Security Employee's Association will be the sole
bargaining agent, for all matters requiring the same.
Date and place of meeting to be announced later.
On the question of the origin of the plan to organize an Asso-.
ciation there is sharp disagreement between the testimony of wit-
nesses called by the Board and those called by the respondent.
Testimony which we believe to be credible has convinced us that the
officers of the respondent and one of its plant superintendents origi-
nated the plan for organizing the Association and that the respond-
ent's purpose in so doing was to prevent the I. L. A. or any other
outside labor union from organizing its employees. We find that
on or about May 20, 1937, which was near the commencement of the
cherry season, Superintendent Miller of the San Jose plant called a
10 The I L . A. wanted a unit consisting only of employees of the San Jose cold -storage
plant. The respondent contended for a single unit of the two cold-storage warehouses and
the dry-storage warehouse.
After negotiations for a consent election failed, the I. L A in August 1937, filed
charges with the Board alleging that the respondent was engaging in unfair labor practices
within the meaning of Section 8 ( 2) of the Act.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting of the employees on the back platform of the plant just
after the lunch hour. Approximately 30 employees, most of them all-
year-round employees, were present, including G. R. Beard, Cal
Elderton, E. M. Stenger, Jack Burkhardt, Warren H. Murphy, Ken-
neth Green, Tom Weldon, Leland Lyle, and Henry Strechbien.
Miller stated to the employees that Patton, president of the respond-
ent, and Jacka, the respondent's attorney, believed it advisable for
the employees to organize an employees' association of all three plants
so that. all would "be tied in like one big family" and,"be recog-
nized . . . as an association" such as that of "the Shell Oil Com-
pany." Miller advised the employees at the meeting that petitions
for such an association would be circulated at the plant for their
signatures li
That evening G. R. Beard, second in command at the San Jose
plant and in charge of operations in the absence of Superintendent
Miller'12 and Kenneth Green 13 met and agreed to name the contem-
plated organization the "Security Employees Association." With
the assistance of E. M. Stenger, foreman of carloaders at the San
Jose plant, Green and Beard also devised the language of the petition
to be circulated on behalf of the new organization.
On the morning of May 21, Beard had in his possession three
typed copies of the petition providing for the formation of the
Association. He sent one copy to W. A. Crowder, an engineer at
the Santa Clara plant, personally delivered a second copy to C. F.
Greene at the respondent's dry-storage warehouse, and retained the
third copy at San Jose. The record clearly establishes that Fred
Byl, whom we find to be assistant superintendent of the Santa Clara
plant, solicited most of the signatures to the petition among the
employees at the Santa Clara plant. C. F. Greene, assistant super-
intendent of the dry-storage plant, had charge of the petition at
the dry-storage warehouse. Employees at the San Jose plant signed
the petition after being urged to do so by Beard. Although the
n This was the testimony of warren H. Murphy, one of the respondent 's all-year-round
employees , and among the oldest employees in point of service at the San Jose plant
Murphy's account of the occurrence of such a meeting addressed by Superintendent Miller
was corroborated by the testimony of Jack Burkhardt , although Burkhardt 's account differs
in that he placed the circulation of the petition at the close of the meeting.
Superintendent Miller and other of the respondent 's supervisors denied at the hearing
the occurrence of any such meeting . We have carefully examined their testimony and
conclude that it cannot be credited we believe Murphy to be a credible witness and his
account of the above-related events is entirely consistent with, and is supported by,
surrounding circumstances which are not disputed
12 Beard, who is also referred to in the record as Bert Beard , was designated by the
respondent as timekeeper and shipping clerk, but the respondent does not deny that he
directed operations in Miller ' s absence Among other indicia of his supervisory status,
Beard had his own office at the plant.
is At that time (1937 ) Green was a shipping clerk directing incoming and outgoing
shipments at the San Jose plant . In 1939 Green became supervisor or overseer of the
receiving and delivery departments at the San Jose plant.
SECURITY WAREHOUSE & COLD STORAGE CO. 867
respondent's witnesses were in almost complete disagreement as to
how most of the signatures to the San Jose petition were obtained,
it is clear from the record that Cal Elderton and William Sweeney,
both of whom were all-year-round employees and seasonal fore-
men,'' and Kenneth Green, shipping clerk, participated in obtaining
signatures to that petition.
When Fred Byl, assistant superintendent at the Santa Clara, plant,
solicited the signature of J. P. McCormick, an all-year-round em-
ployee, to the petition for formation of the Association in May
1937, Byl told McCormick that the Association was being organized
"so we wouldn't have to go into a union." 15 Further evidence of the
purpose of the Association is found in a statement issued by the
"Working Agreement Committee" of the Association in the fall of
1937. The opening declaration of the document, which was pre-
sented to Patton, Ballantyne, and Dodson, managing officers of the
respondent's business, states that the Association "was formed with
the prime purpose of forestalling possible labor troubles during the
past summer." The record reveals no indication of "labor trouble"
in 1937 save the threat that a majority of the respondent's employees
might become members of the I. L. A. In fact, Byl and other
Association officials testified that the statement had reference to
the I. L. A. and to Montes, who was the I. L. A. organizer.
We conclude and herewith find that the plan for the Association
originated with the respondent's officers and that pursuant thereto
Superintendent Miller held a meeting of the San Jose employees at
which he announced the plan. We further find that the petition
was prepared with the aid of supervisory employees, and that by
means of the Association the respondent intended to prevent the
organization of its employees by outside labor unions.
As we have heretofore indicated, the respondent denied all the
above-found facts except those relating to the preparation and cir-
culation of the petition. We have found that these denials cannot
be credited, but even if the respondent's version of the origin of
the Association, as recorded in the testimony of Beard, Kenneth
Green, Byl, and others, be accepted as true, the violation of the Act
is equally plain because in the first place the organizers and sponsors
of the Association were supervisory employees for whose acts the
respondent is chargeable, and in the second place, irrespective of
the origin of the Association, the subsequent history of the organ-
u Among the respondent's all-year -round employees at each plant is a group of cold-
storage employees who perform manual labor during the "lull" periods in the respondent's
business , but become foremen over seasonal employees who are hired for work during the
cherry and pear seasons each year.
u Byl did not deny having made this statement to McCormick and we find that he made it
to McCormick as related above.
451270-42-vol. 35-56
868 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
ization and administration of the Association discloses that it was
supported and dominated by the respondent.
At the time the Association was organized the employees were
solicited for membership during working hours and on the property
of the respondent. Solicitation of memberships in the Association
continued throughout most of 1937 and several of the seasonal em-
ployees, whose testimony we believe, told at the hearing of being
solicited to join by Beard, Byl, Sweeney, and Cal Elderton, all of
whom were either full-time supervisors or foremen in charge of
seasonal employees.
At the time of the solicitations the respondent made it known to
its employees that they should join the Association if they expected
to be selected for substantial seasonal employment. When Beard,
who was second in command at the San Jose plant and immediately
subordinate to Superintendent Miller, asked Murphy to sign the
Association petition, Murphy requested a little time in which to
think it over. Whereupon Beard said : "Well, maybe you won't
get a chance to sign it because every one of the employees would
belong to it and you wouldn't want to be sitting on the floorboards,"
(the latter expression meaning "waiting for work.") Murphy then
refused to sign it immediately, and Beard jerked the petition from
his hands and declared : "You will either sign it or else-."
Murphy signed the following day.
Tomlinson was solicited by his foreman, Cal Elderton, to join the
Association some time after his reemployment in May 1937. He
testified that Elderton told him fo join or "set on the platform." 16
About the same time Beard told Tomlinson that "it would be a good
thing to get into the Association; all the boys would be protected
that was in it and get a `break' with the work." Beard denied
having made the above-related statements and Elderton said at the
hearing that he had no recollection of Tomlinson's account. How-
ever, we do not credit these denials, especially since Beard was
active in formation of the Association and since we are convinced
from the entire record that Beard deliberately attempted to conceal
certain relevant facts at the hearing. We therefore find that Beard
and Elderton made the above-related statements attributed to them by
Murphy and Tomlinson.
At the Santa Clara plant, Fred Byl, Superintendent Johnstone's
assistant, solicited Derrell Smith and Joe Flores, seasonal employees,
to join the Association in August or September 1937. Smith and
Flores were working together at the time. Flores told Byl that he,
16 The respondent's seasonal employees were required to wait on the front platform at
the cold -storage plants each day until selected by their foremen for work.
SECURITY WAREHOUSE & COLD STORAGE CO . 869
did not think much of the Association, to which Byl retorted : "It
might save you a few days out on the front platform." Although
Byl denied that he made the statement last quoted, he admitted
soliciting the two men, both of whom testified that Byl made the
remark. We find that Byl made the statement to Smith and Flores.
We are in accord with the Trial Examiner that the circulation of
the petitions in support of the organization of the Association could
not have escaped the attention of the superintendents of the respond-
ent's plants. They voiced no objection. 'Superintendent Miller tes-
tified that he did not know whether he heard of the petition at the
time it was being circulated, but declared "if they were circulat-
ing a petition on the Association I wouldn't pay any attention to it."
Miller admitted that he heard the employees at the plant during
working hours discussing the formation of the Association and that
he made no objection to it. This tolerance is in marked contrast to
the respondent's contemporaneous attitude toward the I. L. A. and
to its attitude toward the Union when the latter began to organize the
employees early in 1939.
We conclude, and herewith find, that the respondent's supervisory
employees and foremen circulated the petition organizing the Asso-
ciation and solicited memberships therein on the respondent's time
and property, with the knowledge and approval of the respondent.
3. Respondent's participation in the administration
of the Association
A meeting for completing the organization of the Association was
announced for May 26, 1937. At about the same time Byl and
Crowder called upon the respondent's attorney, W. W. Jacka. They
requested of him a copy of the Wagner Act and assistance in draft-
ing bylaws for the Association. Jacka typed out for them a copy
of Section 7 of the Act and told them he could not advise them
further because of his connection with the respondent. He did,
however, tell them of an employees' association which had been or-
ganized at the Garden City Pottery Company plant in San Jose
and suggested that Crowder and Byl might get aid in drafting by-
laws from that organization. Byl subsequently obtained a copy of
its bylaws.
The first meeting of the Association took place at a packing shed
owned by the Nash de Camp Company and located near the re-
spondent's San Jose plant. Beard arranged for the meeting place,
posted a notice of the meeting at the San Jose plant, and became
temporary chairman.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent's supervisory employees completely dominated the
gathering. Officers elected were :
President-Bert Beard
Vice President-Fred Byl
Secretary-Treasurer-G. F. Purdy
All these men admittedly had supervisory duties at the respondent's
two cold-storage plants, Purdy occupying at Santa Clara a position
similar to that of Beard at San Jose.
A committee of four, two representing each of the cold-storage
plants, was appointed to draft bylaws. The members of this com-
mittee were Frank Springer, Eugene M. Stenger, Fred Byl, and
L. C. Kelly. Stenger was carloading foreman at San Jose, Byl, as-
sistant to Superintendent Johnstone at Santa Clara, and Kelly, fore-
man of engineers at Santa Clara. The bylaws were drafted at a
meeting of the committee in the lumber room of the San Jose plant.
Byl thereupon borrowed a typewriter, from the respondent's office
at Santa Clara, took it home, and typed the bylaws. The member-
ship of the Association adopted the bylaws at a special meeting on
June 1 and voted that they "be put before Mr. Patton (respondent's
president) . . . to ascertain the Company's reaction to same." The
bylaws were presented to President Patton, General Manager Bal-
lantyne, and Secretary Dodson of the respondent and it was reported
to the Association at a meeting on June 7 that "representatives of
Company expressed their attitude as being extremely favorable to
the employees association and the laws [i. e. by-laws]."
At the June 7 meeting of the Association an arbitration board was
elected for the purpose of'handling all negotiations and grievances
with the respondent. Those chosen to serve on the board were Ken-
neth Green, L. C. Kelly, Joseph Henderson, William Sweeney, and
Eugene M. Stenger. All of them were regular year-round employees,
and with the exception of Green 17 were either full-time foremen or
served as such during the busy seasons of the year when the respondent
employed substantial numbers of seasonal workers.
Commencing with the fourth meeting, which took place on July 6,
1937, the Association met on the respondent's property, sometimes in
the office of Superintendent Johnstone at Santa Clara and sometimes
in the lumber room at the San Jose plant. Although meetings were
held at these places for several months without the express permis-
sion of the respondent, the superintendents of the two plants had
knowledge that the meetings were taking place, for notices of meet-
ings were regularly posted near the time clocks at the San Jose and
17 Green subsequently became a foreman.
SECURITY WAREHOUSE & COLD STORAGE CO. 871
Santa Clara plants and at the dry-storage warehouse, and Miller
testified that he had seen employees from Santa Clara congregating
for meetings at the San Jose plant. General Manager Ballantyne
admitted at the hearing that he knew that the Association was
meeting on the respondent's property and made no objection to its
doing so. In the fall or winter of 1937 Attorney Jacka granted the
Association express permission to meet on the property of the re-
spondent. No rent was paid for the use of the property as a meeting
place. After May 1938 the Association met in a rented hall off the
respondent's property.
On May 2, 1938, William Crowder an engineer at the Santa Clara
plant, was elected president of the Association to succeed Beard. On
May 7 the Regional Office of the Board for the Twentieth Region
notified the Association that charges had been filed by Philip P. Hig-
gins, an employee of the respondent who had been discharged in
April, alleging that the Association was company dominated. The
letter requested the Association to place at the disposal of the
Board's agents the bylaws, minutes, and certain other information.
At a special meeting on May 10 it was decided to send the president
and the secretary of the Association to San Francisco with the re-
quested information. These two officers, Crowder and Purdy, met
with representatives of the Board in San Francisco on May 12 and,
in answer to questions about the supervisory status of such employees
as Byl and Beard, asserted that they did not have authority to hire
and discharge, and that Byl was an assistant superintendent in name
only. After the return of Crowder and Purdy to San Jose they
reported to Attorney Jacka, the respondent's counsel, the details of
their conference with the Board representative.
The Association, through its arbitration board, negotiated with
the respondent from tune' to time in 1937 and 1938, but never suc-
ceeded in obtaining from the respondent a signed agreement on any
matters relating to wages, hours, seniority, or other working condi-
tions. On several occasions when it was proposed that the Associ-
ation seek a signed agreement, Beard opposed it. In the fall of 1937
the Association presented in writing certain requests or "thoughts"
with reference to employer-employee relations. In response the re-
spondent issued a statement of policy, which was accepted by the
Association at its December 1937 meeting. On February 15, 1938, the
arbitration board submitted in writing a grievance relating to senior-
ity in the matter of hiring employees at the Santa Clara plant. In
the latter part of February or early March 1938, apparently as a
result of this grievance, the respondent issued a statement clarifying
its policy on seniority. At the July 1938 meeting the arbitration
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
board was instructed to meet with representatives of the respondent
to discuss recognition of the Association,"' preferential hiring, and a
written agreement. After a conference at the request of the Associ-
ation, the respondent wrote a letter to the Association granting it
recognition as the "collective agency" for conferring on matters re-
lating to employment, but expressly stating that "we would far rather
deal than bargain with those whom we regard as part and parcel of
our institution . . . [and] we entertain the hope that our men will al-
ways have a loyal interest in the corporation's welfare; and if this
condition prevails both of us can lay our cards on the table and
bargaining will never be necessary." "9
The letter was read at the meeting of the Association on Septem-
ber 17 and at this meeting or the next Beard declared that the
Association did not need an agreement and that President Patton's
word that he would meet with their committees and cooperate was
enough. The Association did not thereafter press the respondent for
a written and signed agreement.
The complete subservience of the Association to the will of the
respondent is revealed by another incident which occurred in the
latter part of 1938. On November 12, 1938, Burkhardt and Murphy
were discharged by Superintendent Miller. They filed charges with
the Board alleging that their discharges were in violation of Section
8 (3) of the Act. The Regional Office of the Board for the Twen-
tieth Region conducted an investigation and recommended that the
respondent dispose of the charges by reinstating the two men. This
the respondent agreed to do, but alleged in the present proceeding
that it was compelled to take that action by the representatives of
the Board who conducted the investigation of the discharges of
Burkhardt and Murphy.20 The settlement was agreed upon in the
latter part of December 1938. On the same day, the respondent's
secretary, Dodson, prepared a statement relating to the reinstatement
which he delivered to Superintendent Miller. Miller, in turn,
showed it to Tomlinson, an employee who was nearby. While they
were still looking at the document, Dodson returned and said that
he had just talked by telephone to Attorney Jacka, who advised
the respondent not to present the statement to the employees.
Dodson took the document from Miller, requested Tomlinson not
is The respondent had given substantial recognition to the Association as sole bargain-
ing agent in July 1937 but had been constrained to withhold formal recognition of the
Association because of the fact that ( 1) in May 1937 when- the Association was organized
the petition of the I L. A for certification was pending and (2 ) in August 1937 the
I. L. A. had filed charges with the Board that the respondent was violating Section 8 (2)
of the Act by dominating the Association
1° Italics ours
20 The facts briefly recited here are considered in greater detail in Section III C, in fra,
in connection with the alleged discriminatory tieatment of Burkhardt and Murphy.
SECURITY WAREHOUSE & COLD STORAGE CO. 873
to say anything about it, and said, "As far as we are concerned we
are not putting it out." The respondent was unable to produce the
document at' the hearing. Tomlinson testified that it was in- the
form of a petition to be signed by the employees stating that they
would not work with Burkhardt and Murphy if they were rein-
stated. Dodson and Miller asserted that it was merely a written
statement explaining that the respondent had been compelled by the
Board to reinstate the two men, and that the statement was prepared
for Miller and put in writing so that Miller would fully understand
why the respondent had reinstated the men after he had discharged
them. We believe Tomlinson's testimony and discredit the respond-
ent's version for the reason that if the document was a statement
prepared for Miller alone Dodson would have had no occasion to
say "we are not putting it out," nor would there have been any
reason for Attorney Jacka's advising the respondent to withdraw it.
We find that the respondent prepared and planned to circulate
among its employees for their signature a statement designed to
make impossible the execution of the respondent's agreement with
agents of the Board to reinstate Burkhardt and Murphy. Imme-
diately after the respondent's officers decided to withhold circula-
tion of the above-described statement, Beard, Purdy, and other
supervisory employees attempted to accomplish the same purpose
through action of the Association. Purdy and Beard posted notices
of a special meeting of the Association, without consulting Crowder
who was then president of the organization, for the purpose of
considering what action the Association could take to prevent the
reinstatement of Burkhardt and Murphy. At the meeting, Beard
proposed that the employees agree to refuse to work with Burkhardt
and Murphy if they were reinstated, which was essentially what the
respondent's statement, shown to Tomlinson, had proposed. Kenneth
Green made the statement that he would not work with the two men
and proposed that the Association induce the officers of the respond-
ent to refuse to reemploy them despite the respondent's agreement
with agents of the Board. Beard and Green were supported by Byl,
Stenger, and Purdy. Beard or Stenger,, as well as Kenneth Green,
accused Burkhardt of taking information from the ,Association to
the C. I. 0., and Foreman Whelan accused Murphy of belonging
to the C. I. 0. The record is not clear as to whether the Association
took any action at this meeting.21 However, on the day following
the meeting the arbitration board of the Association, consisting of
t
"No minutes were kept and the record indicates that the meeting was never formally
called to order.
I
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Beard, Green, Stenger, Gates, and L. C. Kelly,22 called on Dodson
and Ballantyne of the respondent. The arbitration board was ac-
companied by Crowder, who attended in order to defend the rein-
statement of Burkhardt and Murphy. Beard, Green, and others
urged the respondent to refuse to reinstate the two men. Crowder
took the opposite view. Ballantyne told the committee that the
respondent had been compelled by the Board to take Burkhardt and
Murphy back. Beard urged a protest strike against the Board.
However, no further action was taken. In January 1939, a few
days after the above-related incident, Crowder resigned as president
and withdrew from the Association and only one or two meetings
were held thereafter.
From the facts found above we conclude, and hereby find, that
the respondent's supervisors and foremen dominated the policies of
the Association and interfered with the administration of its af-
fairs.
The respondent, while admitting that Byl, Beard, Purdy, Stenger,
Kelly, and certain other all-year-round employees serve as super-
visors or foremen, full time or part time, contends that their acts
in forming and administering the Association do not bind the re-
spondent because they have no authority to hire and discharge
employees. The contention must be rejected. In the first place,
it ignores our finding that Superintendent Miller on behalf of the
respondent advised the employees to form the Association, from
which fact, and other circumstances, we conclude that these all-year-
round employees, regardless of their supervisory status, were acting
upon the instructions, and as agents, of the respondent. In the
second place, a number of the all-year-round employees most active
in the Association were in fact vested by the respondent with a sub-
stantial measure of control over employment of seasonal workers.
Byl and Beard had authority in the absence of the superintendents
of their respective plants to hire employees, and Byl at other times
recommended men to Superintendent Johnstone for employment.
All other foremen, by the respondent's own admission, selected the
individuals who were to work in their crews on a particular day
from among employees who had previously been hired by the super-
intendents for the season. Under the procedure customarily fol-
lowed by the respondent the two superintendents engaged employees
at the beginning of the cherry season in May and the pear season
in July by issuing them clock numbers and employment cards and
assigned them to various crews supervised by all-year-round em-
22 Gates was an all-year-round employee and seasonal foreman at Santa Clara. The
others named here, with the exception of Green, have been previously identified as, and
found to be, supervisors or all -year-round ' employees who served seasonally as foremen.
SECURITY WAREHOUSE & COLD STORAGE CO. 875
ployees. These seasonal men then reported at the cold- storage
plant each day during the season and waited on the platform to be
chosen by the foremen for work as they were needed. Often a
foreman did not need all the men whom the, superintendent had
previously employed for his crew. In such case it was ordinarily
left to the discretion of the foreman which of the employees he
would use. While occupying these positions which gave them a
measure of control over other workers, Beard, Byl, Purdy, Stenger,
Kelly, and certain other all-year-round employees formed and dom-
inated the Association with the knowledge of the respondent. Pat-
ton, Ballantyne, and Dodson, who constituted the ultimate active
management of the respondent, and Superintendents Miller and
Johnstone all knew that the Association was directed and controlled
by these supervisors and foremen, inasmuch as all these officials had
met with committees of the Association on which the supervisors
and foremen served. They took no steps whatever to disavow the
acts of these supervisory employees and the record establishes be-
yond doubt that the respondent acquiesced in their participation in
the activities of the Association. We find that the respondent is
responsible for the above-described acts of Beard, Byl, Purdy,
Stenger, Kelly, and other all-year-round employees who served sea-
sonally as foremen.23
The respondent argues in its brief that the Association was an or-
ganization of the all-year-round employees and had in its member-
ship very few seasonal employees over whom the all-year-round em-
ployees exercised supervision. There is no merit in this contention
because the record is clear that a large number of seasonal employees
were members of the Association and others were solicited to join
by their supervisors.24
It is further contended that Section 8 (2) has not been violated
because there is no evidence in the record that anyone was ever dis-
23Swsft & Company v. N. L R. B., 106 F. (2d) 87, (C. C. A 10), enf'g Matter of
Swift & Company, a corporation and Algamated Meat Cutters and Butcher Won in en of
North America, Local No 641, and United Packing House Workers Local Industrial Union
No 300, 7 N L. R B 269 cf International Association of Machinists v. N L R B ,
110 F (2d) 29 (App. D C ), enf'g Matter of The Serrick Corporation and International
Union, United Automobile Workers of America , Local No 459, 8 N L R B 621 ,
N L R. B V Link-Belt Co, 311 U S 584 , reversing modification in 110 F (2d) 506
(C C A. 7), enf'g as mod Matter of Linl-Belt Co and Lodge 160) of Amalgamated Asso-
ciation of Iron, Steel and Tin Workers of N. A , 12 N L. R. B. 854
24 There is ample evidence that a substantial number of seasonal employees were
solicited and induced to join the Association The bylaws, when pi esented to the respond-
ent in June 1937, contained 108 signatures and the minutes of the Association show that
60 applicants u;ere received into membership in September 1937 and that in October the
Association had 135 members . The all-year-round employees numbered only about 40. We
conclude that the Association' s campaign for membership was extended to seasonal em-
ployees and that the foremen over seasonal employees engaged in the solicitation of
memberships on the respondent 's time and property
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criminated against by the respondent for failure to join or was actually
coerced into joining the Association by the supervisory employees.
The record does not support that contention . Moreover , it is im-
material since such proof is not necessary when employer domination -
and interference are established by other facts , as is the case here.
Section 8 (2) of the Act prohibits the employer from participating
in any manner in the steps taken to form a labor organization or in
the administration of its internal affairs.
We find that the respondent has dominated and interfered with
the formation and administration of the Association and has con-
tributed support to it. We further find that thereby and by the acts
and statements of its supervisory officials and foremen evincing op-
position to outside labor organizations , the respondent has interfered
with, restrained , and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
B. Interference, restraint and coercion with relation to the Union
1. Opposition to the Union and threats to union members
With the advent of the Association in May 1937 the I. L. A. began
to lose its strength among the respondent 's employees and by the end
of that year had become dormant. In 1938 the Association was appar-
ently the only active labor organization among the respondent's em-
ployees. However, Murphy and Burkhardt , who had been leaders in
the I . L. A. movement , did not abandon the idea of an outside affili-
ated union . They talked to various employees about unionism from
time to time and in the latter part of 1938 began to attend meetings of
the International Longshoremen 's and Warehousemen 's Union, Local
1-6, affiliated with'the C . I. 0., herein called the Union, at Mountain
View, California, some 10 or 12 miles from San Jose. They were dis-
charged by the respondent in November 1938 and reinstated on Janu-
ary 5 , 1939. Almost immediately thereafter , they joined the Union
and urged other employees to do likewise. On January 17, 1939,
Superintendent Miller called Burkhardt and Murphy to him at the
San Jose plant and warned them not to engage in any union activities.
According to Murphy , Miller said : "Boys, it has come to my ears
that you are talking union and trying to organize around the plant.
I want to warn you . This is a warning not to do anything like that
around here . . . watch your step and if you don't it will be just
too bad." Burkhardt gave essentially the same account. Miller, ad-
mitted that he warned them against engaging in union activities
during working hours, but denied the specific conversation related
SECURITY WAREHOUSE & COLD STORAGE CO. 877
above. We accept Murphy's testimony.25 ' As heretofore described,
the respondent had openly countenanced the activities of the Asso-
ciation on company time and property. We can view the respondent's
contrasting treatment of those attempting to organize the Union as
nothing else than an expression of the respondent's hostility and
opposition to the Union.
In April 1939 the Union established a San Jose unit and on April
20 Raymond Heide, a union organizer, become its business agent.
He communicated at-once with Burkhardt and Murphy and discussed
with them a campaign for organizing the respondent's employees.
They agreed. to conduct the organizational drive at the San Jose
plant and arranged with John Pino, an employee at Santa Clara,
to take charge of enrolling employees of the Santa Clara plant.
Elaborate precautions had been taken by the Union to keep the mem-
bership campaign a closely guarded secret. The union organizers
had issued instructions that no activities were to be carried on during
working hours, no union buttons displayed, and no disclosure of the
names of persons who had joined was to be made even, to other em-
ployees who were joining. By June 6, 1939, the Union had obtained
116 employees at the San Jose and Santa Clara cold-storage plants,
which the Union claimed was a substantial majority of the re-
spondent's employees on that date.
On the evening of June 6, when the respondent's so-called "cherry
season" was well under way and large numbers of seasonal employees
had been added to handle the increased volume of cold-storage and
icing business, approximately 80 employees who had signed union
application cards met and formed a local organization.26 At the
meeting instructions were issued that all members were to display
their union buttons when they appeared for work at the respondent's
plants the following morning and were to continue to wear them
while working. A proposed agreement was also drafted for presenta-
tion to the respondent. On the morning of June 7 the employees who
were members of the Union appeared at the San Jose and Santa
Clara plants with their union buttons prominently displayed, on hats,
caps, shirts, or other apparel.
Although the respondent apparently had had some information
prior to "Button Day" 27 that the Union was conducting a campaign
among its employees, the appearance of a substantial number of the
employees wearing union buttons spurred the management to action.
General Manager Ballantyne, after consulting President Patton,
21 We have heretofore found Murphy to be a credible witness. We do not credit Miller's
denial.
26 The group was made up of both all-year-round and seasonal employees. .
' June 7, 1939, was referred to throughout the record as "Button Day."
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arranged at once with law enforcement officers in San Jose and Santa
Clara for the employment of uniformed special policemen at the
two cold-storage plants. By 1 o'clock in the afternoon of June 7 a
special officer in uniform was on duty at each of the two plants.
Ballantyne explained at the hearing that they were hired because
the appearance of the union buttons showed that there was "a dif-
ference of opinion" on the question of union membership among
the employees and because he felt that there might be some unrest,
acts of coercion, and disagreement among the men which would en-
danger the property of the respondent. The officers who were em-
ployed on "Button Day" in 1939 were the first uniformed policemen
the respondent had ever used at either of the cold storage plants.
In 1936 and 1937 the respondent had on occasion employed special
guards, but they had not been in uniform. During 1938 the respond-
ent had not used special policemen on any occasion. At the time
uniformed policemen were hired in 1939, there had been no violence,
no threat of violence, nor any outward manifestation of unrest among
the employees which could reasonably have led the respondent to be-
lieve that its property was endangered. Ballantyne relied solely on
the appearance of the union buttons as a reason for engaging the
officers. Their number was increased at both plants during the pear
season in late July and August, although no violence or untoward
incidents of any kind nor threats thereof had occurred among the
employees. We are of the opinion, and herewith find, that the em-
ployment of uniformed officers and their appearance on duty at the
plants within a few hours after a large number of the employees had
reported to work wearing union buttons was in itself an expression
of the respondent's opposition and hostility to union membership,
and an effort to intimidate its employees to refrain from joining or
retaining membership in the Union.
The respondent also acted more directly in its efforts to destroy
the results of the Union's successful campaign. The respondent's
superintendents and foremen lost no time in expressing the respond-
ent's opposition to the Union. C. A. Christensen and Harold Cara-
way described one of the first incidents which occurred at the San
Jose plant on the morning of June 7. Christensen testified that as
he was about to punch the time clock preparatory to commencing
his work on the icing crew his foreman, Tom Weldon, said: "Wait
a minute. What you got there?", referring to Christensen's union
button. According to Christensen, he replied that he and some
others in the crew had joined the Union, whereupon Weldon walked
over and reported that fact to Superintendent Miller, who said,
"There is nothing we can do about it now. Go ahead and punch in."
SECURITY WAREHOUSE & COLD STORAGE CO. 879
Christensen further testified that Weldon had his crew punch the
time clock and then said to them : "Well, this is the attitude you
take toward the Company. I guess the Company will have some-
thing to say about this. From now on there will be no more smok-
ing, . . . no more time for sharpening tools and no time wasted from
now on." Continuing his testimony, Christensen stated that a little
later in the morning Weldon called his crew together, told them
that he was surprised at their joining the Union, ordered them to
remove their union buttons and return them to Burkhardt. He
added : ". . . it is all right for you to belong to a union if you
want to . . . but you can't belong to the Union and work here.
This is a non-union company." Caraway, another member of the
icing crew, testified that Weldon also told them that they were "damn
fools" for wearing union buttons. Weldon denied making the state-
ments as related, but admitted telling the crew that there would be
no smoking. Superintendent Miller also denied that Weldon had
said anything to him about the employees' union membership, and
said that their conversation concerned the number of cars which the
crew was to ice. However, Chief Engineer Faucett, Weldon's supe-
rior, testified that on the morning of June 7 he received a telephone
call from Dodson, the respondent's secretary, who reported that
Weldon was "bearing down" on members of his crew because they
were wearing union buttons. Faucett went to the icing platform
and warned Weldon to treat the crew just as he always had. Later
in the day, according to Christensen, Miller also told Weldon to "be
careful from now on" and "use a little more discretion" in dealing
with his men. In view of Weldon's admission that he warned the
men that morning about smoking, without offering any explanation
of the cause for such warniUg,211 and the fact that Faucett was
called to the icing platform because of a disturbance involving the
display of union buttons, we credit the testimony of Christensen
and Caraway and do not accept the denials of Weldon and Miller.
We find that Weldon made the statements as related by Christensen
and Caraway.
A second incident at San Jose on the same day involved E. M.
Stenger, foreman of the carloaders. According to the testimony of
Perry, Gularte, and Nunes, who were loading cars, Stenger told
them that they had better get rid of their union buttons or they
would lose their jobs "and get the short end of everything." Perry
added that Stenger also asked him and Gularte whether they had
paid anything in dues and said : "I am sorry for you. You are going
28 Although there was a rule against smoking , the employees had previously smoked
while working on the icing platform.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to lose your money, lose your job, lose everything." Stenger admitted
that he asked Perry and Gularte if they had paid dues to Burkhardt
and had added : "I guess you might as well kiss it goodbye. And as
far as that button is concerned you can take and stick it up your .. .
if you think it will do you any good." We find that Stenger made
the statement he testified to and the statements attributed to him
by Perry, Gularte, and Nunes.
Martin W. Kelly, a seasonal employee, testified that on June 7
on the rear loading platform at the San Jose plant he overheard
Superintendent Miller and Stenger in conversation with two em-
ployees, Kerber and Don Elderton, the latter a stepson of Foreman
Cal Elderton. Kerber and Don Elderton were wearing union but-
tons at the time. Superintendent Miller and Stenger told Kerber
and Elderton, according to Kelly, that if they wanted to hold their
jobs they should get rid of their union buttons and that "if they
had paid any money in to Jack Burkhardt to join that Union they
had better go and get their money back or they would just be out."
Kelly added that Miller also said: "If you are out of a job go
back to Jack and see if he can get a job for you . . ." Kelly fur-
ther testified that he heard Stenger say a little while later than he
(Stenger) had told Kerber and Don Elderton "to get them buttons
off or they was going to be out of a job." Kelly's account gains
credence by the testimony of Hesse,29 Nunes, and Burkhardt, who
also overheard all or part of the conversation while working nearby.
They supported in full or in part Kelly's assertions that Miller
had spoken to Kerber and Elderton about wearing union buttons,
had told them to dispose of the buttons and to have their union
fees refunded by Burkhardt. None of the three contradicted Kelly's
version at any point. Miller and Stenger did not deny the occur-
rence of the conversation. They explained that Kerber and Elder-
ton had come to Miller for advice as to how to get out of the Union
after having signed membership cards. Miller testified that he asked
if they had paid their fees and told them that they were not mem-
bers until they had made such payments. Stenger stated that Miller
asked them if they had "a mind of their own," and then said,
"you do what you want to about it." He did not indicate that
Miller said anything about union fees. Kerber and Don Elderton
were not called to testify. The record shows that Elderton was clas-
sified as a non-union employee of the respondent in July and August
1939, soon after this incident occurred. 90 Since Miller and Stenger
290n June 26, 1939, Hesse gave a representative of the Board a signed statement con-
cerning this incident, which substantially agreed with his testimony at the hearing and
also corroborates part of Kelly's testimony.
80 The record does not disclose whether or not Kerber also remained out of the Union.
SECURITY WAREHOUSE & COLD STORAGE CO. 881
gave essentially different accounts of what Miller said, while the
testimony of three other witnesses partially corroborates and is in
no way conflicting with Kelly's version, whose testimony we find
to be plausible, and there is no explanation of why the respondent
did not call Don Elderton or Kerber, or both, to testify, we find that
Kelly's testimony is correct and that Miller and Stenger made the
statements he attributed to them.
Superintendent Miller made comments to at least five employees 31
on June 7 concerning their union buttons, in which he made it plain
that men who were not members of the Union would be given prefer-
ence for seasonal employment. For example, Miller told Hesse "to
take it easy" with regard to committing himself to union activities
and that he thought the Union "a fly-by-night venture." According
to Hesse, Miller further said "that the Union and the fellows that
were running it wouldn't get any consideration from the front office
and that as far as wearing buttons was concerned it wouldn't do
them any good because . . . the fellows that weren't wearing but-
tons would be hired before the fellows that were wearing buttons."
Hesse added that Miller said of Fumagalli, a watchman at the San
Jose plant, that he "was a damn fool for sporting the button." Hesse
and Eno testified that in the afternoon of the same day Miller told
them "that Jack Burkhardt was too far into Union activities to back
out, and that it wouldn't do him a bit of good." Eno added that
Miller said : "If it wasn't for this fellow, Jack Burkhardt, there
wouldn't be no Union."
Wiley W. Evatt testified that he had a conversation with Miller
on June 7 concerning union activities. According to Evatt, whose
testimony we credit, he was not wearing a union button at the time
and Miller opened the conversation by asking him where his "C. I. 0.
button" was. Evatt told Miller that he did not have one and had
not even allowed anyone to talk to him about the Union because of
his experience with the respondent in 1937 when he had joined the
I. L. A.32 Evatt described other details of the conversation, which
was concerned with the right of employees to organize, and testified
that Miller said of union membership that "it was just wasting their
money because Patton had said he absolutely wouldn't sign on the
dotted line." Miller also said, according to Evatt : "Well, don't
worry, Evatt, Mr. Patton says he will take care of all the boys that
don't join the Union."
We find that Miller made the above-stated remarks and others of a
similar character as related by Hesse, Martin W. Kelly, Eno, Burk-
31Martin W. Kelly, Hesse, Eno, Burkhardt, Alvarado.
21 See eupra, Section III A 1.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hardt, Alvarado, and Evatt, all of whom were employees of the
respondent at its San Jose plant at the time in question.33
Miller's verbal attacks on the Union were not limited to June 7,
but continued -throughout the cherry season which ended about the
last of June and were renewed with the beginning of the pear sea-
son the latter part of July. Tomlinson, whom we have found to be a
credible witness, testified that during the cherry season, Miller asked
him if he belonged to the Union and "said he thought the boys were
making an awful mistake by going into it ... The Company would
protect these men that didn't go in, and we would get at least around
50 hours a week if we ... stayed out . . . that Mr. Patton would
never sign a contract with the Union." 34 Christensen and Hesse tes-
tified that at the outset of the pear season about July 30 Miller ac-
cused them of having made trouble for the respondent by filing
charges against the respondent alleging unfair labor practices during
the 1939 cherry season 35 and made further derogatory remarks about
the Union. We find that Miller made the statements attributed to
him by Tomlinson, Christensen, and Hesse.
Other foremen at the San Jose plant also expressed the respond-
ent's opposition to the Union during the summer, of 1939. Harold
8' Miller denied in its entirety the above -related testimony of Hesse and Eno and also
that he had ever mentioned the subject of union buttons to Eno, Hesse , Burkhardt, or
Alvarado. We do not credit Miller's denials for several reasons, ( 1) When he was ques-
tioned about a conversation with Martin W. Kelly relating to Kelly ' s union button he
explained that he had looked at Kelly's button out of curiosity and stated that this occasion
was absolutely the only time lie had mentioned the union buttons to any employee Some-
what later in his testimony he volunteered that he had commented to Evatt on the fact
that Evatt was not wearing a union button , but recalled no more exended conversation
than that When asked by Board counsel Nshether he had talked to Alvarado about his
union button, Miller declared that he had no such conversation . Alvarado and Evatt
were called on rebuttal and related in detail their conversations with Miller Miller was
not recalled to explain or deny their testimony . ( 2) Chief Engineer Faucett of the
respondent testified that there had been "some talk" on June 7 about the display of buttons
by so many employees . Faucett also mentioned two occasions on which Miller had told
him and others that Jack Burkhardt was coercing employees to join the Union. In view
of the widespread talk about union buttons , Miller's comments to Faucett about Burk-
hardt, and his admission that he talked to Kelly and Evatt, we are persuaded that he
also talked to Hesse , Eno, Alvarado, and Burkhardt , as they testified. ( 3) Raymond Heide,
the union business agent , testified that complaints about the remarks of Miller, Stenger,
and Kenneth Green had been made to him on the evening of June 7 by several employees
and had been taken up with the respondent on June 8 at the first conference At that
conference President Patton agreed to instruct his subordinates that no discrimination
be displayed against union men. The remarks reported to Heide concerned statements
of Miller , Stenger, and Green that the union men were paying out union fees for nothing
and should take their buttons off and throw them away . Patton, Dodson, and Ballyantyne,
Rho represented the respondent at this conference , were all witnesses at the hearing and
none denied Heide's testimony.
We are of the opinion that all these factors point to the truth of the testimony describ-
ing the anti-union conduct of Miller and indicate the unreliability of Miller 's testimony.
4 Although Miller denied Tomlinson 's testimony and Patton testified that he had never
told Miller he would not sign a contract with the Union, we do not credit Miller 's denial
and accept Tomlinson ' s testimony
as The discriminations against Hesse and Christensen are discussed in Section III C,
infra.
SECURITY WAREHOUSE & COLD STORAGE CO. 883
Caraway testified that, when he applied to Icing Foreman Weldon
for work, Weldon said, "Well, you have got your button on," and
walked away without giving him any other answer about employ-
ment.36 According to Tomlinson, Beard and Stenger both told him
during the pear season that Burkhardt and Murphy had been de-
moted from their positions as foremen because of their union mem-
bership and activity.37 Kenneth Green, who became supervisor of
the receiving and delivery crews early in 1939, publicly referred to
Burkhardt as "Harry Bridges" because Burkhardt had promoted
the Union. We find that Weldon, Beard, Stenger, and Kenneth
Green made the statements testified to by Caraway, Tomlinson, and
Burkhardt.
Concerning the Santa Clara plant there is much less evidence that
the supervisory staff openly expressed the respondent's opposition
to the Union. Three or four witnesses testified to remarks made by
'Superintendent Johnstone. They were denied or explained by John-
stone, who appears to us to have been a cooperative and satisfactory
witness. However, we find that Johnstone questioned Joe Flores
about his union button on June 7, since Johnstone so admitted. We
also find that Foreman Gates made coercive anti-union remarks to
Frayer and to Dietrich which will be set forth in connection with our
consideration of the alleged discriminations against these two seasonal
employees. Moreover, the anti-union campaign at San Jose may be
reasonably presumed to have reached employees of the Santa Clara
plant through several channels. Employees of both plants were in
the same unit of the Union; the two plants were only 4 miles apart,
there was some interchange of seasonal employees between the two
plants, and a number of all-year-round employees such as engineers
and carpenters worked at both plants.
The Trial Examiner in his Intermediate Report, without detailing
and analyzing most of the above-related incidents of anti-union con-
duct, discredited the testimony of the Board's witnesses concerning
them. As a reason for so finding, he stated that the Board's witnesses
were vague about the time when the specific conversations occurred.
In making this finding the Trial Examiner overlooked the testimony
of the witnesses who described in detail the hour and place in the
plant where the incidents of June 7 occurred, and also overlooked the
.fact that these witnesses substantially corroborated each other. Like-
81 Weldon first testified when asked about this incident that he did not remember making
a statement like that, then testified that he did not know whether he said it , and finally,
on being further pressed by the respondent's counsel , denied it In view of Weldon' s anti-
union attitude during the cherry season , we do not believe his hesitant denial of Caraway's
testimony
31 Beard and Stenger denied Tomlinson 's assertion . In view of the incredible character
of other of Beard's testimony and the anti-union attitude of Stenger expressed on June 7
and immediately thereafter, we do not credit these denials.
451270-42-vol 35-57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wise, he apparently did not note that the respondent's witnesses
admitted in a number of instances the occurrence of conversations at
the time and place indicated by the Board's witnesses. The Trial
Examiner pointed to two undenied statements on the part of Superin-
tendents Miller and Johnstone as insufficient, standing alone, to sustain
the allegation of interference, restraint, and coercion on the part of the
management. He failed to take into account that Foreman Stenger
admitted making derogatory remarks to Perry and Gularte about the
payment of union dues and about their union buttons. The Trial
Examiner relied heavily, in arriving at his general conclusion about
the witnesses for the Board, on the fact that Murphy and'Burkhardt
did not, corroborate each other as to some of the details of a meeting
of employees addressed by Superintendent Miller in May 1937, 2 years
prior to the anti-union incidents described above. Even if we were
to believe that this cast some doubt on the accuracy of the testimony
of Burkhardt or Murphy'38 it is not a sound reason for disbelieving
a number of other witnesses who had no connection with that event.
Moreover, the Trial Examiner gives no indication in his Intermediate
Report that he recognized the inconsistencies 'in the testimony of
several of the respondent's witnesses, which have led us to disbelieve
them. In the face of the abundance of corroborated evidence of the
respondent's opposition and hostility to the Union and the admitted
or undenied anti-union remarks, we are wholly unable to agree with
the Trial Examiner in his findings on credibility. ,
At the hearing the respondent objected to the introduction of evi-
dence relating to the activities of its icing and cold-storage foremen
on the ground that their activities were not binding upon the respond-
ent. The principal reason advanced by the respondent for its
contention is that these foremen had no authority to hire and dis-
charge employees. We do not agree with the respondent's contention
or with the claim on which it is based. As we have heretofore pointed
out,30 Beard was•in charge of operations at the San Jose plant in the
absence of Superintendent Miller. We have also found that the other
foremen here involved' are accorded discretion in choosing seasonal
employees for specific jobs as the need arises.40 Their supervisory
11 We have found heretofore that Murphy's testimony is credible
s`' Supra, Section III A.
41 Further evidence of the supervisory character of the work of these foremen is to be
found in the respondent's classification of their work for purposes of the Wages and Hours
Act In 1939, during parts of the cherry and pear seasons, the respondent paid its
seasonal employees at time and one-half rates for all work beyond 44 hours per week, pur-
suant to the Wages and Hours Act. At the same time, the all-year-round employees who
served as foremen and supervisors over seasonal employees were paid straight time for
all work beyond 44 hours per week. The latter group included all the foremen and
supervisors whose activities we have heretofore discussed This exemption was claimed
under a clause of the Act eliminating the payment of extra compensation for overtime
to employees employed in a bona fide executive and administrative canacity.
SECURITY WAREHOUSE & COLD STORAGE CO. 885
status was such that they were in a position to translate to employees
the labor policy of the management and, as indicated above, they did
in fact undertake to translate it. The respondent is responsible for
their actions.41
We find that, by all the acts of the respondent's officers, superin-
tendents, foremen, and agents, related in Section III B 1, above, the
respondent interfered with, restrained, and coerced its employees in,
the exercise of the rights guaranteed in Section 7 of the Act.
2. Discrimination against all seasonal employees who were members of
the Union
The complaint alleges that during the period from approximately
July 25, 1939, to August 25, 1939,42 the respondent discriminated
against substantially all its employees known to be or suspected of
being members of the Union in the amount and duration of employ-
ment and in the nature and type of work given these employees and
thereby violated Section 8 (1) of the Act.
a. The employment statistics
The parties, by agreement, submitted to the Trial Examiner and to'
the Board a list of all employees who worked for the respondent
during this period at its Santa Clara and San Jose cold-storage plants,
omitting the all-year-round employees. This list contains 332 names,
classified on the basis of their union membership, and shows the prior
employment record of each of these 332 persons with the respondent
for the period from January 1, 1936, through August 24, 1939', the
last day before the union employees went out on strike. Counsel for
the Board contended at the hearing that these employment records-
disclose that the respondent had discriminated against seasonal em-
ployees who were members of the Union in the amount and duration
of their employment during the 1939 pear season. The Trial Exam-
iner concluded that the statistics on employment failed to show
general discrimination as alleged. The Union has filed exceptions
to this portion of the Intermediate Report. We have analyzed the'
employment statistics in the light of the circumstances surrounding
the selection of seasonal workers for daily employment and conclude
41 International Association or Machinists v. National Labor Relations Board, 110 F. (2d)
29 (App. D. C) enf'g Matter of The Serrsck Corporation and International Union, United
Automobile Workers of America, Local No 459, 8 N. L . R. B. 621; H J. Heinz Company
v National Labor Relations Board , 311 U S 514 . aff'g 110 F ( 2d) 843 (C C A 6), enf'g
Matter of H. J Heinz Company , 10 N L . R B. 963.
92 Hereinafter called the 1939 pear season It should be noted that the term "pear
season " with reference to other years than 1939 denotes a period from the latter part at
July through the remainder of the calendar year.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Trial Examiner's finding on this aspect of the complaint is
correct.
To ,evaluate the statistical evidence, some facts concerning the re-
spondent's seasonal business are necessary. At the beginning of each
of the cherry seasons and the pear seasons, respectively, persons
seeking seasonal employment apply to the superintendents of the
respondent's cold-storage plants at San Jose and Santa Clara. If
they are hired, they are given clock numbers and employment cards
and tentatively assigned to crews under the various foremen, who
are from the staff of all-year-round employees. During the season the
men so hired may appear at the plants each day to be selected for work
by the various foremen as the volume of business demands. As the
season approaches its peak, additional initial hirings may be made
from day to day, but the respondent insists that those assigned to
crews at the outset of the season should be the first chosen for daily
employment, if they are present on the hiring platforms when needed.
The volume of incoming and outgoing fruit fluctuates from day
to day and the respondent is often unable to predict the time of day
when the amount of available work will be large or small. Seasonal
employees, therefore, may remain at the plants all day if they are
not selected for work on the morning shift.
Our examination of the employment statistics discloses that non-
union seasonable employees received substantially greater employ-
ment than union seasonal employees during the 1939 pear season.
The statistics show this to be true even when the factor of experience
is taken into account.
The respondent, however, interposes a number of objections to the
validity of any conclusions based upon the statistics alone. We are
of the opinion that at least one of these objections raises substantial
doubt concerning the validity of any conclusions drawn from the
,statistics. It is that the record fails to disclose the availability of
all seasonal employees for employment on the day and the hour
needed. We have pointed out that the respondent's business is such
that it cannot accurately predict the hour of the day when large quan-
tities of fruit will be received for handling. Thus, on occasion dur-
ing the 1939 pear season there was a comparatively small amount of
work in the morning and a very substantial amount later in the day.
It is not shown that seasonal workers either reported to the respond-
,ent's plants each morning during the season or that they remained
,on the hiring platforms all day if they were not selected for work on
the morning shift. Nor does the record establish the proportionate
number of union and non-union men available from day to day when
work was being distributed. Affirmatively, the record shows that
some seasonal employees who were members -of the Union took em-
SECURITY WAREHOUSE & COLD STORAGE CO. 887
ployment elsewhere during the course of the 1939 pear season and did
not continue to report for work at the respondent's plants. Because
of the absence of evidence of daily availability of union and non-
union men, we conclude, and herewith find, that the employment
statistics do not establish that members of the Union were discrimi-
nated against in the distribution of seasonal employment during the
1939 pear season.
b. Hiring and housing of college students
During the summer of 1939 the respondent made arrangements to
employ substantial numbers of college and university students. In
former years a few • students had obtained employment at the two
cold-storage plants during the summer, but with few exceptions such
students had obtained employment entirely on their own initiative.
(1) Temperature men
The first group of students to commence work for the respondent
in the summer of 1939 were so-called temperature men hired by Chief
Engineer Faucett, who was in charge of the engine rooms at the
San Jose and Santa Clara cold storage plants. Of the students em-
ployed for this work nearly all were engineering students from San
Jose State College or Santa Clara University. The positions to which
they were assigned were newly created.
The circumstances under which these positions were created and
the procedure adopted for filling them establish that members of the
Union were barred from consideration for employment as tempera-
ture men. On June 7, when large numbers of the respondent's em-
ployees appeared for work displaying union buttons for the first
time, Chief Engineer Faucett stated that he became alarmed over
the danger of possible sabotage in the engine rooms. He testified
that he anticipated labor trouble because of the organizational efforts
of the Union. On June 24 Faucett discharged Crowder, the only
one of the respondent's engineers who was a member of the Union,
among other reasons because, as Faucett explained, he thought it was
dangerous to have Crowder around the plants.43 About the same time
he talked to President Patton and General Manager Ballantyne con-,
cerning the employment of eight temperature men. These tempera-
ture men were to be used to relieve the regular engineer on each shift
from his duty of leaving the engine room to take temperature read-
ings in various parts of the cold-storage plants. Faucett told Bal-
43 Crowder ' s discharge is fully discussed In Section III C, antra, and there found to have
constituted a violation of Section 8 (3) of the Act.
S88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lantyne and Patton that, in view of impending "labor trouble," the
engineer on each shift should remain in the engine room all the time
and that additional men should be hired for the temperature reading.
Ballantyne and Patton agreed. Faucett thereupon instructed Berg,
one of his assistants, to "line up" temperature men and suggested to
him that he attempt to obtain engineering students. Berg recom-
mended eight students from San Jose State College and Santa Clara
University. Faucett had a brief interview with each of the eight.
He inquired particularly about their attitude toward Communism.
Faucett testified, "I asked them point blank if they were Communists
and naturally they came out with their reactions on it and what they
said . . . convinced me they were- all right. I didn't ask them any-
thing further." When Faucett was questioned' as to why he had
hinged his selection of temperature men on their opposition to Com-
munism he explained that he was anticipating a' great deal of labor-
trouble, that in his opinion there were Communists in the C. I. 0.,
and that lie did not want to aggravate the situation by hiring
Communists. When asked why he did not consider experienced sea-
sonal cold-storage men for these new positions, Faucett explained
that he feared the cold-storage superintendents would be resentful if
he hired cold-storage men as temperature men at a time when the
peak of the cold-storage season was approaching. With the ad-
mitted surplus of seasonal labor present at the respondent's plants
in the cherry season during May and June, we cannot believe that
Faucett could seriously have entertained the idea that hiring eight
cold-storage employees would cripple or even interfere with cold-
storage operations handled by as many as 300 seasonal employees.
Faucett admitted that the new positions did not require persons of
experience or technical training. By hiring these students the re-
spondent assured itself that it was adding eight seasonal employees
to its staff who were not members of the Union, thus affecting to
some extent the majority representation claimed by the Union on and
,after June 8.
On these facts it becomes plain, and we find, that Faucett concluded
in advance of the hiring of the eight temperature men that members
of the Union would not be employed in these jobs solely because of
union membership and that he turned to a new source of labor supply
in order to avoid hiring members of the Union.
The respondent's policy not to consider union members for these
positions is without justification. Its claimed fear of sabotage is
wholly unsupported by the facts of this case. Neither at the time
Faucett hired the temperature men, nor thereafter, was there any
violence or threat of violence at the respondent's plants. Not did
SECURITY WAREHOUSE & COLD STORAGE CO. 889
the respondent claim that either the Union or any of its members
had made any threat or committed any act which gave cause for
excluding union members from consideration for jobs as tempera-
ture men 44 Moreover, the respondent did not hire the temperature
men as guards or charge them with any special plant-protection
duties. Rather, they were hired to perform ordinary duties outside
the engine rooms in order that the engineers might remain on duty
in the engine rooms at all times.
Under all the circumstances, we find that by exclusion of union
members from consideration for employment as temperature men
and by hiring these eight college students for such positions, the
respondent has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
(2) College students in cold-storage employment
In addition to the temperature men, the respondent made arrange-
ment for the employment of some 28 Stanford University students
and a number of other students from San Jose State College.
On June 9, 2 days after the first appearance of union buttons,
the respondent's president, J. Q. Patton, arranged with two repre-
sentatives of Stanford University to employ 20 or 25 Stanford
athletes during the 1939 pear season at the Santa Clara plant. In
1938, Patton, who was an ardent supporter of Stanford football
teams, had assisted three or four students by arranging for their
summer employment in the cold-storage plants, 'but never before
had employed students in substantial numbers.45 Patton testified
that he was approached on June 9, 1939, by "Tiny" Thornhill, Stan-
ford University football coach, and Robert Pelouze, director of
student employment at Stanford. That the initial approach in
1939 was made by Stanford officials is corroborated by Thornhill,
who testified at the hearing. Thornhill and Pelouze urged Patton
at the conference on June 9 to employ a number of Stanford athletes
during the summer. After consultation with General Manager
Ballantyne, Patton agreed to employ 20 or 25 such students during
the pear season. Patton stated that his reasons for so doing were
(1) his close association with the Stanford Board of Athletic Con-
trol and his interest in Stanford's athletic program; (2) the fact
that in some previous years the respondent had experienced difficulty
44 See Matter of The Dow Chemical Company and United Mine Workers of America,
District No. 50, 13 N. L. R. B. 993, enf 'd N. L. R. B. v. Dow Chemical Co., 117 F. (2d)
455 (C. C A. 6) ; N. L. R. B. v. Ford Motor Co., 119 F. (2d) 326 (C. C A. 5).
451n 1938 several San Jose State College students had obtained employment at the
San Jose plant on their own initiative.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in obtaining men to unload perishable fruits in emergency situa-
tions; (3) a belief that more than the usual number of employees
would be needed because the Wages and Hours Act limited the
respondent to employment of each employee for only 44 hours per
week without the payment of overtime, while in preceding years the
respondent had permitted its seasonal employees to work from 50
to 80 or more hours per week.
About June 19, Pelouze furnished Patton with a list of prospective
student employees and Patton instructed Ballantyne to find a satis-
factory boarding house in Santa Clara for the students. After a
canvass of boarding houses, the respondent's officers testified that
they found no adequate place at a price reasonable enough, to permit
the students to save a substantial part of their earnings, and there-
fore that Patton and Ballantyne determined in July to remodel a
packing shed on the respondent's Santa Clara property to provide
sleeping accommodations and meals for the students. The remodel-
ing work was begun about 10 days before the commencement of the
pear season and was completed by the time the students arrived.
The respondent charged the students nothing for"the use of the dor-
mitory but charged 75 cents per day for meals, which was less than
the cost to the respondent.
Twenty-six students from Stanford arrived at Santa Clara and
commenced work between July 26 and 31. Two other Stanford
students arrived a little later. About August 19 or 20 a few were
laid off. On August 23, when it became certain that the Union would
call a strike, the remaining Stanford students were withdrawn be-
cause University officials had previously declared that they must not
be used as strikebreakers.
While President Patton was engaged in arranging for the em-
ployment of Stanford students, Sales Manager Mehrkens of the
respondent interviewed students at San Jose State College, herein
called State College. D. M. Carmody, a San Jose State College
student, testified that after registering with the secretary of student
employment at State College he received a telephone call from Mehr-
kens about the first of July requesting him to come to the respond-
ent's San Jose offices for an interview. Present at the interview
were 8 or 10 State College students. Carmody, whose testimony
stands undenied, stated that Mehrkens told the group that the
respondent had adopted a new personnel policy, "that they were
trying to build up some kind of a personnel system" which would
include the employment during the summer of students from various
colleges in the vicinity. Mehrkens told the students that they would
be able to work all summer and should earn from $25 to $35 per
SECURITY WAREHOUSE & COLD STORAGE CO. 891
week 46 At this interview Mehrkens filled out personnel cards for all
the students present. We find that Mehrkens engaged in the activ-
ities and made the statements related by Carmody. About July 15
Carmody and two fellow students, Frank J. Carroll 47 and Ed. Dunne,
returned to Mehrkens' office. Mehrkens gave them cards containing
the personnel information previously submitted, and instructed them
to take the cards to Superintendent Johnstone at the Santa Clara
plant. They reported to Johnstone, announcing that they were State
College boys who had been sent by Mehrkens. Johnstone told them
that he would want them for work in a week or 10 days. In the
course of the hearing, nine San Jose State College students were
identified as employees of the respondent during the 1939 pear sea-
son.48 Carmody worked at the Santa Clara plant. Seven of them
were assigned to the San Jose plant. The record is not clear at which
of the two plants Carrol was employed. Carrol, Carmody, and H. B.
Turner worked from the latter part of July through August 24.
Carmody did not work thereafter because of the strike. The remain-
ing six students were assigned to the San Jose plant and received
employment from the latter part of July through the week ending
August 12, when the peak of the cannery pear work was over.
The testimony of several other witnesses discloses the purpose of
the respondent's "new personnel policy." Stuart and Earland Wil-
liamson, who had previously worked for the respondent in 1938,
testified that when they applied to Superintendent Miller for work
just prior to the pear season, Miller advised them to look elsewhere
for jobs because the respondent was anticipating trouble with the
Union and "had a bunch of college boys signed up." 49 Christensen,
whom we believe to be a credible witness, testified that on July 27,
1939, Kenneth Green, one of the respondent' s foremen , stated in
Christensen's presence that the respondent expected more labor trou-
ble at the Santa Clara plant than at San Jose and had built dormi-
10 The respondent 's rate of pay for cold-storage labor was 52% cents per hour. The
respondent contended that it had adopted the policy in the cherry season of limiting its
employees to 44 hours per week , which would amount to $23 . 10. A promise of $25 to $35
per week indicates that the respondent intended to allow its student employees to work
a considerable amount of overtime.
47 Sometimes designated in the record as Frank Carl.
49 F J Carrol , D M Carmody , William Clark , Mark Guerra , G. M Hearn ( also referred
to as James Hern ), Robert Titchenal ( sometimes Titchnel ), Harold B Turner, F C.
Wenberg , and John Whitfield.
4o Miller denied this testimony - and the Trial Examiner disbelieved the testimony of the
Williamson brothers in part because "there was no contention that any college boys were
ever employed at the San Jose plant ." The Trial Examiner entirely overlooked the admis-
sion by the respondent that at least six San Jose State College students were employed
at the San Jose plant and the testimony of several witnesses concerning their work there.
In view of our previous findings regarding Miller's testimony and the fact that the testi-
mony of the Williamsons is in substantial agreement , we find that Miller made the state-
ment attributed to him by the Williamsons.
892 SECURITY WAREHOUSE & COLD STORAGE CO.
tories at Santa Clara in which to house college students on the job.
D. M. Carmody, a San Jose student, some of whose testimony we
have heretofore related, testified without denial by the respondent,
that on August 24, after the Union had voted to strike and the day
before the strike occurred, Mehrkens and Ballantyne approached him
while he was working and asked "if I would like to stay there and
work as long as I wanted to and make the same rate of pay, get all
the hours in I want to." They instructed him to go over to the
dormitory which the respondent had provided for Stanford students
and to take his clothes with him.80 We find that all of the above-
related statements were made by the respondent's officers, superin-
tendent, and foremen, as testified to by these witnesses.
The record establishes conclusively that the Stanford students and
some of the San Jose students as well were given preferential treat-
ment in the distribution of employment. A large number of the
Board's witnesses testified without contradiction that while seasonal
employees of previous experience with the respondent waited on the
platform for work the college students were designated for work
and on occasion were even sent for and put to work at once. None
of these students had previously worked for the respondent. Yet the
Stanford group received a regular assignment to the day shift which
commenced at 8 a. m. and was the shift most sure of a full day's
work. These 28 Stanford men received an average of 132 hours of
work up to August 23 or 24, while during the same period the aver-
age for experienced union men was less than 130 hours and that for
inexperienced union men was only 54.4 hours.51 Carmody testified
that he worked from 6 to 8 hours or more each day, beginning at
8 a. m., and was never required to wait on the platform for work,
as were most of the seasonal employees. He received 1731/2 hours
during the pear season. F. J. Carrol, another State College student,
received 1711/2 hours; H. B. Turner, 841/2. For Carmody and Carrol
this was over 40 hours apiece more than the average number of hours
received by experienced union men. The remaining San Jose State
College students did not work after August 12. During the peak
week ending August 5, four of them received from 421/4 hours to 491/4
hours. 12 Despite the respondent's declared policy of not permitting
its employees to work more than 44 hours per week, the Stanford
students during the week ending August 5 averaged 50.31 hours, and
during the week ending August 12 all except eight of them worked
G0 Carmody did not accept the respondent's offer
Non-union experienced men received 153.7 hours; non-union inexperienced men exclu-
sive of college students 64.2 hours.
52 In the following week they received 6 to 9 hours of work. There is no showing as to
whether they were available for work all that week.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD 893
substantially more than 44 hours. .13 During the same week union
men who had also worked for the respondent during the 1938 pear
season received an-average of 41.77 hours of employment.
Further evidence of the preferential treatment of the student em-
ployees is found in the testimony of Christensen, a gang pusher at
the San Jose plant. He testified that a number of the State College
students were assigned to his crew to be used when he needed workers
and that Superintendent Miller had instructed him to give them
ample experience by selecting them for work. He also testified that
on one occasion when he wished to use Frank Andrews, an experi-
enced union employee, Miller intervened and told him to give the
college men experience. We find that the above incidents and state-
ments occurred as related by Christensen. At the Santa Clara plant,
the respondent sent for students not present on the platform when
work became ' available, while experienced union employees waited
for employment.
The respondent's position is that the college students wore treated
like all other employees and if they received more employment than
others it was only because they had greater ability. The record does
not bear out this contention, for there is substantial evidence of the
dubious, and even unsatisfactory, character of the work of the
students. Christensen complained to Night Foreman Lyle that the
students were not good workers, that they threw pears at each other,
engaged in "horseplay," and handled the fruit roughly. Lyle told
Christensen to give them time to become accustomed to the work.
Carmody, who worked at Santa Clara, admitted that they occasion-
ally threw boxes of pears at each other and indulged in some "horse-
play." Correspondence between the respondent and Robert Pelouze,
Stanford's director of student employment, also discloses that all the
students were not equally satisfactory. On August 19 or 20 it was
agreed to dismiss some of them. The respondent offered no specific
testimony to establish the ability of the student employees and wholly
failed to show that they had greater ability than the experienced
union men whom they displaced. Especially since ability to perform
the respondent's cold-storage work is chiefly no more than previous
experience, we are convinced that the college students did not have
greater ability than seasonal employees who had previously worked
for the respondent.
The above-stated facts, when considered with other facts in the
record, convince us that the employment of college students by the
.respondent and the preferential treatment given them in the distribu-
Is The college students-the 28 Stanford and the 9 San Jose students-received more
overtime than any other group of employees . The non-union group, even excluding college
students , received slightly more overtime than the union group of seasonal employees.
`894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of seasonal work was for the purpose of defeating the Union's
organizational campaign at the respondent's plants.
It is true that the initiative for employment of Stanford Univer-
sity students came from university officials and that Patton, the re-
spondent's president, was interested in assisting Stanford athletes. It
may likewise be true that the respondent believed that the limitation
upon hours, which it had imposed because of the Wages and Hours
'Act, would cause some shortage of seasonal workers. But, whatever
the respondent's motive may have been on June 9 when it agreed to
use 20 or 25 Stanford students, the idea of employing college students
was seized upon and developed by the respondent as an effective
weapon against the Union.
On and after June 7, as we have heretofore found, the respondent,
especially through Superintendent Miller and other foremen at the
San Jose plant, threatened to favor non-union over union men in the
distribution of seasonal employment. Between June 9 and July 1 it
is clear, from facts already related, that the respondent had adopted
a new personnel policy of employing during the summer not only
Stanford. students but students from other colleges in the vicinity.
Sales Manager Mehrkens of the respondent, was arranging for
students from San Jose College and Chief Engineer Faucett had
made plans to hire as temperature men students from San Jose State
College and Santa Clara University. Never before had the respond.
ent sought out college students for employment. A little later Presi-
dent Patton declared that he would like to increase every year the
number of college boys employed by the respondent. Thus, the
respondent expanded the proposal of Stanford officials into a general
employment policy. It was a policy by which the respondent could
reasonably expect to add to its staff non-union seasonal employees,
for college students working a few weeks during the summer to ob-
tain funds to advance their education would not easily be persuaded
to join the Union.
The adoption of the policy by the respondent came at the very
time the newly organized unit of the Union was seeking recognition
from the respondent as exclusive bargaining representative and
effectuation of the policy might reasonably be expected to affect the
majority status of the Union. Its adoption also came soon after the
Union had first alleged that the respondent was discriminating
,against its members in the distribution of seasonal work, and at a
time when the Union was seeking a seniority clause from the respond-
-ent which would protect its members from any such discrimination.
The adoption of a policy of student employment and the respond-
ent's obligations ensuing therefrom placed a serious obstacle in the
SECURITY WAREHOUSE & COLD STORAGE CO. 895;
way of an agreement with the Union on seniority, and, in fact, oper-
ated substantially as a reversal of its previously announced seniority
policy. In 1937 and 1938 at the request of the company-dominated
Association, the respondent had declared that "length of service"
would apply when hiring and laying off employees, other qualifica-
tions being equal. The respondent insisted that even in 1939 prefer-
ence was given to men with previous experience and that there was
no policy of favoring college students, as such, in the distribution of
work and that no such instructions were issued to foremen. How-
ever, the record discloses that so far as college students were involved
the "length of service" policy was abandoned. The Stanford men and
at least some of the other students were given regular employment
almost every day on the 8 a. m. shift, which was the shift offering
the best opportunity for substantial hours of work. When not on
the platform at Santa Clara ready for work they were sent for and
put to work while experienced employees remained unemployed. At
San Jose at least one subforeman was instructed to use them even
when he found them unsatisfactory workers.
Further evidence that the respondent intentionally used the stu-
dents as a means of discouraging membership in the Union is found
in the fact that the employees widely believed this to be so and the
respondent expressly refused to dissipate such belief among its
employees.
Although this preferential treatment of student employees may
have had some adverse effect upon non-union seasonal workers as well
as upon union men, the non-union men suffered loss of employment to
a much smaller degree than union men 54 and we believe that the,
practice was deliberately employed by the respondent in order to dis-
courage membership in the Union.
On the basis of the entire record, we conclude and find that the
respondent adopted a policy of employing college students, and ef-
fectuated that policy, in order to discourage and in a manner which
discouraged membership in the Union.
We find that by excluding members of'the Union from considera-
tion for positions as temperature men and by employing college stu.
dents for other cold-storage work for the purpose and with the effect
of discouraging membership in the Union, the respondent interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
N For example, the experienced non-union men averaged 153.7 hours of work apiece.
during the pear season , inexperienced college students 132 hours and experienced union.
men slightly less than 130 hours . Inexperienced non-union men , exclusive of the college.
students , averaged 64 2 hours of employment each, while inexperienced union- men, receive(I
an average of 54 4 hours apiece.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The respondent's discriminations as to hire and tenure of
employment within the meaning of Section 8 (3)
The complaint alleges that the respondent violated Section 8 (3)
of the Act by discriminating with regard to the hire and tenure of
employment of 24 named individuals during 1939.
We have heretofore found that the respondent formed and domi-
nated the Association for the purpose of preventing outside unions
from successfully organizing its employees and otherwise actively
opposed both the I. L. A. and the Union. We have also found that
in 1939 the respondent threatened to discriminate in the distribution
,of employment among its seasonal employees on the basis of union
-membership and that by hiring college students as temperature men
and for cold-storage work the respondent interfered with, restrained,
,and,coerced its employees in the exercise of the rights guaranteed in
:Section 7 of the Act. These-unfair labor practices provide the set-
,ting in which the following alleged discriminations occurred and are
significant in determining whether the respondent violated Section
8 (3) of the Act in its treatment of the 24 named individuals.
. The alleged discriminations fall into 4 categories: (1) 17 cases in
which it is alleged that seasonal employees who were members of the
;Union ,did not receive a fair share of the work during the cherry or
pear season or both; (2) 3 cases in which the respondent is charged
with failing to rehire or assign any employment to members of the
Union during the pear season; (3) 3 cases involving demotion of
employees; (4) one case of outright discharge. We shall consider
them in order.
(1) Discriminations in the distribution of seasonal employment
Lewis Frayer.55 Frayer was first employed at the respondent's
San Jose plant in 1936 as a seasonal worker. In 1937 he received no
employment from the respondent.56 In 1938 he worked at the Santa
Clara plant during the pear season, putting in 71 hours from some-
time 'in the week ending August 6 to August 27. He continued to
work from August 28 to December 31, 1938, receiving 3201/2 hours
of seasonal employment in that period. In 1939 his employment be-
gan at the Santa Clara plant with the opening of the pear season on
July 29 and continued intermittently until he went out on strike on
August 25.
In 1939, at the time Frayer applied for work and was hired he
was not wearing a union button although he had joined the Union,
on July 29. He did not display his union button until August 13 or
Named in the complaint as Louis Fraser and elsewhere in the record as L I; Frayer.
r4 It is not clear whether Frayer was available to the respondent for work in 1937
SECURITY WAREHOUSE & COLD STORAGE CO. 897
14 and did not attend meetings or otherwise engage in union activi-
ties until after that date. On July 29, he was assigned to the crew
handling cannery pears under the supervision of Foreman Gates.
On July 31 he was promoted to the job of gang pusher or subfore-
man under Gates and his rate of pay was increased from 521/2 cents to
55 cents per hour. At that time Gates told him that he would have
steady work for the remainder of the season, which extends into
November or December. Soon thereafter Gates commended Frayer
on the quality of his work and told him that he was "one of the best
gang pushers." During the week ending August 5 Frayer worked
461/2 hours and in the week ending August 12, 381/2 hours. On August
13 or 14 when he reported at the plant he was displaying his union
button for the first time. When he inquired of Gates about work
for that day, Gates looked at him without a word of reply and then
walked away. Frayer followed and asked Gates again about work.
Gates replied that he thought-there would be nothing for Frayer but
to report at the time clock when the afternoon crews were selected
and checked in. This Frayer did, but received no assignment to
work. He reported to Gates again the next day and, when he asked
for work, Gates said, "You joined the Union didn't you?757 When
Frayer admitted that he had, Gates added, "Well I don't believe
there will be any work for you today." Frayer continued to report
for work daily and on August 18 he worked 21/2 hours in a cannery
crew under Olsen, who had been a gang pusher since the beginning of
the cannery pear season. Between August 20 and August 24, Frayer
was employed for 133/ hours in a cannery crew. He did not act as a
gang pusher after August 12.58 On August 25 he went out on strike.
During the period from August 14 through August 24, the re-
spondent's employment records disclose that with the exception of
Sunday, August 20, there were some 7 hours of daily employment for
97 or more employees at the Santa Clara plant. Yet Frayer, who
had been among the first 97 employees hired for the season, received
only 161/4 hours of employment during that period. Moreover, from
August 13 to August 19, when Frayer received only 21/2 hours of work,
26 Stanford University students, with no prior experience, received
an average of 44.75 hours of employment each. They 'worked, as
did Frayer, in cannery crews under Foreman Gates and were selected
for work on occasion when Frayer was present on the hiring plat-
form. The record also discloses that at least one non-union em-
s- Gates denied that he said anything to Frayer about the Union or that he had noticed
Prayer's union button However, in view of the respondent's knoiNledge that a strike was
impending, the respondent's hostility to the Union, and the fact thht Gates told another
employee to get rid of his union button, we do not credit Gates' denial
ca There is no allegation that Frayer was discriminatorily demoted from his job as
gang pusher, for after August 12 fewer gang pushers were needed, and a number of them
were merged in a cannery crew under a single foreman.
898 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD
ployee, Kusalo, hired by the respondent as gang pusher on the
cannery crews 2 days after Frayer was employed, received 48 hours
during that week; and for the period ending August 24, when Frayer
was given 133/4 hours, Kusalo received 363/4 hours. Kusalo had not
worked for the respondent in seasons prior to 1939.59
The above-related facts indicate that the marked difference be-
tween the treatment accorded Frayer before August 13 and that
which he received thereafter is accounted for by Frayer's disclosure
of his union affiliation to the respondent for the first time on August
13.
The respondent contends, however, that its treatment of Frayer
is explained by the fact that after August 12 there was a slump in
the receipt of cannery pears at the Santa Clara plant with the result
that it was necessary to reduce the crews and give employment to
the seasonal employees older in point of service. It is true that
after August 13 there was no cannery fruit received at Santa Clara
until August 18, the day Frayer received 21/2 hours work. However,
the delivery- of cannery pears commenced between August 13 and
August 18. Seasonal employees were often shifted from receiving
to delivery crews and this was done in some instances in 1939. In
fact, Frayer testified, and we find, that men who had worked on
receiving crews with Frayer prior to August 13 were transferred to
delivery crews after August 13 and worked on days when Frayer
remained unemployed. Even more significant, it was the respond-
ent's admitted policy to retain its gang pushers in a single crew
when receipt of cannery pears dwindled. In Frayer's case, the
respondent did not follow this policy. So far as the record indi-
cates, no other gang pusher was given so little employment after
August 13 and one non-union gang pusher, Kusalo, who had no
experience in the respondent's employ prior to the 1939 cherry season,
was even permitted to work overtime 61 during the week Frayer
received only 21/2 hours. The following week, when Frayer received
133/4 hours of employment, Kusalo worked 363/4 hours.
The respondent's further contention that it was necessary to pass
over Frayer to give employment to more experienced seasonal em-
ployees, in accordance with its announced policy, is completely re-
futed by the fact that the respondent used inexperienced college
so Kusalo first appeared on the respondent 's pay roll during the 1939 cherry season during
which he worked 741/4 hours
w The term "delivery" in the respondent's business means. the removal of fruit from
the cold -storage warehouse rooms and loading it on trucks or railroad cars for outgoing
shipment.
61 The respondent claimed to have adopted a policy in consonance with the Wages and
Hours Act not to allow its employees to work more than 44 hours in any week.
SECURITY WAREHOUSE & COLD STORAGE CO. 899
students and gave full-time employment to Kusalo during the period
in which Frayer was given almost no work.62
We are satisfied and find that the respondent discriminated against'
Fraver in the amount and duration of his employment during the
1939 pear season because of his membership in the Union.
Albert Dietrich. Dietrich had worked for the respondent a total
of approximately, 635 hours in the cherry and pear seasons of 1937,
but had not worked at all for the respondent in 1938.83 In 1939,
Dietrich commenced to work in the cherry season during the week
ending May 27 and received intermittent work through June 14,
totaling 63?/4 hours. He returned for the pear season and was first
employed on July 25. He worked a total of 1421/4 hours through
August 24 and joined the strike on August 25.
The complaint alleges discrimination in both the cherry and pear
seasons because of his union membership after June 7. Dietrich was a
member of the Union and wore his union button. on and after June 7.
Dietrich testified that on June 7, Foreman Gates asked, when he
saw Dietrich's union button, "Have you gone loco, too?" and added,
"You had better put that in your pocket." We find that Gates
made the statements.84
The record does not establish' discriminatory treatment during
the cherry season. Dietrich worked 301/2 hours prior to June 7
when he first displayed his union button and 323/4 hours thereafter.
After June 14, Dietrich received no work, but the record shows that
the cherry season was beginning to decline and the amount of work
available after that date was substantially less than had been
available on the day Dietrich was hired and was also less than the
amount available on any of the days Dietrich had worked.
Dietrich's principal complaint, as developed at the hearing, is that
inexperienced college students were given work during the 1939 pear
season while he waited on the platform without employment. On
one occasion while he was waiting to be selected for work, Foreman
Gates sent to the dormitory for students who had not reported to
the platform. They came and were assigned to duty while Dietrich
received no employment. Since we have found that these students,
were employed for the purpose of discriminating against union men,
and since Dietrich was available for work when the college students
0 The respondent also sought to show that Frayer was not In a fit condition to work
when he , reported to Gates on August 13 because he had played cards all night and had
not slept . However true this may be, it does not explain the respondent 's failure to give
him substantial employment on the following days and the respondent does' not so contend
In its brief.
63 In 1938, Dietrich had applied and had been told by Superintendent Johnstone to return
near a specified date. In the meantime , Dietrich purchased a truck and engaged in the
trucking business that year instead of returning to the respondent 's Santa Clara plant
for work.
a We do noncredit Gates' denial . See supra, note 57 and accompanying text.
451270-42-vol. 35-58
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were used, and the respondent offers no specific proof of Dietrich's
lack of ability to do such work, we conclude, and hereby find, that
he was discriminated against by the respondent during the pear
season because of his membership in the Union.
William C. Brown and James E. Walker. Brown and Walker
worked for the respondent at the Santa Clara plant for 1 week
in September 1938 and returned for the 1939 pear season. Brown
had never worked for the respondent prior to 1938, while Walker
testified that he had previously been employed by the respondent
during the pear season of 1930. Both men were apparently itinerant
workers in various seasonal agricultural occupations.
Brown and Walker reported at the Santa Clara plant between
July 21 and 23, 1939. Superintendent Johnstone told them, when
they reported to him, to come back in a few days when it was ex-
pected that the seasonal work would increase. Both joined the
Union on July 25. Walker was put to work on July 28, before he
had displayed his union button, which he first wore on July 29 or
30. Brown was first employed on July 29 and was displaying his
union button at the time. During the 4 weeks prior to the strike
Walker received 861/2 hours; Brown, 753/4 hours. During the same
period experienced non-union employees received approximately 153
hours of work, inexperienced non-union employees received about 82
hours, and the inexperienced Stanford University students, who
worked entirely at the Santa Clara plant, 132 hours. Brown and
Walker testified that they were passed over in favor of the Stan-
ford boys on many occasions when men were being selected for work.
However, Brown and Walker were not satisfactory employees in
several respects. Foreman Gates testified that other available em-
ployees, including the Stanford University students, were better
workers than Brown and Walker. We credit this testimony. The
record also discloses that Brown and Walker were not on the hiring
platform ready for work on many occasions when work became
available. Instead, they spent a great deal of time in the "card
room," which was a rest room provided by the respondent for its
employees. The respondent had warned its seasonal employees that
they would not be called from the "card room" to work but that
they must be present on the hiring platform if they were to obtain
employment.
In view of the fact that Brown and Walker had not had suf-
ficient experience in the employ of the respondent to be considered
experienced employees and received approximately the same amount
of work as the average non-union inexperienced employee in the 1939
pear season up to the date of the strike, and since they were not
always available for work, we conclude, and herewith find, that
SECURITY WAREHOUSE & COLD STORAGE CO. 901
Brown and Walker were not discriminated against by the respondent
in the distribution of seasonal work because of their membership in
the Union.
Arthur Cabral. Cabral worked for the respondent at its Santa
Clara plant 451/2 hours during a 2 week's period in the pear season
of 1936, and 4461/2 hours over an 8 week's period in the 1937 pear
season. He was not employed in 1938 and received only 311/2 hours
in the pear season of 1939. His 1939 employment consisted of work
each day from August 1 through August 5, which was during the
peak of the cannery pear season at the Santa Clara plant.
Cabral joined the Union on July 28, but did not receive and dis-
play his button until August 6. He claimed at the hearing that he
was given work by the respondent until the day he first wore his
union button and that he received no employment thereafter.
After the week ending August 5, in which he worked 5 consecu-
tive days, Cabral continued to report for work at the Santa Clara
plant without any success. He was there on numerous occasions
when college students were chosen for work, and, while there was
less work after August 5, the fact that 26 Stanford students received
an average of 44.75 hours of work during the week ending August
12, and 24 of them were employed in the succeeding week for an
average of approximately 34 hours each is ample proof that there
was work which Cabral might have had except for the students.
We have heretofore found that the employment of college students
was for the purpose of discriminating against union men.
The respondent's defense as to Cabral is that there was work for
him only during the peak week of the season because he was a
"mediocre" worker. The respondent offered no testimony whatever
about the quality of Cabral's work, relying entirely on the state-
ment by Superintendent Johnstone that it was mediocre. In 1937
the respondent had given him 4461/2 hours of employment, 2943/4
hours of which had been in a 5 week's period comparable to the
1939 pear season. There is no indication that Cabral was less able to
do the respondent's seasonal work in 1939 than in 1937, when he had
received substantial employment indicative of his capacity and
ability.
We find that the respondent discriminated against Arthur Cabral
in the amount and duration of his employment during the 1939 pear
season because of his membership in the Union.
Derrell Smith. Smith was first employed at the Santa Clara plant
in August 1936 and worked until the end of December, receiving more
than 570 hours of work -that season. In 1937 he again worked from
about the first of August until the end of the year and was credited
with about 580 hours of employment. During approximately the
902 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
same period in 1938 he worked some 850 hours. In 1939, he worked
for the first time during the cherry season, receiving 1093/4 hours of
work over a 5 weeks' period. He was reemployed for the pear season
on July 28 and worked a total of 1271/4 hours up to August 25, when
he went out on strike.
Smith joined the Union and displayed his button on June 7 and
thereafter. There is no allegation that he was discriminated against
during the cherry season. The complaint as to Smith is limited to
the pear season. In that season he was available at the Santa Clara
plant for work every day except for 3 or 4 days when he reported
his availability by telephone. Stanford University students and one
or more San Jose State College students were selected for work on oc-
casions when he was waiting on the platform. Smith complained to
Superintendent Johnstone, about the middle of August, concerning the
selection of other employees for work while he waited on the platform.
Smith received some employment soon thereafter.
The respondent contends that Smith had previously worked under
Foreman McCormick and Henderson at stacking and unpiling boxes
of fruit and operating a hand truck, that he was assigned to Mc-
Cormick's crew in the 1939 pear season, that McCormick was a mem-
ber of the Union and had full authority to select Smith for work
but did not do so. The record. shows that after Smith complained
to Superintendent Johnstone about his lack of work Gates, a non-
union foreman, at the instance of Johnstone offered Smith work on
at least one occasion, but that Smith told Gates he was waiting for
McCormick. On this occasion, McCormick did not return to the
platform for Smith and later told Smith not to depend on him for
work.65 Thereafter, Smith worked under Gates on occasion.
The respondent also presented testimony to show that Smith's work
was not satisfactory. Foreman Gates testified that Smith was good
only for pushing hand trucks, that in 1938 he had been removed from
operating a stacking machine because "he didn't do so hot," and that-
the quality of his work had declined in 1938 and 1939.
We are of the opinion that the fact that Smith received fewer hours
of work than non-union employees of less experience is explained at
least in part by his refusal of employment under Gates. That his
work may not have been entirely satisfactory is supported by the
fact that Foreman McCormick, a union member, did not give Smith
more employment.
We find that Smith was not discriminated against by the re-
spondent in the distribution of seasonal employment in the 1939 pear
season because of his membership in the Union.
'McCormick was called by the Board as a rebuttal witness but was not questioned as
to why he failed to select Smith for work.
SECURITY WAREHOUSE &' COLD STORAGE CO. 903
C. A. Christensen. Christensen was first employed by the respondent
in the pear season of 1937 at the San Jose cold-storage plant. In
1938 he obtained employment with the respondent on June 4 and
continued to the end of the year, working at the dry-storage ware-'
house when there was no cold-storage work. In 1939 he was em-
ployed sometime during every week up to August 25 when he went .
out on strike, The record shows that Christensen, although not an
all-year-round employee, received much more regular employment
during the first 7 months of 1939 than most of the respondent's
seasonal employees. '
The complaint alleges that the respondent discriminated against
Christensen in the amount and duration of his employment on and
after July 25, 1939, because of his union membership. The hearing
disclosed that the alleged discrimination occurred between ,July, 24
and July 30, a period at the beginning of the pear season during
-which he reported daily to the San Jose cold-storage plant without
receiving any employment. However, on July 27 he was called back
to the dry-storage warehouse for 91/2 hours of work.
Christensen joined the Union and wore his union button on June 7
while he was workinng on the icing crew at the San Jose plant under
Foreman Weldon. We have related heretofore the outspoken hos-
tility to the Union which Weldon displayed to his crew on June T.
As a result of Weldon's strongly expressed views, Christensen re-
moved his union button and did not display it openly again until
about June 20. His hours of employment during the cherry season
were not apparently affected by his membership in the Union and
he received substantial employment at the dry-storage plant in the
latter part of June .and in July. On July 24 Christensen reported
to the cold-storage plant in order to be assigned to a crew for work
during the pear season. Crews were being made up and Christensen
asked Superintendent Miller for an assignment. Miller told him
that he would give him an employment card later and added "just
wait. around." With the exception of July 27 Christensen waited
from 8 in the morning until 5 in the evening and repeatedly asked
Miller when he would be put on. Finally, on July 30 Christensen
again spoke to Miller about a crew assignment. Miller asked Chris-
tensen whether he had filed with the Board charges of unfair labor
practices against the respondent. When Christensen admitted that
he had done so, Miller replied, "You know we have all kinds of mar-
ried men that would be glad to work without making so much trouble
for the company, and we don't want troublemakers here." Christen-
sen defended his adherence to the Union, to which Miller said, "Well,
you know what the Union is mostly. It mostly runs to collecting
dues, and so forth, like that. When it comes right down to it, I have
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worked for the company a good many years and I don't see what
trouble you find in it." Miller then told Christensen to "wait
around" and he would give him an employment card. Later in the
afternoon of July 30 Christensen was assigned to the night crew and
was made a gang pusher. He had a satisfactory amount of employ-
ment thereafter until the strike.
At the time Christensen was finally promised a crew assignment
the time-clock number issued to him was 94. Clock numbers are
ordinarily issued in the order in which seasonal employees are orig-
inally hired for seasonal work. At the beginning of the pear season
or just prior thereto, prospective seasonal employees apply to the cold-
storage superintendents for work. As they are hired they are as-
signed a clock number and given an employment card. Such assign-
ment does not mean that they commence to work at once. Instead,
they report to the hiring platforms at the plant each day for selection
by crew foremen for the work of that day. Thus, the fact that Chris-
tensen was given clock number 94 indicates that he was the 94th per-
son put on the payroll at the' San Jose plant during the pear season.
The total of clock numbers issued at the San Jose plant during the
1939 pear season was slightly in excess of 100, including special police-
men and temperature men who were not engaged in the handling of
the fruit. The maximum number of men employed in the handling
of fruit at the San Jose plant in any one day during that season was
88. Thus, it is clear that Christensen was one of the very last em-
ployees to be hired for seasonal employment. In fact, Superintendent
Miller admitted that the personnel of the crews for the pear season
was completed by July 29 or 30. Yet Christensen, who had beep
at the plant every day since July 24 waiting to be hired and who
had been in the past a much more regular employee than most of
the seasonal workers, was not hired until the afternoon of July 30.
We are of the opinion that Superintendent Miller's statement to
him on July 30, concerning the filing of charges against the respon-
dent relating to its previous unfair labor practices, and other remarks
about his union membership made to him by the respondent's super-
visors, accounts for the failure of the respondent to hire Christensen
for cold-storage work at any time during the 6 days preceding July 30.
On July 24 and 25 at least 9 seasonal employees received work.66
On July 26 there were at least 20 seasonal employees and on July 28
01 The respondent ' s employment records disclose that 29 persons worked in cold storage
on July 24 at the San Jose plant There were approximately 20 all-year-round employees,
5 of whom were engineers and 2 were watchmen These 7 engineers and watchmen are
probably not included in the 29 listed as working that day, although the record is not
entirely clear If they are not included the number of seasonal employees is thereby
increased to 16.
SECURITY WAREHOUSE & COLD STORAGE CO. 905
and 29 the number increased to 38 and 52, respectively. Inasmuch
as Christensen was one of the respondent's most regular seasonal
employees and his cold-storage work was fully satisfactory, we find
that he would have been assigned to a crew on and after July 24 but
for his union membership and activity on behalf of the Union.
We find that the respondent discriminated against C. A. Chris-
tensen in the amount and duration of his employment. between July
24 and July 29, inclusive, because of his membership in and his
activities on behalf of•the Union.
Frank Andrews. Andrews worked for the respondent a total of
91 hours during 2 weeks covering the latter part of August and the
first days of September 1938 at the San Jose plant and then was re-
employed during the pear season of 1939. He had applied for sea-
sonal work in the 1939 cherry season, before joining the Union, but
had not been employed. When Andrews sought employment at the
beginning of the 1939 pear season, he was a member of the Union and
was displaying a union button. A day or two before Andrews re-
ceived a crew assignment, he was on the front platform at the San
Jose plant when Superintendent Miller told several of the union men
who were waiting for work that they were foolish to display their
union buttons because union membership was a hindrance to their
employment by the respondent. On July 30 he was assigned to a
crew on the night shift. Christensen was his strawboss or gang
pusher. Andrews worked a total of 95 hours up to August 25 when
he went out on strike.
It is alleged in the complaint that the discrimination as to An-
drews occurred after July 25. The evidence at the hearing discloses
that he first reported at the plant on July 24 or 25 and was not hired
until July 30 when he was given clock number 97 and placed on the
night shift. He reported to the plant daily, usually before noon
and on days when he was not selected for work he left the plant
about 5 p. in. after his shift had commenced work. During the
week ending August 5 he worked a total of 401/4 hours. In the 3
succeeding 'weeks he worked 20, 21, and 133/4 hours, respectively.
Andrews' chief complaint is that entirely inexperienced college stu-
dents were hired on occasions when he was given no work. Harold
Turner, a State College student, was selected for work on at least
one occasion when Andrews was waiting beside him on the hiring
platform. C. A. Christensen, the gang pusher of Andrews' crew,
wanted to use Andrews on one occasion about August 5. Superinten-
dent Miller intervened and required Christensen to make use of some
of the college men. There is no showing by the respondent that An-
drews' work was not satisfactory. Superintendent Miller's only ex-
'906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
planation is that he was a rather new man 67 However, Turner and
the other students employed at the San Jose plant in the 1939 pear
season had never previously worked for the respondent. Five of
these State College students received more work than Andrews during
the week ending August 5.
We find that the respondent discriminated against Frank Andrews
in the amount and duration of his employment during the 1939 pear
season because of his membership in the Union.
Harold Caraway. Caraway was employed by the respondent for
the first time in the cherry season of 1939 and was placed in the icing
crew under Foremen Weldon at the San Jose plant. He had had
substantial experience with other employers as a car icer, but was
inexperienced in other types of cold-storage work. He joined the
Union and displayed his button on and after June 7. He received
1721/2 hours of employment during the cherry season and there is no
evidence that the amount of his employment during that season was
materially affected by his union membership.
Caraway returned to the San Jose plant at the beginning of the
1939 pear season and worked as a car icer and at trucking until
August 25 when he joined the strike. He received 77?/4 hours of work
during the period, beginning on August 4. He reported to the plant
for work every day except Saturday and Sunday from July 24 to
August 3 and waited from 8 a. m. to 5 p. m. without receiving any
work. While he was waiting on the platform a number of college
students were assigned to seasonal work68 It is admitted that Cara-
way's work was satisfactory.
The respondent explained that Caraway was hired as a car icer,
and during the pear season was assigned to car icing whenever there
was such work, but that there was much less icing work to be done in
the pear season than in the cherry season. Inasmuch as Caraway
was a new seasonal employee in 1939 the respondent contends that,
in view of its policy of giving preference to men who had previously
served the respondent, there was no justification for giving Caraway
more substantial hours in other types of cold-storage work than car
icing. The number of hours Caraway worked during the pear season
is approximately 4 hours less than the average number of hours
received by non-union seasonal employees without previous seasonal
experience. In view of the respondent's explanation, this is not a
difference substantial enough to warrant an inference that union mem-
"'r Miller also mentioned that Andrews was not skilled at carloading and strapping, but
only a limited number of employees performed this work and there is no showing that any
such lack of skill accounted for Andrews' limited employment.
68 Although the Board attorney in phrasing the question elicting this testimony said
"cherry" season, it is clear from the context that the witness was testifying with regard
to the pear season. -
SECURITY WAREHOUSE & COLD STORAGE CO. 907
bership was the cause. Furthermore, despite the fact that we have
found that college students were employed by the respondent in
order to discourage union membership, there is no showing that Cara-
way would have fared any better in the absence of the college students,
since there is no evidence that the students were used as car icers,
which was the work for which Caraway had been hired.
We find that the respondent did not discriminate against Harold
Caraway in the amount and duration of his seasonal employment after
June 7, 1939, because of his membership in or activities on behalf of
the Union.
Tony Gularte and Stephen Perry. Gularte and Perry were expe-
rienced carloaders at the San Jose plant during the 1939 pear season.
They had worked seasonally for the respondent for more than 10
years, except that Perry did not work in 1937. In 1939,,both worked
throughout the cherry season, Gularte working 1203/4 hours and Perry,
119 hours. Both were late in reporting to the'plant for work during
the pear season. Perry reported on August 5 and Gularte about Au-
gust 7 or 8. Perry and Gularte, who worked as "partners" in car-
loading, were put to work by the respondent on August 8 and worked
a total of 931/2 and 1031/4 hours, respectively, until they went out on
strike on August 25.
Gularte and Perry joined the Union and were among the employees
who appeared on June 7, during the cherry season, displaying union
buttons. We have heretofore related their testimony as to anti-union
remarks made to them by Stenger at that time. However, we are not
persuaded that their hours of work were affected during the remainder
of the cherry season by their overt support of the Union, for they
received approximately the same number of hours as non-union car-
loaders. During the pear season, after they commenced to work, the
amount of their day-to-day work was substantially the same as that of
3 non-union carloaders of similar experience. The difference in total
number of hours for the season between the non-union carloaders and
Gularte and Perry is due principally to the fact that Gularte and
Perry did not commence work until August 8 and to the fact that
Perry was absent from work on at least 1 day thereafter. Gularte
did not report to the plant until August 7, and Perry first appeared
on August 5. Since only one carload of packed pears was shipped
from the San Jose plant between August 5 and 8, we do not conclude
that.there was any discrimination in the respondent's failure to put
them to work prior to August 8.
The comparatively small number of hours of employment which
Gularte and Perry received during the 1939 pear season is also ade-
quately explained by the respondent. The respondent adopted a
policy of confining Gularte, Perry, and certain other employees to
`908 DECISIONS OF NATIONAL LABOR RELATIONSI BOARD
,carloading in order to have available at all times experienced em-
ployees to do carloading, without having to pay them overtime rates.
It was a reversal of its former policy and resulted in a much smaller
amount of seasonal employment for all carloaders in 1939 than in
previous years.
We find that Tony Gularte and Stephen Perry were not discrim-
inated against by the respondent because of their membership in the
Union.
Joe Flores. Flores was employed seasonally by the respondent at
its Santa Clara plant from 1936 to 1939, inclusive. In 1936 he worked
from sometime in the week ending July 23 to November 18, a period
which embraces substantially all the pear season. That year he
worked 88S3/4 hours. He was next employed in 1937 for 2 weeks in
February and from the week ending July 31 to October 16, accumulat-
ing a total of 541 hours. In 1938, Flores worked 308 hours from
about July 1 to August •20. During the 1939 cherry season he received
291/2 hours of employment and in the pear season 711/4 hours. On
August 7, in the midst of the pear season, he took employment with
another employer.
In 1939, Flores first applied for work and was hired on June 7,
some 10 days after the commencement of the cherry season. He had
previously joined the Union but did not display his union button until
after he had been at work for an hour or two on the morning of
June 7. Superintendent Johnstone, who had hired him, saw the button
and asked Flores if he had been wearing it when Johnstone had hired
him. When Flores said that he had not, Johnstone replied, "That's
all I want to know." Johnstone explained at the hearing that he
suspected union solicitation was occurring at the plant during working
hours and that that was the purpose of his question. Flores was
directed to check out about 3 hours later, after having worked 43/4
hours. He reported at the plant on June, 8 and every day thereafter
until the end of the cherry season. On June 8 and 9 he received
no employment. On June 10 he worked 1101/2 hours, and 103/4 hours
on June 11. He was not selected for work on June 12 and 13. On
June 14 he worked 31/2 hours ; none thereafter.
Flores returned to the respondent for employment at the beginning
of the pear season on July 25 or 26, still displaying his union button,
and first worked on July 28. Between that date and August 7
when he quit to take employment with Libby, McNeill and Libby,
he worked 711/4 hours. In the week ending August 5, which was
the only full week Flores was available for employment, he worked
443/4 hours, slightly in excess of the maximum under the respondent's
alleged policy of limiting hours of work to 44 per week.
SECURITY WAREHOUSE & COLD STORAGE CO. 909
It is alleged that the respondent discriminated as to the amount
of employment Flores received after June 7, 1939, because of his
membership in the Union.69 It is the contention of the respondent
that Flores received little work in the 1939 cherry season because he
did not report until after the season was well under way and that
men who had been assigned to crews at the beginning of the season
were given preference for the limited amount of work available. But
the record discloses that the respondent did not adhere to this policy.
Flores testified that on June 9 Ben Simonson, who was not displaying
a union button, was selected for work by Superintendent Johnstone
or his assistant, Fred Byl, while Flores waited on the platform. It
was stipulated by the parties that Simonson first worked for the
respondent in 1939 on June 9 and put in 5 hours that day. The
respondent offered no evidence disclosing the type of work Simonson
did on that day or whether he had been employed by the respondent
in prior seasons. However, an examination of the seniority list of
seasonal employees, which had been made up by agreement between
the respondent and the company-dominated, Association in March
1938, discloses Flores as near the top of the list, among those who
had six previous consecutive seasons of work to their credit. Simon-
son is not on the list. We conclude, in the absence of any explana-
tion by the respondent of the hiring of Simonson over Flores on
June 9, that Flores' late arrival was no bar to obtaining day-to-day
employment.
The respondent contends that Flores' small amount of employment
in the cherry season was not discriminatory because Flores -was as-
signed to Foremen Henderson and McCormick, who were adherents
of the Union and had some discretion in determining which members
of their crews should work from day to day. However, Super-
intendent Johnstone or his assistant, Fred Byl, both of whom had
authority over McCormick and Henderson, hired Simonson over
Flores on June 9. Inasmuch as Johnstone admitted that seasonal
employees were often interchanged among the various foremen, it
cannot be argued that Flores was unavailable for other work because
of his original assignment to McCormick and Henderson. Nor is
there merit in the respondent's contention that Flores was not needed
on the days he remained unemployed because of the smaller tonnage
of goods handled. An examination of the records showing the total
number of man-hours employed in cold-storage work at the San Jose
89 The complaint alleges that Flores was refused employment on and after June 10, 1939
However, the motion of the attorney for the Board to conform the complaint to the proof
was granted by the Trial Examiner, and the issue of whether the respondent discriminated
against Flores in the amount and duration of his employment on and after June 7 was
fully tried out.
910 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
plant during the cherry season reveals that Flores was given work on
June 14 when the number of man-hours was 275. On June 8, 9, and
13, days on which he was available but not employed, the total man-
hours amounted to 3161/4, 3483%, and 275, respectively. Because of
Flores' experience and long period of previous seasonal service we
are satisfied and find that he was capable of performing any of the
work done on those days. Since Simonson, a new man, was hired over
him on June 9 when Flores could otherwise have been used, so far
as the record discloses, we are of the opinion that Flores could also
have been used on other days during the season. Especially when we
consider the hostile attitude of the respondent toward the Union
on June 7 and thereafter, Johnstone's inquiry about Flores' union
button followed by his lay-off about 3 hours later and the failure of
the respondent to employ him on June 8 and 9, and the employment
of a non-union man on June 9 who had not previously worked in that
season, we are convinced that Flores suffered discrimination because
of his union membership in the amount of employment he received
during the 1939 cherry season.
In the 1939 pear season Flores received substantial employment
during the 10 days he was available. Although several college stu-
dents received a larger amount of work than Flores during the week
of August 5, we make no finding of discrimination against Flores in
this period inasmuch as he testified that he obtained almost as much
work as he could handle.
We find that the respondent discriminated against Joe Flores in
the amount of employment he obtained during the 1939 cherry season
because of his membership in the Union, but that the respondent did
not so discriminate against Flores during the 1939 pear season.
Jack Baker. Baker received some employment from the respond-
ent at the Santa Clara plant from 1936 to 1939, inclusive. In 1936.
he worked 671/2 hours during 2 weeks in the pear season. In 1937
he was employed in both the cherry and pear seasons, accumulating
1481/4 hours, 105 hours of which were put in during the cherry sea-
son. His employment in 1938 consisted of 1 day's work in the pear
season after he had waited a number of days on the hiring platform.
Baker, reported to the Santa Clara plant at the beginning of the
1939 cherry season and first worked on May 24. His employment
continued intermittently through June 11 and he received a total of
301/2 hours for the season. During the 1939 pear season he was
employed elsewhere and did not return to the Santa Clara plant
for work.
The complaint alleges that the respondent discriminated against
Baker on and after June 8 by refusing to give him further employ
ment because of his membership in the Union. The record discloses
SECURITY WAREHOUSE & COLD STORAGE CO. 911
that Baker joined the Union on June 8 and began to wear a union
button the next day. He testified that he received no work after
displaying his button, although he continued to report to the plant
each day until June • 16 and waited on the platform 10 to 12 hours
each day.
The respondent submitted in evidence the total number of man-
hours put in each day during the 1939 cherry season at the Santa
Clara plant. That evidence reveals that on May 24, the first day
Baker worked, there were 1941/4 man-hours put in at the plant. On
subsequent days during the season there were 7 days on which Baker
did not receive employment when the total number of man-hours
exceeded 1941%. Four of these days were prior to June 9, the first
day on which we have found that Baker wore his union button.
Three of the days were on and after the first day that the respondent
might have known that Baker was a member of the Union. Thus,
despite the respondent's hostility to the Union and its threat to
-discriminate against seasonal employees who had joined, we are of
the opinion that in Baker's case discrimination in the distribution
of seasonal employment is not established by his employment record.
Furthermore, Superintendent Johnstone 'testified that Baker could
not be depended upon to appear for work and had not been assigned
to a regular crew at the beginning of the cherry season.
We find that the respondent did not discriminate against Jack
Baker by refusing to give him seasonal employment after June 8
because of his membership in the Union.
Rolland R. Eno. Eno had worked for the respondent in the cherry
season of 1932 and the pear season of 1932 or 1933 at the San Jose
plant. He returned to the employ of the respondent at its Santa
Clara plant in the cherry seasons of 1937 and 1938, obtaining 1471/4
and 1221/4 hours of employment, respectively. In 1939 he arranged
with Superintendent Miller to work during the cherry season of 1939
at the San Jose plant because it was more convenient to his home.
Eno worked 821/4 hours during the season, 533/4 hours of which were
put in prior to June 7, the day on which he first appeared at the
plant wearing his union badge. He worked 4 hours on June 7 and
241/2 hours thereafter. Eno last received work on June 18.
On the morning of June 7 Superintendent Miller commented on
Eno's union button and Eno was present when other anti-union re-
marks were made by Miller, as heretofore described.70 When Eno
was not employed on June 8 and 9, he inquired of Miller the reason.
Miller said that, because of the smaller volume of goods coming into
the cold-storage plant, it had become necessary to reduce the number
of seasonal employees and that Eno had been chosen because he was
70 See supra, Section III B 1.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a new man at the plant. Eno protested that he had understood from
Miller that his previous employment at the Santa Clara plant would
be taken into account. However, there is no evidence that the re-
spondent promised Eno, that he. would not be treated as a new
employee at San Jose.
In any case, the record is clear that Eno was a regular seasonal
employee of the Warren Dried Fruit Company and was "on call"
for employment there whenever it was available. He told Superin-
tendent Miller that he was reporting to the San Jose plant for extra
work. During the week ending Jude 10 he worked 111/2 hours for
the Warren Dried Fruit Company; for the week ending June 17, 5
hours, and forth;-, week,ending July 1, 25 hours. Although Eno
testified that he reported to the San 'Jose plant for work during the
cherry season morning, noon, and evening, it is unlikely that he was
there on all occasions after June 4 when the respondent needed him.
On the basis of the evidence before us, we are not convinced that the
respondent discriminated against Eno.
We find that the respondent did not discriminate against Rolland
R. Eno in the amount and duration of his employment because of
his membership in the Union.
Martin V. Kelly.71 Kelly was employed in each cherry season at
the San Jose plant from 1933 to 1936, inclusive. The respondent's
records fail to show that he worked at all in 1937 and 1938. In 1939
he was hired at the San Jose plant at the commencement of the
cherry season and worked a total of 671/2 hours.
Kelly joined the Union and wore his button on June 7. We have
heretofore found that Superintendent Miller commented to Kelly
about his button and the sudden appearance of the Union. Kelly
also heard other remarks of foremen, expressing the respondent's
hostility to the Union. Prior to June 7, Kelly worked 401/4 hours,
commencing during the week ending May 27. On June 7 he worked
9 hours and thereafter 181/4 hours. He received no employment
after June 17, although he stated that he returned to the plant almost
daily until July. The seasonal work of the cherry season was sub-
stantially completed by June 26. During the weeks ending June 24
and July 1, Kelly worked for the Richmond-Chase Company 121/2
and 93/4 hours, respectively, and later in the year obtained substan-
tially full-time employment with that company.
Kelly stated at the hearing that new men were employed on occa-
sions when he was not selected for work. In view of the fact that
he had not worked for the respondent since 1936 and the respondent's
announced policy provided for loss of seniority if the employee failed
to work during any season, we are not convinced that the hiring of
n The complaint named , Martin D. Kelly, but as amended at the hearing.
SECURITY WAREHOUSE & COLD STORAGE CO. 913
new employees over Kelly was discriminatory. Moreover, June 7
was the peak day of seasonal employment which declined thereafter.
On the basis of volume of products handled, Kelly received about as
much employment before June 7 as on and after that day.
We find that the respondent did not discriminate against Martin W.
Kelly in the amount and duration of seasonal employment because of
his membership in the Union.
Melvin Nunes. Nunes was in the respondent's employ for some.
2 months in 1936, at the San Jose plant, beginning about September
10. He was not employed by the respondent in 1937 but returned to
work in 1938 from August until January 15, 1939, for a total of 6721/4
hours. He was reemployed at the beginning of the cherry season and
worked 801/4 hours. Nunes then obtained temporary employment
elsewhere and did not report to the San Jose plant during the pear
season until August 11. He was given work on August 23 and 24
and joined the strike on August 25.
The complaint alleges discrimination with regard to the amount
of Nunes' employment after June 7, 1939, in both the cherry and pear
seasons. Nunes joined the Union on May 27, and wore his union
badge at work on and after June 7. Prior to that date he had worked
331/2 hours. On June 7 he worked 91/2 hours, and subsequent thereto
371/4 hours. An examination of the respondent's employment records
discloses that Nunes' daily employment fluctuated in relative propor-
tion to the total amount of work available at the San Jose plant.
The largest quantities of goods were handled on May 26, 31, and
June 7 and 14. On those days Nunes received from 7 to 91/2 hours
of employment. However, it is contended that Nunes was not selected
for work on occasions when new and inexperienced non-union men
were hired by Superintendent Miller after June 7. Nunes testified
that he was passed over in favor of McGrury, Ryan, and W. L. An-
drews. The employment records of McGrury and Ryan are not in
evidence and the respondent offered no explanation of their em-
ployment over Nunes in the cherry season. The record shows that
W. L. Andrews worked 1531/2 hours between the week ending May
27 and July 1. Andrews had not worked for the respondent in any
previous season, yet he received nearly twice as much employment
as Nunes. Andrews did not belong to the Union. The respondent
adduced no evidence as to why Andrews received so many more hours
in the face of its contentions that previous experience was a con-
sideration and that Nunes received his fair share of the work.
In view of the respondent's threat to discriminate against mem-
bers of the Union and the above-related circumstances, we conclude
that the respondent discriminated against Nunes during the cherry
season because of his union membership.
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, we are not persuaded that Nunes would have received
any greater amount of employment in the 1939 pear season had he
been a non-union man. He did not report to the plant until August
11, after the crews for the season had been made up. Only one sea-
sonal employee, W. Tracy, was added to the staff at San Jose between
August 11 and August 22. Tracy was a member of the Union and
an experienced man in packed fruit whom Superintendent Miller
needed for that work.
We find that the respondent discriminated against Melvin Nunes
because of his membership in the Union in the amount and duration
of his employment during 'the 1939 cherry season, but did not so
discriminate during the 1939 pear season.
There is also an allegation in the complaint that Warren Purcell
was discriminated against by the respondent on and after July 25,
1939. Purcell did not testify and there is no evidence in the record
concerning' his employment except that shown on the respondent's
employment records introduced in connection with the allegation of
general discrimination against all union employees. That exhibit dis-
closes that he worked 453/4 hours during the week ending August 5,
and 151/2 hours during the week ending August 12. There is no
showing that he was available for employment thereafter. In view
of the lack of evidence as to Purcell's availability, we shall dismiss
the specific allegation in the complaint as to him.
On the basis of the above findings, we further find that the re-
spondent discriminated against Lewis Frayer, Albert Dietrich,
Arthur Cabral, C. A. Christensen, Frank Andrews, Joe Flores, and
Melvin Nunes in regard to their hire and tenure of employment,
thereby discouraging membership in the Union and interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Refusals to rehire
Ernest Hesse. Hesse was first employed by the respondent at the
beginning of the 1939 cherry season and worked 563/4 hours. He
ioined the Union about June 1 and displayed his union button on
June 7 and thereafter. He was among those warned by Superin-
tendent Miller on that day that union men would be given less
work by the respondent than non-union men, as we have heretofore
found. According to our previous finding, Miller, in talking to
Hesse, also criticized the Union and told him that the respondent
was opposed to the Union. The complaint alleges that he was dis-
criminated against on and after June 15. Although Hesse received
only 4 hours of employment after, that date we are not convinced
that the respondent discriminated against him during the cherry
SECURITY WAREHOUSE & COLD STORAGE CO. 915
season in the distribution of seasonal employment, inasmuch as he
was a new seasonal employee and the volume of work was compara-
tively small at the San Jose plant after June 14. Furthermore,
Hesse himself did not believe he was discriminated against during
the cherry season. About the middle of July Hesse applied to
Superintendent Miller for work during the pear season and Miller
instructed him to return a little later,. Hesse did so and was present
on the front platform during the latter part of July when seasonal
employees were being hired for the pear season. He spoke to Miller
who told him "there was not anything doing." On July 30, Hesse
was on the platform when Christensen and Miller engaged in the
conversation, heretofore related, concerning statements Christensen
had given an agent of the Board alleging unfair labor practices on
the part of the respondent. At that time Hesse again asked Miller
why he had not been hired, to which Miller replied, "Well, you asked
for it, now I will tell you. Your attitude toward the company has
not been of the best sort." Hesse inquired what Miller meant. Mil-
ler said, "You have got a complaint against the company with the
National Labor Relations Board. Your attitude toward the com-
pany is not what they expect of a fellow working here." Hesse
testified, and we find, from the subsequent conduct of Hesse in seek-
ing employment, that Miller also stated that his work was all right,
although Miller denied this testimony. Hesse was present on the
hiring platform early in the pear season when Miller engaged San
Jose State College students, including R. A. Titchenal and J. C.
Whitfield, and continued to report to the plant seeking employment
at intervals up to August 21.
The respondent contends that it did not reemploy Hesse during
the 1939 pear season because his work during the cherry season had
been unsatisfactory. Superintendent Miller testified that he "would
find [Hesse] wandering all over the plant . . . every place else
except where he belonged." This is the only evidence offered by
the respondent to establish the unsatisfactory character of his work.
In view of our findings that Miller told Hesse when he first applied
for work in the pear season to return a little later and later told
him his work had been all right, we cannot give weight to vague and
belated criticism of this character.
We find that Hesse was not reemployed by the respondent on and
after July 25, 1939, because of his membership in and activities on
behalf of the Union. ',
Stuart Williamson and Earland Williamson. The Williamsons,
who are brothers, were employed by the respondent during the pear
season of 1938, at the San Jose plant. Stuart Williamson worked
from August 1 to October 1, putting in a total of approximately 570
451270-42-vol 35-59
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours. On the latter date he quit to return to high school. Earland
Williamson commenced to work during the week ending September
10, 1938, and continued to December 31, accumulating an employment
record of approximately 605 hours. ,
The Williamson brothers, who lived with their parents at Camp-
bell, California, some distance from San Jose, came to'the San Jose
plant near the commencement of the 1939 cherry season and applied
to Superintendent Miller for work. Although Stuart had joined
the Union prior thereto, neither of them was wearing a union button
on this occasion. Miller told them that the cherry season was "slow"
and that he did not need anybody yet, but to return later. 12 The
record is not clear as to whether they made a later trip from their
home in Campbell to apply for work during the cherry season. In
any case, they received no employment in that season. By June` 1,
both Earland and Stuart had joined the Union. At the beginning
of the pear season they again sought employment from Superin-
tendent Miller and were wearing union buttons. Miller told them
that he thought that there would not be any work for them and
recommended that they look elsewhere for jobs. Earland then said
to Miller that he and Stuart had had experience in the San Jose
plant and, should be preferred for employment over inexperienced
persons. As we have heretofore found, Miller replied that the re-
spondent was expecting "a little Union trouble" and had hired "a
bunch of college boys" to, work during the season. Miller suggested
other canneries and packing houses to which they might apply but
refused to hire them for work at the San Jose plant. They did not
apply again and received no employment with the respondent during
the pear season. Stuart served on the picket line after the com-
mencement of the strike on August 25.
Inasmuch as they had had experience in the employ of the respond-
ent in the last preceding pear season, the Williamson brothers were
entitled to consideration as experienced employees under the respond-
ent's declared "length of service" or seniority policy. That they
were refused employment in favor of the college students because
the respondent feared trouble with the Union is substantial ground
for believing that their union membership was the determining
factor.
Superintendent Miller testified that he refused to employ the Wil-
liamson brothers in the pear season because Earland was not a satis-
factory worker. Since they applied together he had to reject them
both, although he would have been glad to employ Stuart. We do
'a Stuart Williamson so testified. Miller denied telling them to return later and testified
that he believed he told them that he had plenty of men. Earland Williamson was called
on rebuttal and corroborated Stuart's testimony. We do not credit Miller's denial.
SECURITY WAREHOUSE & COLD STORAGE GO. 917
not credit this testimony because Earland had worked for the re-
spondent over a longer period in 1938 than had Stuart and there
is no evidence of any criticism of Earland's work in 1938. That
Earland's ability in handling fruit was not inferior to Stuart's is
indicated by the fact that in the fall of 1939, both obtained temporary
employment in a cannery at Campbell, California. There, Earland
received better hours and a higher rate of -pay than Stuart.
We find that the respondent refused to assign work to Stuart and
Earland Williamson during'the 1939 pear season because of their
membership in the Union.
The respondent does not contend that Hesse and the Williamson
brothers were not "employees" within the meaning of the Act. Al-
though they obtained no employment from the respondent during
the 1939 pear season, they had worked for the respondent- in. pre-
ceding seasons-Hesse during the 1939 cherry season and the Wil-
liamsons during the last preceding pear season, that of 1938. We
find that Ernest Hesse, Stuart Williamson, and Earland Williamson
are employees of the respondent within the meaning of the Act and
that by refusing to assign them to employment during the pear sea-
son of 1939, because of their membership in and activities on behalf
of the Union, and thereby discouraging membership in the Union,
the respondent committed unfair labor practices within the meaning
of the Act. Even if Hesse and the Williamsons were not employees
of the respondent at the time of the discriminations against them our
conclusion would be the same, for Section 8 (3) of the Act is not
limited to discriminations against employees of the respondent. ' A
refusal by an employer to hire any applicant for employment who
would have' been hired but for his membership in or activities on
behalf of any labor organization is an unfair. labor practice within
the meaning of Section 8 (3).78 We therefore find that the re-
spondent has discriminated in regard to the hire and tenure of em-
ployment of Ernest Hesse, Stuart Williamson, and Earland William-
son, thereby discouraging membership in the Union. We further
find that by such discrimination the respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
3. Demotions in status of employees
Warren H. Murphy and Jack Burkhardt. Murphy and Burkhardt
were all-year-round employees at the respondent's San Jose cold-
'a National Labor Relations Board v Waumbeo Mills, Inc , 114 F. ( 2d) 226 (C. C. A. 1)
enf'g as mod. Matter of Waumbec Mills, Inc., and United Textile Workers of America,
15 N. L R . B. 37. Phelps Dodge Corp. v. National Labor Relations Board, 313 U. S. 177
(1941).
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
storage plant. Murphy was one of the respondent's oldest employees
in point of service; having been in the employ of the respondent as
an all-year-round employee since August 1924, after previous seasonal
employment with the respondent from August to November 1923.
Burkhardt had been a seasonal employee in 1927 and from 1931-1933,
inclusive. In 1934 he became an all-year-round employee. Both
served regularly,as foremen over seasonal employees during the cherry
and pear seasons. On November 12, 1938, Murphy and Burkhardt
were discharged. The respondent claimed that the discharges were
for insubordination. The two men filed charges with the Board's
Regional Office in San Francisco, alleging their discharges had been
discriminatory. After an investigation by'a field agent of the Board,
he recommended to the respondent that the two men be reinstated,
but without back pay. On January 5, 1939, Burkhardt and Murphy
returned to work at the same rate of pay they had received thereto-
fore. 'Both received vacations with pay, Burkhardt late in January
or February and Murphy in April, which was a privilege accorded
only to all-year-round employees. From January to May, which
is the respondent's slack season, the two men performed the same
kind of duties they had performed during the same months in pre-
vious years. , They supervised crews in the movement of cold-storage
products from time to time, made out time and commodity cards, and
performed other of their former duties. General Manager BalIan-
tyne, admitted at the hearing that Burkhardt and Murphy were re-
stored to the same duties they had formerly performed. On the basis
of the above-stated facts and other evidence in the record, we find
that Murphy and Burkhardt were reinstated on January 5, 1939,
to their positions as all-year-round employees.
'About May 25, 1939, at the beginning of the cherry season, Burk-
hardt was informed by the respondent that Kenneth Green, a ship-
ping clerk who had charge of routing railroad cars in and out of
the plant, was to have general supervision of the receiving and de-
livering departments. In previous cherry and pear seasons, these
departments had been separate and Burkhardt and Murphy had been
the foremen in charge. Even then, the respondent gave Burkhardt
no indication that his work as all-year-round employee and foreman
was being taken from him. After May 25, Burkhardt continued to
check, sort, and manifest cherries as he had done in other years, but
with few exceptions worked by himself and did not direct a crew of
seasonal employees. On June 25, at the end of the cherry season,
Burkhardt was laid off for the first time since he had become an
all-year-round employee in 1934. After repeated applications, he
SECURITY WAREHOUSE & COLD STORAGE CO. 919
was reemployed as a seasonal employee 74 on July 27, at the beginning
of the pear season, his wage rate was reduced from 621/2 cents to
521/2 cents per hour, the latter being the minimum wage paid by the
respondent for common labor in the cold-storage plants, and was
told that the change was being made because the respondent could
not "afford to have any foreman who might check their men out and
walk off the job without orders." Burkhardt was placed under the
supervision of Cal Elderton and was given the heaviest work on the
stacking crew.75
Meanwhile, Murphy spent much of his time in the first months of
1939 at painting jobs in the San Jose plant. He had done most of
the respondent's annual painting since 1924. When the cherry season
arrived he was assigned to do carloading, but after a few days Super-
intendent Miller told him that the cherry season was slow and the
painting more important, so he resumed that work and continued it
until July 31. On that day, Superintendent Miller told him that his
foremanship was being taken from him and his rate of pay cut from
65 cents to 521/2 cents per hour. Miller stated as the reason, that
the respondent could no longer trust him because of the incident of
the previous November. Thereafter, Murphy waited each day on the
platform with other seasonal employees and was selected for work
when there was carloading to be done. Emil Roggy, a non-union
employee, succeeded to Murphy's foremanship after July 31.
Both Murphy and Burkhardt continued to work as seasonal em-
ployees until they went out on strike on August 25, 1939.
The complaint alleges that these demotions were made by the re-
spondent because of their activities on behalf of the Union.
Murphy and Burkhardt were the two most active I. L. A. and
union men at the respondent's San Jose plant. They had joined and
promoted the I. L. A. in the spring of 1937. We have found hereto-
fore that they were warned by Superintendent Miller that the re-
spondent disapproved of their I. L. A. activities. We have also found
that General Manager Ballantyne said in the spring of 1937 that he
would like to discharge them because of the support they had given
the I. L. A. Although the two men joined the Association in May
1937 they continued to urge employees at the San Jose plant to join
an outside labor organization. In the latter part of 1938 they began
to attend meetings of the Union and immediately after their rein-
statement in January 1939 joined the Union and became its leaders
74 After the 1939 cherry season Burkhardt was required to wait on the platform with
other seasonal employees to be selected for work instead of checking in at 8 a. m. as did
the regular all-year-round employees
' Burkhardt testified that Elderton told him that he had been instructed by Super-
intendent Miller to give Burkhardt the heaviest work. Miller denied giving such instruc-
tions to Elderton Elderton , called as a witness for the respondent , did not deny
Burkhardt 's testimony . We find that Burkhardt's testimony is correct.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the San Jose plant. Superintendent Miller warned them on'
January 17 to desist from such activities. They did not do so, but
conducted the organizational campaign which was launched in April
1939. On June 7, and thereafter they displayed their union buttons.
The record is clear that the respondent knew that they were the
leaders of the Union, and the respondent's officers and a superintend-
ent made a number of references to Burkhardt as the employee
responsible for the success of the Union at the San Jose and Santa
Clara plants.
The respondent contended in its answer and at the hearing that
the discharges of Murphy and Burkhardt from their positions as
foremen in the cold-storage plant in November 1938 were for insub-
ordination and failure to obey orders, that the respondent was
coerced by a field agent of the Board to reemploy them in January
1939,76 and that they were not rehired as foremen but at lesser rank
and that their subsequent reductions in pay were adjustments in ac-
cord with the wage scale for the type of work they were doing., The
Trial Examiner found that Burkhardt and Murphy were ont rein-
stated to their positions as foremen in January 1939 and recom-
mended that the complaint be dismissed as to them.
We do not agree with the Trial Examiner. The facts support
the allegations of discriminatory demotion. We have heretofore
found that Murphy and Burkhardt were reinstated to their former
positions as regular all-year-round employees and were subsequently
demoted to the status of seasonal employees. The respondent's only
stated reason for the demotions was that the two men could not be
depended upon as foremen because of the incident which had pre-
ceded their discharge in November 1938. We do not believe this
was the reason for the demotions. When Burkhardt and Murphy
were reinstated in January 1939, the respondent admitted in writing
in each case that "a possible misunderstanding of orders given by
their superintendent had resulted in [the November 1938] discharge."
The quality of their work was never questioned.
In view of the entire record including the respondent's- hostility
to the Union, its threats to discriminate against union members, its
79 We are of the opinion that the reason for the respondent's action in -reinstating
Murphy and Burkhardt to their former positions in January 1939 is immaterial to the issue
which is before us, namely, whether the respondent subsequently demoted Murphy and
Burkhardt because of their membership in and activities on behalf of the Union. How-
ever, because of the nature of the respondent's charge as to the conduct of the Board's
agent we have examined the evidence in the record and herewith find that the respondent
was not coerced by the agent of the Board in making the reinstatements The respondent
was informed of the investigative character of the work of the field agent and that he was
empowered only to make recommendations. It accepted his suggestions for settlement of
the charges then on file and made no protest whatever to the Board itself concerning the
conduct of the field agent until the subsequent demotions of Murphy and Burkhardt were
put in issue by the proceedings now before us.
SECURITY WAREHOUSE & COLD STORAGE CO. 921
knowledge that Burkhardt and Murphy were its leaders,77 its pre-
viously expressed desire to be rid of them, we find that Burkhardt
and Murphy were demoted from their positions as all-year-round
employees to the status of seasonal employees, and their wage rates
reduced, because of their membership in and activities on behalf of
the Union.78
We find that respondent has discriminated in regard to the hire,
tenure, terms, and conditions of employment of Warren H. Murphy
and Jack Burkhardt, thereby discouraging membership in the Union.
We further find that by such discrimination the respondent has inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
Nick A f damo. Afdamo was first employed by the respondent as
a carloader in 1931 or 1932 and had intermittent employment with
the respondent every year since. In 1938 and 1939 he did carpentry
work during the slack fruit periods in addition to carloading during
the fruit seasons. In 1938, he was employed from January 16 to
March 22, inclusive, and from June 1 to November 15, inclusive,
receiving a substantial number of hours of employment in each week
of those periods. In 1939 he worked during the week ending Jan-
uary 7,'then was laid off until about March 1, at which time he was
reemployed and worked steadily until the week ending June 29,
when he was laid off. At the time of'this lay-off he was doing
carpentry work at the Santa Clara plant. Afdamo was reemployed
during the week ending July 29 as a carloader in connection with
handling pears and received more than 170 hours' employment up
to August 25; when he went out on strike.
The complaint alleges that Afdamo's lay-off on June 29, 1939,
from carpentry work and the respondent's refusal to reinstate him
711t is to be noted that Murphy and Burkhardt were seasonal supervisory employees,
occupying positions which under some circumstances would have made the respondent
liable for their partisan action on behalf of the Union . Therefore , the respondent might
have been warranted in demoting them, had it done so for the purpose of maintaining
neutrality in matters relating to the self-organization of its employees . However, it is
patent from the record that these demotions were not for that purpose The respondent
was not neutral . Its officers and superintendents had maintained no semblance of neu-
trality. They had clearly disclosed to the employees the respondent 's opposition to the
Union and its desire that the employees join an inside rather than an outside organization.
Under these circumstances , the demotions of Murphy and Burkhardt for their support of
the Union were discriminatory within the meaning of Section 8 ( 3) of the Act
7" In arriving at this conclusion we have not overlooked the fact that the Trial Examiner
did not believe Burkhardt and Murphy to be credible witnesses we have heretofore found
Murphy's testimony to be credible The principal reason for disbelieving Burkhardt is
that during the coulse of the hearing he threatened to "beat up " a witness for the re-
spondent if that witness should testify that Burkhardt had solicited him for membership
in the Union on company property and during working hours . We are of the opinion that
the incident reveals that Burkhardt was more interested in winning a decision for his
Union than in disclosing all of the facts relevant to the case . Although such an incident
may not .discredit Burkhardt 's testimony, we have not relied on any testimony of Burkhardt
which was denied unless Burkhardt 's account is corroborated by other witnesses or by
well-established surrounding circumstances.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except as a common laborer are discriminatory acts within the mean-
ing of Section 8 (3). Afdamo was a member of.the Union and had
been appointed to the Union's negotiating committee on June 26
and had attended a conference with representatives of the respondent
only 2 days before his lay-off on June 29.
The record establishes that Afdamo was primarily employed as a
carloader. The respondent liked his work and wanted him to be
available for such work during the cherry and pear seasons. For
this reason the respondent gave Afdamo carpentry work from time
to time in slack seasons, although it had on its pay roll of all-year-
round employees a full-time carpenter, Claude Henderson. In 1938,
there was more than the usual amount of construction work at the
Santa Clara plant inasmuch as the respondent made, at that time,
some additions - to the cold-storage warehouse. Afdamo was em-
ployed on construction work from January through March and again
in July, but, as he admits, his principal work in 1938 was carloading.
In 1939, Afdamo began to work about March first at carpentry.
When the cherry season arrived in May he assisted with the carload-
ing, returning frequently to carpentry. About June 26, near the
end of the cherry season when Afdamo was elected to the Union's
negotiating committee, he was working on wall cabinets for Super-
intendent Johnstone's office at Santa Clara. He arranged for time
off to attend a negotiating conference with representatives of the
respondent on June 27, and returned to complete his work on the
cabinets. Assistant Chief Engineer Kelly then assigned Afdamo to
carpentry work on certain bunkers in the plant. On the morning of
June 29 or 30, when he repotrted to the plant his employment card
was not at the time clock as usual and Kelly said that he would "see
about it." Afdamo continued to report to the plant for work on
succeeding days, but was not assigned to any job.79 However, Super-
intendent Johnstone found a temporary job for him with another
company. This work lasted a couple of weeks, at the end of which
time the respondent's pear season was getting under way and Afdamo
returned to the respondent's pay roll as a carloader. There is no
complaint about the number of hours of work he received from that
time until he went out on strike a month later.
The respondent explains Afdamo's lay-off on June 29 on the
ground that there was no more carpentry work for him and nothing
else for him to do during the lull period. Claude Henderson, the
regular all-year-round carpenter, had completed other work at the
San Jose plant at that time and had been sent back to Santa Clara
for carpentry work there. He took over the work on the bunkers
49 This was the lull period between the cherry and pear seasons so that there was little
or no carloading to be done
SECURITY WAREHOUSE & COLD STORAGE CO. 923
which Afdamo had commenced and that left no work for Afdamo.
This defense is unrefuted. We find no evidence that Afdamo had
become an all-year-round employee entitled to work in preference to
Henderson.
We find that the lay-off of Nick Afdamo on June 29 was not because
of Afdamo's membership in or activities on behalf of the Union and
that the complaint as to him should be dismissed.
4. The discharge of William A. Crowder
Villiam A. Crowder 110 had been an all-year-round employee of the
respondent since 1924. For the first 4 years he was a carloader at
the San Jose plant. In 1928 he succeeded Johnstone as foreman of
cannery fruit when Johnstone was promoted to the superintendency
of the respondent's new cold-storage plant at Santa Clara. In Decem-
ber 1929 he was appointed to a position as an operating engineer at
the San Jose plant with a salary of $150 per month. He later served
in a similar capacity at the Santa Clara plant and then became relief
engineer for both plants. In 1936 his salary was increased to $160
per month. In January 1938 Chief Engineer Faucett assigned him
permanently to the Santa Clara plant as an operating engineer. On
June 24, 1939, he was discharged by Faucett.
We have heretofore described Crowder's activity in the organiza-
tion and administration of the company-dominated Association. As
a result of the Association's effort, through foremen and supervisors
of the respondent who Were members, to prevent the reinstatement of
Burkhardt and Murphy in December 1938, Crowder resigned from the
presidency and withdrew from membership in the Association on
January 2, 1939. On June 2, 1939, Crowder signed an application
for membership in the Union and was initiated on June 6. On June
7 and thereafter he displayed his union button at the plant, a fact
which was reported at once to Chief Engineer Faucett. He was the
only employee on the engineering staff at either plant to join the
Union.
Chief Engineer Faucett, who was in charge of all engineers, testified
that with the appearance of the Union on June 7 he feared labor
trouble and especially sabotage in the engine rooms of the plant. We
have heretofore found that soon after June 7 he persuaded Patton
and Ballantyne to permit him to hire non-union temperature men to
guard against such dangers. Faucett especially feared communists,
some of whom he believed to be in the C. I. 0., with which the Union
was affiliated. About the middle of June Faucett asked permission
of Ballantyne and Patton to discharge Crowder. To Ballantyne,
80 Designated in the complaint as W. E. Crowder.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Faucett said, "Crowder's condition is getting pretty serious and I
don't want to take the responsibility any longer for him. I am afraid
he will do something desperate and that there ought to be something
done about it." Ballantyne demurred, but said that he would consult,
Patton. This Ballantyne did. On June 23 Faucett went to see
Patton and said of Crowder, "His mental condition is getting such
that I consider it dangerous to keep him in the engine room any longer
I don't consider that I should be responsible for him any
more . . . If you insist on keeping him here, why, it will have
to be on your own responsibility." Patton suggested that Crowder:
be transferred from, the engine room to work in the cold-storage plant,
to which Faucett said, "Well, I don't want to be hard on him, Mr.
Patton, but I think it is just as -dangerous to have him anywhere
in the plant as in the engine room. If we consider it dangerous
to have him in the engine room it would be equally dangerous to
have him in cold storage, more so, because he would be resentful
because we demoted him." Patton consented to consult Ballantyne
further on the matter, and on the morning of June 24 informed Fau-
cett that he might discharge Crowder, but suggested that Faucett wait
until he had hired someone to replace Crowder. Faucett replied that
he preferred to discharge Crowder at once and have the foreman of
engineers, L. C. Kelly, do Crowder's work until he obtained a new
man. At 3 o'clock that afternoon Faucett came into the engine room
at the Santa Clara plant, handed Crowder his salary check and said,
"Here you are, Bill; you are all washed up. Your services are un-
satisfactory and have been for a long time." Crowder asked Faucett
whether he should finish his shift. Faucett replied, "No, you can go
now; I will. have Kelly take over." A non-union engineer, Creigh,
subsequently succeeded to Crowder's duties.
At the hearing Faucett stated that he discharged Crowder because
he was incompetent, "a trouble maker," inattentive to duty, and "the
culminating reason was his mental condition."
Faucett was employed by the respondent as its chief engineer in
1931, 2 years after Crowder had been advanced to the position of
operating engineer. In 1933 Faucett told Crowder that he was not
a good engineer and that he should study the theory of engineering
and learn to operate the plant more economically. Crowder's work
as an engineer did not improve, according to Faucett, and on a number
of occasions Faucett sought to persuade Patton and Ballantyne to
permit him to discharge Crowder. The respondent's officers refused,
taking the position that Crowder was an old employee and entitled
to a great deal of consideration. In 1938 Faucett submitted his resig-
nation because the respondent's officers refused to discharge Crowder,
but was persuaded by Patton to remain as chief engineer.
SECURITY WAREHOUSE & COLD STORAGE CO. 925'
The true nature of the difficulties between Faucett and Crowder is
disclosed by Faucett's explanation of Crowder as a "trouble maker."
In March 1936 Crowder, who was -relief engineer for both plants,
claimed that he was working 8 hours more per month than the regular
engineers. This was apparently a misapprehension on Crowder's part
growing out of the fact that Crowder's shifts were irregularly spaced
throughout the month. However, Crowder was'persistent in pressing
his claim from time to time and argued at length with Faucett about
it. Crowder was never convinced that his claim was not valid and
even after his discharge brought it to the respondent's attention.
Crowder also did cement work for the respondent for which he was
to be compensated by extra time from his engineering job. He con-
tended zealously that he had not been given the amount of "time
off" to which he was entitled. Faucett testified that at Ballantyne's
instruction he gave Crowder more time off than he was entitled to in
order "to shut him up." In December 1937, Crowder was shifted
front the position of relief engineer to that of operating engineer at
the Santa Clara plant because, according to Faucett, he was "carrying
tales between the two plants and making the engineers dissatisfied."
In 1938 Crowder had a heated argument with one of the other engi-
neers at Santa Clara and was reprimanded by Faucett. It was about
this time that Faucett threatened to resign if Crowder were not dis-
charged by the respondent. However, the officers insisted upon
retaining Crowder. ,
Later in 1938 Faucett suspected that Crowder was not making a
complete inspection of temperatures in each room of the cold-storage
plant as he was required to do. However, Faucett admitted at the
hearing that be was never able to detect Crowder neglecting this duty.
Faucett also stated that Crowder had damaged an "inner cooler" by
his inattention to duty in 1939. This was the only time Crowder
caused any damage to the machinery, and Faucett testified that he
did not address any criticism concerning work to Crowder between
January 1938 and the date of his discharge. The only other specific
example of Crowder's inattention to duty is that a few days prior
to the discharge Faucett discovered that oil which dripped from the
machinery had not been properly removed from the floor for 10 days
or so. Faucett left instructions for Crowder to clean the floor and
he did so. There is no evidence that Crowder was more responsible
for this condition than the engineers on the other two shifts.
A large part of the respondent's testimony concerning Crowder is
devoted to his mental condition at'the time of his discharge. Accord-
ing to Faucett, Crowder's condition was manifest by his complaints
in 1937 and 1938 that the other engineers were attempting to get him
into trouble. In 1938, Crowder told Faucett• that his activities as
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
president of the Association made him nervous, and Faucett suggested
that he resign "if it was getting him down." In 1939, Crowder some-
times paced back and forth in the engine room with his head down
rind had frequent arguments, on which occasions he would stutter and
his voice would break. Faucett had also heard rumors that Crowder
had threatened to fight other engineers, but there is no other evidence
of this. A few days before his discharge Crowder had a conversation
with Superintendent Johnstone during which Crowder became very
excited and pounded the desk. He had been under the care of phys-
ician since about the first of June 1939 and after his discharge was
ill for several months and threatened with a nervous breakdown.
A. month after his discharge Crowder applied for compensation under
a disability insurance policy provided by the respondent. The attend-
ing physician described Crowder's disability as "general physical
debility" and in answer to a form question on the application for
compensation stated that Crowder had been disabled since June 23,
1939, and might remain so for 6 months. Crowder testified at the
hearing in January 1940 that he desired reinstatement to his position.
The facts heretofore recited disclose that Faucett disliked Crowder
and had sought for a number of years to have him discharged. The
respondent's officers had always refused, even to the point of losing
Faucett's services, until Crowder joined the Union. That Faucett
had no genuine criticism of Crowder's work is indicated by his testi-
mony that from January 1938 to the date of the discharge he did not
direct any criticism whatever toy Crowder. The record does not
establish that Crowder's "mental condition" prevented him from
working after June 24, because both Patton and Ballantyne wanted
to transfer him to cold-storage employment. Faucett insisted that
if Crowder was dangerous in the engine room he would be even 'more
dangerous under that set up." When considered in relation to Fau-
cett's fear of sabotage because of the appearance of the Union it is
clear that Crowder's "dangerous" condition, in Faucett's opinion,
arose from the fact that Crowder had joined a union in which Faw-
cett believed there were some communists. 'Ballantyne shared such
an attitude. Crowder was the only union member among the 10
engineers. Less than 3 weeks after he wore his union button Fawcett
was able to persuade Ballantyne and Patton to discharge Crowder,
something he had not previously been able to do, despite vigorous
efforts, over a period of 3 to 6 years. It must be noted that the most
specific and persuasive evidence in the record concerning Crowder's
highly nervous state is that related by Ballantyne and describes
Crowder's physical appearance and conduct after his discharge, not
before. That it was not the reason for his discharge is evidenced by
the fact it was never mentioned to Crowder by Faucett when he
' SECURITY WAREHOUSE & COLD STORAGE CO. 927
was discharged, nor by Ballantyne and Patton to whom Crowder
talked after his discharge, and by the fact that Ballantyne and Pat-
ton proposed giving Crowder other work.
The Trial Examiner recommended dismissal of the complaint as to
Crowder because he concluded that'Crowder was a wholly incredible
witness. Although we do not share the Trial Examiner's view of
Crowder's testimony, in relating the circumstances of Crowder's dis-
charge we have relied entirely upon the respondent's witnesses for
any controversial facts.
We find that the respondent discharged William A. Crowder on
June 24, 1939, because of his membership in and activities on behalf
of the Union.
We further find that the respondent has, discriminated in regard
to the hire and tenure of employment of William A. Crowder, thereby
discouraging membership in the Union and interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
5. The strike of August 25, 1939
Afer unsuccessful negotiations with the respondent concerning
terms of a contract, extending from June 8 to August 24, 1939, the
Union called a strike on August 25. All except approximately 16
of the members of the Union in the employ of the respondent joined
the strike. A picket line, was established at the two cold-storage plants
and the dry-storage warehouse, and the strike was still in progress
at the time of the hearing in this proceeding.
Negotiations between the Union and the respondent were begun
on June 8 when representatives of the Union presented the respondent
with a proposed contract, requested recognition as exclusive bargain-
ing agent for all employees, and protested the anti-union conduct
of several of the respondent's supervisors and foremen. Conferences
were continued at intervals throughout the summer until the date of
the strike. Terms of a contract were discussed in detail but on the
issues of wages and seniority the parties failed to reach any agree-
ment. During the course of at least three conferences, namely those
held on June 27, July 21, and August 18, two of which were attended
by agents of the Board as well as by representatives of the two nego-
tiating parties, the Union protested the respondent's preferential
treatment of college students and the respondent's discriminatory
treatment of certain employees which we have found above were
violations of Sections 8 (1) and (3) of the Act. On August 7 and on
August 18, the membership of the- Union voted to strike. At the
hearing, Raymond Heide, a business agent for the Union, stated
that the reasons for the strike were (1) the respondent's failure to
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accede to a suitable contract including a seniority clause and (2) the
respondent's discrimination against employees who were members of
the Union. Negotiations between the parties reached an impasse on
August 24 when the respondent flatly rejected the Union's proposal
on wages, hours of employment, and seniority, and foreclosed further
negotiations on all these matters except hours of employment. There-
after, the previously authorized strike was effectuated by the Union
on August 25.
The respondent contended that the strike was not caused, as al-
leged in the complaint, by any of the unfair labor practices we have
found, but solely by the failure of the parties to reach an agreement
on terms of a contract. With this contention we do not agree. In the
first place, there is ample evidence in the record that one of the chief
causes of disagreement between the respondent and the Union was
the discrimination practiced by the respondent against members of
the Union in discharging Crowder and demoting Burkhardt and
Murphy, in the amount of employment given members of the Union,
and in the employment of college students. During the course of the
negotiations a number of the cases of discrimination heretofore dis-
cussed were brought to the attention of the respondent, including the
anti-union statements of foremen and supervisors. Both prior to the
strike and within a few weeks after its occurrence the Union issued
written statements of its grievances against the respondent and in-
cluded therein the discriminatory treatment accorded its members. In
the second place, one of the Union's principal aims in attempting to
negotiate a contract with the respondent was to eliminate the discrimi-
natory acts which we have found to be unfair labor practices. The
Union sought to prevent further discriminations by a seniority clause.
The respondent refused to accept any such clause proposed by the
Union, offered no substitute, and refused to negotiate further on any
subject except hours of employment. The Union insisted that with-
out a seniority clause it could not adequately protect its members
from the discriminatory conduct in which the respondent was en-
gaging at that very time. The respondent's refusal to give any
guarantee against "further discriminations was but one more indica-
tion of its determination to continue those practices. Thus, the
refusal of the respondent to enter into a contract which would have
protected the union employees from further discrimination may
have precipitated the strike, but the unfair labor practices which the
Union sought by contract to prevent remain the underlying cause
of the strike sl
Republio Steel Corp . v. N. L. R. B., 107 F. (2d)-472 (C. C. A. 3).
SECURITY WAREHOUSE & COLD STORAGE CO. 929
We find that the strike of August 25, 1939, is a current labor dis-
pute caused by the unfair labor practices of the respondent- which
we have found hereinabove to have occurred 82
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section"III, above,
occurring in connection with the operations of the respondent de-
scribed in Section I, above, have a close, intimate, and substantial rela-
tion 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 respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act.
We have found that the respondent has dominated and interfered
with the formation and administration of the Association and has
contributed support thereto. The effect and consequences of the
respondent's domination of, interference with, and support of the
Association, as well as the continued recognition of the Association
as the bargaining representative of its employees, constitute a con-
tinuing obstacle to the free exercise by its employees of the rights
guaranteed to them in the Act. Because of the respondent's illegal
conduct with regard to it, the Association is incapable of serving the
respondent's employees as a genuine collective bargaining agency.
Accordingly, we shall order that the respondent disestablish and
withdraw all recognition from the Association as the representative
of any of its employees for the purposes of dealing with it concern-
ing grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment.
We have also found that the respondent discriminated in the
amount and duration of seasonal employment of Lewis Frayer,
Albert Dietrich, Arthur Cabral, C. A. Christensen, Frank Andrews,
Joe Flores and Melvin Nunes because of their membership in and
activities on behalf of the Union. We have likewise found that the
respondent discriminated by refusing to assign employment to Ernest
Hesse, Stuart Williamson, and Earland Williamson during the 1939
pear season, by demoting Warren H. Murphy and Jack Burkhardt
from positions as all-year-round men to positions as seasonal em-
ployees, and by discharging William A. Crowder, each because of
ea Excepted from this finding is the respondent ' s violation of Section 8 (2) of the Act,
which was not alleged as a cause of the strike.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his membership in and activities on behalf of the Union. In order
to effectuate the purposes and policies of the Act, we shall order the
respondent to make whole Lewis Frayer, Albert Dietrich, Arthur
Cabral, C. A. Christensen, Frank Andrews, Joe Flores, and Melvin
Nunes for any loss of pay they may have suffered by reason of the
discrimination in the amount and duration of their employment dur-
ing 1939, by payment to each of them of a sum equal to the amount
which each normally would have earned as wages during the period
in which we have found the discrimination to have occurred.83 In
order to effectuate the purposes and policies of the Act, we shall also
order the respondent to grant to Ernest Hesse, Stuart Williamson,
and Earland Williamson all seniority rights, other rights, and priv-
ileges as employees of the respondent to which they would have been
entitled had they been assigned to seasonal employment during the
1939 pear season, and upon application to offer each of them sea-
sonal employment. If no seasonal employment is available when
they apply, the respondent shall provide for their employment in
exactly the same manner as hereinafter provided for the reinstate-
ment of those of its employees who went on strike. We shall fur-
ther order the respondent to make whole Ernest Hesse, Stuart
Williamson, and Earland Williamson for any loss of wages they
may have suffered during the 1939 pear season 84 by payment to
each of them of an amount equal to that which he would normally
have earned had the respondent assigned him to seasonal employment
during the 1939 pear season less his net earnings, ",' and also to make
them whole for any wages lost by reason of the respondent 's refusal
to offer them seasonal employment, upon application, whether such
application has been, or is, made before or after the date of this
Decision and Order, by payment to each of them of a sum equal
to that which he would normally have earned gas wages during the
period from five (5) days after the date of their application to
the date they are offered seasonal employment or placed upon the
preferential list herein provided, less net earnings 8F, during said
period. We shall likewise order the respondent to reinstate, upon
83 National Labor Relations Board v. C. Nelson Mfg. Co , 102 F. (2d) 444 (C C. A. 8),
enf'g Matter of C. Nelson Manufacturing Company and Harry demon and Wylie Parker,
15 N. L R B 1051.
ss July 25 through August 24, 1939.
By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for the unlaufui
discrimination and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590 , 8 N. L. R B 440. Monies
received for work performed upon Federal , State, county, municipal , or other work -relief
projects shall be considered as earnings. See Republic Steel Corporation v. National Labor
Relations Board, 311 U S 7.
° See supra , footnote 85.
SECURITY WAREHOUSE & COLD STORAGE CO. 931
application, Warren H. Murphy and Jack Burkhardt to their former
or substantially equivalent positions as all-year-round employees, in
the same manner as hereinafter provided for the reinstatement of
those of its employees who went on strike, and to offer to William
A. Crowder.full and immediate reinstatement to his former or sub-
stantially equivalent position, and to make whole Warren H. Murphy,
Jack Burkhardt, and William A. Crowder for any loss of pay they
may have suffered by reason of their respective demotions and dis-
charge, by payment to each of them of a sum equal to the amount
each would have earned as wages from the date of the discrimination
to the date of the respondent's offer of reinstatement, less his net
earnings during said period, except that we shall order no payment
of wages lost to Warren H. Murphy and Jack Burkhardt, who went
on strike, during the period from August 25, 1939, to the date on
which Murphy and Burkhardt have made, or in the future make,
application for reinstatement. Since the Trial Examiner in his
Intermediate Report recommended the dismissal of all 8 (3) allega-
tions, we shall exclude from any computation of wage losses and
net earnings the period from the date of the Intermediate Report
to the date of the Order herein.
We shall dismiss the 8 (3) allegations of the complaint as to
William C. Brown, James Walker, Derrell Smith, Harold Caraway,
Tony Gularte, Stephen Perry, Jack Baker, Rolland R. Eno, Martin
W. Kelly, Warren Purcell, and Nick Afdamo.
We have found that the strike which occurred on August 25, 1939,
was caused by the unfair labor practices of the respondent. We
shall therefore order the respondent to reinstate to their former or
substantially equivalent positions, without prejudice to their seniority
and other rights or privileges, those of its employees who went on
strike and who have at any time between the date of this strike and
the date of our Order herein applied for reinstatement, without
further application. We shall further order the respondent to re-
instate, upon application, on the same terms as set forth in the
previous sentence, those of its employees who went on strike and who
have not applied for reinstatement prior to the date of our Order
herein. The reinstatement of all striking employees shall be effected
in the following manner: All persons hired after August 24, 1939,
and who were not on any pay roll of the respondent between July
25 and August 24, 1939, shall if necessary to provide employment
for those to be offered reinstatement, be dismissed. If thereupon,
by reason of the reduction in the number of employees needed, there
is not sufficient employment immediately available for the remaining
employees, including those to be offered reinstatement, all available
positions shall be distributed among such remaining employees in
451270-42-vol 35-60
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acordance with the respondent's usual method of reducing its force,
without discrimination against any employee because of his union
affiliation or activities, following a system of seniority to such extent
as has heretofore been applied in the conduct of the respondent's
business. Those employees remaining after such distribution for
whom no employment is immediately available, shall be placed upon
a preferential list prepared in accordance with the principles set
forth in the previous sentence, and shall thereafter in accordance
with such list, be offered employment in their former or in sub-
stantially equivalent positions, as such employment becomes avail-
able and before other persons are hired for such work. Our Order
will also provide that each of the striking employees be made whole
for any wages lost by reason of the respondent's refusal, upon ap-
plication, to reinstate each such employee or to place him upon a
preferential list as provided above, whether such application for re-
instatement has been, or is, made before or after the date of this
Decision and Order, by payment to him of a sum of money equal to
that which he would normally have earned as wages during the
period from 5 days after the date of such application for reinstate-
ment to the date of the offer of reinstatement or placement upon a
preferential list, less his net earnings 87 during said period. Since
the Trial Examiner did not find in his Intermediate Report that the
strike was caused by the respondent's unfair labor practices, we shall
.exclude from any computation of wage losses and net earnings herein
the period from the date of the- Intermediate Report to the date of
our Order herein.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Longshoremen's and Warehousemen's Union Lo-
cal 1-6 and Security Employees' Association are labor organizations,
within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and admin-
istration of Security Employees' Association and by contributing
support thereto, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (2) of the
Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Lewis Frayer, Albert Dietrich, Arthur Cabral, C. A. Chris-
tensen, Frank Andrews, Joe Flores, Melvin Nunes, Ernest Hesse,
Stuart Williamson, Earland Williamson, Warren H. Murphy, Jack
87 See supra, footnote 85
SECURITY WAREHOUSE -& COLD STORAGE CO. 933
Burkhardt, and William A. Crowder, thereby discouraging member-
ship in International Longshoremen's and Warehousemen's Union
Local 1-6, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is.engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
6. The respondent has not engaged in unfair labor practices with-
in the meaning of Section 8 (3) of the Act with respect to William
C. Brown, James Walker, Derrell Smith, Harold Caraway, Tony
Gularte, Stephen Perry, Jack Baker, Rolland R. Eno, Martin W.
Kelly, Warren Purcell, and Nick Afdamo.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
sponent, Security Warehouse and Cold Storage Company, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Se-
curity Employees' Association or with the formation or adminis-
tration of any other labor organization of its employees, and from
contributing financial or other 'support to Security Employees' Asso-
ciation or to any other labor organization of its employees;
(b) Discouraging membership in International Longshoremen's
and Warehousemen's Union Local 1-6 or any other' labor organiza-
tion of its employees by discrimination in regard to hire or tenure
of employment or any term or condition of employment;
(c) In any other manner interfering with, restraining, or coercing
is employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Withdraw all recognition from Security Employees' Associa-
tion as the representative of any'of its employees for the purpose of
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dealing with the respondent concerning grievances, labor disputes,
Yates of pay, wages, hours of employment, or other conditions of
employment, and completely disestablish Security Employees' Asso-
ciation as such representative;
(b) Grant to Ernest Hesse, Stuart Williamson, and Earl and Wil-
liamson seniority rights, other rights, and privileges to which they
would have been entitled had they been assigned employment during
the period from July 25 through August 24, 1939, and, upon applica-
tion, offer them seasonal employment in the manner set forth in the
Section entitled "The remedy" above ;
(c) Upon application, reinstate Warren H. Murphy and Jack Burk-
hardt to their former or substantially equivalent positions without
prejudice to their seniority and other rights and privileges in the
manner set forth for the reinstatement of striking employees in the
section entitled "The remedy" above;
(d) Offer to William A. Crowder immediate and full reinstatement
to his former or substanially equivalent position without prejudice
to his seniority and other rights and privileges;
(e) Make whole Lewis Frayer, Albert Dietrich, Arthur Cabral,
C. A. Christensen, Frank Andrews, Joe Flores, and Melvin Nunes for
any loss of pay they may have suffered by reason of the respondent's
discrimination between July 25 and August 24, 1939, by payment to
each of them of a sum of money equal to that which they normally
would have earned during said period;
(f) Make whole Ernest Hesse, Stuart Williamson, and Earland
Williamson for any loss of pay they may have suffered by reason of
the respondent's discrimination against them by payment to each of
them of a sum of money equal to an amount determined in the manner
set forth in the Section entitled "The remedy" above;
(g) Make whole Warran H. Murphy, Jack Burkhardt, and William
A. Crowder for any loss of pay they may have suffered by reason
of their respective demotions and discharge, by payment to each of
them of a sum of money equal to an amount determined in the manner
set forth in the Section entitled "The remedy" above;
(h) Upon application, offer to its employees who went on strike,
and each of them, immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to their senior-
ity or other rights or privileges, in the manner set forth in the section
entitled "The remedy"' above, placing those employees for whom em-
ployment is not immediately available upon a preferential list in the
manner set forth in said section and thereafter, in said manner, offer
then employment as it becomes available;
(i) Make whole the said striking employees, and each of them,
for any loss they may have suffered or may suffer by reason of any
SECURITY WAREHOUSE & COLD STORAGE CO. 935
refusal of their application for reinstatement as provided in para-
graph (h) herein, by payment to each of them of a sum of money
equal to an amount determined in the manner set forth in the section
entitled "The remedy" above ;
(j) Post immediately in conspicuous places in the respondent's
plants and maintain for a period of at least'sixty (60) consecutive
days from the date of posting, notices to its employees stating: (1)
that the respondent will not engage in the conduct from which it is
ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this
Order; (2) that the respondent will take the affirmative action set
forth in paragraphs 2 (a), (b), (c); (d), (e), (f), (g), (h), and (i),
of this Order; and (3) that the respondent's employees are free to
become or remain members of International Longshoremen's and
Warehousemen's Union Local 1-6 and that the respondent will not
-discriminate against any employees because of membership in or
activity on behalf of that organization :
(k) Notify the Regional Director for the Twentieth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent has discriminated
in regard to the hire and tenure of employment of William C. Brown,
James Walker, Derrell Smith, Harold Caraway, Tony Gularte,
Stephen Perry, Jack Baker, Rolland R. Eno, Martin W. Kelly, War-
ren Purcell , and Nick Afdamo.