Southwest Banana Distributors, Inc.

National Labor Relations Board - Board Decisions

Jan 6, 1964

145 N.L.R.B. 815 (N.L.R.B. 1964)

SOUTHWEST BANANA DISTRIBUTORS, INC. 815
ployees in the bargaining unit described below with respect to
rates of pay, hours of employment, and other conditions of
employment, and, if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is :
All production and maintenance employees at Goldsboro,
North Carolina, excluding office clerical employees, profes-
sional employees, guards, and supervisors as defined in the
Act.
WE WILL NOT in any related manner interfere with the efforts
of said Union to bargain collectively on behalf of the employees
in the appropriate unit.
TRI-COUNTY ELECTRIC MEMBERSFIIP CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 1831 Nissen Building, Winston-Salem, North Carolina, Tele-
phone No. 724-8356, if they have any question concerning this notice
or compliance with its provisions.
Southwest Banana Distributors , Inc. and South Atlantic and
Gulf Coast District, International Longshoremen 's Association,
AFL-CIO. Case No. P3-CA-1543. January 6, 1964
DECISION AND ORDER
On September 23, 1963, Trial Examiner John P. von Rohr issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Decision. Thereafter, the Gen-
eral Counsel and the Charging Party filed exceptions to the Decision
and supporting briefs. The Respondent filed a reply brief.
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 McCulloch and Members Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
145 NLRB No. 87.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed . The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Upon a charge duly filed on December 11, 1962 , the General Counsel for the
National Labor Relations Board , for the Regional Director of the Twenty-third
Region (Houston , Texas ), issued a complaint on May 15, 1963 , against Southwest
Banana Distributors , Inc., herein called the Respondent or the Company, alleging
that it had engaged in certain unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and ( 3) of the National Labor Relations Act, as
amended , 61 Stat . 136, herein called the Act . The Respondent's answer denies the
allegation of unlawful conduct alleged in the complaint.
Pursuant to notice , a hearing was held in Galveston , Texas, on July 9, 1963,
before Trial Examiner John P . von Rohr . All parties were represented by counsel
and were afforded opportunity to adduce evidence , to examine and cross -examine
witnesses , and to file briefs. Briefs were subsequently filed by the General Counsel
and the Respondent and they have been carefully considered.
Upon the entire record in this case , and from my observation of the witnesses,
I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Texas corporation with its principal office and place of busi-
ness located in Galveston , Texas, where it is engaged in the business of packaging
and distributing bananas and other produce. During the last 12 months, the Re-
spondent sold and distributed products valued in excess of $50 ,000 to points and
places located outside of the State of Texas.
Texas Forwarding Company, Inc., is a Texas corporation having its principal
office and place of business in Galveston , Texas, where it is engaged in the busi-
ness of unloading bananas from ships to docks and to railway cars and trucks.
During the last 12 months, the Texas Forwarding Company, Inc., sold and dis-
tributed products valued in excess of $50 ,000 to points and places located outside
of the State of Texas. During the same period, this Company received products
valued in excess of $50,000 from points and places located outside of the State of
Texas.
I find that the Respondent and Texas Forwarding Company, Inc., are engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
South Atlantic and Gulf Coast District , International Longshoremen 's Associa-
tion , AFL-CIO, and Local Unions 1576 and 1576-A are labor organizations within
the meaning of Section 2(5) of the Act.'
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint in this case alleges that the Respondent discharged five employees
because of their strike activities , it being the General Counsel 's contention that such
i Locals 1576 and 1576-A at one time were affiliated with the American Longshoremen's
Association . There is testimony In the record that these locals later became affiliated with
the International Longshoremen 's Association , but such testimony does not specify the
time and manner In which this action was accomplished . I note that the contract between
Local 1576-A and the Respondent , which is hereinafter referred to, reflects that Local
1576-A was still affiliated with the ALA as late as April 1961, the date of the execution
of said contract. But whatever the situation with respect to the affiliation of these locals,
this matter is not determinative to the Issue herein.
SOUTHWEST BANANA DISTRIBUTORS, INC. 817
activities were protected under the Act. Respondent's defense is that these em-
ployees engaged in a strike in breach of a no-strike clause, that hence their strike
activities were unprotected and their discharges were not unlawful.
The Respondent is engaged as a banana processor and wholesaler with its
offices and banana coolers located at pier 21, Galveston, Texas. During the times
material herein it had in its employ seven employees classified as banana handlers
and packers who worked a full 6-day week. These employees are represented by
Local 1576-A, American Longshoremen's Association. This Union has a contract
with the Respondent which by its terms is effective from April 7, 1961, to April 6,
1964. Article II, section 1, thereof provides as follows:
WORK STOPPAGE: It is agreed that the Union will not resort to a strike,
walkout, slowdown, curtailment , or limitation of production, work stoppage
or picketing, and the Company will not resort to a lock-out during the life of
this agreement.
It has been the practice of Respondent to assign its employees to work for the
Texas Forwarding Company for an average of approximately 1 day per week.
On these occasions the employees are paid by Texas Forwarding. The Texas
Forwarding Company is also located at pier 21 where it maintains unloading facil-
ities. It is engaged solely in a stevedoring operation, viz, the unloading of bananas
from ships to the dock. This company maintains no regular production employees
but hires the requisite number of stevedores (usually 100 to 150) on those occasions
when a banana ship arrives in port. It is on these occasions that Respondent's em-
ployees are assigned to Texas Forwarding and at such times they work as stevedores
to assist in the unloading of ships.
The stevedore employees of Texas Forwarding are represented by Local 1576,
American Longshoremen's Association.2 This local had a contract with Texas
Forwarding which was effective from September 30, 1959, to September 30, 1962.
At midnight on September 30, 1962, a strike called by Local 1576 began against
the Texas Forwarding Company and a picket line was set up? On the morning of
October 1, a Monday, five of Respondent's employees joined the strike and refused
to report to work. These employees, all named as alleged discriminatees herein,
were comprised of the following individuals: Serofina Guerra, Vincinte L. Hernandez,
Pete Marquez, Ranulfo Tamez, and J. A. Teran. It is undisputed that these em-
ployees had been told to report to work for the Respondent on Monday, October 5.
The record also clearly indicates, and I find, that Respondent had work for these
employees in the period which followed and that these employees well understood
that their job was a full-time one which normally required them to report to work
every day.
The five employees named above continued to refuse to report to work in the
several months which followed. By letter dated December 5, 1962, the Respondent
gave notice that each of these employees was discharged. Notification to these
employees was made in the form of a letter to Louis Sandejas, president of Locals
1576 and 1576-A, a copy of which was mailed to each. The letter stated as follows:
Please be advised that the contract between American Longshoremen's As-
sociation No. 1576-A and Southwest Banana Distributors, Inc. of Galveston,
Texas, has been terminated because of "breach of contract."
Those employees, who heretofore refused to come to work, have been
discharged.
The General Counsel's theory of the case is tied in with his assertion that the
Respondent and Texas Forwarding, together with two other corporations, constitute
a single employer under the Act. The facts concerning this aspect of the case are
undisputed and may be summarized as follows: Respondent Southwest Banana is
a subsidiary of the Atlantic Banana Company, the latter a Florida corporation with
its offices at Miami , Florida, where it is engaged in the business of purchasing, im-
porting, and distributing bananas on the stem and in boxes . A separate corporation,
the West Indies Fruit Company, acts as the sales organization for Atlantic and it
has one of its offices located at pier 21, Galveston. Except for isolated purchases
from other sources, Respondent Southwest Banana purchases the majority of its
bananas from West Indies Fruit, these arriving by ships at pier 21 where they are
2 The officers of Locals 1576 and 1576-A are comprised of the same individuals.
'There is no contention that the strike was other than an economic one It is clear
that the Union's sole objective in striking was to obtain contract terms favorable to it.
734-070-64-vol 145-53
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unloaded by Texas Forwarding.4 It is undisputed that the officers and principal
stockholders of each of the four companies involved are substantially identical.
Insofar as the local operations are concerned, Ben Klein occupies the position of
general manager of Southwest Banana, West Indies Fruit, and Texas Forwarding .5
Klein is paid by check issued by West Indies Fruit, although such compensation
also includes payment for his duties as general manager of Southwest Banana and
Texas Forwarding. Klein participated in the negotiations on behalf of Southwest
Banana and Texas Forwarding which led to the execution of the previously men-
tioned collective-bargaining agreements with Locals 1576-A and 1576, respectively.
Conclusions
I agree with the General Counsel that the situation here, in view of the peculiar
factual situation involved, is somewhat of a novel one. However, since I am not
certain that I fully understand the theory of his case, I believe it appropriate to
quote from his brief the pertinent portion of his argument
The unusual factual situation in this case with employees working for a single
employer in two separate units, one of which has an existing contract and the
other where the employees are engaged in an economic strike presents a novel
question of law which does not appear to have been considered by the Board
While in certain situations the presence of a no-strike clause in a contract will
render the actions of employees in violation thereof unprotected," it is sub-
mitted that such consequences should not occur in this case. Nor does this case
involve the issue of employees merely respecting another union's picket line as
in N.L.R B. v. Rockaway News Supply Company, 345 U.S. 71; Redwing
Carriers, Inc., 137 NLRB 1545, or L. G. Everist, Inc, 142 NLRB 193. In
all of the above cases the issue was the right of an employer to discharge
employees who, having no interest in an economic dispute with their own
employer, refuse to cross a picket line at another location because of their
sympathy with the strikers. In those situations, where the right of employees
to engage in sympathetic action with other strikers collided with the employer's
right to continue to operate his business, it has been held that a balancing of
the equities results in favor of the employer. The right of the employer to
operate overcomes the right of employees to express their sympathy for the
labor movement by refusing to cross a picket where the employees do not have
a direct or monetary interest in the result of the other labor dispute
Here the situation is directly to the contrary, as the five discharged employees
were respecting their own picket line and withholding their services in an effort
to secure a favorable outcome of the Texas Forwarding strike which would
result in their own direct monetary benefit. Each of the discriminatees testified
that his reason for refusing to cross the Local 1576 picket line at Southwest was
to protect his own financial interest in the strike which was being waged against
his own employer, Texas Forwarding. It has been held that the no-strike pro-
vision of a contract does not apply to every strike. Such provisions are in-
applicable to unfair labor practice strikes, nor do they apply to every economic
strike. Mastro Plastics Corp., et al v. N.L R B., 350 U.S. 270, 286. Where,
as here, the Southwest employees were not seeking to terminate or modify their
contract with Southwest, but to withhold their employment and respect their
picket line at Texas Forwarding, it is submitted the no-strike clause does not
preclude the employees' right to engage in an economic strike.
"Dyson & Sons, 72 NLRB 445, 457: Scullin Steel Co, 65 NLRB 1294 But see
Mastro Plastic Corp. v. N.L.R.B., 350 U:S 270
4 It appears that Respondent's wholesale activities are primarily of a local nature Ti'
the fruit purchased by it principally consists of bananas which are ripe and which would
not carry well to more distant points.
5 As indicated above, all companies except Atlantic Banana have places of business lo-
cated at pier 21 in Galveston. Although the record does not detail the areawide scope of
operations of all the companies involved, it appears quite clear that Respondent Southwest
Banana is a local organization whose business and employees are restricted to the Galveston
area It also seems clear that West Indies Fruit maintains places of business in areas
other than Galveston. As to Texas Forwarding, while this seems to be primarily a
Galveston operation. I cannot assume that it does not also operate in other Texas ports.
SOUTHWEST BANANA DISTRIBUTORS, INC. 819
However one might interpret the theory advanced above, I am of the view that
the employees here engaged in a strike in direct violation of a no-strike clause and
that the Respondent was therefore free to discharge them for their contract viola-
tion.6 That an employer may lawfully take such action where a contract is so
breached is too well settled to require the citation of any authority. There are but
two generally recognized exceptions to this rule. These involve situations where
(1) the strike is a result of the employer's unfair labor practices,7 or (2) where a
refusal to work is protected under Section 502 of the Act, which provides that a
"quitting of labor" under a good-faith belief of abnormally dangerous conditions
does not constitute a strike .8 While it is obvious that neither of these situations are
involved in the instant case, I have referred to them only as indicative of the
limited extent to which the Board and the courts will depart from a strict enforce-
ment of no-strike provisions in collective-bargaining agreements.
Whether or not the Respondent and Texas Forwarding constitute a single employer
under the Act does not, in my opinion, resolve the issue in this case and I therefore
do not deem it necessary to pass upon the General Counsel's contention in this regard.
The controlling factor here is that two employee units are involved, each covered by
a separate and independent contract. Accordingly, when Local 1576-A undertook
to enter a no-strike agreement covering a unit of Respondent's employees, I can
perceive of no reason why these employees should be accorded the protection of the
Act, absent the special circumstances noted above, when they engaged in a strike
in breach of its terms.9 The fact that these employees worked for the Texas For-
warding Company on an average of 1 day a week does not lead me to alter this
conclusion. Thus, the evidence reveals that on the first day of the strike these
employees were well aware that they were expected to report to work for the
Respondent, not Texas Forwarding. Thereafter, they made no effort to report to
work but continued to withhold their services from their regular employer, the
Respondent. If these employees had reported to work for the Respondent and had
later refused to accept job assignments with Texas Forwarding when any such occa-
sion arose, this may well have been a different matter. However, this did not occur
and I need not pass upon this question here. Accordingly, I find and conclude that
Respondent did not violate Section 8(a) (1) and (3) of the Act by its discharge of
those employees who participated in a strike in violation of their no-strike agreement
and I shall recommend that the complaint be dismissed.'°
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Unions herein involved are labor organizations within the meaning of
Section 2(5) of the Act.
3. The allegations of the complaint that the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1)
of the Act have not been sustained.
RECOMMENDATION
It is recommended that the complaint be dismissed in its entirety.
6 Some of the alleged discriminatees participated in the picketing, others did not. But
whether their activities be viewed as actual participation in the strike or as a refusal to
cross the picket line, the result would be the same In either case, the refusals to report
to work were in breach of the no-strike agreement and as such constituted unprotected
activity
7 Mastro Plastics Corp. and French-American Reeds Mfg Co., Inc. v. N.L R B., 350
U.S 270
SKnight Morley Corporation, 116 NLRB 140, enfd . 251 F. 2d 753 (CA. 6), cert. denied
357 Ti S. 927.
I further note that there is no evidence whatsoever of any union animus on behalf of
the Respondent toward any of the labor organizations involved in this case.
10 The General Counsel adduced evidence showing that Respondent hired several new em-
ployees subsequent to the discharges of the alleged discriminatees. However, since Re-
spondent was lawfully entitled to discharge these employees , it is immaterial whether
their replacements were hired before or after the discharges were made . N.L R.B. v_
Rockaway News Supply Company, Inc, 345 U.S. 71.