Strathmore Packing House Co.

National Labor Relations Board - Board Decisions

May 24, 1946

68 N.L.R.B. 214 (N.L.R.B. 1946)

In the Matter of STRATIIMORE PACKING HOUSE COMPANY and FooD,
TOBACCO, AGRICULTURAL AND ALLIED WORKERS UNION OF AMERICA
Case No 20-C-1331.-Decided May 24, 1946
DECISION
AND
ORDER
On August 20, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner also recommended that the complaint be
dismissed insofar as it alleged that the respondent conducted a campaign
for the purposes of preventing its employees from selecting a collective
bargaining representative in the elections conducted by the Board on
January 4 and May 11, 1945; that the respondent discriminated in the
hire and tenure of employment of Earl Daniel, Lee Price, and C. H.
Friesen; and that the respondent discouraged applicants for employ-
ment who were known to be active union sympathizers, and invited ap-
plications for employment from those known to be hostile to the Union
Thereafter, the respondent filed exceptions to the Intermediate Report
and a supporting brief.' On March 19, 1946, the Board at Washington,
D C., heard oral argument in which the respondent participated ; the
Union filed a brief in lieu of oral argument.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and briefs of the parties, and the entire record in the
case, and to the extent consistent with the Decision and Order herein,
hereby adopts the findings and conclusions of the Trial Examiner, and
finds merit in the respondent's exceptions.
I The respondent ' s motion to retransfer the case to the Trial Examiner was denied by the
Board on October 1, 1945. The respondent also moved to reopen the record to adduce addi-
tional evidence . In view of our findings herein, the motion is denied
68 N L. R. B., No. 29.
214
STRATHMORE PACKING HOUSE COMPANY 215
The Trial Examiner found that on the evening of May 4, 1945, Fore-
man DeArmond engaged in surveillance of a union meeting and that by
his conduct and the statements of Manager Hemphill, set forth in the In-
termediate Report, the respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act. We do not agree.
In concluding that Foreman DeArmond engaged in surveillance, the
Trial Examiner found that DeArmond, while passing the union hall
shortly before the meeting started, was invited to attend the meeting by
the Union's sergeant at arms, that DeArmond refused, and that during
the course of the meeting he was observed on at least two occasions
looking into the window on the street side of the hall from which point
it was possible to observe about half of the people in attendance. As
the Union had extended an invitation to DeArmond to attend the meeting,
it appears to us irrelevant to consider whether he did or did not look
into the hall or whether he could have seen those within if he had.
It seems clear, on this particular record, that the invitation negatives
any conclusion that DeArmond's presence would have intimidated or
coerced the employees in their efforts at self-organization and for this
reason the contrary finding of the Trial Examiner is without support.
The Trial Examiner found that Manager Hemphill said to employee
Ferguson that she "would have to stop talking and organizing or he
would have to discharge" her, and to employee Steer that "there was
a lot of agitating going on among the packers" with Steer's knowledge
and that Steer should go to the packer and stop the discussions. The re-
spondent contends that these statements were made merely to prevent
arguments and discussion among its employees during their working
time and were not directed against legitimate organizational activity dur-
ing the employees' non-working time. In concluding that these state-
ments were violative of the Act, the Trial Examiner relied upon the
finding that there was no evidence to support the respondent's conten-
tion. An examination of the record, however, does reveal some evidence
in support of the respondent's contention. On this state of the record
we are unable to conclude that Hemphill's statements were directed to
the self-organizational activities of the employees during their non-
working time.
As part of the respondent's conduct found to be violative of the
Act, the Trial Examiner relied on Manager Hemphill's statement to
employee Ferguson that he was "going to de-unionize Magnolia" after
he had defeated the Union in the respondent's plant. The record shows
that this statement was one of a series of remarks made in a sarcastic
or jocular vein by both Hemphill and Ferguson We do not believe that
this statement, standing alone and in the circumstances in which it was
uttered, constitutes a violation of the Act.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner also found that "toward the close of the balloting"
in the election of May 11, 1946, Hemphill stated that after the election
employee Kemp would be discharged; that Kemp had been absent from
the plant during working hours without authorization ; that she had
refused to return to work when so instructed by Hemphill ; and that
such conduct could not be condoned by the respondent. In view of these
findings we are of the opinion that no inference of coercion may reason-
ably be drawn from Hemphill's statement to Kemp.
In finding that the respondent violated the Act, the Trial Examiner
also relied on Hemphill's statement to employee Steer that as a "boss"
with the right to hire and fire Steer could not vote in the January 4,
1945, election. The Trial Examiner further found that despite this state-
ment of Hemphill, Steer's name appeared on the list of eligible em-
ployees furnished by the respondent. The circumstances surrounding
this incident lead us to believe that, although the respondent was mis-
taken in its position as to Steer's eligibliity, it was not motivated by a
coercive or discriminatory intent and its conduct is not, therefore, viola-
tive of the Act.
Since we agree with the Trial Examiner's findings and conclusions
with respect to the allegations of the complaint as to which he recom-
mends dismissal, we shall accordingly dismiss the complaint in its en-
tirety.
ORDER
Upon the basis of the foregoing findings of fact and the entire record
in the case, and pursuant to Section 10 (c) of the National Labor Re-
lations Act, the National Labor Relations Board hereby orders that the
complaint against the respondent, Strathmore Packing House Company,
Strathmore, California, be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Wallace E. Royster, Esq., of San Francisco, Calif., for the Board.
Ivan G McDaniel, Esq., by George C. Lyon, Esq., of Los Angeles, Calif., for the
respondent.
Mr. L. T. Cunningham, of Los Angeles, Calif., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on June 2, 1945, by Food, Tobacco, Agricul-
tural and Allied Workers Union of America, affiliated with the Congress of
Industrial Organizations, 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 June 2, 1945, against
Strathmore Packing House Company, herein called the Respondent, alleging that
the Respondent had engaged in and was engaging in unfair labor practices affecting
STRATHMORE PACKING HOUSE COMPANY 217
commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
of the complaint, the amended charge, and the notice of hearing were duly served
upon the Respondent and the Union.
With respect to the alleged unfair labor practices , the complaint as amended
at the hearing, in substance, states that the Respondent- (1) on or about
December 30, 1944, discharged Earl Daniel solely because of his membership in
and activity on behalf of the Union; (2) on or about April 10, 1945, refused to
employ Lee Price and C H. Friesen, under the same terms and conditions offered
other applicants for employment, solely because of their membership in and
activities on behalf of the Union; (3) from the fall of 1944 and thereafter, (a)
publicly ridiculed the employees who engaged in union activities, (b) discrimi-
natorily forbade its employees to discuss union activities during working hours,
(c) discouraged applicants for employment who were known to be active union
sympathizers, (d) invited applications for employment from individuals it knew
to be hostile to the Union, (e) conducted a campaign for the purpose of preventing
its employees from selecting a collective bargaining representative in elections
conducted by the Board on January 4, and May 11, 1945, (f) attempted to prevent
union adherents and active members, particularly Georgia Ferguson, from soliciting
support of other employees for the Union, and (g) shadowed and spied upon the
employees attending a union meeting on or about May 4, 1945; and (4) by the
acts set forth in (1) and (2) above, has discouraged membership in the Union and
by all the foregoing acts, has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act. Respondent in its
answer dated June 11, 1945, alleges that the Respondent is a non-profit cooperative
association, engaged in the packing of citrus fruit for its members only; that it
acts as trustee for the sale of the fruit of its grower members; and that as such
trustee it causes substantial amounts of their fruit to be sold in interstate and
foreign commerce from its packing house in Strathmore, California, to points and
places outside the State of California Also in the answer the Respondent denies
the commission of any unfair labor practices and affirmatively alleges that Earl
Daniel was discharged for refusal to accept the "duties and do the work required
of him."
Pursuant to notice, the hearing was held at Visalia, California, on June 14 and
15, 1945, before the undersigned Trial Examiner, James C. Batten, duly designated
b the Chief Trial Examiner The Board, the Respondent, and the Union were
represented All participated in the hearing. All parties were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues At the opening of the hearing counsel for the
Board moved to add an additional allegation to paragraph 4 of the complaint to be
known as sub-paragraph (h) reading as follows : Interfering with the right of its
employees to form, join, or assist labor organizations , by shadowing, watching, and
spying upon the employees attending a union meeting on or about May 4, 1945.
Without objection, the motion was granted, with the understanding, however, that
Respondent's answer was also amended, to indicate a denial of this allegation At
this time, the Board also moved to strike paragraph I of the complaint and
substitute therefor the following: Respondent, Strathmore Packing House Company,
is a non-profit cooperative association engaged in the packing of citrus fruit in
Strathmore, California Without objection, the amendment to the complaint was
allowed In accordance with the Rules and Regulations of the Board, the parties
stipulated that on July 3, 1945, the testimony of Mrs. Leonard Henry and W. 0.
Roberts would be taken by depositions , at Strathmore, California. The depositions
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been received by the undersigned and are hereby received into evidence and
made a part of the record herein . No oral arguments were presented at the
conclusion of the taking of testimony. Briefs were filed by the Board and the
Respondent.
On the entire record thus made and from the undersigned' s observation of the
witnesses , the undersigned makes in addition to the above, the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Strathmore Packing House Company, is a non-profit coopera-
tive association engaged in the packing of citrus fruit for its members in the
vicinity of Strathmore, California During the 1943-1944 navel season and the
1944 valencia season, the Respondent packed and shipped to points outside the
State of California 116,873 boxes of oranges.' During the following seasons the
amount of shipments was substantially the same.
The Respondent admits that as trustee for its members, it causes substantial
amounts of the r fruit to be sold in interstate and foreign commerce, from the
packing house in Strathmore, California, to points and places outside the State
of California.
The undersigned finds that the Respondent is engaged in commerce within the
meaning of the Act.
11. THE ORGANIZATION INVOLVED
Food, Tobacco, Agricultural and Allied Workers Union of America, affiliated
with the Congress of Industrial Organizations, is a labor organization and admits
to membership employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A Prefatory Statement
Since the middle of 1943 the Union has been attempting to organize the citrus
workers in the Tulare County Citrus area Sometime in January or February 1944,
the Union intensified its efforts to organize the workers in this area and formed an
organizing committee, known as the Citrus Workers Organizing Committee. On
October 2, 1944, the Union filed a Petition For Investigation And Certification Of
Representatives with the Regional Director for the Twentieth Region, San Francisco,
California On January 4, 1945, pursuant to a Decision and Direction of Election
issued by the Board on December 5, 1944,2 and an Order Amending Direction of
Election issued on January 4, 1945, an election by secret ballot was conducted under
the direction and supervision of the Regional Director among the employees of the
Respondent. The Tally as revised in the Regional Director's report on Challenged
Ballots and Objections to Elections showed that of the approximately 63 eligible
voters, 43 cast valid votes of which 23 were for the Union, 20 against and 4 were
challenged Since the results of the election were inconclusive the Board directed
that the Regional Director open and count the challenged ballots.3
i The respondent packs navel and valencia oranges foi approximately fifty grower-member.
The plant in the navel season operates for about eight weeks, during November or December,
through January or February, and in the valencia season for about six weeks during April,
May and June. The navel pack requires full-time operation of the plant, while the Valencia
pack being approximately thirty per cent less , necessitates only part-time operation.
2 59 N L. R. B. 724.
3 60 N L. R. B. 1007.
STRATHMORE PACKING HOUSE COMPANY 219
On April 3, 1945, the Regional Director submitted a Report on Challenged
Ballots which was duly served upon the parties wherein he stated that the four
challenged ballots were inadvertently destroyed while disposing of obsolete material
in the Regional Office. The Regional Director recommended that a new election
be conducted among the company's employees to be held not later than 45 days
subsequent to April 15, 1945. The Board on April 25, 1945, issued its Second
Supplemental Decision and Second Direction of Election, providing for a second
election by secret ballot not later than 45 days from April 15, 1945. On May 11,
1945, the second election was conducted at which 40 employees voted : 16 voted
for the Union, 19 against the Union, and 5 ballots were challenged. Subsequent to
the filing of the Regional Director's Report On Challenged Ballots and Objections
to Elections, the Board, on June 12, 1945, ordered "that the request of the
petitioner for permission to withdraw its petition be, and it hereby is, granted, and
that the aforesaid case be, and it hereby is, closed" On June 2, 1945, the Union
filed a charge with the Regional Director alleging that the Respondent had violated
Section 8 (1) and (3) of the Act and on the same day the Board issued the
complaint herein.
B. Interference , restraint , and coercion
The Board in support of the allegation in the complaint that the Respondent,
under Section 8 (1) of the Act, interfered with its employees' rights, relies on
certain statements and activities of Manager Hemphill, Foreman DeArmond and
employee Doris Hemphill, a packer and the wife of the Manager.
1. The activities of Manager Hemphill
Sometime in December 1944, shortly prior to the January 4, 1945, election,
Hemphill, after work ceased for the day, approached Georgia Ferguson, a packer
and the most active female adherent of the Union, and told her that she, "would
have to stop talking and organizing or he would have to discharge" her 4 Also in
December 1944, during the time when the Union was especially active among the
employees in anticipation of the election, Manager Hemphill told employee Steer,5
an active member of the Union, that "there was a lot of agitating going on among
the packers"e with Steer's knowledge, and that he, Steer, should go to the packers
4 this finding of fact is based upon the credible testimony of Ferguson Hemphill admitted
having a conversation with Feiguscu regarding her union activities, although his vers.on was
at variance with Ferguson's.
6 There is in the record a substantial amount of testimony by the Board and the Respondent
concerning the employment status of Steer, who, for many years has operated a box machine.
It is customary, in the packing houses in the Tulare area, for the box maker to be paid upon
a piece-rate basis, which rate usually includes the wages of an assistant. In the Respondent's
plant for seveial years, prior to August 1944 when Hemphill became manager, it had been the
practice for Steer to employ the assistant and pay his wages After Hemphill took charge he
employed Steer' s assistant , whose wages were paid by the Respondent but at the end of the
season deducted from the amount due Steer. At times the assistant was not needed in the
operation of the box machine and on these occasions worked on other operations in the plant,
this time being a direct charge upon the Respondent's pay roll The Box machine is owned
by the Respondent and all the supplies for the making of the boxes furnished by it Steer
was subject to the orders of Manager Hemphill and while Steer has limited control ovei his
own actions, he certainly was not as the Respondent contends an "independent contractor "
Neither will the record support Hemphill's contention that Steer was a "boss" with the right
to hire and fire. The undersigned is of the opinion and finds that Steer was an employee
without supervisory authority.
9 The undersigned rejects the Respondent's contention that Manager Hemphill and Foreman
DeArmond in their statements to the employees conceining union activities were only inter-
ested in having them cease indulging in "personalities" and disrupting "production." There is
no evidence to support this position.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and stop the discussions . When Steer replied that he knew nothing about it,
Hemphill called Steer "a damn liar" and added "You are fired. Go to the office
and get your time." After some sharp exchanges of words, Steer returned to his
job. On January 4, 1945, the day of the first election, Hemphill told Steer that he
could not vote because of being a "boss" with the right to hire and fire. Steer
replied that that was the first information since Hemphill became manager of the
packing house, that he, Steer, had the right to hire and fire. Steer, although his
name appeared on the pay-roll list furnished by the Respondent of those eligible7
to vote in the election, accepted Hemphill's statement and did not vote.8
As heretofore indicated the Board set aside the election of January 4, 1945,
and ordered that a second election be held among the Respondent's employees
A few days prior to the second election held on May 11, 1945, Manager Hemphill
after some rather peculiar remarks about the Union , told Ferguson that after he
had defeated the Union in the Respondent's plant, he was "going to de- unionize
Magnolia."9 On the morning of May 11, 1945, Josephine Kemp, a packer and
active supporter of the Union, reported for work at 7 a. m. but shortly thereafter
left the plant without permission and went outside to meet a representative of the
Board, who was parked in a car near the office. When Kemp's absence was
called to the attention of Hemphill, he went out to the car and instructed Kemp
to return to work. Kemp refused to return to the plant.19 Shortly before 7:30 a. in
when the balloting started, Kemp who was an observer for the Union, returned
to the Respondent's office where the election was being held Toward the close of
the balloting, Manager Hemphill appeared in the office where the election was in
progress and according to the testimony of Respondent's observer Mrs. Henry,
told Foreman DeArmond, whose office was adjoining, in a voice audible enough to
be heard clearly by any employees who might be voting, that after the election
Kemp was to be discharged.
During the May 11 election, Steer appeared at the office where the balloting
was being conducted for the purpose of voting. Steer's name did not appear on
the pay-roll list furnished by Respondent for the second election, although he was
clearly eligible, and his ballot was challenged by the Respondent's observer upon
the grounds that he was not an employee but an "independent contractor."11
Upon the entire record the undersigned is convinced and finds that the Respon-
dent violated Section 8 (1) of the Act, and interfered with the elections of January 4
i The Respondent in preparing the list of those eligible to vote was aware of the fact
that supervisors were excluded from the appropriate unit.
8 Sometime prior to January 4, 1945, Manager Hemphill issued two letters addressed "To
all our Employees " These letters were either posted in the plant or handed to the employees.
The Board contends that the letters were improper and interfered with the employees' right
to self-organization. The undersigned cannot concur in this position. The letters contained
statements of facts clearly within the province of the Respondent and contained no threat to
the employees or indication of reprisal against them The two-page undated letter closed as
follows: "Whatever the outcome of the election we will remain friends and play the game
fairly " The undersigned is also convinced that the letters, when considered in the light of
Hemphill's other activities related herein, were not violative of the Act.
0 This is based upon the credible testimony of Kemp and refers to the Magnol Citrus
Association of Portersville, California, where the Union had been certified as the bargaining
representative. The record discloses that Hemphill had applied to this Association for a position
as its manager.
10 Counsel for the Board admits and the undersigned finds that Hemphill's instruction for
Kemp to return to woik was entirely proper, she having left without permission. Kemp testified
that the representative of the Union advised her to leave the plant. Kemp's action upon such
advice cannot be condoned and the undersigned is convinced that she knew such representatives
do not have such authority over the employees.
ii The challenge as to Steer was not determined by the Board for the reason that the Union
withdrew its petition and the Board then closed the case.
STRATHMORE PACKING HOUSE COMPANY 221
and May 11, 1945, by the foregoing conduct of Manager Hemphill, thus inter-
fering with, restraining, and coercing the employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. The activities of Foreman DeArmond
On May 4, 1945 , a few days prior to the second election , the Union held a
meeting, at its hall in Lindsay , California, which was attended by a majority of
the Respondent ' s employees . Shortly before the meeting started at 8 p m., employee
Steer, the Union's sergeant -at-arms1 was standing in front of the hall, when
DeArmond appeared and asked Steer how the Union was getting along and inquired
whether the organization was having a meeting Steer replied that there was to
be a meeting and invited DeArmond to attend DeArmond then stated "To hell
with it," and crossed to the other side of the street . After the meeting started
Steer, who as sergeant -at-arms was seated near the entrance to the hall , noticed
that, at least on two occasions DeArmond was standing looking in a window which
was located on the street side of the hall From the window it was possible for
DeArmond to observe about half the people in attendance.12
The undersigned finds the Respondent by the foregoing conduct of Foreman
DeArmond in his surveillance of the union meeting of May 4, 1945, interfered with,
restrained , and coerced the employees in the exercise of the rights guaranteed in
Section 7 of the Act i3
3 The activities of Doris Hemphill
Doris Hemphill, the wife of the manager, was employed in the Respondent's plant
as a packer and was eligible to join the Union, although she had refused to do so.
She was eligible to vote at the Board elections and her right to do so was not
challenged. She was outspoken in her opposition to the Union and on several
occasions referred to the Union as a racket14 Furthermore, she took an active
part in the discussions among the packers, where the union activities seemed to be
centered The statements and activities of Doris Hemphill under the circumstances
reflected in the record would not warrant an inference that the Respondent was
chargeable with her conduct
The undersigned finds that the Respondent, by the conduct of Doris Hemphill,
has not interfered with, restrained, and coerced the employees and further that she
did not purport to act in behalf of the Respondent.
The undersigned also finds that the Respondent did not ratify or adopt her
conduct, and so Doris Hemphill was not acting in the interest of the Respondent
as an employer within the meaning of Section 2 (2) of the Act
4. Other alleged interference, restraint,
and coercion
The Board alleged in its complaint that the Respondent by other conduct and
statements violated the Act in other respects ; that it discouraged applicants for
employment, who were known to be active union sympathizers, from accepting
employment ; that it invited applications for employment from individuals it knew
12 This finding rests upon the credible testimony of Steer, supported in many respects by
that of Cunningham.
13 The fact that DeArmond was invited to attend the meeting in the first instance does not,
as the Respondent contends, justify his subsequent actions, which, in the opinion of the under-
signed, were such as to support a finding of surveillance
14 The testimony of several witnesses that Doris referred to the Union as a racket is credible
and accepted by the -undersigned, although Doris denied such statement.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be hostile to the Union ; and that it "conducted a campaign" for the purpose of
preventing its employees from selecting a collective bargaining representative in
elections held by the Board on January 4 and May 11, 1945.
The evidence fails to support the above allegations of the complaint and the
undersigned will accordingly recommend that the allegations be dismissed
C. The alleged discriminatory discharge
of Earl Daniel
Daniel was employed by the Respondent in the fall of 1940 as a carloader and
except for the valencia season of 1943, he worked each navel and valencia season
until his discharge on December 30, 1944. His work was satisfactory.
The Respondent contends that Daniel was discharged because of his refusal to
perform certain required work. The credible facts concerning Daniel's discharge,
as testified to by Manager Hemphill and Foreman DeArmond, supported in many
respects by employees James Grayson, Willie Roberts, and Mrs. Henry, may be
briefly summarized as follows:
On the morning of December 30, 1944, there were no refrigerator cars available
and with the plant in operation, an unusually large number of "setbacks"15 were
placed on the plant floor. When the cars arrived at the plant about noon, loading
operations started The regular crew, composed of loader Daniel, trucker Roberts,
and set-off man Shaw,16 were loading boxes coming from the packers, while the
extra crew composed of loader Grayson and two truckers, were loading the
setbacks that had accumulated during the morning. Sometime during the after-
noon several of the employees asked Foreman DeArmond to get off early, if
someway could be arranged to complete the loading. DeArmond went into the car
where Daniel was loading and asked him if he would help Roberts with the
trucking if he got "snowed under " Daniel flatly refused to do any trucking.
DeArmond then told Daniel "if you won't help him your time will be waiting."
According to DeArmond, Daniel "blew up" and gave him a "cussing out "
DeArmond and Daniel went to the office Mrs. Henry testified that Daniel when
he arrived in the office said, "Make out my time. I am fired." The conversation
between DeArmond and Daniel was "somewhat one-sided," Daniel doing most of
the talking and using profanity, until Mrs Butler, another office employee, went into
another office and sat in the corner in a very "frightened attitude." Mrs. Henry
then pushed the bell that signalled for Manager Hemphill When Hemphill arrived,
Daniel, DeArmond and Hemphill went into the latter's office. DeArmond told
Hemphill that Daniel flatly refused to do any trucking During the conversation
in Hemphill's office, Daniel several times stated that he was going to "smack"
DeArmond's head in Hemphill finally told Daniel that under the circumstances
there was nothing for him to do but "fire" Daniel. Hemphill finally instructed Mrs.
Henry to "make out Earl Daniel's time in full." Daniel then left the plant.
The undersigned now turns to a consideration of the Board's contention that
Daniel was discharged solely because of his membership in and activity on behalf
of the Union. Daniel joined the Union on December 14, 1944, but was not active
in any way on its behalf Daniel testified that shortly after he joined the Union,
his hours of work were reduced. His hours were reduced, but without any relation-
ship to his union membership; in fact it is very doubtful if the Respondent even
knew that he was a member The evidence is clear that the Respondent because
15 The practice of stacking the boxes of oranges in the plant instead of being trucked ''met
to the cars, is commonly termed "set-back."
16 The set-off man takes the boxes of oranges from a conveyor, tallies them and stacks the
boxes for the trucker
STRATHMORE PACKING HOUSE COMPANY 223
of restricted shipments and the necessity for paying time and one-half for all
hours over 8 hours, did make an effort to reduce overtime work in the plant. The
pay-roll records of the Respondent , showing the hours worked for all the em-
ployees, indicated that Daniel 's hours were somewhat reduced but his time was
proportionately better than that of other employees doing comparable work. In
fact , Daniel continued to receive preference in "overtime work . Daniel testified
that while he was in the office on December 30, 1944, Manager Hemphill remarked
that Daniel had been going to union meetings and complaining about not getting
paid for all the hours he was working . The undersigned does not credit this testi-
mony of Daniel, whose testimony was at variance with the weight of the evidence.
The only other incident offered by the Board to show that Daniel's union mem-
bership may have had something to do with his discharge was the fact that on
January 4, 1945, Manager Hemphill objected to Daniel voting at the Respondent's
plant. It is apparent that Daniel could not legally vote at the Respondent's
plant The direction of election stated "Those employees who have since quit or
been discharged for cause and have not been rehired or reinstated prior to the date
of the election " Thus, Daniel was not eligible to vote and certainly no inference
detrimental to the Respondent could be drawn from Hemphill's action in advising
Daniel to vote where he was then working
The record contains persuasive evidence that Daniel was discharged because of
his refusal to perform certain work. Furthermore , the undersigned believes that
Daniel was fully aware of the reason resulting in his discharge The undersigned
concludes and finds that the evidence does not support the allegation in the com-
plaint that Daniel was discriminatorily discharged on December 30, 1944, and since
that date has been discriminatorily refused reinstatement . It will accordingly be
recommended that the complaint be dismissed as to him.
D The alleged discrimination as to Lee Price and C H. Friesen
The Board contends and the Respondent denies that employment was refused to
Lee Price and C. H. Friesen on the same terms and conditions offered other
applicants for employment, solely because of their membership in and activities
on behalf of the Union.
Lee Price started working for the Respondent a few days after the navel season
opened in December 1944, and continued through to the close of that season in
February 1945. He was employed by Manager Hemphill as an assistant on the
box machine and when not so engaged on other general work. His work was
satisfactory. Price "thought" he joined the Union shortly after the election held
on January 4, 1944, but he was not an active member. According to his testimony,
Price "thought" he wore his union button about a week. About a week after the
navel season closed Price met Hemphill at a filling station in Porterville, California.
On this occasion, Hemphill told Price he "would like to have" him back at Respon-
dent's plant when the valencia season started and that he "probably" could give
Price a better job. Price replied, "A lot can happen, I will probably be seeing you."
A few days prior to April 19, 1945, the opening of the valencia pack, Price went
to the Respondent's plant and said to Hemphill, "Well, I thought I would come
up and see when you are going to start" Hemphill replied, "Well, we are working
here now. We will start right away. It ain't going to amount to much. If you have
a pretty good job you had probably better stay with it because there is not going
to be but about two or three days a week here." Hemphill continued by saying to
Price, "Lee, you can go to work now if you want to Your work is alright "
Price replied, "0. K. I can't go to work this morning. I am working. I came up to
see when you were going to start." Price then left the plant and did not return.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Price, he obtained, for the 1945 valencia season , a job with the
Randolph packing plant in Porterville, California, the town in which he lived,
where he worked for six or seven days a week at a higher hourly rate than he
formerly received at the plant of the Respondent
Lee Price does not contend in his testimony that Hemphill discriminated against
him because of his union membership. On this point the testimony was as follows:
Q. Did Roy Hemphill at any time indicate that he didn't want to employ you
because of your union affiliation?
A. No, sir.
Q. Did any question concerning the union arise in your conversation?
A. No, sir.
C. H. Friesen was first employed by the Respondent in December 1944, and
worked throughout the navel season which ended in February 1945. Friesen was
not an active union member ; indeed, there is, according to his testimony, some
doubt as to the identity of the labor organization to which he belonged, although
he did attend one or two meetings of the Union. Friesen's work was not entirely
satisfactory due to his inability to understand instructions of a most simple nature,
although, at the end of the navel season, Hemphill, when Friesen asked about the
next season , replied, "Yes. Come back. I think we can figure out sdmething." About
a week before the valencia season started on April 19, 1945, Friesen called at
Respondent's plant and asked Hemphill "how is things going." Hemphill told
Friesen, "It don't look very good. Probably two, three or four days a week. If
you have a good job, or something better, it might be just as well to stay with it."
According to Friesen, he went to Randolph's at Porterville, and secured'a job on
the dump,17 similar to the job he had at Respondent's plant during the 1944-1945
navel season . He worked for a week, then quit, because his shoulder "started
hurting."
Friesen, by his own testimony, did not attribute his difficulty with the Respondent
to his union membership He was certain that it had no connection with his failure
to be reemployed. On this point his testimony was as follows:
Q Did you feel that the management's attitude toward you was prejudiced
by the fact that you had joined the union up at Sunnyvale?
A. No.
Q. Your difficulties with the management didn't stem in any way from the
fact that you were a union member?
A. Not that I know of; no.
The undersigned having considered the individual status and employment history
of Price and Friesen, which does not provide the basis for a finding of discrim-
inatory treatment, now turns to a consideration of certain evidence presented by
the Board to prove that these individuals were refused employment on the same
terms and conditions offered other applicants. The contention of the Board is based
in substance upon two factors-that the valencia season of 1945, at the Respon-
dent's plant was steady, the employees instead of working three or four days a
week, as Hemphill had advised Price and Friesen, were employed five to six days
throughout the season ; and that Battles, an applicant for employment with the
Respondent, was not advised that the plant would only operate three or four days
a week as in the case of Price and Friesen.
11 The dumpman in a packing house takes the boxes of oranges as they come from the groves
and places the boxes on a moving belt which conveys them into the plant.
STRATHMORE PACKING HOUSE COMPANY 225
The evidence is undisputed that for several years prior to the 1945 valencia
season the Respondent's plant had operated three or four days a week and that
the employees for the balance of the week worked for another plant in the vicinity,
thus insuring steady employment Manager Hemphill, even though he had not
managed the Respondent's plant during a valencia season , from the Respondent's
records, was aware of this affiliated arrangement. When Hemphill was unable to
make any arrangements for affiliation with another plant for the 1945 valencia
season, it was evident that based upon past records, the plant would operate about
three days a week Another factor entering into Hemphill's decision was that
the valencia crop was substantially less than the navel crop, although generally
harvested and packed over a period almost as long as the navel crop. It is obvious
then that under normal conditions, the valencia season, from the standpoint of
employment is rather irregular, except when the Respondent affiliated with another
plant, employing one crew for the two plants. Hemphill, when he told Price and
Friesen there would be only three or four days' work a week, was correctly stating
the situation as it then appeared. However, the work during the valencia season
of 1945, due to factors not apparent prior to the start of operations, was more
steady than anticipated for the reason that the prorate7-8 was more liberal than
it had been the prior year. In addition, the volume of valencia oranges, being
substantially the same as in prior years, the plant completed the packing season
earlier than usual These factors were unknown to Hemphill until after the
valencia season started.
Employee Battles worked during the 1944 valencia season for the Stark &
Waddell plant in Strathmore, California, under the supervision of Basement Fore-
man Weisenberger. Hemphill, who became manager at the Respondent' s plant
in August 1944, was at that time house foreman for Stark & Waddell. Battles, after
the close of the packing season, returned to his home in Arkansas. Shortly before
the opening of the 1945 valencia season, Battles wrote a letter to Foreman Weisen-
berger inquiring about work for that season. Weisenberger in reply referred
Battles to Hemphill Battles then wrote him asking about the possibilities for
work for himself and family. Hemphill replied, stating that there was plenty of
work available in the community, although he was uncertain whether he could
give them work. Upon Battles' arrival in Strathmore he and his wife and two
children were employed by Hemphill for the entire valencia season It is plain
that Battles was not promised steady employment nor work for his family, upon
any basis 19
The undersigned concludes and finds that the evidence does not support the
allegations in the complaint that Price and Friesen were refused employment on the
same terms and conditions offered other applicants because of their union mem-
bership or that the Respondent accorded to them discriminatory treatment as to
their hire or tenure of employment, therefore the undersigned will accordingly
recommend that the complaint as to Price and Friesen be dismissed.
18 The total shipments of oranges from the Tulare area are set each week by a Board and
then each shipper is assigned a certain percent of the total, commonly called the "prorate."
19 Board's counsel in his brief states that "the respondent offered no evidence tending to
show that it had discouraged others from seeking employment with it during the 1945 valencia
season as it had discouraged Price and Friesen. This statement assumes that the Respondent
improperly discouraged Price and Friesen " The burden of proof which in this case rests with
the Board cannot be shifted by a mere assertion. It was not necessary for the Respondent to
ofl er such evidence, unless the Board has established at least a prima facie case of discrimina-
tion In the opinion of the undersigned the Board in its case failed to prove that Price and
Friesen were discriminatorily refused employment or improperly discouraged from seeking a
job with the Respondent.
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The undersigned finds that the activities of the Respondent set forth in Section
III, B, C, and D, above, occurring in connection with the operations of the
Respondent described 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 thereof
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
the undersigned will recommend that it cease and desist thereform and take certain
affirmative action which the undersigned finds necessary to effectuate the policies
of the Act.
It having further been found that the Respondent has not discriminated against
Earl Daniel, Lee Price, and C I-I Friesen in respect to their hire or tenure of
employment, it will be recommended that the complaint be dismissed insofar as it
alleges such discrimination.
Upon the basis of the foregoing findings of fact and on the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Food, Tobacco, Agricultural and Allied Workers Union of America, affiliated
with the Congress of Industrial Organizations, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the right 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.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
4 The Respondent has not engaged in unfair labor practices within the meaning
of Section 8 (3) of the Act by terminating the employment of Earl Daniel and
by refusing to hire or reemploy Lee Price and C. H Friesen.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed hereby recommends that the Respondent, Strathmore Packing House Com-
pany (Strathmore, California), its officers, agents, successors, and assigns shall:
1. Cease and desist from
(a) In any manner interfering with, restraining, or coercing its employees in
the exercise of the right to self-organization to form, join, or assist Food,
Tobacco, Agricultural and Allied Workers Union of America, or any other labor
organization, 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 and protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will effectuate the policies of the
Act :
(a) Post at its packing house at Strathmore, California, copies of the notice
attached hereto and marked "Appendix A " Copies of said notice, to be furnished
STRATHMORE PACKING HOUSE COMPANY 227
by the Regional Director of the Twentieth Region, shall, after being duly signed,
by the Respondent's representative, be posted by the Respondent immediately upon
receipt thereof and maintained by it for sixty (60) consecutive days thereafter
in conspicuous places including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Twentieth Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report what
steps the Respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10 ) days from the
receipt of this Intermediate Report, the Respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the Respondent to take the action
aforesaid.
It is further recommended that the complaint, insofar as it alleges that the Re-
spondent discouraged applicants for employment, who were known to be active
union sympathizers, from accepting employment; invited applications for em-
ployment from individuals it knew to be hostile to the Union, and conducted a
campaign for the purpose of preventing its employees from selecting a collective
bargaining representative in elections held on January 4 and 11, 1945, be dismissed.
It is also recommended that the complaint be dismissed insofar as it alleges that
the Respondent discriminated in regard to the hire and tenure of employment of
Earl Daniel, Lee Price, and C. H. Friesen.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the date of
the entry of the order transferring the case to the Board, pursuant to Section 32
of Article II of, said Rules and Regulations file with the Board, Rochambeau
Building, Washington 25, D. C., an original and four copies of a statement in
writing setting forth such exceptions to the Intermediate Report or to any other
part of the record or proceeding (including rulings upon all notions or objections)
as he relies upon, together with the original and four copies of a brief in support
thereof. Immediately upon the filing of such statement of exceptions and/or brief,
the party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. As
further provided in said Section 33, should any party desire permission to argue
orally before the Board, request therefor must be made in writing within ten (10)
days from the date of the order transferring the case to the Board.
JAMES C. BATTEN,
T,^ial Examiner
Dated August 20, 1945.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist Food, Tobacco, Agricultural and Allied Workers of America,
affiliated with the Congress of Industrial Organizations, or any other labor
696966-46-16
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection. All our employees are free to
become or remain members of this union, or any other labor organization.
STRATHMORE PACKING HOUSE COMPANY,
Employer.
By ..... ........... ...... . ............ . ..
Represcntatxvc Tat,c
Dated ...........................
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.