Charbonneau Packing Corp.

National Labor Relations Board - Board Decisions

Aug 20, 1951

95 N.L.R.B. 1166 (N.L.R.B. 1951)

1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. American Federation of Labor is a labor organization within the meaning
of Section 2 (5) of the Act.
2. All production and maintenance employees at the Respondent's plant in
Charlotte, North Carolina , excluding office workers, foremen, and all other super-
visors, constitute a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9 (b) of the Act.
3. American Federation of Labor was, on April 4, 1949, and at all times since
has been, the exclusive representative within the meaning of Section 9 (a) of
the Act, of all employees in the aforesaid unit for the purposes of collective
bargaining.
4. By refusing to bargain collectively with American Federation of Labor as
the exclusive bargaining representative of the employees in the appropriate unit,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (5) of the Act.
5. By such refusal to bargain, thereby interfering with, restraining, and
coercing its employees in the exercise of 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 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
CHARBONNEAU PACKING CORPORATION and FRUIT AND VEGETABLE
PACKERS AND WAREHOUSEMEN'S UNION, LOCAL UNION No. 760, INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA, AFL. Case No. 19-CA -279.
August 00, 1951
Decision and Order
On April 16, 1951, Trial Examiner Charles L. Ferguson, issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices, and recommended that those allegations of the complaint
be dismissed. Thereafter, the Respondent filed exceptions to the
Intermediate Report -arid a brief in support of its exceptions.
The Board 1 has reviewed the rulings made by the Trial Examiner
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [Chairman Herzog and
Members Houston and Reynolds].
95 NLRB No. 157.
CHARBONNEAU' PACKING. CORPORATION 1167
at the Bearing and finds that no prejudicial error was committed.
The Trial- Examiner'si•r%t ings are affirmed The Board has consid-
-ered the Intermediate Report ,2 the Respondent's exceptions and sup-
porting brief and the entire record in the case, and adopts the findings,
conclusions, and recommendations of the Trial Examiner.3
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board" orders that the Charbonneau Packing Corporation,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating its employees with respect to the activities of
the Fruit and Vegetable Packers and Warehousemen's Union, Local
Union No. 760, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL, or any other labor
organization, in connection with the formation, organization, or main-
tenance of a labor union in its plant, or with respect to the activities
of its employees in that behalf.
(b) Offering inducements or promises of benefits to its employees
to refrain from joining or assisting in the formation or maintenance
of a labor organization in its plant.
(c) Threatening its employees with loss of employment because
of union activity in its plant.
(d) In any like or related manner interf erring with, restraining,
or coercing its employees in the exercise of the right to self-organza-
to form labor organizations, to join or assist Fruit and Vegetable
Packers and Warehousemen's Union, Local Union No. 760, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, or any other labor 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, or to refrain from any or all of
such activities, except to the extent that such right may be affected by
an agreement requiring, membership in a labor organization as a con-
dition of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
2 The Intermediate Report contains minor inaccuracies as to the date of filing and
service of some of the exhibits, none of which affect the Trial Examiner ' s ultimate conclu=
slons or our concurrence therein. Accordingly , we make the following corrections :
The complaint , notice of hearing , and a copy of the amended charge were served upon
Respondent on June 19 , 1950. It also appears from the record that the amended charge
had been served earlier on Respondent on June 15, 1950.
The Trial Examiner 's findings, conclusion , and recommendation of dismissal of the
Section 8 (a) (3) allegation with respect to Coy Martin is adopted in the absence of
exceptions to this portion of the Intermediate Report.
1168 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
(a) Post at its plant at Selah, Washington, copies of the notice
attached to the Intermediate Report and marked "Appendix A." 4
Copies of said notice, to be furnished by the Regional Director for the
Nineteenth Region, shall, after being duly signed by the Respondent's
representative, be posted by the 'Respondent immediately upon re-
ceipt thereof, and thereafter continuously maintained by it until said
notices shall have been posted for sixty (60) consecutive days while
the plant is in full operation. Said notices shall be posted in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall-be taken by the Respond-
ent. to insure that said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for the Nineteenth Region in
.writing within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it
alleges that the Respondent discharged and refused to reinstate Coy
Martin in violation of Section 8 (a) (3) of the Act.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon an amended charge filed June-15, 1950, by Fruit and Vegetable Packers
and Warehousemen's Union, Local Union No. 760, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and. Helpers of America, AFL, herein
called the Union, the General Counsel of the National Labor Relations Board'
by the Regional Director for the Nineteenth Region (Seattle, Washington), issued
his complaint dated June 15, 1950, against Charbonneau .Packing Corporation,
herein called the Respondent, and at times referred to as the Company, alleging
that the Respondent had engaged in and was engaging in unfair labor practices
within the meaning of Section 8 (,a) (1) and (3) and Section 2 (6) and (7) of
the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of
the original charge, the amended charge, the complaint, and a notice of hearing,
were duly served upon the appropriate party or parties?
With respect to the unfair labor practices, the complaint alleged in substance
that Respondent: (1) "since on or about January 28, 1950 has interfered with,
restrained and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act" by "urging, persuading and warning" them, "by threats of
reprisal or force or promise of benefit" and by "threatening . . . loss of em-
4 Said notice, however, is amended by striking from line 3 thereof, the words "The
Recommendations of a Trial Examiner," and substituting in lieu thereof, the words,
"A Decision and Order ." In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be inserted before the words "A Decision
and Order ," the words , "A Decree of the United States Court of Appeals Enforcing."
1 The term General Counsel includes the attorney representing the General Counsel at
the hearing . The National Labor Relations Board is referred to herein as the Board.
2 The original charge - was filed February 7, 1950, and served upon the Respondent
February 13, 1950; the amended charge was filed June 15, 1950, and was served upon
the Respondent on the sanre date together with a copy of the complaint and a notice
of hewing . Also on that date a copy of the complaint and a, notice*of hearing was
served upon the Union.
CHARBONNEAU PACKING CORPORATION 1169
ployment ..... to -refrain from assisting, becoming . or remaining members of the
Union, or engaging in . concerted activities for the purposes . of collective
bargaining or other mutual aid or. protection " ; and (2 ) on or about January 28,
1950, discriminatorily discharged employee Coy Martin-and has since said date
"refused and failed" to reinstate him because he "exercised rights guaranteed by
the Act." Respondent 's answer admitted the jurisdictional matter and the
nature and extent of its business as same is alleged in the complaint but denied
the alleged unfair labor practices.
Pursuant to notice , a hearing was held at Yakima, Washington , on September
12, 1950, before me , the undersigned Trial Examiner , Charles L . Ferguson, duly
designated by the Chief Trial Examiner to conduct the hearing . The General
Counsel and the Respondent were represented by counsel who participated in the
hearing. The parties were afforded full opportunity to be heard, to produce,
examine and cross-examine witnesses , and to introduce evidence relevant to the
issues. At the conclusion of the evidence counsel made oral arguments upon
the record . Only the Respondent availed itself of the opportunity afforded the
parties to file briefs.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. TIIE BUSINESS OF THE RESPONDENT
The Respondent is a corporation organized and existing under the laws of the
State of Washington . It operates a plant at Selah , Washington , where it is and
was, at all times material herein, engaged in the "processing and manufacture of
apple juice and apple cider " which it sells and ships in commerce . The business,
which is seasonal , had been carried on for 5 or 6 years prior to the . date of the
hearing. The complaint alleges, and the Respondent's answer admits , that "in
the course and conduct" of its operations the Respondent "causes and has continu-
ously caused substantial amounts of raw material used by it in the processing
and manufacture of apple juice and apple cider , to be purchased , transported and
delivered in interstate commerce ... ; and causes and has continuously caused
a substantial - amount of its processed and manufactured products to be sold, de-
livered and transported in interstate commerce . . ." Apparently relying upon
the admission contained in the Respondent 's answer as being sufficient on the
matter of jurisdiction , and it does establish the Board 's jurisdiction , the .General
Counsel did not offer any evidence bearing upon or relating to the amount or
value of the Respondent ' s product annually, or during any period , shipped outside
the State of Washington, or of the value of materials or supplies which the Re-
spondent receives from outside States. However , during the direct examination
of W. H . Charbonneau , the president of the Respondent Corporation , as a witness
for the Respondent , the following questions were asked and answers given :
Q. Do you ship your products in interstate commerce?
A. Yes, we do.
Q. And is that in a substantial amount?
A. Yes, it is.
Q. Will you give us just an approximation as to the value of the juice
that goes into interstate commerce.
A. Several hundred thousand dollars.
It is not clear , and neither the immediate context nor other testimony in the
case assists in a solution of the matter, whether , it was meant that products of
a value of "several hundred thousand dollars" are annually sold and shipped in
interstate commerce or that over the entire period of operation , whether 5 or 6
1170 DECISIONS OF ' NATIONAL 'LABOR RELATIONS BOARD
years, products of a value of "several hundred thousands dollars " had been
,shipped in interstate commerce. It is< my impression that the reference was to
the value of annual shipments in interstate commerce. Several, by any concept,
means more than one and according to any dictionary means "an indefinite num-
ber more than two." Therefore even if the figure of "several hundred thousand
dollars" is applied to the entire period of operation and even if that period be 6
years instead of 5 years, the Respondent's business would according to any prac-
ticable, average, apportionment, or percentage be within the test laid down by
the Board in Stanislaus Implement and Hardware Company, 91 NLRB 618 (Oc-
tober 3, 1950), where the Board, in connection with the determination of what
cases, in which under the Act it had jurisdiction, as here it does, it would best
effectuate the policy of the Act for it to assume and exercise that jurisdiction,
said, that thereafter it would "exercise jurisdiction over employers which an-
nually ship goods valued at $25,000.or more out of a State." I am constrained,
therefore, to hold that this case comes within the ambit of the Board's more
recent decisions defining the type of cases in which it will exercise its juris-
diction.
II. THE ORGANIZATION INVOLVED
Fruit and Vegetable Packers and Warehousemen's Union, Local Union No." 760,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, AFL, is a labor organization affiliated with the American Federa-
tion of Labor, admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The plant operation
At its plant at Selah, Washington, Respondent Company receives and purchases
apples and therefrom produces and processes apple juice and apple cider which
it bottles, crates, and ships in trade and commerce. At the time of the hearing
it had been so engaged over a period of 5 or 6 years . The operation -is seasonal.
The plant usually begins operation between September 25 and October 1 and
continues to sometime early in the following year varying from January to
sometime in March,' with periods of interruption or shutdown, varying from a
few days to a week or even weeks, because of weather conditions or an inadequate
supply of apples.
The over-all 1949-1950 season, during which the events out of which this
proceeding arises occurred, extended from sometime in September 1949 to
sometime in April 1950, which was later than usual. General Counsel's witness,
Davis, who had worked at the. plant for three seasons prior to the hearing, said
that the plant operated only "a few days in December" 1949, did not operate
"the first ten days or so" in January. 1950, and that during the spring of 1950
"would run a few days and then be down for awhile and then run for awhile."
The testimony at another point shows that on account of the extreme cold
weather the plant was shut down the week of January 30 to and including
February 4, 1950, and either for the same reason or on account of an inadequate
supply of apples, it was also shut down the week of January 16 to 21, inclusive.
The evidence supplies but scant information about the number of employees,
particularly those referred-to as regular employees. Witness Ellis, above iden-
tified, estimated that Charbonneau had "approximately 25 employees during a
$ General Counsel's witness , Ellis , who had worked at the plant four consecutive seasons
next preceding the hearing said: "The average season" was "from the middle of
September to-well it varied from January to ADril."
CHARBONNEAU PACKING`. CORPORATION 1171
normal time."" It is' not clear whether this number' included supervisory :per=
sonnel,-however it apparently was intended as an estimate of the total number
employed. In addition to W. H. Charbonneau, 'President of the Company-.and
the general manager, 2 others holding supervisory .positions were named; W. P:
Dixon,- the plant superintendent, and Clark, "a° foreman. 'References indicate
that there was perhaps another foreman. So, "accepting Ellis' estimate, the
number" of nonsupervisoryemployees during normal times would be approxi-
mately 22." It does not appear ;what percentage were classified and carried
on the records' as regular employees. There was a clear distinction made on
tl}e employment records between regular and temporary employees. Further
the regular employees were:furnished and required to wear 'a uniform. The
men working on the press crew afford one example of regular ',employees. , The
same number of men are used on these jobs throughout the season. The evi-
dence shows that extra or temporary' workers were'frequently hired' for periods
of a.few hours, or a day, or several. days.` The "loading 'out" orshipment of the
finished product is principally during the months,of October, and November-and
when this "loading out" is going on additional or temporary help is required.
As noted, sometimes a man will be picked up and put 'on the loading out job
for only a few hours, or a half day, -or 1 day. Another type of temporary em-
ployment, varying in length according to the changing situation, is that of an
extra man or men at "the receiving platform. For most of the season receiving.
is a 1-man job. Apples are delivered to the plant in 2 ways, in boxes and.in bulk.
The bulk apples come in dump trucks and bulk deliveries are readily handled
at the receiving platform by 1 man. At the beginning of the season apples from
certain areas come mostly in boxes 'and "tile 1 regular man on the receiving plat=
form cannot handle that job alone during the periods large quantities of boxed
apples are coming in and some extra and temporary help is then required.
Usually by January the flow of boxed apples has practically ceased and the
larger part of the deliveries are then and thereafter in bulk by dump trucks.
When occasionally, during that period, some boxed apples do come in, it is the
custom for Foreman Clark to assist the 1 man working on the receiving platform
in handling the boxed apples.
B. Union organization
The General Counsel called as witnesses, Ethel M. Way, secretary-treasurer
of the Union and its principal representative in this matter, and employees"Coy
Martin, the dischargee named in the complaint, Robert E. Ellis, Hugh Davis,
and Glenn L. McCully, also Helen Josephine Martin, wife of the dischargee.
Just when or in what manner the first union contacts with the employees
of the Charbonneau Company occurred, or how or when the union organizational
campaign was commenced does not appear. It was pretty well agreed among
the employees called as witnesses by the General Counsel that the Union con-
ducted three or four meetings for Charbonneau employees, and that these
meetings were held outside the plant. The dischargee, Coy Martin, could not
recall when "these meetings were held, not even the month. Ellis said he be-
lieved the first of these meetings was in January 1950, "after the plant resumed
operation," ° and the other meetings followed "in rather rapid sequence" but.
"perhaps the first one was in 1949," that the second meeting was held "just
a day or two after" the first meeting, and "after that they were a week apart."
McCully said the meetings were held in January and February 1950, and that
he does not recall. at which union meeting the Union was designated as bar-
gaining agent but that it was not the first one. Mrs. Ethel M. Way, secretary-
The plant did not resume operation until sometime about January 10, 1950.
961974-52-vol. 95-75 -
1,172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
treasurer of the Union and its principal representative in its dealings with the
Charbonneau Company, said that she attended, a meeting held the night of
January 27, 1950 (Friday), that this was "a special meeting" for "Charbonneau
employees," that "approximately twenty" of the employees were present, that
19 of them signed cards on that occasion "authorizing" the Union "to represent
them in collective bargaining ," and that she had attended 1 meeting for the
Charbonneau employees prior to this meeting of January 27. 1. think it is
indicated that the first of these meetings was held after the plant resumed
operations in January 1950, which was sometime , not definitely fixed , .about
January 10, and that the meeting of January 27, at which 19 of the employees,
more than two-thirds of the total number of rank-and-file employees , signed
the authorization cards, was perhaps the second or third in the series of
meetings.
:This .much is definite, that the first of the union meetings was held at night
following a meeting of the employees that day in the office of the Company, at
the plant, after 5:30 p. in., the close of the workday. This meeting at the Com-
pany's office was pursuant to a notice posted on the bulletin board requesting
the employees to assemble at the office at the close of the day's work. At that
time President Charbonneau addressed the employees. `Martin did not iefer
to this meeting. Davis and McCully could not recall anything Charbonneau
said on this occasion . Ellis said, that Charbonneau stated something to the
effect that he (Charbonneau) was "surprised to learn that the employees were
considering joining the union." Continuing Ellis testified, " I can 't make an exact'
statement of what he (Charbonneau) said, but he warned us to watch out we
didn't get talked into something , we didn't know what we were getting into."
For the substance of what he did say in the course of his remarks to the
assembled employees, I turn to Charbonneau's own testimony. I , note here 'that.
Charbonneau impressed me throughout as being a frank and-forthright; wifffess.
He displayed no tendency to evade and I accept and credit his testimony gen-
erally. Charbonneau was not asked and did not fix or approximate the' date
of this meeting. The General Counsel made no inquiry of Charbonneau con-
cerning this meeting. Asked by counsel for the Respondent, on direct examina-
tion, merely to tell about the meeting, he said :
The day that notice was posted was the first day that I had heard any
rumors to the effect that our employees were interested in joining a union.
And when I heard it, I thought perhaps I had better talk to them, our
relations had always been very cordial. I was under the impression at-
the time that a meeting had already been held for the purpose of organizing.
our plant. At the very outset of that meeting some of the boys told me that
there had been no organizational meeting, that it was to be held that night.,
.. I told them they should look it over carefully, and if they decided that
the union had something to offer them, that by all means they should join the,
union, that I would myself under similar circumstances. . . . I told them
to weigh what they heard carefully . . . it was a good bit like buying A
new automobile, look over the possibilities and think for themselves.
I credit the uncontradicted testimony of Ellis, that the next morning after
the assembly in the office and the.first union meeting, the late afternoon and
night before, Plant Superintendent Dixon "approached me and asked me
what we found out. I told them nothing definite, that they had told us what they
had in other plants and what we might hope to get should we affiliate with the
Union,"' and that thereupon Dixon "questioned me about the things we hoped
6 The Inquiry and Ellis' answer thereto plainly referred to the union meeting held the
light before. .
CHARBONNEAU PACKING CORPORATION 11 73
to get by joining the Union . and I mentioned that the plant was not suffi-
ciently heated, that that was my personal opinion and the, other employees had
more or less agreed with me, and that. the Union had said that there was a possi=
bility if you are working in extremely cold conditions,-and it does not interfere
with the operation of the plant, perhaps we can get it nicer in there. In fact,
indoor toilets, which we don't have there, and Mr. Dixon asked me, 'If I were
able to get these things.for you, would{that. make: any difference.' I told him 1t-
would not." .
I also accept and credit the uncontradicted testimony^of Ellis that 2 or 3 days
after the assembly at the plant office and the first union meeting Charbonneau
came to the machine where he (Ellis) was working and asked him if the Union
had made any promises. Ellis said, "I did not tell him (Charbonneau)
anything."
r C. Coy Martin, the alleged discriminatee
Very little information contributing in any substantial way to the factual
situation is to be gleaned from Martin's own testimony. His testimony is.
generally vague and uncertain. I feel that for the most part this was not be-
cause Martin was inclined to be evasive or was intentionally endeavoring to
becloud the facts but was largely, &}f iough not altogether, due to a lack of alert-
ness in his thinking processes coupled with a vagueness and confusion of memory
and a lack of 'understanding or comprehension of the inquiries made of him.
Martin said that he was first employed in October 1949 "helping load out, loading
(railroad) cars" and the first impression his testimony gives is that he worked
4 or 5 days at that time, that he was next employed in January 1950, "as an
extra" man and put to work "shoveling snow off" the receiving platform and
helping the regular man working on the receiving platform when apples were.,
delivered to the plant in boxes. He said that with other Charbonneau employees
he attended two union meetings and "signed a card." He could not recall
whether that occurred while he was working there in October 1949 or January
1950 but is "pretty sure it was . . . the last part of October" 1949. Then after
saying that he worked for the Company "4 or 5 weeks in the fall of 1949 ... it
could have been in November and December," it developed, from the work tickets
which he himself produced and the positive and conclusive testimony in that
respect, that Martin had worked there only 4 hours in 1949, that being in October
when he worked a half day on the loading crew. It follows that the "4 or 5
weeks" he refers to or whatever other time he did work for the Company must
have been in 1950. However it conclusively appears from Martin's work tickets,
put in evidence, and other undisputable evidence, that in 1950 he worked a total
of only- 9 days, as follows :.January 10, 12, -13, 14, 23, 24, 25, 26, and 27, on which
last date he was terminated.
Martin said that when he "first went to work for them" (Charbonnea-u Com-,
pang) he was not employed "full time" but "on a day to day basis." The
context here indicates that he refers to the January 1950 employment . Counsel
for the General Counsel inquired and Martin answered as follows :
Q. Did you ever receive steady employment during the time you worked
there?
A. No.
Later Martin said that when he "first started there" Dixon, the plant super=
intendent, told him, "We have an extra man or two here now, you go on as an
extra man ... when one of these other guys drops out we want you on here,"
that at first, as directed to do, he (Martin) asked Dixon each evening if he
(Dixon) wanted him "to come back in the morning" but that "later one or
1174 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
two men dropped out" and Dixon told him ; "Now you work every day that the
press runs." Weather conditions and the apple supply permitting the press
runs 5 days aweek. Then , although the questions which had elicited this
testimony indicated reference was to the January 1950 employment , Martin
said he didn't know whether it was in* October 1949 or January 1950 that this
occurred. At another point in the direct examination , and with the 'questions
apparently still referring to a purported employment period of 4 or 5 weeks,
Martin said he had worked as an "extra man for quite awhile" before Dixon
told him "to come back to work every day the press does." On cross-examina-
tion he stated , that he shoveled . snow "5 or 6 days ... and after the weather
opened up Mr . Dixon told me, `come back as long as the press runs.' "
I have noted some of the vagueness and inconsistencies that mark Martin's
testimony and tend to indicate its doubtful reliability as to the nature of his
employment . Apparently it is' claimed , or at least suggested , that at some
point Martin ceased to be an extra man, on a purely day-to-day basis, and
became a regular employee . It may be interposed here that such a transition
was never made on the records of the Company.
Dixon 's version of Martin 's employment , which is consistent with the other
undisputed facts of the situation and which I credit, is that when he hired
Martin he needed an extra man for a few days "owing to the snow and weather
conditions" and that he so advised Martin at the time he hired him , that he
also at that time told Martin "to check with me each night and I would tell
him how long the job would last" but that "when it came time to quit" Martin
would be "one place" and he (Dixon) "some place else so rather than having
him (Martin) running around looking for me, after about a week or there-
abouts, I told him `You just keep on working until I notify you different,"' and
that he at no time told Martin he had a regular or permanent job.
The evidence is that in December 1949 and January 1950 weather conditions,
extremely unfavorable to continuous operation and the delivery of apples to'the
plant, existed . There were heavy and "intermittent snows" and some extremely
cold weather which interfered with and at times interrupted the operation of
the plant and the delivery of apples . The delivery of boxed apples, which as
has been noted , usually slackened in volume by January to the point where the
one regular receiving platform man alone , with the occasional assistance of
Foreman Clark, could handle the . receiving job, had been somewhat delayed on
account of these adverse weather conditions and had extended into January.
Martin was hired as an extra man temporarily to shovel snow and to help the
receiving platform man in handling the belated deliveries of boxed apples.
He said he spent 5 or 6 days of the _ 9 days he worked there shoveling snow.
Charbonneau said that Martin was hired as an "extra man to help shovel. snow
not only off the [receiving ] platform but any place else around the plant where
it was needed, and to help receive apples that came in boxes."
It is my conclusion , that, as both Charbonneau and Dixon stated, Martin was
hired only as an extra man and worked during the 9 days he was employed
there in January 1950 on a purely temporary , day-to-day, basis and that such
status was not at any time changed to that of a regular employee.
D. The line
One part of the operation was referred to as "a line ." The empty glass bottles,
which are to be filled with apple juice, are referred to as "the glass" and the act
of placing the bottles or "the glass " on the conveyor , which is known as "the
line," is called "dumping the glass." • The empty glass bottles are brought by a
CHARBONNEAU PACKING CORPORATION -1175
conveyor to the head of the line in cases or containers in which the bottles have
been placed, in separate compartments, "upside down" in relation to "where the
flaps . (of the cases) close . . . At the head of the line is an unscrambling table
with two wire chains moving very slowly" which feed the bottles, onto a conveyor-
(the line). "The people dumping glass" take the cases containing empty bottles
as they come to. the head of the line, "pull up the lid" of the cases, turn the cases
"upside down" and "move" them "out onto the moving chains and lift the cases
up" thereby "releasing the glass," and then place the empty case on another con--
veyor which takes it "across to the labeler." . Usually the job .of dumping glass
can be satisfactorily handled by one man. However, when bottles "fit tight in
the containers" it is necessary for the man doing the dumping to shake the case
until the bottles are loosened and "the glass" released. When this occurs "it
slows up" the line operation and when a run of cases in which the bottles are
tight is encountered a second man is used on the dumping job in order to main-
tain the line operation at normal speed. Having.thus been started on the` line
the empty bottles are conveyed, in order, to and through the washer, the filler,
the capper, and into the cooler.
In January 1950, the line crew was composed of four men, Glenn L. McCully,
who was "in charge of the line," McCully's helper, and two men dumping glass,
one of whom was Walter Johnson. McCully had worked for the Company 5
years: He is the oldest nonsupervisory employee at the plant "in point of sere-
ice." Presumably he had been in charge of the line during the entire time or
at least for several years. He and his helper handled all the work on the line
other than dumping glass. While McCully was "in charge of the line" it seems
quite clear, that he was not and could not be deemed a supervisor as that term
is defined in the Act. Dixon describing McCully's work said, "really the only
time he [McCully] has much to do is at the very start of the day when he starts
up the different machines and pumps, starting the juice, and at the very end of
the day when the equipment is cleaned up. Barring breakdowns, it is just a
matter of sitting there watching those bottles go by for eight and a half hours."
Charbonneau said that after McCully starts the line in the morning he controls
and watches the speed at which the line runs and "stands ready to jump in and
clean off the glass if a bottle breaks." Dixon stated that McCully's job "prob-
ably takes more time to learn than any other in the plant," and that one reason
for having a helper for McCully was that "in case Glenn [McCully] was sick
or didn't show up I would have somebody who could handle it [the line] .that day
or two or three days while he was gone." Charbonneau said that "the only time
Glenn McCully needs a helper on this job of running the line is when there is
a breakdown on the line." McCully was apparently in accord with Charbon-
neau on this.
It was McCully's opinion that the line could be satisfactorily operated with
three men and that one of the men engaged in January 1950, in dumping glass,
could very well be dispensed with and that his helper could also work at the glass
dumping job at times when, because of tight glass, a second man was needed on
that job to keep the line working at normal speed. In fact the.line had started
the 1949-50 season with only three men working under such an arrangement.
It does not appear at just what point, whether after the resumption of opera-
tions about January 10, 1950, or at some time prior thereto, the fourth man had
been added and put on the job of dumping glass. There is a reference in the
testimony indicating that at some point in that season a run of cases containing
tight glass occurred which prompted the assignment of a second or additional
man to the dumping job making a total then of four men employed on the line.
Such was the line situation of January 28, 1950.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Decision to dispense with two jobs
Except the coincidence in time, there is nothing in the evidence which even
remotely suggests that as of Saturday morning, January 28, 1950 , either Char-
bonneau or Dixon knew about or had received any information concerning the
meeting of the employees with the union . representatives on the night before
January 27 , at which time ,19 of the 20 employees in attendance signed union-
authorization cards , and Charbonneau and Dixon testified that at the time,
on the morning of January 28, they made the decision to dispense with 2 jobs
then being carried in the plant they had no knowledge or information "of what
had happened at the meeting" of their employees on the night before. It seems
to be a fact , however, that Charbonneau and Dixon had "heard rumors" indi-
cating progress was being made by the Union in organizing the employees, al-
though they had not heard "any particular thing." They were undoubtedly
aware that their employees were meeting with the union representatives.
Neither of them had previously dealt with a union and did not , as Charbonneau
expresses it, "know very much about unions ," but they concluded that if the
Union "came into the plant" the Union would "insist" or "demand" and "make"
them "keep" "any and all men" who were working at the time it gained represen-
tation rights and that they would be "frozen with whatever employees " they had
and "get stuck" with "extra men" who were not needed to carry on their opera-
tion. On Friday , January 27, they discussed reducing the line from 4 to 3 men.
On Saturday morning, January 28, in looking about for jobs that could be dis-
pensed with , they decided that , at that point , they could get along without
the extra man on the receiving platform , Coy Martin , and as was subsequently
demonstrated they very well could and did. The plant was not in full operation
that day ( Saturday ) and Martin was not working . Dixon had told Martin at
the close of work on Friday evening before to come back the following Monday.
Therefore Dixon resolved not to wait until Martin reported for work on the fol-
lowing Monday to advise him they no longer needed him but , in order to afford
Martin the earliest possible opportunity to take some other job, to notify him
that day. As it turned out, on account of the extremely cold weather , the plant
was shut down , and did not operate at all, throughout the whole of the following
week. The weather was. so cold apples would have frozen while being trans-
ported from the warehouse to the plant.
Having decided that he could dispense with the extra man on the receiving
platform Charbonneau , on the morning of Saturday January 28 about 10 to 10: 30,
went to see McCully at his station on the line,, which was working that day,
about reducing the line crew from four to three men. Charbonneau asked
McCully if he could handle the, line "with three men instead of four." It was
McCully's fixed opinion, . based on his experience on the line , that the line could
be satisfactorily operated with three men and he . had made that suggestion to
Charbonneau in the fall of 1949, pursuant to which the 1949-50 season had
started , as I have heretofore mentioned , with a line crew of three men. When
Charbonneau made the above 'inquiry, McCully assured him that three men
were sufficient to operate the line satisfactorily and stated that he (McCully)
had already , shortly prior thereto , discussed it with Dixon and had recommended
to Dixon that the four -man crew, then ( in January 1950 ) being used on the
line, be cut back to its original number of three. However, McCully , who had
attended all of the union meetings to date , "was as active as anyone else" about
the Union , and had signed a union-authorization card, presumably only the night
before, remarked that "now with the union activity there he didn 't know what
the union might think" of his action in making such a recommendation. Char-
bonneau told McCully, who was one of if not the oldest employee in point of
CHARBONNEAU PACKING CORPORATION 1177
service and who was considered by, Charbonneau next in line for a supervisory
position on the occurrence of a vacancy, that he (Char-bonneau) had decided
immediately and as of that date to dispense with-, two jobs, ::which. he had con-
cluded he could well get along without: The extra man they had at the time on
the receiving platform and the second man on the glass. dumping job on the;line.
In .that connection Charbonneau said he told, McCully "that we couldn't afford
to have,extra people working in the, plant in the event the Union gained mem-
bership and bargaining rights in the plant and for that reason we had better
cut down our extra men before we couldn't cut them down." Here apparently
Charbonneau was,using the term "extra" in its broader sense of men who were
not needed or no longed needed to maintain a satisfactory operation, as Johnson,
who had been assigned to dumping glass when the fourth man had. been added
to the line crew, whenever that was, and who was let out, at the close of that day's
work, as a result of this decision to reduce the line from four to three men, was
apparently one 'among the oldest, in service, of the regular employees. He was
not an extra man in the sense that he had been hired merely to do some temporary
job, on a day=to-day or hour-to-hour basis, as in the case of Martin, and as oc-
curred in many instances during any season's operations.
Pursuant to the decision to cut back the then line crew of four men to the
original number of three, Charbonneau directed that after that date the man
who had been working as a helper to McCully e should act also as a helper to the
man regularly assigned, to dumping glass when a run of tight glass was encoun-
tered and it was necessary in order to maintain the operation at normal speed
to have two men on the dumping job. The advisability and feasibility of this
change in the line was concurred in and approved by Charbonneau, Dixon, and
McCully. After that date the line functioned satisfactorily with three men.
Charbonneau said that when this change was made "we raised Glenn's hourly
wages," the amount of the increase is not stated, and that the helper was given
an increase of "a nickel an hour." Prior to that the helper's wage had been
a dollar an hour. , .
McCully, called as a witness by the General Counsel, was asked on direct
examination : "Did you ever talk to Mr. Charbonneau or Mr. Dixon about your
situation if the Union came into the plant?" McCully answered: "Well, I
have been their employee for several years and looking forward to. a steady job
and Mr. Charbonneau did make the statement that if the Union came in, perhaps
my chance for a steady job was gone." When asked when Charbonneau made
that statement,. McCully said, "I believe that was the same day that they laid
the two men off," which evidently meant January 28. Later on cross-examination,
McCully explained that by his reference to "a steady job" he meant "year around
employment." The testimony indicates that year-around employment is really
synonymous with a supervisory position and that only two or three men at
most have year-around employment such, as stated by McCully, "The Superin-
tendent, foreman, and the like of that." The only supervisory employees men-
tioned, as heretofore stated, are Superintendent Dixon and Foreman Clark,
although there is somewhere in the evidence an indication there may be at least
one other foreman. On cross-examination McCully said he could not recall
how the discussion during which Charbonneau made the remark concerning
a steady job came up, that Charbonneau "came out to where I was working.
,e
f have heretofore related the division of work on the line and in that connection
McCully's duties. The evidence concerning the, duties of his helper and the need
of'MeCully for full-time helper is somewhat vague, apparently the need of a helper was
most pressing when a breakdown of the line occurred. Of course, at such time the
dumping of glass would cease.
1178 DECISIONS1- OF NATIONAL LABOR RELATIONS BOARD -
He was talking about the job,' and this and that,. was talking about the plant
at Wenatchee, and he said it'looked like if it did go union changes would have
to be made where my chances for a steady job were gone. He didn't say neces-
sarily Wenatchee or here." 8 Continuing on cross-examination the following
questions were asked and answers given:.
Q. Wasn't the discussion not as to your steady job but as to the amount of
time the plant would operate. In other words, if it would continue running
as they were . . . you were on what, a nine hour day'?
A. Well, yes, it varied.
Q. And if the Union came in, then it would go to a forty hour week?
A. Well, what I had in mind he' was referring to, was the year-around
job with the plant.
McCully was unable or at least did not give the context of the conversation in
the course of which Charbonneau was supposed to have made the statement that
"it looked like if it did go union" changes would have to be made where "perhaps
McCully's "chances for a steady job were gone." It is not claimed that Char-
bonneau came to where McCully was working and without more conversation
made the blunt statement. Apparently, whatever was said about a year-around
job for McCully was said during the conversation Charbonneau had with McCully
between 10 and 10: 30 the morning of Saturday, January 28. McCully's vague
statement, on cross-examination: "He (Charbonneau) didn't say necessarily We-
natchee or here," indicates that something was said about a Wenatchee plant in
connection with affording McCully year-around employment. When asked, on
direct examination, about McCully's testimony concerning this purported state-
ment-Charbonneau said that mention was made of McCully's hope for year-
around employment during the conversation with McCully on the morning of Jan-,
wary 28 concerning the reduction in the line crew. Like McCully's statement
about the the matter it -would have contributed to a better understanding had
Charbonneau's testimony been elaborated or clarified. Referring to what was,
said about year-around employment of McCully, Charbonneau said :
I think Glenn McCully was perfectly sincere in his testimony but I think
he misunderstood the conversation. No such statement was ever made by me-
to Glenn. In respect to year around employment, _ which Glenn' wants, and
incidentally he is the next man in the plant who is going to get it, I told-
Glenn as far as the Wenatchee plant- is concerned that was up in the air,
we did not know when it would go in, that with the advent of frozen apple-
juice our plans for the forthcoming year would have to be set back until we
knew what kind of a plant we were going to put up. I told him at that time
that if we did put the plant up that he would be the first man put on a year-
around salary basis.
At this point I asked Charbonneau if anything was said in that connection about
a union. He said: "Not a thing" and explained that the only mention of a union
in the course of the conversation was made by McCully when, in reply to'Char-- -
bonneau's inquiry whether McCully could satisfactorily handle the line with three-'
instead of the four men then working on the line, McCully said he could and
that he (McCully) had previously made. that recommendation to Dixon but that
Evidently, the conversation Charbonneau had with, McCully about 10 or 10 : 30
Saturday morning, January 28. is referred to. Whether McCully meant Charbonneau was
talking to h`m about his (McCully's) Individual job or as seems more consistent with
the whole testimony, the line job is not clear to ore.
8It is not plain but the inferences from the testimony of Charbonneau are that the-
Company had not yet established a plant at Wenatchee, and that it was a matter yet
.under consideration.
CHARBONNEAU PACKING CORPORATION 1179
he "didn't' know with the union activity there what the union might think of
his" recommending it now. It seems it was here in response to this statement by
McCully that Charbonneau said, he "could not afford to have extra people work-
ing in the plant in the event the union gained membership and bargaining rights
in the plant and for that reason we had better cut down our extra men before
we couldn't cut them down." How, or when, or in what connection the conversa-
tion turned to the contemplated Wenatchee plant is not clear from the testimony
of either McCully or Charbonneau but that the Wenatchee plan, yet in abeyance,
was discussed, appears from the testimony of both.
In. considering the discrepancy in the testimony of these two witnesses I am
-constrained to accord that of Charbonneau the greater weight. True, Char-
.bonneau's interest in this matter must be considered, nonetheless, my observa-
tion,of Charbonneau as a witness and his straightforwardness and frankness
throughout his testimony impels me to accept his statement that he did not
tell McCully that "if the union came in [the Selah plant] perhaps" his "chance
for a steady [year around] job was gone." I do not understand that McCully
was undertaking to give the exact language of the purported statement but at
most an impression he had formed from the conversation. There is no least indi-
-cation of any unfilled year-around position then pending or the likelihood of
one developing in the near future at the Selahplant where'McCully was then
working and where the Union was then organizing, but it is quite apparent that
matter was for some reason discussed in connection with a-proposed plant at
Wenatchee. It is also apparent that some discussion occurred concerning the
Union coming into the Selah plant, although all that is shown in that connection
is what is found in Charbonneau's testimony. Thus it may well be that upon
the whole conversation McCully formed a general impression about as he stated,
and it may be correctly so. However, I do not find the evidence considered as a
whole of sufficient weight and clarity or of such quality as to constitute proof of
a threat or implication by Charbonneau that if the Union came into the Selah
plant it would or might affect his attitude about promoting McCully to a year-
-around position when an opening occurred in that group of employees which as
I have noted seemed to be limited to supervisory employees only.
F. Union representatives call on Charbonneau
About noon on Saturday, January 28 some employee of the Company called the
Union by telephone and advised that Charbonneau was letting two men go and
,giving McCully a wage increase. Thereupon the union officials drafted a letter,
which according to Mrs. Way, the secretary-treasurer, notified the Charbonneau
Company that the Union "represented" its employees and "not to make any
-changes in their personnel or wage schedule until such time as we could sit down
and negotiate with Them." Mrs. Way said that this letter was delivered to
°Charbonneau at the plant, by two business agents of the Union, about "one
o'clock" in the afternoon of that day. These business agents did not testify and
'I must look to Charbonneau's testimony, and that of Dixon, as to what occurred
on that occasion. Charbonneau said that he, Dixon, and a Mr. Weatherspoon,
who is not identified, were in the plant office when the two union business agents
-arrived, between 1 and 1: 30 that afternoon, that the union agents "presented"
him with a letter and "a paper purporting to be a consent to an election and
-asked.' him to sign it "immediately," that he told them he "didn't want to sign
it at the moment" as he wanted first to discuss it with his attorney or "someone
-who knew something about it because" he had never before had any "contact
whatsoever" with a union and "knew nothing at all about it," that in the course
of the conversation he told the, union agents that he and Dixon had decided
1
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that morning to let Martin and Johnson go, that "both of these gentlemen ° cau-
tioned" him "several times" that they (the Company) "had better not do it and
suggested several times" that he "get an attorney who had had labor experience
and they were sure the attorney would tell" him "not to let these men go."
I
G. Superintendent Dixon notifies Coy Martin of his discharge ,.. •
The decision to dispense with the extra man on the receiving platform, Martin,
and the second man on the glass dumping job, Johnson, was made before, or at
the latest about, 10 o'clock Saturday morning, January 28. It is not clear just
what time Johnson, who was working on the line'which.was in operation that
day, was notified that he was not to return on the next workday" but, as has
been mentioned, since Dixon had,. on the evening before, told Martin to return
to work on the following Monday, and desiring to afford Martin, who was not
working that day the earliest opportunity to find other employment, Dixon went
to the Martin home in Selah, sometime during Saturday afternoon after. the
union's business agents had called at the plant office, and.asked for Martin. Mar-
tin's wife told Dixon that Martin was not at home and Dixon then requested her
to tell Martin that he was laid off. In response to Mrs. Martin's inquiry as to
why Martin was being let out, Dixon, according to his testimony, said,, in sub-
stance, that because of "union activity down there [at the plant] we, are afraid. of
getting saddled with a couple of jobs that are not really necessary" and that they
would have to let Martin go. .
On Saturday, January 28, only the line was in operation and although, Martin,
the temporary helper, was not working, Davis, the regular receiving platform
man at that time, worked that day. Whether Davis was receiving apples or
working in some other capacity about the plant is not clear. If Davis • was
working at his regular position on the receiving platform no mention is made
as to why Martin, his temporary helper at. that time, was not also working.
As a witness for the General Counsel, Davis,. on direct examination, said, without
contradiction, and I accept and credit, in substance, his testimony in this respect,
that on Saturday (-January 28) he (Davis) "was outside" and Dixon "came
out and asked me where Coy Martin lived and I told him where he [Martin]
lived," but that Dixon did not say why he wanted the information. The time
of day this occurred is not mentioned. Davis' testimony continued, on direct
examination, with the following questions and answers :
Q. Did you talk to him (Dixon) later on that day?
A. Yes Sir.
Q. Did he tell you why he wanted to see Mr. Martin?
A. Yes, Sir.
Q. For what reason did he want to see Mr. Martin? .
A. He told me that due to Union activities he (Dixon) was going to have
to lay off some of the younger help.
Q. Did you pursue the conversation any further?
A. No, Sir. .
I doubt that Davis was here undertaking to give the exact wording of the
remark which he attributes to Dixon. If Dixon used the term "younger help"
it must have been a reference to length of service or recently hired in Martin's
case as Martin, whose age is not given in the record; did not appear to be a young
man. I am inclined to think Dixon's reference was more likely to extra or
temporary men or jobs which would comport with the fact and the attitude
• The two union representatives.
" There is an Indication Johnson'was notified at the close of the day's work.
CHARBONNEAU PACKING CORPORATION 1181
of Dixon and Charbonneau throughout. Whatever language Dixon may have
used in this connection, I credit Davis' testimony to the extent that Dixon said
in effect that he (Dixon) was letting Martin out because of the union activities
in the plant.
H. The recall of Johnson
Johnson was considered as a regular 'employee.. He had been working there
"ever since the plant started." During the shutdown of the plant the week
following January 28, Charbonneau received notice that one of the men working
on the press crew was quitting," and "that created a vacancy on the press crew."
Johnson had worked on that crew the previous season but "had left a week or
ten days before the plant closed down leaving us," as Charbonneau puts it,
"in a bad position." However, after discussing the vacancy. Charbonneau and
Dixon decided to offer the job to Johnson and "drove out" to the Johnson home
on Sunday, February 5, to inquire if Johnson was interested in the vacant job
on the press crew. The plant was to resume operation the following day'.
Johnson explained that he was not physically able to handle the work on the.
press crew and that was why he had quit the job the previous season. Char-
bonneau and Dixon then drove "out in the country to the home of Victor Dees,
who worked in the warehouse, and asked Dees if be would switch over to the
press" so Johnson could take the warehouse job. .This Dees consented to do.
Johnson returned to work, at the warehouse job, on Tuesday, February 7,
having lost 1 day's work (Monday, February 6) because of-being let out when
the second glass dumping job was dispensed with at the close of business on
Saturday, January 28.
I. The plant operated satisfactorily after January 28
As mentioned, at the close of the workday on Friday, January 27, the extra
man, Martin, had been told to return the following Monday. Apparently even
when it was decided on Saturday morning, January 28, to dispense with Martin's
job as helper on the receiving platform and that of a full-time second man- on
the glass dumping job it was contemplated that the plant would operate the
following Monday, January 30, but, as noted, the onset of extreme cold weather
interrupting the transfer and delivery of apples shut the plant down for that
entire week and normal operations were not resumed until Monday, February 6.
From that time to the close of the season Davis, the regular receiving platform
man at that time, satisfactorily handled that job alone with the occasional
assistance of Foreman Clark when some belated deliveries of boxed apples
came in. This was the customary procedure at this time of the season. As I
have stated, usually by January the flow of boxed .apples tapered off to a mere
trickle so that the one regular receiving platform man alone could easily handle
all deliveries of apples by that time mostly in bulk, with the assistance of
Foreman Clark when the few straggling deliveries of boxed apples were re-
ceived. That in this instance Davis did thus handle the receiving platform
alone to the end of the season, and satisfactorily, is verified by Davis, Char-
bonneau , and Dixon, and after January 28 the line continued to function satis-
factorily to the end of the season with the three-man crew to which it was cut
back on that date as is verified by McCully, Carbonneau, and Dixon. As noted,
due to the occurrence of a vacancy in the group of regular employees, Johnson
was recalled and assigned as of Tuesday, February 7 to the warehouse job.
While his judgment, arrived at on Saturday morning, January 28, that he
could very well dispense with the extra man, Martin, then working on the re-
ceiving platform and the second man on the glass dumping job, was sustained
This employee "decided hurriedly ... 'to-leave his wife and go back to -Missouri."
1,182 DECISIONS OF NATIONAL LABOR • RELATIONS BOARD
by subsequent experience as above stated, Charbonneau gave answers as follows
. to inquiries on cross-examination concerning the termination of Martin and
Johnson on Jauary 28:
Q. The main reason then that'you discharged Martin was that you didn't
want to get stuck with these other men when the Union came in?
A. Absolutely right.
Q. Up until that time, did you evef' discuss with the Union what their
demands would be if they came into the plant?
A. No.
Q. Then you discharged Martin because you did not want to get stuck
with him if the Union came in, is that right?
A. Not with him personally, nothing personal.
Q. With extra men?
A. Yes.
Q. If the Union had not come into the plant, then those men would have
continued on the job, wouldn't they?
A. Coy Martin would have been continued on the job he was on for two
or three days of the following week. That is all.
Q. Continued on his job?
A. We would have given Mr. Coy Martin two or three days more work
the following week had it not been for the fact that I was-afraid if the
Union came into the plant' that they would make us keep extra men that
we did not need. That's exactly the way it was.
Q. Then if the l.jnion had not come into the picture Martin would have
continued on Monday? 12
A. Yes, he would.
Q. He wouldn't have been discharged on Saturday?
A. That's right.
J. Conclusion as to the 8 (a) (8) allegation
It is plain that in making the reduction in force Charbonneau was dealing
with jobs and not individuals. The considerations involved in his decision were
directed to what jobs could be dispensed with without impairing the efficiency
of the operation, and not to any individual employee. There is no evidence
concerning individual activity on behalf of the Union on the part of either
Johnson or Martin or for that matter any employee. There is no evidence that
Johnson did or did not attend a union meeting or meetings, or did or did not
sign a union card. Martin attended some union meetings as did numerous,
if not most, of the employees although he had no recollection when. He said
on cross-examination that he was not a member of the Union at the time he
was terminated and did not thereafter join. ' On redirect examination he re-
membered that he had signed a union-authorization card at one of the union
meetings, but could not say. which or when. Martin further said, on cross-,
examination, that when he was let out he "don't think Mr. Charbonneau had
any knowledge whether" he (Martin) "was a member of the Union or not,"
and that he "thinks" he was terminated "because" he was "the most recent man
on the job"" and not because of any union activity. Apparently neither Char-
bonneau nor Dixon was informed concerning the union activity of any indi-
vidual employee.
is The plant did not operate at all the following Monday or the entire week of January
30 to February 4. Upon resumption on Monday, February 6 and thereafter to the close
of the season Davis, the regular receiving platform man at that time, alone handled that
job satisfactorily without a helper and no one was put on the job in Martin's stead.
- %'The last man hired at the plant prior to the date the reduction, was made.
CHARBONNEAU PACKING CORPORATION 1183
.Nor does the General Counsel, according to my understanding of his position,"
claim that union activity, membership, or sympathy, on the part of either John-
son or Martin had any bearing on, or anything to do with, his termination. The
General Counsel did not at the hearing, and does not now, present or point out
anything tending to counter Charbonneau's testimony that he found, in his
survey of the job situation on January 27 and 28, that he could dispense with
these two jobs without impairing the efficiency of the operation.
As I see it there is no question as to the demonstrated economic justification
of Charbanneau's action in eliminating the two jobs:. His: motivation, frankly
stated, was to dispense with any jobs then being carried, that were not needed.
before the Union made demands upon him lest, as he conceived likely, the
Union "saddle" him with jobs he did not need. As I have pointed out jobs not
individuals were involved, and I do not consider the action terminating John-
son and Martin, in and of itself, under the circumstances shown, as being dis-
crimination in regard to their "hire or tenure of employment" or any "term
or condition" thereof with a or the purpose "to encourage or discourage member-
ship" in a labor organization within the meaning of Section 8 (a) (3) of the Act.
True that after the decision to dispense with the two jobs had been made and
announced but prior to the consummation of the discharges, the Union served
a notice on Charbonneau advising him that it had been selected as the cob
lective bargaining representative for his employees and requesting him "not
to make any changes in personnel or wage schedules until" union representatives
"could sit down and negotiate with" him, however, it will be remembered, that
the complaint does not contain an 8 (a) (5) allegation of refusal to bargain,
Hiring after January 28
I have stated that, in my opinion, the elimination of the extra job at which.
Martin had been working resulting in his termination was not discrimination
against him. within the meaning of Section 8 (a) (3) of the Act. Even so, the
General Counsel seems to contend that there was such discrimination in the
failure of the Company afterwards to recall or reemploy Martin during the
season.
Martin testified , that "a week or two" after he was let out he went back to- the
plant and inquired of Dixon : "Have you anything to do around here," and that
Dixon said "no." Dixon said that after Martin was let out he (Dixon ) "never"
again that season;."had a place" he "could use" Martin , and that is well sub-
stantiated by the facts in evidence about the hiring after January 28.
. Ted Martin was hired on January 10, on the same day and the same tempo,-.
rary basis, that is as an extra man , that Coy Martin , the alleged discriminatee,
was hired . During January Ted Martine was employed in the removal of snow
"back at the other end of the plant from the receiving platform ,"", near the
warehouse "and helped load out cars and trucks ." On Friday , January 27,
It was decided that Ted Martin was no longer needed on that job and. he was
let out. Apparently the snow removal part of the job had come to an end. No
one was afterwards hired to remove snow either at the place or places where
Ted Martin had worked or where Coy , Martin had been so engaged . However,
on February 7, Ted Martin Was called back for , 1 day's: work as a `9lpader's
helper." He had done some of that kind- of work in January..
14 The General Counsel did not file a brief.
13 This was during the same period Coy Martin was engaged ilk snow rerpoval at and
near the receiving platform.
16 The day before Coy Martin was terminated . - - '
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When shipments are made to a certain large chain store company which the
Charbonneau Company supplies the "private labels" of the store company are
affixed to the "outside of the cases" in addition to the Charbonneau label which
has already been stamped on the cases. This occurs at intervals and at such
times an extra man is used to affix these "private labels." Ted Martin was
used 2 days during the week ending February 25 "on the private label job."
Afterwards Ted Martin was used as an extra or temporary man or helper on-
the labeling machine, on a day-to-day basis, 4 days during the week ending
March 4, and 4 days of the week ending March 11, at which time he advised
Charbonneau that he was quitting to take a full-time job on a cattle ranch.
On Tuesday, March 14, Aubrey Newman was put on the job as an extra man
or helper on the labeling machine which Ted Martin had quit. Newman worked
5 days that week but was not again used until April 5 when he worked only 2
days. He next worked on three consecutive days, the last being April 14, in the
week ending April 15. Thus from March 14 to and including April 14 Newman
worked a total of 10 days as extra man or helper on the labeling machine.
It is quite evident that Charbonneau and Dixon did not give any consideration
or thought to Coy Martin in connection with the private labeling work or as a
helper from time to time on the labeling machine. Both jobs require alertness
and dexterity and neither Charbonneau nor Dixon think Coy Martin could satis-
factorily or efficiently do that type of work and that would have been their
judgment had Coy Martin come to mind or been suggested in that connection at
the time either Ted Martin or Newman was put on the job. Newman was the
only man employed on any kind of a job after January 28 who had not been on
the payroll that season prior to that date. In fact, except the reemployment of
Ted Martin and Johnson, Newman was the only man hired after January 28.
Whenever possible, Charbonneau and Dixon employed only young men or women
for the labeling work. They were found to be quicker and more alert and kept
the work moving at a faster pace than older people were able to do. Newman
was about 20 years of age. He had worked for Charbonneau "several times in
former years" and a part of. that time was "on labeling."
There is nothing in the evidence to indicate that either Charbonneau or Dixon
was in any way, or for any reason, whatever, prejudiced against Martin. That
is not even claimed. They had no complaint about his work and said' it had
been satisfactory. Nor is there anything in the evidence even remotely indi-
cating that any union considerations or union activity generally,.or any con-
nection of Coy Martin individually or in concert with others with the Union or
union activity played any part or had anything whatever to do with the fact that
he was not reemployed after January 28, and in my opinion, no violation of
Section 8 (a) (3) in that respect was made out.
In view of the foregoing findings concerning Coy Martin,"' it is my conclusion
that the 8 (a) (3) allegations of the complaint should be dismissed.
K. Conclusion as to alleged . 8 (a) (1) violations
At the meeting of the employees called by Charbonneau "some of the boys"
(employees) informed Charbonneau that the first union "organizational meeting"
for the employees was to be held that night's Charbonneau and Dixon were
thus informed of this meeting. The next day Dixon "approached" employee
Ellis and asked him what they (the employees) had "found out" at the union
27 The complaint alleges a violation of Section 8 (a) (3) only as to Coy Martin.
Johnson was not included therein.
38There is nothing in the evidence tending to indicate that . this -information* was given
in response to any interrogation by either Charbonneau or Dixon. Rather it appears to
have been volunteered.
CIIARBONNEAU PACKING CORPORATION 1185
meeting. Ellis replied that the union representatives had told them what the
Union had been able to obtain for the employees at other plants and what the
Charbonneau employees might hope to get if they affiliated with the Union.
Whereupon. Dixon "questioned" Ellis as to how the employees hoped to benefit
by joining the Union. In reply, Ellis mentioned two complaints, in which he
informed Dixon "the other employees" generally concurred. Dixon then in-
quired whether if he (Dixon) were "able to get these things" for them, that is,
remedy the complaints, "would it make any difference." Ellis said, "it would'
not." A day or two later Charbonneau "came to the machine" where Ellis was
working and asked Ellis, "if the Union had made any promises?" Ellis refused
to give Charbonneau any information.
One purpose of the Act, as expressed, in substance, in Section 7, is to protect
workers in the exercise of the rights to self-organization and the designation of
collective bargaining representatives of their own choosing and association and
concerted action to achieve such ends "or other mutual aid or protection," with
the "right to privacy" and the "enjoyment of full freedom from employer inter-
meddling, intrusion, or even knowledge." Therefore, Section 8 (a) (1) of the
Act is violated when an employer interrogates his employees "concerning any
aspect of union activity." Standard-Coosa-Thatcher Company, 85 NLRB 1358,
and cases there cited. It is true the evidence does not disclose` any particular
antiunion animus or union hostility on the part of either Charbonneau or Dixon
nonetheless when an employer by interrogation of his employees concerning
union activities, and, as here, in substance, as to what was done or occurred at a
union meeting (Morristown Knitting Mills, 86 NLRB 342), such interrogation
is violative of the Act even though the employer's motives, in the -particular
instance, be innocent or benign. The F. C. Russell Company, 92 NLEEB' 206:'
Therefore Dixon's inquiry of Ellis, under the circumstances shown, as to what
• the employees had "found out" at the union meeting and how they hoped`to
benefit by joining the Union, and likewise Charbonneau's inquiry as to whether
"the Union had made any promises" constituted interference, restraint and
coercion within the meaning of Section 8 (a) (1) of the Act. Standard-Coosa-
Thatcher Company and Morristown Knitting Mills, -supra.
Clearly implicit in Superintendent's Dixon's proposal to Ellis concerning the
correction of the working conditions complained of, and the granting of certain
benefits sought by the employees, was the suggestion and condition that the
employees abandon the union organizational effort. It was in effect an induce-
ment.offered to the employees to deal direct with management instead of through
the Union. This also constituted interference, restraint, and coercion under
Section 8'(a) (1) of the Act. Eastman Cotton Mills, 90 NLRB 31.
While in my opinion there was ample economic justification for the elimination
of the two jobs and that action did not in and of itself constitute a violation of
either Section 8 (a) (3) or (1), nonetheless Dixon's statement to employee Davis,
as phrased and without more, in effect, that Martin had been let out because of
"union activities" in the plant was such as might well have carried,the implica-
tion that the mere advent of the Union made job tenure uncertain. The bare
statement which by implication associated union activity alone with the pos-
sibility of loss of employment would necessarily tend to interfere, restrain, and
coerce employees in the exercise of the rights guaranteed by the Act and there-.
fore ',violative of Section 8 (a) (1).
....IP.%iTHE 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 set forth in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
1186 DECISIONS ' OF-',NATIONAL LLABOR,^RELATIONS BOARD
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, Charbonnean Packing Corporation, has
engaged in unfair labor practices, within the meaning of Section 8 (a) (1) of
the Act, I shall recommend that it cease and desist therefrom and take certain
afflrmative action designed to effectuate the policies of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following
CONCLUSIONS OF LAW
1. Fruit and Vegetable Packers and Warehousemen's Union, Local Union No.
760, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, 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 rights guaranteed in Section 7, of the Act, the Respondent has engaged and
is engaging in unfair labor practices within the meaning of 'Section 8 (a) (1)
of the Act.
3. The aforesaid unfair labor practices are. unfair labor practices, affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4. The Respondent has not discriminated as to the hire and tenure of employ-
ment of Coy Martin, in violation of Section 8 (a) (3) of the Act, as alleged in the.
-complaint.
[Recommended Order omitted from publication in this volume.]
PENT ELECTRIC COMPANY, INC and INTERNATIONAL UNION, UNITED
AUTOMOBILE WORKERS OF AMERICA, AMERICAN FEDERATION OF LABOR,
' PETITIONER. Case No. 7-RC-1162. August 20, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Jerome H. Brooks, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed?
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Reynolds, and. Murdock].
1 The Employer 's name appears as amended at the hearing.
3 The hearing officer properly overruled the Employer 's motion to adjourn the hearings
because of unfair labor practice charges which the'Petitioner had filed against it. The
Petitioner has filed a waiver of its right to object to any election directed herein on the
basis of the unfair labor practice charge which it has filed against the Employer, thus
leaving no basis for the Employer's motion . Cf. Harold . F. Gross d/b/a Southwestern
Michigan Broadcasting Company, 92 NLRB No. 230:
95 NLRB No. 165.