Palmer Fruit Co.

National Labor Relations Board - Board Decisions

Jul 31, 1943

51 N.L.R.B. 924 (N.L.R.B. 1943)

In the Matter of WINOGENE PALMER, EDWARD C. PALMER AND WILLIAM
B. PALMER, JR., INDIVIDUALLY AND AS TRUSTEES UNDER THE WILL
OF WILLIAM B. PALMER , DECEASED, DOING BUSINESS AS PALMER
FRUIT COMPANY and GENERAL DRIVERS, WAREHOUSEMEN AND
HELPERS, LOCAL UNION No. 383 OF INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, A. F. OF L.
Case No. ^C-$662.Decided July 31, 1943
DECISION
AND
ORDER
On June 30, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondents
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take
certain affirmative action as set out in the copy of the Intermediate
Report attached hereto. The respondents filed no exceptions to the
Intermediate Report, and no request for oral argument before the
Board was made by any of the parties. The Board has considered
the rulings of the Trial Examiner at the hearing and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
The Board has considered the Intermediate Report and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the exceptions and
qualifications noted below :
1. The Trial Examiner found that during the Union's organiza-
tional drive,. Goebel, the respondents' warehouse manager , in viola-
tion of the Act, informed the respondents' employees that there was
no need for their joining the Union and paying dues thereto, since
the respondents would give them the same wages and hours as the
Union was able to secure for its members. While we agree that such
remarks, if made, would be sufficient to constitute a violation of
Section 8 (1) of the Act, we are not convinced, and are unable to
find, from the state of the record that Goebel made such a statement
to the respondents' employees.
2. The Trial Examiner found that Rose Mann, the respondents'
cashier, performed duties which allied her closely with management.
51 N L. R. B., No. 146.
924
PALMER FRUIT COMPANY 925
We do not agree. We are of the opinion that her duties are not super-
visory in character and that her work is comparable to that of ordi-
nary office employees. Moreover, the record is barren of any proof that
Mann occupies a confidential position relating to labor relations or
that she is identified with management in the eyes of the respondents'
employees.
3. The Trial Examiner found that those provisions of the contract
entered into on July 11, 1941, and the renewal thereof on October 15,
1942, whereby the respondents contracted in effect to give their em-
ployees adjustments equal to any gains made by the Union in similar
establishments and whereby the respondents declared that "interfer-
ence" by a "national labor organization" was not desired, were viola-
tive of Section 8 (1) of the Act. We are unable to agree with the
Trial Examiner as to the coercive nature, of the wage provision which,
in effect, establishes a device or guide for determining the wage scale
of the respondents' employees during the period of the contract.
However, like the Trial Examiner, we are of the opinion that the
declaration by the respondents in these instruments of their opposi-
tion to national labor organizations was clearly violative of Section
8 (1) of the Act. It is apparent that this statement was a reaffirmance
of the respondents' hostility to ouside labor organizations already
manifested by their domination and support in the formation and
administration of the Independent, and was designed to render more
emphatic their opposition to the rights of self-organization of their
employees.
4. The Trial Examiner found that, by enforcing the closed-shop
provision of the contract of July 11, 1941, and the renewal thereof
dated October 15; 1942, the 'respondents discriminated with regard to
the hire and tenure of employment and terms and conditions of em-
ployment of their employees, and discouraged membership in the
Union and encouraged membership in the Independent in violation of
Section 8 (3) of the Act. In view of the state of the record, and in
view of our opinion that we shall effectuate the policies of the Act by
our Order herein, we find it unnecessary to determine whether or not
the respondents, by enforcing the closed-shop provision of these con-
tracts, violated Section 8 (3) of the Act. Accordingly, we shall dis-
miss the allegation of the complaint that the respondents discrimi-
nated against their employees within the meaning of Section 8 (3) of
the Act. We are, however, of the opinion and we find that, by enter-
ing into the afore-mentioned invalid closed-shop contracts with the
dominated Independent, the respondents have interfered with, re-
strained, and coerced their employees in the exercise of their rights
guaranteed in Section 7 of the Act.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents, Winogene Palmer, Edward
C. Palmer, and William B. Palmer, Jr., as trustees under the will of
William B. Palmer', deceased, doing business as Palmer Fruit Com-
pany, Sioux City, Iowa, their agents, successors, and assigns and, in
the event the estate is closed and the respondents become the absolute
owners of the business conducted as Palmer Fruit Company, then
Winogene Palmer, Edward C. Palmer, and William B. Palmer, Jr.,
individually, and- the heirs, agents, successors, and assigns of each
shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of House
of Palmer's Employees, Inc., No. 1, or with the formation or adminis-
tration of any other labor organization of their employees, and from
contributing financial and other support to the said organization or
any other labor organization of its employees;
(b) Recognizing House of Palmer's Employees, Inc., No. 1, as the
representative of any of their employees for the purpose of dealing
with the respondents concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employ-
ment;
(c) Giving effect to the contract of July 11, 1941, or the renewal
thereof of October 15, 1942, with House of Palmer's Employees, Inc.,
No. 1, or to any modification, extension, supplement, or renewal of
either, or to any superseding contract with it, which may now be in
force;
(d) In any other manner interfering with, restraining, or coercing
`their employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from House of Palmer's Employees,
Inc., No.- 1, as the representative of any of their employees for the pur-
pose of dealing with the respondents concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment, and completely disestablish House of Palmer's
Employees, Inc., No. 1, as such representative;
(b) Post immediately in conspicuous places throughout their ware-
house and office at Sioux City, Iowa, and maintain for a period of at
PALMER FRUIT COMPANY . 927
least sixty (60) consecutive days from the date of posting, notices to
their employees stating: (1) that the respondents will not engage
in the conduct from which they are ordered to cease and desist in par-
agraphs 1 (a), (b), (c), and (d) of this Order; (2) that the respond-
ents will take the affirmative action set forth in paragraph 2 (a) of
this Order; and (3) that the contract of July 11, 1941, or the renewal
thereof of October 15, 1942, with House of Palmer's Employees, Inc.,
No. 1, or any modification, extension, supplement, or renewal of either,
or any superseding contracts are invalid under the National Labor
Relations Act, without prejudice, however, to the assertion by the
employees of any legal rights acquired thereunder;
(c) Notify the, Regional Director for the Eighteenth Region in
writing within ten (10) days from the date of the receipt of this Order
what steps the respondents have taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondents discriminated against their employees within
the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed.
CHAIRMAN MiLLis took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. Clarence A. Meter, for the Board.
STATEMENT OF THE CASE
Upon an amended charge duly filed on May 22, 1943, by General Drivers, Ware-
housemen and Helpers, Local Union No. 383 of International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers, A. F. of L., herein called
the Union, the National Labor Relations Board, herein called the Board, by its
Regional Director for the Eighteenth Region (Minneapolis, Minnesota), issued
its complaint dated May 26, 1943, against Winogene Palmer, Edward C. Palmer
and William B. Palmer, Jr., individually and as trustees under the will of
William B. Palmer, deceased, doing business as Palmer Fruit Company,
herein called the respondents, alleging that the respondents had engaged in and
were engaging in unfair labor practices, within the meaning of Section 8 (1),
(2), and (3) and, Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing
thereon were duly served upon each of the respondents, the Union, and House
of Palmer's Employees, Inc., No I, herein called the Independent.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondents: (1) from about July 1, 1941, among other things, discour-
aged membership in the Union and advised their employees that benefits would
not be received therefrom; (2) about July 1, 1941, instigated, sponsored, inter-
fered with, and dominated the formation of the Independent; (3) thereafter ex-
tended financial and other support to the Independent and dominated and in-
terfered with its administration ; (4) about July 11, 1941, entered into,,and on
October 15, 1942, renewed a written closed-shop contract with the Independent
which was not the representative of their employees within the meaning of the
proviso of Section 8 (3) of the Act and under said contract and renewal thereof
928 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
compelled their employees to join the Independent as a part of a course of action
designed to deprive their employees of rights guaranteed by the Act, said con-
tract and renewal thereof, accordingly being invalid and said action taken there-
under accordingly constituting discrimination in regard to hire and tenure of
employment and terms and conditions of employment; and (5) by the foregoing
activities interfered with, restrained, and coerced their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
None of the respondents filed an answer to the complaint. The Independent
made no motion to intervene.
Pursuant to notice, a hearing was held at Sioux City , Iowa, on June 14 and
15, 1943, before Earl S. Bellman, the Trial Examiner duly designated by the
Chief Trial Examiner. The Board was represented by counsel and participated
in the hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded.' At
the close of the hearing, a motion was granted conforming the complaint to the
proof as to formal matters. Counsel for the Board argued orally before ' the
undersigned, and was afforded, but waived, the opportunity thereafter to file
a brief with the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The respondents, Winogene Palmer, Edward C. Palmer, and William B.
Palmer, Jr., as trustees under the will of William B. Palmer, deceased, are
engaged at Sioux City, Iowa, in a wholesale distributing business under the
name of Palmer Fruit Company' The chief products received by the respond-
ents at their Sioux City warehouse and distributed therefrom largely by truck
to retail merchants in and around Sioux City and in adjacent states in the
Sioux City trade area are fruits, vegetables, margarine, cheese, and grocery
specialties. The value of such products received during the year 1942 was ap-
proximately $595,062.42, of which 99 percent was purchased and transported
to Sioux City from sources outside of the State of Iowa.. The value of the
products sold by the respondents during 1942 was approximately $712,389.25,
of which 40 percent was shipped from Sioux City to points outside of the State
of Iowa.'
II. THE LABOR ORGANIZATIONS INVOLVED
General Drivers, Warehousemen and Helpers, Local Union No. 383 of Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers,
1 William B . Palmer , Jr., the respondent who was in general charge of the business , testi-
fied that he had been served with a copy of the complaint and notice of hearing but did not
care to file an answer or appear by counsel T. R. Hanson , president of the Independ-
ent, testified that the Independent had been served with a cbpy of the complaint and
notice of hearing and had been informed by Board 's counsel of its right to file a motion to
intervene, but that the Independent had no intention to file such a motion.
2 Winogene Palmer is the widow of William B. Palmer, deceased , and the two other
respondents , Edward C. Palmer and William B Palmer, Jr ., are her sons Until be
entered the armed services of the United States about a year ago, Edward C Palmer was
in general charge of the business . William B . Palmer, Jr , has since taken over that
responsibility.
3 The above findings as to products received and distributed are made upon testimony
of William B. Palmer , Jr. He also testified that the "company " would agree that it was
engaged in commerce within the meaning of the Act.
PALMER FRUIT COMPANY 929
affiliated with the American Federation of Labor, and House of Palmer's Em-
ployees, Inc., No. I, unaffiliated, are labor organizations admitting to member-
ship employees of the respondents.
III THE UNFAIR LABOR PRACTICES 4
A. Chronology of Events
The Union was chartered in 1933 and has organized extensively in Sioux
City. It executes industry agreements covering fruit and vegetable wholesalers
in Sioux City and vicinity, 85 percent of such business by volume being thus
covered The first such agreement ran from December 18, 1939, to September
30, 1940 , and established a straight-time rate of 35 cents an hour for city ' drivers
and warehousemen with a guaranteed 45-hour week. The succeeding agree-
ment which ran from November 2, 1940, to September 30, 1941, increased this
scale by 10 cents an hour to 45 cents. At the time this second agreement was
executed , the respondents , whose employees had not been organized by the
Union, increased the rate of pay of their employees from 35 cents to 45 cents
an hour
During June 1941, the Union undertook to organize the respondents' employees.
At that time, A. L. Goebel, the respondents' warehouse manager, informed the
employees of the respondents that there was no need for their joining the Union
and paying dues thereto as the respondents would give them the same wages
and hours as the Union was able to secure for its members.5
About June 20, Business Representative Murphy and the Union's president had
a meeting with Edward C. Palmer and Manager Goebel. The Union's repre-
sentatives informed the respondents that the Union intended to organize their
employees. They also complained that the respondents had given their em-
ployees to understand that they were not to join the Union as gains secured by
the Union in competitive concerns would be met .by the respondents. Palmer
denied that he had told the employees whether they could or could not join a
union.
About 4 o'clock on the afternoon of July 3, Edward Palmer called a meeting
in the warehouse of substantially all of the respondents ' employees , sending
word tp the homes of those who were not then working in order to insure their
attendance. At this meeting, the first such meeting ever held, Palmer discussed
the visit of the Union's representatives and informed the employees that they
would have to do something or they might-be out of a job, pointing out that
as an alternative to joining the Union they could form a union of their own e
About 1 0 o'clock on the morning of July 5, a meeting of all of the respondents'
employees was held in the salesmen 's room on the second floor of the ware,
4 Unless otherwise indicated , the findings in Section III hereof are made upon docu-
mentary evidence and testimony, largely uncontradicted , which is credited.
5 The above findings are made on credited testimony of James J Murphy , a business rep-
resentative of the Union , and Lloyd Bruce, who was then employed at a wholesale fruit
and vegetable concern located across the street from the respondents' warehouse. Bruce
testified that during June and July 1941, he had asked several of the respondents ' drivers
to join the Union and had been informed by them that Manager Goebel had given them the
advice and assurance set out above Murphy testified that employees of organized con-
cerns in Sioux City were discontented at that time because employees of the respondents
had informed then that they had been assured that the respondents would meet any gains
made by the Union without its being necessary to join the Union.
0 The above findings are based upon an analysis of admissions in the testimony of the
Independent's president , T R Hanson , and its secretary-treasurer , Rose Mann:
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
house.' At least 11 of the 20 employees who attended the meeting received their
regular pay during the time that they were at the meeting.8 From the opening
of the meeting , an attorney , A. H. Bolton , was present . Hanson , who was elected
temporary chairman of the meeting, could give no explanation at the hearing
of Bolton's presence at the meeting except that "several of the boys" who were
no longer employed by the respondents might have invited him. After electing
a temporary chairman and secretary, the formation and incorporation of an
independent union was discussed. Bolton told the employees what they could
and could not do and advised them of their legal rights . Motions were unani-
mously carried that Bolton be retained as attorney, to organize, a corporation
composed of the employees of the respondents other than supervisors , and that
a committee of five named employees be appointed to advise with him in drafting
articles of incorporation.
On July 8 at 7 p. m., another meeting was held at the warehouse. Articles of
incorporation were read and adopted and officers for the ensuing year elected.
Hanson was elected president and three vice presidents were elected. Rose
Mann was elected secretary-treasurer. A committee of three was authorized
to confer with Attorney Bolton in drawing up bylaws for the Independent and
in drafting a contract. The following morning, July 9, the articles of incorpora-
tion wre recorded, having been signed by all 20 employees of the respondent who
were eligible for membership in the Independent.
On July 10, the Union started picketing the respondents. That same day,
two meetings, attended by all of the incorporators, were held by the Independent
at the warehouse, the first at 5 p. in. and the second at 7 p. in. At those meet-
ings, bylaws which had been drafted by Bolton were read by him and adopted.
Among other things, the bylaws provided that any officer be considered auto-
niatically removed from office upon his severing his connection with the re-
spondents. Provisions were also included in the bylaws for an executive board,
departmental representatives , and a grievance committee, none of which pro-
visions have ever been put into effect.
Also at the July 10 meetings, a proposed contract, which Bolton had drafted,
was read and adopted and the Independent's president and secretary were
instructed to sign it and present it to the respondents. It was so signed and
presented by Mann to Edward C Palmer on July 10. There was no discussion
of the provisions of the contract at the time it was presented ; no question was
raised as to the Independent's representative status; and no previous negotia-
tions had taken place. However, on the following day, the contract, executed
as of July 11, 1941, was returned to the Independent without any modification.
Among the provisions of the contract were the following : that the employees
were "perfectly satisfied" with the then existing hours, pay, and working con-
ditions,9 and the agreement was being entered into to assure "a continuance
of the present individual contractural relationship" through collective bar-
7 The meeting place, which was also used 'for subsequent meetings discussed herein, is
not in dispute . However, Hanson testified that the meeting was held about 10 o'clock
Sunday morning, which would have been on July 6, a day upon which employees were not
working Yet the minutes of the meeting, which do not fix the time of day, show that
the meeting was held on July 5 The undersigned bases the date of the meeting upon the
minutes and the time of day upon Hanson's testimony.
8 This finding is made upon testimony of C. A. Pelton, the respondents ' head bookkeeper,
who testified from time cards which were used in calculating employees' pay. Those, time
cards showed that 11 employees, who checked in on the morning of July 5 at approximately
7 to 7 • 30, did not check out until 12 o'clock noon or thereafter
9 Hanson testified that at the time the Independent was formed the employees had no
grievances nor were they seeking an increase in pay.
PALMER FRUIT COMPANY 931
gaining; that for one year, subject to adjustment "depending upon those varia-
tions . . . by other like businesses in the Sioux City trade territory," the exist-
ing rate,of pay would continue; that the Independent was recognized for pne
year as the bargaining agency during which year only members of the Inde-
pendent would be employed or retained on the pay roll; that said closed-shop
provision was desired by the employees because all of them had worked for the
respondents for many years 10 and "did not desire any outside influences to
interfere with the friendly relationship which has heretofore existed between
the employer and employees," and did not want to be subjected to lay-offs and
strikes nor to "the interference necessarily arising from attempts to incorporate
the employees of this employer in a national labor organization."
After the Independent had formed, incorporated, elected officers, adopted
bylaws, and secured a contract, all within the period from July 5 to July 11,
1941, it did not meet again until September 12, 1941. In the meantime, during
the latter part of July, the respondents had secured a temporary injunction,
restraining the Union from picketing and other activities. Like its meetings
-in early July, the Independent's meeting of September 12 was held in the
salesmen's room in the warehouse. Subsequently, during the rest of 1941
and the year 1942, the Independent held 10 additional meetings, all in the
same room in the warehouse. The last of these meetings was held on De-
cember 6, 1942, the meetings thereafter being held off the respondents' property
upon advice given by a Field Examiner of the Board. While the respondents
knew of the 15 meetings which the Independent held on its property during
approximately a year and a half, no rent was ever paid by the Independent
for the use of its meeting place nor did the respondents ever request payment
therefor. In addition, the records of the Independent have been kept for
substantial periods of time in the safe in the respondents' office where
Secretary-Treasurer Mann, the respondents' cashier, works. Mann also has
used a typewriter of the respondents to type up the Independent's recoras.
Further, the four regular employees on the night shift, one of whom is Presi-
dent Hanson, each attended seven meetings of the Independent held from July
8, 1941, through March 3, 1942, for which no deductions were made from their
paw rr
During its almost 2 years of existence, the Independent has collected through
its initiation fee of $3 and its monthly dues of 50 cents, a total of $225.25,
of which it now has a balance of $43.95. Of the Independent's various ex-
penditures totalling $181.30, all have been contributions to the Red Cross and
the Community Fund except for a payment of $3160 made to Attorney Bolton
on October 8, 1941, for his services in organizing the Independent. The In-
dependent's records reveal no expenditure to date for any item such as sup-
plies, meeting place, or other general running expenses.
The minutes of the meeting of October 3, 1942, show that a motion was
passed providing that the one year contract of July 11, 1941, "is and remains
a contract of indefinite force until such a time as we see fit to draw a new
contract." Shortly thereafter, Hanson had Mann retype copies of the expired
contract about which nothing had been done through negligence for almost
3 months. Hanson and Mann signed the copies of the contract which were
10 The officers of the Independent had been employed by the respondents for periods
ranging from about 5 to 25 years
v This finding is made upon the minutes of those seven meetings setting out the dates
and times thereof and the names of those attending and the time cards of those four em-
ployees showing each as working during the peiiods of the seven respective meetings. Han-
son's testimony that those employees checked out for these meetings is not credited.
540612-44-vol. 51--60
932 DECISIONS OF NATIONAL LABOR RiELATIONS BOARD
then presented to William B. Palmer who signed them forthwith, without any
discussion of terms or question as to the Independent's continuing representa.
tive status. Thus this renewed one year contract, executed, as of October 15,
1942, ,was identical in its provisions with the July 11, 1941, contract and, like
it, made no provision for any changes in wages or conditions of employment.
Since the Independent's organization, two wage increases have been given
to the respondents' employees. These have followed similar gains secured in
like establishments by the Union. In 1941, the Union signed its third industry
agreement succeeding its second such agreement discussed above. This third
agreement ran from October 1, 1941, to June 6, 1942, and provided for an
increase in wages from 45 cents to 51 cents an hour, an increase of 6 cents
an hour. At a meeting on October 26, 1941, the Independent passed a motion
to "ask for a six cent (60) an hour raise." President Hanson informed
Manager Goebel of this action and, without any negotiations, the raise was
thereafter reflected in the pay checks. The Union's fourth industry agree-
ment, signed for the period of June 6, 1942, to June 6, 1943, increased the wage
rate from 51 to 58 cents an hour, an increase of 7 cents an hour. At a meet-
ing on July 12, 1942, the Independent passed a motion for an increase in
wages of 7 cents an hour. Again, Hanson informed Goebel of that action and
the increase was thereafter reflected in the pay checks without any further
negotiations."
At a meeting of the Independent on September 20, 1942, both President Hanson
and Secretary-Treasurer Mann were re-elected ; they have since continued to
fill their respective offices. Both Hanson and Mann have positions with the
respondents which relate them more closely to management than is true of
ordinary, employees. Hanson, an employee with 9 years of service, is and has
been for 6 years the night shipping clerk, in general charge of the night crew
of some five men Hanson exercises some supervisory authority and after 11
p. in. is in complete charge until the shift ends, some time between 1 and
4 a. in. Hanson receives 5 cents an hour more than the other employees on the
night crew. Rose Mann, an employee with 25 years service, is and has been
for 22 years the respondents' cashier. She works in the general office, checks
all invoices, figures the inventory, is in charge of the cash, checks freight, and
pays all bills other than the pay roll. Thus the operations of the Independent
since its inception have been largely in the hands of two officers whose duties
ally them closely to the respondents.
Other than the various activities set out above, and repeated action taken
to assure that permanent employees of the respondents eligible for membership
therein became and remained members of the Independent in good standing,
the Independent has transacted substantially no business during its almost 2 years
of existence. The minutes do not show a single grievance taken up at any meet-
ing and President Hanson testified that he could not remember any specific
grievance which he had handled and that there was no grievance committee.
However, the minutes show that the Independent has continued to hold meet-
ings almost every month, the last meeting being held June 4, 1943. The minutes
of that meeting show that after the minutes of the proceeding meeting had
been read and approved, a motion was made to adjourn, there being no new
business."
12 It should be noted that both the original contract and the renewal thereof provided
for such adjustments depending upon variations in like businesses
13 It is thus evident that the respondents made good the promises given to their em-
ployees through Manager Goebel in the summer of 1941, as set out above, that gains secured
by the Union for its members would be met by the respondents.
PALMER FRUIT COMPANY 933
Early in 1942, the respondents took action to get their temporay injunction
of June 1941 made permanent. During a 3 day 'trial of that matter, about
the middle of February 1942, Attorney A. H. Bolton was present and represented
the Independent as an intervenor therein. Bolton, who had had no contact
with the Independent after he had received payment in October 1941 for his
services in organizing the Independent, took the initiative in persuading the
Independent to intervene in that proceeding against the Union brought by the
respondents. Bolton got in touch with Hanson who took the matter up informally
with a few members of the Independent and thereafter authorized the interven-
tion. While Bolton spent some 3 days in court on this matter, he has never
rendered a bill for nor has the Independent paid him for the legal services
involved.
B. Conclusions as to the unfair labor practices
1. Interference, restraint, and coercion
From the statements to the respondents' employees of Manager A. L. Goebel
during the Union's organizational campaign in the summer of 1941, the meeting
of the respondents' employees called and conducted at the warehouse by Edward
C. Palmer on July 3, 1941, and the provisions of the contract 14 entered into
on July 1, 1941, and the renewal thereof on October 15, 1942, It is evident and
the undersigned finds that the respondents from about July 1, 1941, have dis-
couraged membership in the Union and advised their employees that benefits
would not be received therefrom, and have thereby in'terferred with, restrained,
and coerced their employees in the exercise of the rights guaranteed in Section
7 of the Act.
2. The formation and administration of the Independent
From the total pattern of the facts set out in Section III-A above, the under-
signed is convinced and finds that the Independent is neither the creation nor
the agent of the freely expressed will of the respondent's employees. From this
pattern of facts and the record as a whole, the undersigned infers and finds that
the respondents, about July 1, 1941, instigated, sponsored, interfered with, and
dominated the formation of the Independent, thereafter extended financial and
other support to it, and dominated and interfered with its administration, and
thereby interfered with, restrained, and coerced their employees in the exercise
of the rights guaranteed in Section 7 of the Act.
3 Discrimination in regard to hire and tenure, and terms and condition of
employment
Upon all of the evidence, the undersigned finds that the closed-shop contract
of July 11, 1941, and the renewal thereof on October 15, 1942, were entered into
a labor organization established, maintained, and assisted by the respondents
as a part of the respondent's course of action designed to deprive their employees
of their right to self-organization guaranteed by the Act. Accordingly that con-
tract and the renewal thereof do not come within the protection of the proviso
of Section 8 (3) of the Act and are therefore invalid. Hence, by/ enforcing the
closed-shop provision of that contract and its renewal, the respondents have
discriminated in regard to hire and tenure of employment and terms and con-
" The particular provisions are those whereby the respondents contracted in effect to
give their employees adjustments equal to any gains made by the Union in similar estab-
lishments and declared that "interference" by "a national labor organization " was not
desired.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ditions of employment ; have discouraged membership in the Union and en-
couraged membership in the Independent ; and have thereby interfered with,
restrained , and coerced their employees in the exercise of the rights guaranteed
in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III above , occurring in
connection with the operations of the respondents 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
Having found that the respondents have engaged in unfair labor practices, the
undersigned will recommend that they cease and desist therefrom , and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondents instigated , sponsored , interfered with,
and dominated the formation of the Independent , extended financial and other
support thereto , dominated and interfered with the administration thereof, and
entered into an invalid contract with the Independent on July 11 , 1941, and a
renewal thereof on October 15, 1942. Accordingly, the continued recognition of
the Independent as a collective bargaining representative of the respondents'
employees constitutes a continuing = obstruction to they free, exercise by their em-
ployees of their right to self -organization and to bargain collectively through
representatives of their own choosing . The undersigned will therefore recom-
mend that the respondents withdraw-all recognition from the Independent as
the representative of any of the respondents ' employees for the purpose of deal-
ing with them concerning grievances , labor disputes , wages, rates of pay, hours
of employment , or any other conditions of employment , and completely dis-
establish said Independent.
Under the facts found , the contract and renewal thereof with the Independent
constitute and are parts of the respondents" unfair labor practices . Accordingly
the undersigned will recommend that the respondents cease and desist from giv-
ing effect to the contract of July 11, 1941, or the renewal thereof of October 15,
1942 , as well as any extension , renewal, modification . or supplement of either,
and any superseding contract which may now be in force . Nothing herein shall
be taken to require the respondents to vary those wages, hours, seniority, and
other such substantive features of their , relations with the employees themselves
which the respondents have established in the performance of the contract or
its renewal as either has been extended , renewed , modified , supplemented or
superseded.
Having found that the respondents , by their closed-shop contract of July 11,
1941, and the renewal thereof of October 15, 1942, have discriminated in regard
to hire and tenure of employment and terms and conditions of employment, the
undersigned will recommend that the respondents cease and desist from such
discrimination.
Upon the foregoing findings of fact, and upon the entire record in the case, the
undersigned makes the following :
CONCLUSIONS OF LAW
1. General Drivers, Warehousemen and Helpers , Local Union No. 383 of Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers,
PALMER FRUIT COMPANY 935
affiliated with the American Federation of Labor , and House of Palmer's Em-
ployees, Inc., No. I, are labor organizations with the meaning of Section 2 (5)
of the Act.
2. By dominating and' interfering with % the-formation and administration of
House of Palmer 's Employees, Inc., No. I, and by contributing financial and other
support thereto , the respondents have engaged in and are engaging in unfair
labor practices , within the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employment and terms
and conditions of employment, and thereby discouraging membership in General
Drivers, Warehousemen and Helpers, Local Union No. 383 of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated
with the American Federation of Labor, and encouraging membership in House
of Palmer 's Employees,- Inc., No. I, the respondents have engaged in and are
engaging in unfair labor practices , within the meaning of Section 8 (3) of the
Act.
4. By interfering with , restraining , and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondents have en-
gaged in and are engaging in unfair labor practices , within the meaning of Section
8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce , within ,the meaning of Section 2 (6) and ( 7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondents, Winogene Palmer, Edward C. Palmer
and William B. Palmer, Jr., as trustees under the will of William B Palmer, de-
ceased, doing business as Palmer Fruit Company and their agents, successors, and
in the event the estate is closed and the respondents become the absolute owners
of the business being conducted as Palmer Fruit Company, then Winogene Palmer,
Edward C. Palmer and William B. Palmer, Jr., individually, and the heirs, agents,
successors, and assigns of each, shall :
1. Cease-and desist from:
(a) Dominating or interfering with the administration of House of Palmer's
Employees, Inc., No. I, or with the formation or administration of any other
labor organizations, and contributing financial and other support to said labor
organization, or .to,any.other ,labor organizations ;
(b) Recognizing' House of Palmer's Employees, Inc., No. I, as the representa-
tive of any of their employees for the purpose of dealing with the respondents
concerning grievances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment;
(c) Giving effect to its contract of July 11, 1941, or the renewal thereof of
October 15, 1942, with House of Palmer's Employees, Inc., No. I, or any modifi-
cation, extension, supplement, or renewal of either, or any superseding contract
with it ;
(d) Discouraging membership in General Drivers, Warehousemen and Helpers,
Local Union No. 383 of International Brotherhood, of Teamsters, Chauffeurs,
Warehousemen and Helpers, affiliated with the American Federation of Labor,
or any other labor organization of their employees, or encouraging membership
in House of Palmer's Employees, Inc., No. I, or any other labor organization of
their employees, by discriminating in regard to the hire and tenure of their em-
ployment, or any term or condition of their employment ;
(e) In any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of their right to self-organization, to form, join, or assist
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organizations , to bargain collectively through representatives of their own
choosing and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will ef-
fectuate the policies of the Act.
(a) Withdraw all recognition from and completely disestablish House of
Palmer's Employees , Inc, No. I, as the representative of any of their employees
for the purpose of dealing with the respondents concerning grievances, labor
disputes , wages, rates of pay, hours of employment , or other conditions of
employment ;
(b) Post immediately in conspicuous places throughout their warehouse and
office at Sioux City , Iowa, and maintain for a period of at least sixty ( 60) con-
secutive days from the date of posting, notices to their employees stating that:
(1) the respondents will not engage in the conduct from which it has been recom-
mended that they cease and desist in paragraphs 1 (a),* (b), (c ), ( d), and (e)
of these recommendations ; (2) that the respondents will take the affirmative
action set forth in paragraphs 2 (a) of these recommendations ; and (3) that
the respondents' employees are free to become or remain members of General
Drivers, Warehousemen and Helpers , Local Union No. 383 of International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers , affiliated
with the American Federation of Labor, and that the respondents will not dis-
criminate against any employee because of membership or activity in that or-
ganization ;
(c) Notify the Regional Director for the Eighteenth Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps the respondents have taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the date
of the receipt of this Intermediate Report, the respondents notify said Regional
Director in writing that they will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondents to
take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended , effective October 28,
1942-any party may within fifteen ( 15) days from the date of the entry of the
order transferring the case to the Board , pursuant to Section 32 of Article II
of said Rules and Regulations , file with the Board, Rochambeau Building, Wash-
ington , D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding ( including rulings upon all motions or objections ) as he relies
upon, together with the original and four copies of a brief in support thereof.
As further provided in said Section 33, should any party desire permission ro
argue orally before the Board, request therefor must be made in writing to the
Board within ten (10) days from the date of the order transferring the case to
the Board.
EARL S BELLMAN,
Trial Examiner.
Dated Jur e 30, 1943.