Pappas and Co.

National Labor Relations Board - Board Decisions

Jun 15, 1951

94 N.L.R.B. 1195 (N.L.R.B. 1951)

PAPPAS AND COMPANY 1195
neers, AFL, they will be taken to have indicated their desire to
constitute a separate appropriate bargaining unit.
:[Text of Direction of Elections omitted from publication in this
volume.]
PAPPAS AND COMPANY and UNITED FRESH FRUIT AND VEGETABLE
WORKERS LOCAL INDUSTRIAL UNION 781 CIO
FRESH FRUIT AND VEGETABLE WORKERS UNION, LOCAL 78, AND FOOD,
TOBACCO, AGRICULTURAL AND ALLIED WORKERS UNION.OF AMERICA
and UNITED FRESH FRUIT AND VEGETABLE WORKERS LOCAL INDUS-
TRIAL UNION 78, CIO. Cases Nos. 2O-CA-493 and 20-CB-159.
June 15, 1951
Decision and Order
On March 5, 1951, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent Union had engaged in and was engaging in certain unfair
labor practices in violation of Section 8 (b) (2) and 8 (b) (1) (A)
of the National Labor Relations Act, as amended, and recommending
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, however, recommended that the complaint be
dismissed as to the Respondent Company. Thereafter, the General
Counsel filed exceptions to the Intermediate Report and a supporting
brief.'
The Board 2 has reviewed the rulings of the Trial Examiner at the
hearing and finds ' that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations with the following modifications and
Additions::
The Trial Examiner recommended dismissal of the complaint inso-
far as it alleged that the Respondent Company had discriminated with
regard to the hire and tenure of Ramey in violation of Section 8 (a)
(3) and (1) of the Act. While finding that Ramey had involuntarily
' The General Counsel excepted only to that portion of the Intermediate Report relating
to the dismissal of the complaint as to the Respondent Company. As no timely excep-
tions were filed to the findings and recommendations of the Trial Examiner with respect
to the Respondent Union, such findings and recommendations are hereby affirmed.
"z Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Members Houston , Reynolds , and Styles].
94 NLRB No. 189.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relinquished his job, the Trial Examiner found that he did so not
because of any act of the Company but solely because of the conduct
of the Respondent Union in instigating a work stoppage which made
Ramey's job untenable. Under these circumstances, the Trial Ex-
aminer declined to find any violation of the Act by the Company. We
do not agree with the Trial Examiner's exoneration of the Company
of responsibility for Ramey's loss of employment, but we find, con-
trary to the Trial Examiner, that the Company did discriminate with
regard to Ramey's tenure of employment, thereby violating Section
8 (a) (3) and (1) of the Act. In so finding, we rely on the following
considerations :
. a. As found by the Trial Examiner, Ramey was hired on August 2',
1950, by the Company to replace Yokas, a member of the Respondent
Union, who had been discharged that day for inefficiency. Ramey
was also a member of the. Respondent Union, but was delinquent in
his dues. On Saturday, August 5, Ramey having refused to make up
the arrears in his dues, the Respondent Union requested his foreman,,
Hamilton, to discharge him. Upon Hamilton's refusal, the Respond-
ent Union called a work stoppage. During the stoppage Ramey again
refused to pay his dues, and Hamilton, after advising. him that the
other employees refused to work 'with him, instructed him to take
the afternoon off with pay, assuring him that in the meantime he
would try to persuade the Respondent Union to let Ramey go back
to work. Ramey thereupon left the plant and work was resumed.
However, Hamilton's subsequent efforts to settle the dispute between
the Respondent Union and Ramey were unsuccessful. On August 6,
a Sunday, Hamilton told Ramey that if he paid his dues he could go
back to work, but Ramey refused. On the same day, Hamilton saw
Yokas and instructed him to return to work as a replacement for
Ramey, hoping that he might thereby placate the Respondent Union
and eventually secure permission to reinstate Ramey at some future
date.3 Yokas reported for work the next morning. Ramey also came
to the plant that morning, hoping that Hamilton would put him
back to work .4 However, when Ramey appeared, the other employees
ceased their preparations for work. Thereupon Hamilton told
Ramey, as found by the Trial Examiner, that the other employees
would not work so long as Ramey was in the plant, to which Ramey
replied, "I am getting off. I dont want to. cause any trouble." 5
3 Hamilton testified, in effect, that he hoped that , in consideration of his rehiring
Yokas , the Respondent Union would let Ramey go back to work "when the Persians
started"-I. e. when work began on the Persian melons-about 10 days later.
4 Ramey testified that he considered that he had been discharged on Saturday August 5,
but hoped that Hamilton "might see his mistake" and give . him a chance to return to
work. As found by the Trial Examiner , Ramey was accompanied on Monday morning by
representatives of the charging Union.
5 The Trial Examiner relied in part, at least, on this statement of Ramey's in finding
that Ramey was not discharged but had quit his job. Although this statement might
PAPPAS AND COMPANY '1197
Upon the foregoing evidence, we find that on August 5 the Respond-
ent Employer laid Ramey off pending adjustment of his dispute with
the Union over his failure to pay membership dues'. It is clear from
Hamilton's statements to Ramey on August 5 and 6, and the fact that
on August 6 he rehired Yokas to replace Ramey, that it was Hamil-
ton's .intention not to recall Ramey unless and until that dispute was
settled. As a result of Hamilton's statements, Ramey, himself, as
already indicated, considered that he was no longer employed after
August 5. Viewed in this context, Hamilton's remark to Ramey on
August 7 that the other employees would not work with him, could
reasonably be construed to mean only that under the circumstances the
.Respondent Company was not in a position to offer Ramey further
employment. Accordingly, we find, contrary to the Trial Examiner,
that the Respondent Employer on August 5 laid Ramey off at the
instance of the Respondent Union and on August 7 rejected his request
for reinstatement because of the Union's continued adamant opposi-
tion to Ramey.' There is no evidence that the Respondent Employer
thereafter made any effort to recall Ramey.
b. Assuming, arguendo, that the Respondent Employer did not in
fact discharge Ramey or lay him off, but that, as found by the Trial.
Examiner, Ramey quit his job because it had been made untenable by
the Respondent Union, we would nevertheless find that the Respondent
Company violated Section 8 (a) (3) and (1) of the Act.
The Board has frequently held with judicial approval that an em-
ployer violates Section 8 (a) (3) of the Act when he knowingly permits
the exclusion of an employee from the plant by any union or antiunion
group.' Here, it is clear that the Company knew of the work stoppage
by its employees and knew that such stoppages represented a protest
against Ramey's presence in the plant. Under these circumstances, it
was the duty of the Company to take effective action to assure Ramey
that he would be protected in his right to remain at work. Not only
possibly be construed as indicating that while Rainey felt he was free to return to work
if he was willing to risk the consequences , he elected not to do so, such a construction
would be inconsistent with Ramey's own testimony that he considered himself to have
been discharged on August 5, and came to the plant on August 7 only because he hoped
that Hamilton would change his mind . ( See footnote 4, above.) Under these circum-
stances, we cannot attach controlling significance to Ramey's quoted statement , as evidence
of his employment status on August 7 or of his reasons for leaving the plant. Nor,
unlike the Examiner , do we give controlling weight to Hamilton' s subsequent statement,
in response to an inquiry by a representative of the charging Union, that Ramey had not
been discharged . This reply in our opinion reflected either Hamilton' s intention to reem-
ploy Ramey at some future date, if the Respondent Union permitted, or his natural
reluctance to make any statement which might compromise his Employer in the event
of litigation.
6 We agree with the Trial Examiner that the Respondent Union's objections to Ramey
were due solely to his ales delinquency.
° E. g., Brown Garment Manufacturing Company, 62 NLRB 857 ; Fred P. Weissman
Gompeny, 69 NLRB 1002, enfd. 170 F. 2d 952 (C. A. 6), cert. den. 336 U. S . 972; N. L. if. B.
v. Hudson Motor Car Co., 128 F. 2d 528 (C. A. 6) ; Air Products Incorporated , 91 NLRB
1381.
1198 DECISIONS OF NATIONAL LABOR'RELATIONS BOARD
did the Respondent Company fail to do this, but on the contrary, it.
indicated to Ramey its acquiescence in the Respondent Union's demand
that Ramey leave the plant. In this manner the Company permitted
the Union to arrogate to itself the Company's control over employ-
ment, and to secure the termination of Ramey's employment for
discriminatory purposes. ,
Assuming, therefore, that Ramey was not actually discharged or laid
off, but, with the knowledge of the Respondent Employer, quit his
employment because of the demonstrations against him by the Re-
spondent Union, we find that he quit under such circumstances as to
establish a violation of Section 8 (a) (3) and (1) of the Act by the
Company.
Under either view, we find that the Respondent Union caused the
Company to violate Section 8' (a) (3) with respect to Ramey, and
'thereby violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
The Effect of the Unfair Labor Practices upon Commerce
The activities of the Respondents, which are set forth in Section III.
of the Intermediate Report, as modified by the findings in this Decision
and Order, occurring in connection with the operations of the Respond-
ent Company, described in Section I of the Intermediate Report, have,
a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor disputes.
burdening and obstructing commerce and the free flow of commerce..
The Remedy
Having found that the Respondent Company unlawfully discrim-
inated with regard to Ramey's hire and tenure of employment and that
such discrimination was caused by the Respondent Union, we find that.
both Respondents are jointly and severally liable for loss of wages
incurred by Ramey as a result of such discrimination. However, in
accordance with our practice, in view of the Trial Examiner's failure
to recommend that the Respondent Company reinstate Ramey with.
back pay, the liability of the Respondent Company for back pay will
be tolled with respect to the period from the date 'of the Intermediate:
Report to the date of the Order herein.
Accordingly, we shall order that the Respondents jointly and sever-
ally make Ramey whole for loss of wages 8 incurred as. a result of the,
discrimination against him from August 6, 1950, to the date of the'
Intermediate Report. We shall further require the Respondent Union.
above to make Ramey whole for any such loss of wages incurred be
8 Such loss of wages shall be measured by the amount of wages Ramey normally would'
have earned during the periods specified but for the discrimination against him, less his
net earnings during such period . See Crossett Lumber Company , 8 NLRB 440, 497-8.
PAPPAS AND COMPANY 1199;
tween the date of the Intermediate Report and the date of this Decision
and Order. In addition, both Respondents will be required jointly
and severally to make Ramey whole for any such loss of wages suffered
by him between the date of this Order and the date of Respondent
Employer's offer of reinstatement, except that the Respondent Union's
liability for back pay, may be terminated by serving notice upon
Ramey and the Respondent Employer that it has withdrawn its objec-
tion to the employment of Ramey. The Respondent Union shall not
be liable for any back pay accruing after the expiration of 5 days:
from the date of such notice.
Back pay will be computed on the basis of the amount thereof
accrued in each separate calendar quarter, in accordance with the
formula established in F. W. Woolworth Company .9
We shall further order the Respondent Employer to offer immediate
reinstatement to Ramey without prejudice to his seniority or other
rights and privileges, and we shall direct the Respondent Union to
notify the Respondent Employer and Ramey that it has withdrawn its
objection to Ramey's employment.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following conclusions
of law :
1. Pappas and Company, the Respondent Employer, is an employer
engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. Fresh Fruit and Vegetable Workers Union, Local 78, and Food,
Tobacco, Agricultural and Allied Workers Union of America, the
Respondent Union herein, is a labor organization within the meaning,
of Section 2 (5) of the Act.
3. By causing Pappas and Company to discriminate against Virgil
Ramey in violation of Section 8 (a) (3) of the Act, the Respondent
Union has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (b) (2) of the Act.
4. By restraining and coercing employees of Pappas and Company
in the exercise of their rights under Section 7 of the Act, the Respond-
ent Union has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (b) (1) (A) of the Act.
5. By discriminating in regard to the hire and tenure of employ-
ment of Virgil Ramey, Pappas and Company has encouraged mem-
bership in the Respondent Union, in violation of Section 8 (a) (3)
of the Act.
0 NLRB 289.0 1
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By interfering with, restraining, and coercing its employees in
the exercise of rights guaranteed by Section 7 of the Act, Pappas and
Company has engaged in and is engaging in unfair labor practices
in violation of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
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 hereby orders :
1. That the Respondent, Pappas and Company, its officers, agents,
successors, and assigns, shall :
a. Cease and desist from :
(1) Encouraging membership in Fresh Fruit and Vegetable Work-
ers Union, Local 78, and Food, Tobacco, Agricultural and Allied
Workers Union of America, or in any other labor organization of
its employees, by discharging any of its employees or discriminating
in any other manner in regard. to their hire or tenure of employment
or any term or condition of their employment.
(2) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist any labor organization, to
bargain collectively through representatives of their own choosing,
to engage in concerted, activities for the purpose of collective bargain-
ing or other mutual aid and protection, and to refrain from any or
all of such activities, except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organization
as a condition of employment, as authorized by Section 8 (a) (3)
of the Act.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(1). Offer to Virgil Ramey immediate and full reinstatement to his
former or a substantially equivalent position,10 without prejudice to
his seniority or other rights and privileges.
(2) Upon request make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary for a determination of the
amount of back pay due under the terms of this Order.
10 Reinstatement is to be offered to his former position wherever possible, and, if such
position is no longer in existence, then to a substantially equivalent position. See The
Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch; 65 NLRB
827.
PAPPAS AND COMPANY .1201
(3) Post at its plant at Mendota, California , copies of the notice
attached hereto . and marked "Appendix A." 11 Copies of said notice,
to be furnished by the Regional Director for the Twentieth Region,
shall be duly signed by the Respondent Employer 's representative im-
mediately upon receipt thereof and promptly posted . and maintained
.by it for a period of at least sixty ( 60) consecutive days thereafterrin
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by.the Re-
,spondent Employer to insure that said notices are not altereddefaced
or covered by any other material.
(4) Notify the Regional Director for the Twentieth Region in writ-
ing, within ten (10 ) days from the date - of this Order; what steps it
has taken to comply herewith.
2. That the Respondent Union, Fresh Fruit - and Vegetable Workers
Union, Local 78, and Food, Tobacco, Agricultural and Allied Workers
Union of America, it's officers, representatives , agents, successors, and
assigns shall
a. Cease and desist from : .
(1) Causing or attempting to cause Pappas and Company to dis-
criminate against Virgil , Ramey or any other employee ; in violation
of Section 8 •(a) (3) of the Act:
(2) In any other manner restraining . or coercing employees of
Pappas and Company, . its successors or assigns, in the exercise of their
.-rights to self-organization , to form, join, or assist labor organizations,
to bargain collectively through representatives of their own choosing,
to engage in concerted activities for, the purpose of collective bar-
gaining or other mutual . aid and protection , and refrain from any or
all of such activities ; except to the extent that such rights may be
affected by an-agreement requiring membership in a labor organiza-
tion as a condition of employment , as authorized in Section 8 (a) (3)
of the Act.
b. Take the following affirmative action, , which.the Board finds will
effectuate the policies of the Act:
. (1) Notify Virgil Ramey and Pappas and Company in writing that
it has withdrawn its objection to the employment of Ramey..
(2) Post at its business office and wherever notices to its members
are customarily posted, copies of the notice attached hereto and
marked "Appendix B." 12 Copies of said notice, to be furnished by the
If 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."
v If 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."
953841-52-vol. 94- 7 7
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director for the Twentieth Region, shall be duly signed by
a representative of the Respondent Union, immediately upon receipt
thereof, and shall be promptly posted and maintained by it for a
period of at least sixty (60) consecutive days thereafter, in conspicu-
ous places, including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent
Union to insure that such notices are not altered, defaced, or covered
by any other material.
(3) Notify the Regional Director for the Twentieth Region in writ-
ing within ten (10) days from the date of this Order what steps the
Respondent Union has taken to comply therewith.
3. That the Respondent Pappas and Company, its officers, agents,
successors, and assigns, and the Respondent Fresh Fruit and Vege-
table Workers Union, Local 78, and Food, Tobacco, Agricultural and
Allied Workers Union of America, its officers, representative agents,
successors, and assigns shall jointly and severally make Virgil Ramey
whole, in the manner set forth in the section of this Decision and
Order entitled "The Remedy," for any loss of pay suffered as a result
of the discrimination against him.
MEMBER REYNOLDS, concurring and dissenting in part :
I agree with my colleagues in their finding that the Respondent
Union violated the Act. However, for the reasons set forth in the
Intermediate Report, I would adopt the recommendation of the Trial
Examiner and dismiss the complaint as to the Respondent Company.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT encourage membership in FREsu FRUIT AND
VEGETABLE WORKERS UNION, LOCAL 78, AND FOOD, TOBACCO,
AGRICULTURAL AND ALLIED WORKERS UNION OF AMERICA, or in
any other labor organization, by discharging any of our employees
or discriminating in any other manner in regard to their hire or
tenure.of employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their' rights to self-or-
ganization, to form labor organizations, to join or assist any
labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for,
the purpose of collective bargaining or other mutual aid or pro-
tection, and to refrain from any or all such activities, except to
PAPPAS AND COMPANY :1203
the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment as authorized by Section 8 (a) (3) of the Act.
WE WILL make Virgil Ramey whole for any loss of earnings
he has sustained as a result of the discrimination against him.
WE WILL offer tb Virgil Ramey immediate and full reinstate-
ment to his former or a substantially equivalent position, without
prejudice to his seniority or other rights and privileges.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members in good standing of the above-named
union or any other labor organization, except to the extent that this
right may be affected by an agreement in conformity with Section 8
(a) (3) of the Act.
PAPPAS AND COMPANY,
Employer.
Dated ------------------------------By -----------------------
(Representative) (Title)
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
Appendix B
NOTICE TO ALL MEMBERS OF FRESH FRUIT AND VEGETABLE WORKERS
UNION, LOCAL 78, AND FOOD, TOBACCO, AGRICULTURAL AND ALLIED
WORKERS UNION OF AMERICA, AND TO ALL EMPLOYEES OF PAPPAS
AND COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE wri NOT cause or attempt to cause PAPPAS AND COMPANY
to discriminate against Virgil Barney or any other employee, in
violation of Section 8 (a) (3) of'the Act.
WE WILL NOT in any other manner restrain or coerce any em-
ployee of PAPPAS AND COMPANY in the exercise of their rights to
self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing,,
to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and 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 condition of employment, as authorized by Sec-
tion 8 (a) (3) of the Act.
. 1204 DECISIONS OF NATIONAL LABOR'RELATIONS BOARD
WE WILL make Virgil Ramey whole for any loss of earnings sus-
tained by reason of the discrimination against him.
FRESH FRUIT AND VEGETABLE WORKERS
UNION, LOCAL 78, AND FOOD,.TOBACCO,
AGRICULTURAL AND ALLIED WORKERS
UNION OF AMERICA;
Labor Organization.
By ----------=------------------------------
(Representative ) (Title)
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.
Intermediate .Report and Recommended Order
,'Robert V.,kiagor, Esq., for the General Counsel.
Mr. J. Warkentine, Mendota, Calif., for the Respondent Company.
Messrs. Robert H. Burke, and Chuck Ervin, El Centro, Calif., for the Respond-
ent Union,
Mr. Ken "lie, Bra'wley, Calif., for the Charging Union.
STATEMENT OF THE CASE
Upon amended charges duly filed by United Fresh Fruit and Vegetable Work-
ers Local Industrial Union 78, CIO , herein called the Charging Union, the Gen-
eral Counsel of the National Labor Relations Board ; by the Regional Director
of the Twentieth Region ( San Francisco , California ), issued his,consolidated
complaint dated November 30, 1950 , against Pappas and Company, herein called
the Company, and Fresh Fruit and Vegetable Workers Union , Local_ 78,„and
Food , Tobacco, Agricultural and Allied Workers Union of America; herein called
the Respondent Union or FTA, alleging that the Respondent Company 'and
Respondent Union had engaged in and were engaging , in unfair labor practices
affecting commerce within the meaning of Section 8 ( a) (1) and ( 3) and Sec-
tion . 8 .(b) (1) . (A) and 8 ( b) (2), respectively , and Section ' 2 (6) and (7)
of the National Labor Relations Act, as amended , 61 Stat. 136 , herein called
the Act. Copies of the complaint and notice of hearing were duly served upon
- the parties , and' copies of the charges and amended charges were duly served
upon the Respondents.
With respect to unfair labor practices , the complaint alleged in substance
that the Respondent Union violated Section 8 ( b) (1) (A) and 8 ( b) (2) of
the. Act by causing the Respondent Company discriminatorily to discharge Virgil
E. Ramey, its employee, and that the Respondent Company violated Section 8
(a) (1) and (3) of the Act by its discriminatory discharge of the said ' Virgil
E. Ramey.
Neither Respondent filed an answer.
Pursuant to notice a hearing . was held at El Centro , California , on February
8, 1951, before William E. Spencer , the undersigned duly designated Trial Ex-
aminer . ' All parties were represented at and participated in the hearing: where
The General Counsel and his representative at the hearing will be called the General
Counsel, the National Labor Relations Board, the Board.
PAPPAS AND COMPANY 1205
full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded them. At the close of
the hearing all parties waived oral argument and the filing. of briefs with the
undersigned.
Upon the entire record in the case, and from my observation of the witnesses,.
I'make the following: .'
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY-
Pappas and Company is a California corporation engaged in the growing,
packing, and shipping of cantaloupes, Persian melons, grain, and cotton. Its
ranches and packing sheds are located in and about the vicinity of Mendota,
California. During 1949, the Company purchased box shook and other raw
material valued in excess of $90,000, and in addition thereto was party to a
contract with the Union Ice Company for icing railroad cars, in which the
products of the Company were shipped, which services were provided for the
Company 'at a cost of approximately $10,000. During 1949, the Company sold
cantaloupes and Persian melons valued at approximately $450,000, of which
approximately 75 percent was shipped by Respondent Company from Mendota,
California, to places outside the State of California. During 1949, the Company's
sales of grain and cotton amounted to approximately $80,000 and $100,000
respectively.
It is found that the Company is engaged" in commerce within the.meaning of
the Act, and that it will effectuate the policies of the 'Act for the Board to
a's'sert jurisdiction herein?
II. THE LABOR ORGANIZATIONS ' INVOLVED
The Respondent Union and the Charging Union, respectively, are labor organi-
zations within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
Virgil Ramey was employed by the Company on August 2, 1950, to replace
James Yokas (referred to 'in the-transcript at times as King) who had been
discharged that same day. He was employed outside the packing shed to dump
melons from trailers as they were brought to the shed for sorting and packing.
He testified that he had been a member of FTA, the Respondent Union, for 8
to. 10 years but admittedly was delinquent in the payment of his dues at the
time he was employed by the Company.
On August 4, Chuck Feller, an organizer or business agent of FTA, approached
Ramey while the latter was at work and asked to see his dues book. Ramey
replied that he was not sure he had it but would look and sea Feller said he
would be back the next day.
On the following day Ramey was approached while at; work by Duke Cun-
ningham, another business agent or organizer of FTA. Cunningham also asked
to see Ramey's dues' book and Ramey replied that he did not have it and that
Feller had already spoken to him about it. That same afternoon Feller returned
and when told by Ramey that he did not have his dues 'book asked Ramey if he,
Y Imperial Garden Growers, 91 NLRB 1034.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was_ "paid up." Ramey admitted that he was delinquent. Feller replied that
there were others delinquent and referred particularly to an employee named
Sunny" Ward. "Of course he is CIO and won't pay," Feller said. Ramey replied
that he felt the same way Ward did, and indicated that he would not pay
any further dues to FTA until an election had been held-referring, apparently,
either to an election to determine bargaining representatives or a union shop
election. This terminated the conversation.
Some 30 minutes later all the machinery in the packing shed was shut down.
Ramey went, or was called, into the shed where he observed that the packers
had stopped working and that Cunningham, Feller, and Theron Hamilton,
shed foreman, were engaged in conversation. Ramey approached this group
and heard Feller say that one reason for the "shut-down" was that there was
a man working outside who did not belong to FTA. Ramey asked Feller whom
he was referring to and when Feller replied, "You," an argument followed in
which Ramey called Feller a liar. Cunningham said that a check of union rec-
ords showed Ramey a year and a half behind in his dues. A discussion of dues
'followed in which Ramey refused to pay up his delinquent dues. Finally, Ramey
went outside the shed and a short time later the machinery started up and
the packers resumed their work. Hamilton came out of the shed and told
Ramey that the men refused to work until he was "off the shed," and instructed
him to take the rest of the day off, promising to pay him for the full day's work.
"I hope something will develop and you will go back to work over the week
end," Hamilton told Ramey, and the latter replied, "O.K. if that is the way it is
... That is the way it has got to be." Barney.th n left the plant.
On the following day, a Sunday, Ramey saw Hamilton in town and the latter
asked him why he didn't go ahead and pay his delinquent dues. Ramey refused ;
refused, also, Hamilton's suggestion that he apologize for his part in the
altercation of the previous day.
On the next day, a.Monday, Ramey returned to the packing shed accompanied
by two representatives of the Charging Union. The packers were putting their
aprons on preparatory to going to work. When Ramey and his companions ap-
peared, they left their work stations and began removing their aprons. Hamil-
ton came over to Ramey and told him, "Well, the boys refuse to work while
you are around the shed." Ramey replied, "I am getting off. I don't want to
cause any trouble." 8 Ramey returned to the Company's plant thereafter only
to 'pick up his pay check. He was given a full day's pay for the preceding
Saturday when, at Hamilton's direction, he had left the plant before the end
of the work day.
The foregoing findings of fact are based on Ramey's credible testimony which
is in all important particulars consistent with Hamilton's testimony on the
same events.
Hamilton testified that on the day that Ramey was employed, or the day fol-
lowing, Feller asked him why he had Ramey working there, that Ramey was
not a union member, and suggested that. he put Yokas back to work and let
Ramey go. Hamilton refused. On Saturday, Feller again asked Hamilton to
discharge Ramey and Hamilton again refused, stating that he believed it would
be a violation of the Act to do so. Later, Cunningham came into the shed and
he and Herschel Crow, ETA shop steward, talked to the packers, after which
the packers stopped work. Cunningham formally demanded that Hamilton dis-
a Barney's testimony : "So-then the packers came out from behind their dumps and took
their aprons off and stood up in a bunch over there and Mr. Hamilton came over to u:s
and he said, 'Well, the boys refuse to work while you are around the shed.' So I says,
'I am getting off. I don't want to cause any trouble! "
PAPPAS AND COMPANY 1207
charge Ramey and put a "union man" in his place. Hamilton refused and
Cunningham replied that the Company plant was going to be a "closed shop
from here on out." Ramey was called in, and the altercation previously re-
cited took place.
Hamilton saw Feller on the following day, Sunday , and asked that Ramey
be permitted to return to work . Feller replied that Ramey was "no good for
the union" and refused to agree that Ramey go back to work.
Hamilton 's version of what happened when Ramey returned to the packing
shed on Monday is consistent with Ramey 's own testimony , recited above.`
B. The issues ; conclusions
The issues are (1 ) whether the Respondent Company discriminatorily dis-
charged Ramey and (2 ) whether the Respondent Union caused or attempted
to cause the Company to discharge Ramey in violation of Section 8 (a) (3)
of the Act 6 No answers were filed to the complaint but the evidence was taken
and all issues were litigated at the hearing . The Respondent Union 's position
at the hearing was that in seeking Ramey's discharge it was merely processing
a grievance on behalf of Yokas who had been discharged by the Company and
whose position was filled by the employment of Ramey.
It is clear from the mutually corroborative testimony of two credible wit-
nesses, Ramey and Hamilton , that had Ramey been willing to pay up his de-
linquent dues in the Respondent Union and maintain his allegiance to it, the
Respondent Union would not' have sought his discharge . I credit Hamilton's
testimony that Yokas' discharge was for cause and that the PTA acknowledged
it was for cause , and that no attempt to prosecute a grievance in Yokas' behalf
was made until the altercation between Ramey and the PTA over Ramey's
payment of delinquent dues had arisen
Admittedly , there had been no union shop election as provided for in the Act,
and the Respondent Union therefore had no license to require Ramey 's discharge
because of his failure to maintain membership in good standing in the FTA. Its
action in instigating a work stoppage in order to force the Respondent Company
to discharge Ramey was an "attempt to cause" the Company to discriminate
against Ramey within the meaning of Section 8 (b) (2) of the Act, and the Re-
spondent Union thereby restrained and coerced the employees of the Respondent
Company within the meaning of Section 8 (b) (1) (A ) of the Act.
I am unable , however, to find that the Respondent Company discharged Ramey.
Hamilton refused every demand made on him by representatives of the FTA to
discharge Ramey and to reinstate Yokas in his place. He sent Ramey home
on Saturday when the first work stoppage occurred but paid him for a full day's
work , and told him that he hoped that it could be arranged for him to return to
his job on the following Monday . In the interim he did what was normal and
reasonable under the circumstance ; i. e. attempted to get Ramey and the FTA to
reconcile their differences in order that Ramey might resume his employment
4 Hamilton testified : "Ramey was present and the crew refused to go to work if he was
on the job so Ramey told me 'If they don ' t want to work , well , I will leave, I will leave
the shed , I won't cause any trouble.'"
5 The complaint does not specifically allege the "attempt to cause" but inasmuch as
"causing" implies an "attempt to cause" it is considered that the complaint is sufficiently
broad to ground finding on the "attempt to cause" regardless of whether or not it be
found that the discrimination actually occurred.
Crow's testimony as a witness for the FTA was at variance with Hamilton's, but
Crow was not an impressive witness and in all instances where his testimony conflicts
with Hamilton 's I have credited the latter.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without further complications . When Ramey returned on the following Monday,.
and the packers again refused to work, Ramey left because he didn't "want to
cause any trouble. " When a representative of the Charging Union, who had ac-
companied Ramey to the Company's packing shed on this occasion , asked Hamil-
ton, "Is this man fired . or discharged ?" Hamilton replied, "He *as neither."
This is not to say that Ramey voluntarily gave up his employment with the
Respondent Company. Obviously , he did not . But his involuntary relinquish-
ment of his job resulted not from any act of the Respondent Company but from
the coercive action of the Respondent Union in promoting a work stoppage which
made his retention of his job untenable.
I am aware that an employer who has himself engaged in unfair labor practices
and by his own unlawful conduct has incited or encouraged hostility among his
employees against one of their own number because of the latter 's union affilia-
tion or lack of it, owes a duty to that employee to enforce such discipline as is
required to enable him to enjoy normal working conditions , but the Respondent
Company had engaged in no such unlawful conduct ; on the contrary , it resisted
every effort of the Respondent Union to require it to effectuate an unlawful dis-
charge . If Ramey had not volunteered to leave his employment rather than cause
trouble, but had stood on his right to remain unmolested at his job , and the Re- .
spondent Company had required him to leave or had refused to afford him such
protection as was necessary to secure him in that right, a different situation
might be presented , though it is difficult to see what the Company could have done
short of closing down its plant . We do not have that situation , and in the
situation that is presented by the facts of this case, it would seen . to be an'
unwarranted and artificial concept of the Act's application to hold that the' Re-
spondent Company interfered with, restrained , and coerced its employees in the
exercise of. the rights guaranteed by the Act . Nor does it appear to . me that it
would be in the public interest , or necessary in order to effectuate the-policies of
the Act, to require this Company to pay back pay , or any part of it, to an employee
whose job was rendered . untenable , not by its action but by action instigated and.
prosecuted by the Respondent Union. Accordingly , I shall recommend that the
complaint be dismissed insofar as it alleges that the Company engaged in unfair,
labor practices.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Union set forth in Section III, above, oc-
curring in connection with the . operations of the Company described in Section I,
above, have a close, intimate , and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes burdening ,
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Ramey having involuntarily left his employment with the Company because
of restraint and coercion by the Respondent Union, it will be recommended that
the Respondent Union notify Ramey and the Company that it has withdrawn
its objection to the employment of Ramey by the Company , and make Ramey.
whole for any loss of pay he may have suffered by reason of the Respondent
Union's unlawful acts in causing him to leave his employment with the Company,.*
by payment to him of a sum of money equal to that which he normally would„
have . earned as wages in the employment of the Company from August 6, 1950,
to the date on which . the Respondent Union serves the notices aforesaid , less his
HOLLY SUGAR CORPORATION 1209
net earnings,' if any, during such period. The back pay shall be computed in
the manner established by the Board in F. W. Woolworth Company.'
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following ;
CONCLUSIONS of LAW
1. Pappas and Company is an employer engaged in commerce within the
meaning of Section 2 (2), (6), and (7) of the Act.
2. Fresh Fruit and Vegetable Workers Union, Local 78, and Food, Tobacco,
Agricultural and Allied Workers Union of America, the Respondent Union herein,
is a labor organization within the meaning of Section 2 (5) of the Act.
3. By attempting to cause Pappas and Company to discriminate against Virgil
Ramey in violation of Section 8 (a) (3) of the Act, the Respondent Union has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (b) (2) of the Act.
4. By restraining and coercing employees of Pappas and Company in the
,exercise of their rights under Section 7 of the Act, the Respondent Union has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. The Respondent Company did not discriminate in regard to the hire and
tenure of employment of Virgil Ramey, and did not interfere with, restrain, and
coerce its employees in the exercise of their rights under Section 7 of the Act.
[Recommended Order omitted from publication in this volume.]
7 Crossett Lumber Co., 8 NLRB 440, 497-98.
8 90 NLRB 289.
HOLLY SUGAR CORPORATION and TRUCKDRIVERS, WAREHOUSEMEN AND
HELPERS LOCAL UNION No. 898, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA,
PETITIONER. Case No. 01-RC-1814. June 15, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before George H. O'Brien, 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 Styles].
.Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.
94 NLRB No. 196.